Why can't same sex couples be given rights equal to marriage but without being married? Or, asked another way, why can't a separate civil relationship be created that is recognized by the law but not called a marriage?  These questions are often posed by critics of same sex marriage.  The answers to these questions go to the very heart of the debate and the unequal treatment of members of the LGBT community by society at large.

There have been different conclusions reached on the rights incident to marriage.   Various cases in a number of states list a multitude of rights and benefits (in New York the court referenced 316 rights; some studies show a total of 1,100 rights married couples enjoy) that couples receive merely by obtaining a marriage license.  There is no other legal means, whether through contracts, wills, or alternative legal agreements, to create even a fraction of these rights that vest upon heterosexual couples who simply fill out a form, pay a fee and partake in a five minute ceremony which leads to a valid marriage. 

The civil union or domestic partnership agreement has been proposed numerous times as an alternative that would not be called a marriage but would carry all of the rights of marriage.  These alternatives are proposed, frequently, in the guise of preserving the sacred concept or sanctity of heterosexual marriage.  There are two principle problems with the civil union alternative.  To allow a separate legal relationship which is equal to marriage is reminiscent of Jim Crow laws of the late 19th century.  These laws, which lasted well into the 1960s (until passage of the Civil Rights Act of 1964 and beyond) allowed the creation of separate schools, theaters, bathrooms, water fountains and all other public facilities for African-Americans and whites provided the quality of the facilities was equal.  Forgoing the argument that these separate facilities were never equal, the very concept of providing for this separation was discriminatory in itself.  The lone dissent to Plessy v. Ferguson (the case that held separate but equal railroad cars for the races was constitutional) eloquently identifies the inherent prejudice behind separate but equal.  To quote the brave words of Associate Justice John Marshall Harlan:

In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

Re-read the words of Justice Harlan's famous dissent replacing "color" and "race" with "sexual preference" to truly appreciate how the civil rights infringements of the last century are alive and well today with members of the LGBT community as the oppressed:

In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his [sexual preference] when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of [sexual preference].

To further quote Justice Harlan, when a government tolerates (or even enacts) discriminatory laws, it "permits the seeds of hate to be planted under the sanction of law."

Perhaps the justification for allowing states to disregard same sex marriage is not founded on the same discrimination against African-Americans but on a desire to preserve the historic concept of marriage as a relationship between a man and a woman.  To answer this argument, we must look to the foundation for that belief.  Heterosexual marriage was recognized as a religious sacrament and ceremony long before the existence of legal institutions.  Thus, we must separate civil marriage, created so that marriages are recognized by the laws of the state, from religious marriage, whereby marriages are recognized by God.  There is no justification, therefore, beyond religion, to state that citizens cannot have a monogamous relationship given the protection of the law.  Since church and state must forever be separate, pursuant to the first amendment, religious marriage is left to the myriad churches in our democracy where no one religion is established.  Thus, the moral underpinning of denying civil marriage (as opposed to religious marriage) to same sex couples is erased and denial of legal or civil marriage to Americans is unconstitutional.