The outsized victory of California's antigay marriage initiative, Proposition 22, again raises the question of whether the demand for same-sex civil marriage is going anywhere, or at least anywhere anytime soon. After all, the California vote wasn't remotely close - 61 percent supported the proposition that only marriages between one man and one woman will be valid or legally recognized by the state.
Moreover, California isn't an anomaly. In the words of a Janet Parshall, a spokeswoman for the antigay Family Research Council, "If the liberal states of Hawaii, Alaska, and now California can do it, then the 19 other states without 'statutory protection for marriage' can and must do it."
By "statutory protection for marriage," of course, she means states that would legally bar recognition of same-sex marriages should such unions ever become legal in any other state (no state currently grants legitimacy to same-sex marriages, and the national Defense of Marriage Act, passed with overwhelming bipartisan support and signed by Bill Clinton, bars the federal government from recognizing such unions).
Sadly, the homophobes may have a point - but, conversely, only up to a point. True, voters in both Hawaii and Alaska recently approved measures to oppose legal recognition of same-sex marriages. In Hawaii, gay activists had thought court-ordered recognition of gay matrimony was a good bet to make the aloha state the first to grant marriage licenses to same-sex couples, but voters short-circuited our hopes by passing a constitutional amendment against gay marriage by a vote of 60 to 29 percent. In Alaska, it was 68 to 32 percent against.
And national Gallup poll finds 62 percent against and 34 percent for same-sex marriage (results that virtually mirrored the California and Hawaii election result).
But then, on March 16, history was made in Vermont, where the state's House voted by 76-69 to adopt a bill allowing same-sex couples to form "civil unions."
According to the Associated Press story, "the bill provides for unions that amount to marriage in everything but name. Partners could apply for a license from town clerks and have their civil union 'certified' by a justice of the peace, a judge or member of the clergy." Moreover, same-sex couples would be entitled to some 300 state benefits and privileges available to married couples in such areas as inheritance, property transfers, medical decisions, insurance and taxes.
The constraints of marriage are also paralleled in civil unions. Partners who want to go their separate ways would have to go through "dissolution" proceedings in Family Court, just as married couples have to pursue a divorce. And partners would assume each other's debts - again, just like married couples.
The biggest difference between actual civil marriage and same-sex civil unions is that the federal government (and probably other states) wouldn't recognize the latter. So when it comes to immigration rights, Social Security, and joint returns to the IRS, same-sex partners would remain single in Washington's eyes.
Given the votes against gay marriage in California, Hawaii, and elsewhere, as well as the historic step forward for civil unions in Vermont, where do we go from here?
Let's keep in mind that even in Vermont, where the states highest court had ruled that gay couples could not be denied "the benefits" afforded to married couples, polls show overwhelming opposition to full same-sex marriage, which is why state legislators decided not to grant gays the right to wed. Instead, they drafted a comprehensive "alternative track" package to satisfy the court's decree.
A Strategic Question: What Is to Be Done?
Some activists argue that the well-funded Washington-based lobbies (principally, the Human Rights Campaign) have been too timid in not campaigning outright for actual gay wedlock. Most of the ads opposing the antigay marriage ballot measures have gingerly labeled the initiatives as "divisive" or "unnecessary" since no state currently recognizes gay marriages anyhow. One ad that ran in California told voters, "Most people don't support gay marriage, but we do support keeping government out of people's private lives," meaning you don't have to favor equality for gays to vote against this.
Mike Marshall, campaign manager for the No on 22 campaign, went so far as to say, "This is a campaign to defeat Proposition 22, not a campaign to legalize gay marriage. ... It would be disingenuous to run a pro gay-marriage ad." But while the intent may have been to bring semi-tolerant voters to our side, clearly this has not proved to be a winning strategy.
More militant voices have argued that the message should have been simply and unequivocally pro-gay marriage, putting committed gay and lesbian couples at the forefront. That might not have carried the day, either, but, say the critics, it could hardly have done worse, and in the long run the only hope is to make the case for gay marriage over time, rather than continually dancing around the issue.
Post Prop. 22, some are calling for a more militant fight. Eric Rofes, a longtime gay radical voice, is urging direct action and civil disobedience. "Activists may take their struggle directly to the people," he writes, "building on rich traditions of militant organizing inspired most recently by ACT-UP."
Others, however, see a renewed focus on substantive domestic partnership benefits as the best step toward spousal equality. After the California vote, Brian Perry of Log Cabin Los Angeles remarked, "There are probably more people willing to accept equal treatment under a different name, such as domestic partnerships. So it might be worth it to create a 'separate but equal' recognition of our relationships and just not use the 'm' word."
Such talk is anathema to the hard-core gay marriage advocates, for whom "separate but equal" means "the back of the bus" - an unacceptable denigration of gay people and our relationships. They may have a point, but I've never liked facile similes. The back of the bus was the back of the bus, literally, thanks to Jim Crow laws. Would a distinct category for same-sex unions, even one that conveyed all the statutory benefits of state-sanctioned matrimony, likewise make us second-class citizens unworthy of the "normal" marriage that any miscreant heterosexual is entitled to ("Who wants to marriage a heterosexual moron?")?
What's in a Name?
As much as I side emotionally with the militants, I'm not so sure. In the northern European countries such as Denmark that have comprehensive partnership recognition, reports are that gay partners consider themselves "married," and that others refer to them as married. Traditionalists, including religious conservatives, are somewhat placated by the fact that the partnerships are a parallel institution that reserves "traditional marriage" for opposite sexers. It doesn't seem to be a big deal.
This, in fact, is what the "best solution" in Vermont might turn out to be - should the bill passed by Vermont's House survive in the state Senate. While civil unions for same-sex couples are not marriages, the are undeniably a significant advance over the weak domestic partner registries that exist in some jurisdictions.
So, metaphorically speaking, would strong domestic partnerships along the lines of civil unions still be "the back of the bus," or would it be more appropriate to say "a rose by any name would smell as sweet"? Like many others, I'm looking forward to seeing what happens in Vermont, and judging the results with an open - but optimistic - mind.