IGF CultureWatch

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.

First published on February 25, 2004, in the Chicago Free Press.

When some opponents of gay marriage try to argue for their view, after they ritually condemn homosexuality they will claim that gay marriage "damages society" and "undermines marriage" in some unspecified way and end by postulating deplorable consequences of gay marriage: "If we allow gay marriage, then people will want to practice polygamy and marry their pets."

Well, when our opponents are reduced to arguing that gay marriage is bad because it might lead to something else, we have won the argument. When they have to change the subject, it means they do not have any good arguments against gay marriage itself.

You would think if the religious right were really so worried about polygamy - and whatever they privately think they do argue that way - they would use their energy to a) explain clearly how gay marriage could plausibly lead to polygamy and b) explain clearly why polygamy is bad. Yet they make little effort to do either.

Perhaps that is because nothing in the principles supporting gay marriage provides any support for the legalization of any other type of relationship, much less polygamy And the legalization of polygamy seems very unlikely anyway in modern societies like the U.S.

Over the centuries, heterosexual marriage shifted from being a merger contract between families or an economic and sexual arrangement to assure creation of legal heirs and caretakers for one's old age, and came to be understood primarily as a companionate relationship of mutual caring between two people who love each other.

But once the affectional bond became the central element of marriage, the rationale for limiting it to pairs who would procreate lost its force. Gays want nothing more than to participate in "traditional marriage" thus understood - marriage for the benefit of the marrying partners: meshing a person's life with someone they love.

Gays are not arguing that people should be able to have whatever marital arrangement they want. They argue only that everyone should have access to marriage as it is now commonly understood. Nor are gays arguing for any legal rights other people do not have. They argue that they are uniquely denied a right everyone else already has - the right to marry someone they love.

By contrast, an advocate of legal polygamy cannot argue that he (or she) is seeking anything akin to traditional marriage - unless the Old Testament is considered "traditional." Nor can he argue he is being denied a right that everyone else has. He would have to argue that he desires and deserves a new right that no one currently has. Perhaps that argument could be made but it has not been so far.

Now, if gay marriage opponents wish to argue that it could lead to polygamy, they also have to explain why polygamy is undesirable. After all, polygamy survived for centuries in many parts of the world and lingers in most Muslim countries today. In fact, the religious right has the causal relationship backward. Gay marriage does not lead to polygamy. Polygamy, however indirectly, led to gay marriage.

In any case, while there are some interesting arguments against legal polygamy, none of which would be weakened by gay marriage, it is more relevant to point out that polygamy was a response to certain pre-modern social conditions but that modern egalitarian, capitalist and individualist societies create little need for and considerable pressure against polygamy.

Polygamy flourished in primitive, male-dominated societies where women had little freedom of movement, education or employment skills and were dependent on men, where inequalities of wealth allowed some men to acquire several wives while others had none, and/or where male deaths in frequent military campaigns sharply reduced the number of potential husbands.

But in modern societies, women have equal access to advanced education and economic independence, social value apart from the status or wealth of a husband, and an equal male-female ratio. It is hard to imagine many women in the contemporary U.S. cheerfully welcoming competing wives or voluntarily becoming a second, third, or fourth wife.

In addition, women in third world nations - and southern Utah - who have left polygamous households describe them as rife with favoritism, rivalries, domestic abuse, and the like. It is hard to imagine a modern, educated woman entering or staying in such a family environment.

Nor would polygamy seem desirable for most males. Assuming an equal male-female population, a man who married two or more women would deprive one or more heterosexual men of the pleasures of a romantic, sexual and domestic life with a wife.

In fact, we may say that just as same-sex marriage is good because it allows more people to enjoy the pleasures and benefits of marriage, polygamy is undesirable because it deprives some people of the pleasures and benefits of marriage.

In short: None of the principles supporting gay marriage offers support for polygamy. Rather the opposite. And polygamy is not likely to be widely advocated because - unlike same-sex marriage - it answers no needs and removes no inequities in modern societies.

