Originally appeared Oct. 9, 2001, in the Manchester (N.H.) Union Leader.
IN CASE YOU'VE FORGOTTEN, a group called the Alliance for Marriage has proposed an amendment to the federal constitution. "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." Their spokespeople freely admit they want to make same-sex marriage illegal in America.
According to its Web site, the Alliance hopes "to strengthen the institution of marriage and restore a culture of married fatherhood in American society." But outlawing same-sex marriage will not strengthen and restore marriage, nor will it erase the legal challenges gay couples face. In fact, social and religious conservatives have yet to make a persuasive case why gay couples should be denied the legal incidents that marriage provides. Marriage laws allow couples to protect their property, their representation of each other, and their dependents. And recent events show how gay couples suffer in these areas.
Property. In San Francisco, a dog mauled a woman to death. Under current law, her female partner cannot sue the dog's owners for wrongful death. Not only is she emotionally upended by this tragedy; she risks foreclosure and bankruptcy because she cannot recover the lost wages that her partner earned and that they shared. In Tampa, a policewoman is killed in the line of duty. Her partner will not receive the policewoman's pension, because such pensions go only to married surviving partners, and since the two were women, they could not marry. Throughout the nation, surviving gay partners have lost homes through estate taxes and relatives of the deceased who have the legal right to move in (figuratively and literally). And forget about transferring retirement benefits. Current law poorly protects gay couples and their property.
Representation. Near Spokane, a 35-year-old man lay comatose. His 32-year-old partner can visit him only because the man's family permits him. The hospital spokesman: "If we have a conflicting interest in patients who can't speak for themselves, we look for legal documents. We follow the state statute." And state statutes do not readily recognize the commitments these men made to each other. Most thirtysomethings know whom they want to speak for them if they are unable to speak for themselves. Many get married in anticipation of this kind of crisis. But current laws hamstring gay couples in choosing who speaks for whom -- and in making these choices stick.
Dependents. Like it or not, some gay couples have children: from previous marriages; by artificial insemination; through adoption. Gay parents, like their straight counterparts, have proven themselves fit as parents. But existing laws make it difficult -- and, in some states, impossible -- for both partners to be legal guardians of children they parent together. Not allowing gay parents to legalize their relationship jeopardizes the children when something happens to one of the parents. And the recent federal decision upholding the Florida law banning gays (couples and singles) from adopting while allowing single heterosexuals to adopt shows how laws that punish gays end up hurting children.
These are everyday examples; stories from Sept. 11 abound. Gay couples need property, representation, and dependent protections. No wonder same-sex marriage looms on the horizon.
Conservatives intent on protecting the institution of marriage ought to rethink their strategy. Rather than keeping marriage away from gay couples, the federal government should get out of the marriage business. And this is easy to do.
Enact a federal civil union law. Change the laws with property, representation, and dependent protections from "marriage" to "civil union." Eliminate penalties that keep blended families and elderly couples from getting hitched. Make civil unions available to gays and straights alike. And give marriage back to houses of worship. You want legal protections? Get a civil union. You want marriage? Go to your faith community.
This approach upholds "the sanctity of marriage." Churches, for example, determine the distribution of their holy sacraments; who wants a government official dictating who can receive communion or get baptized? But governments have a compelling interest in granting property, representation, and dependent protections to citizens who want and need them. Through court order and legislative action, governments are extending these protections to gay couples. Conservatives here can grant these protections to all couples and turn the sacrament of marriage over to professionals who regularly handle holy things.
But time is running out to make this cultural shift. When same-sex marriage comes to America, it will not be because gay activists prevailed. It will be because social and religious conservatives refused to offer all Americans a legal alternative to marriage.