First published February 28, 2004, in the Valley News (Vermont/New Hampshire).
The winter of 2004 will enter history as one of the stormiest ever when it comes to gay equality in America. Thousands of gay couples have tied the knot in San Francisco; the California Supreme Court will rule on the legality of these marriages. The Massachusetts Supreme Judicial Court has told the Bay State to issue marriage licenses to gay couples starting in May; the state legislature is trying to head the court off at the pass. In both states, Republican governors are adamantly opposed to gay marriage.
And now President Bush has thrown his support behind the Federal Marriage Amendment, which would invalidate the marriage licenses of gay couples and dictate to all 50 states that gay couples can never, ever be legally married in America.
We are reaching a showdown in our culture war about where gay men and lesbians fit in American life. Many citizens believe that gays are morally degenerate and that any recognition of the "homosexual lifestyle," especially by governments, all but guarantees the collapse of Western society. Others believe that in a nation founded on the principle of liberty and justice for all, gay Americans are entitled to the same rights as every other American. And one of those basic rights is the right to fall in love, to set up house, and to grow old with the person you love.
So let us review some of the facts about marriage in these United States.
First, unless you have seen the marriage licenses of couples, you cannot know for certain whether they are legally married. Ironically, one of the few times you need to produce evidence that you are legally married comes when a marriage ends, either through death or divorce. Most of us assume that the people who tell us they are married are telling us the truth. (Given what we know of the trustworthiness of some of these people, perhaps we should question whether they are legally married.)
Second, marriage is less an order from the state than a state of order. We all know legally married people whose marriages are a sham. We all know unmarried people who live together whose lives embody the true meaning of marriage. This, in fact, has been the big news coming out of San Francisco. When a lesbian couple clocks 51 years together and cannot get legally married, then our definitions of marriage need to be adjusted.
Third, if people say you are married, then you are. And this is the other change the gay marriage avalanche has unleashed. Bush expresses concerns about courts redefining marriage. But everyday Americans, gay and straight, have been redefining marriage for years, and no constitutional amendment can stop them. When our friends refer to us as married, I don't say, "Excuse me, but we're only united in a civil union." The fact is: we are married. The state may not call our relationship a marriage, but that's what it is.
Lastly, civil marriage has a unique place in federal law, with over 1,000 benefits assigned to it. Only the federal government can bestow these entitlements, and at the present time, these entitlements are only bestowed upon legally married Americans.
So what can be done in our culture war over gay marriage? Here's what I suggest: Put a federal civil union bill on the table. Call it the Vermont Compromise.
Imagine a scenario where Congress passes a law that extends federal benefits to couples that are joined in a civil union. This would respond to those who argue that the only way to obtain federal benefits is through legal marriage and assuages those who want to leave the definition of marriage untouched. The Vermont Compromise also would hand the issue back to state legislatures, which could decide on their own whether to pass state civil union legislation without worry of interference from Washington or other states.
Granted, some conservatives grouse that civil unions are marriage in everything but name, and some liberals complain that unless unions are called marriages, they lack the social prestige that marriage has. But lawmakers should be wrestling with weightier issues than the "threat" of redefining the word "marriage." A drawn-out culture war on this issue is not in anyone's best interest.
When Congress starts to consider the FMA, here's hoping a courageous lawmaker will introduce a federal civil union bill. Let's debate whether gay couples merit equality under the law, not whether straight couples can keep the word "marriage" to themselves. Let's discuss the special rights that empty-nest and childless straight couples currently enjoy and seriously examine what happens if we extend these rights to gay couples with children.
And one more suggestion: To avoid charges of separate but unequal, make civil unions open to straight couples. If conservatives are serious about protecting the sanctity of marriage, they should start by separating what the state does from what religious institutions do, which is to protect sacred things.
Our civil war over gay marriage has already left many emotionally wounded. A battle over the FMA will only multiply the number of casualties. The Vermont Compromise wouldn't satisfy everyone. But it likely would unite us more than divide us.