When women were chattel, the state's paternalism in protecting women from abandonment and divorce made sense. Until only about 120 years ago, women in the US could not even own property. The state's continued involvement in marriage and divorce, however, only deters an adult couple from making its own contractual and property arrangements. If couples were forced to address economic medical, inheritance and relationship issues prior to marriage, they might marry more carefully and responsibly. Nothing is more paternalistic (even socialistic) than the government's attempt to dictate relationships for all couples on the basis of a single status.
Historically the churches have had control over marriage and divorce -- and still do under Sharia law. Let's give that responsibility back to the churches and get religion out of state decision-making, nor would legal rights depend on the existence or non-existence of marriage. More of what that might mean below....
The state's focus on marriage to protect a class of persons who need no such protection distracts from its need to protect a truly needy class of persons: CHILDREN! Rather than waste its resources on supervising the dissolution of marriages of persons with no assets or resolving disputes between couples with substantial means who want to punish one another, the state should focus on protecting children. The state's concern for children would not be limited to that time when a marriage fails, but would be continual allowing one parent to pursue on a child's behalf a parent who has economically or emotionally abandoned a child. Rather than seeking to divide a couple's assets, the courts could ensure those assets were employed for the benefit of that couple's children.
When the state is in the business of issuing a parenting license rather than a marriage license, it can put its focus on the readiness of a person to be a parent. Of course, people could have children without a license, but doing so could involve the state in ensuring that those parents live up to their responsibilities. We already have such protections when a person adopts.
The idea is not to impose criminal penalties for parenting without a license, but to protect a child when the child's parents have already demonstrated irresponsibility. Liberals and conservatives should be able to agree that a couple having sex should consider the possibility of pregnancy so that either the couple uses contraception or are willing to accept its responsibility.
Most importantly for me is that such a system would let both my children be right -- at least as far as the state is concerned. I have a child who is gay and a child who is in seminary to be a Roman Catholic priest, both of whom I admire and love deeply.
The federal courts cannot interpret the constitution as preventing a state from defining marriage according to its historical definition as a union of a man and a woman. The best we can hope for is the federal courts to hold that marriage has always been determined by the states. The result would be a patchwork of laws in the different states and endless litigation over whether one state or another or the federal government must give recognition to a state's definition of marriage. Please make it go away! Return marriage and divorce to the churches and let us use our public time and money to improve the lives of our children.
The right of procreation, however, is a right the federal courts will protect. As a fundamental right, any federal or state interference in the right of a person to have a child would have to survive "strict scrutiny." No BS bigoted, prejudicial, religious based reason (no matter how sincerely held) will ever meet this standard. A gay person will have the right to bear or adopt a child. If a child can have two parents, the constitution will protect the right of those parents to be of either or the same sex.
Although the straw man offered by opponents of gay marriage is that giving homosexuals the right to marry means reinstating polygamy or cross-species marriage, taking the definition of marriage away from the state burns all those straw men. If more than two people want to adopt a child, what state would stand in the way of multiple people making an economic and emotional commitment to the child. Although the constitution will protect the natural parents' control over a child's person until parental rights are severed, how great would it be for a step-parent to be able to make that kind of commitment to a step-child without having to sever those rights.
All of us know that the debate about gay marriage, of course, is really about gay sex. We know that the religious right believes that gay sex is immoral, but they are frustrated that our constitution protects the right of consenting adults to personal privacy, preventing the state from criminalizing the behavior they consider immoral. Gay people, on the other hand, are not satisfied with the right to intimacy. They want the state's recognition that their same sex relationships are equal to those between a man and a woman. This is a zero sum game: one side loses the other wins. Only by returning decisions regarding marriage and divorce to the church or individual conscience can both sides win.
UPDATED DISCUSSION-
My goal was to shift the focus from the importance of the couple to the importance of their children. This was in part to tweak the religious right on their insistence that the institution of marriage is principally a vehicle for having children. I guess they want to go back to the middle ages when the failure to produce an heir was justification for a divorce.
As others suggest, a first step could be using the concept of civil unions for all couples and relegating the word marriage to the churches. A civil union could include selecting from a menu of relationship and economic choices. However, I would still like to see the implementation of a parenting license in addition to the civil union.
To respond to two practical questions raised in the comments. First, one commentator noted:
Marriage is a legal status, "a personal relation arising from a civil contract". How on Earth do you "get the state" out of the business of legal statuses?
I believe this is backward. Marriage is a civil contract arising from a personal relation. Yes the state has to be involved in enforcing contracts; it does not have to be involved in providing a legal relationship to generate a civil contract.
Second, the millions of existing married couples would choose whether to accept the terms of the existing civil contract between them or rewriting that contract. Divorce courts would have to continue for those who wanted to leave to a divorce court the division of their assets.