Two starkly different but possible futures are emerging. One of them would foreclose gay marriage for the lifetime of any person old enough to read this, erecting barrier after barrier to the recognition of gay couples. The other would mean a long, but ultimately successful, movement for full marriage rights. This is the fight of our lives and our elected officials must know that.

In the worst-case scenario, gay marriages in Massachusetts and elsewhere will fuel a backlash that results in double and triple obstacles for us. Already, 38 states have enacted laws banning gay marriages and refusing to recognize such marriages from other states. Facing the specter of gay marriages, under this scenario many states will be stampeded into amending their own state constitutions.

Far worse, Congress would vote to amend the U.S. Constitution to ban gay marriages, and perhaps even civil unions and domestic partnerships to boot That will be followed by ratification efforts in state after state. The debate over ratification will be vicious, marked by hateful stereotypes of gays as promiscuous child-molesters bent on destroying everything good in American life. In this super-charged atmosphere, hate crimes go up. Other civil rights measures stall. Worst of all, the amendment is ratified. Since only 13 states may block any repeal of this amendment - and we know where they are - the possibility of gay marriage is ended for our lifetimes.

But that is only one possible future. Here's another.

In the best-case scenario, gay marriages in Massachusetts and elsewhere demonstrate that same-sex marriage is no threat to anyone. Straight married couples get on with their lives, unaffected. Children still have mothers and fathers. There is no plague of locusts upon the land. Massachusetts accordingly rejects a state constitutional amendment, either because the legislature can't muster the votes for a ban or because the people of Massachusetts vote it down. Either way, the people will have spoken. Gay marriages in that state will have a democratic legitimacy no court can confer. For the first time, gay marriage will have survived its most crucial test, the one in the court of democratic politics.

The experience of Massachusetts will embolden other states to start trying gay marriages, or at least civil unions followed quickly by marriage. State legislators will realize they don't commit political suicide by voting for it. The momentum gathers. Still no locusts.

At the federal level, under the best-case scenario, Democrats find their backbone on this issue after all the support we've given them over the years and vote to reject a constitutional amendment. A few principled Republicans, loathe to write what Andrew Sullivan has called "graffiti" on the Constitution, and truly committed to federalism, join the Democrats. State experimentation with gay marriage, free of congressional meddling and federal court fiat, is allowed to proceed.

The debate over the amendment and over state legislative action, and the existence of actual gay marriages, force people to think for the first time about why we would deny a loving, committed couple a marriage license. Many Americans can't come up with a good reason. Religious conservative groups, like those running to courts right now to stop people from marrying in San Francisco, look like the Grinch Who Stole Matrimony. Gay marriage, perhaps in our lifetime, is a reality across much of the country.

Neither of these scenarios is foregone. The future is ours to make. The people of this country are basically decent and fair. They do not like to shut people out for no good reason. But they also do not like to be rushed into, or to be forced into, a change they rightly regard as having fundamental significance. When the people have time to listen to our pleas, to consider the consequences, and to make a deliberative choice, equality usually wins.

But above all, winning the right future will mean making it plain that stopping an amendment to the U.S. Constitution is the issue upon which every politician will henceforth be judged, Democrat or Republican, liberal or conservative. There can be no "pass" given to any elected official on this issue, no matter how supportive he or she has been in the past. They must know we will always remember where they stood on this.

Gay Democrats must make it crystal clear to Democrats and to our civil-rights "allies" among progressive groups that we consider stopping this proposed constitutional amendment critically important. No votes, no money, no time, should be given to any Democrat who supports a constitutional amendment banning gay marriage, no matter how many times they've sponsored an employment non-discrimination bill or a hate crimes law. This means you, too, John Kerry.

Gay Republicans also must stand up. We have been working to build some small voice in the GOP for just this moment. We must be crystal clear that no votes, no money, no time, will be given to any Republican who supports a constitutional amendment banning gay marriage, no matter how many times they've cut taxes or made war on Islamo-fascism. This means you, too, George W. Bush.

Write and call your member of Congress and the White House. Talk up the issue among your friends, family members, and co-workers, even those whose support you can usually count on.

On this issue, unlike almost every other issue, no quarter can be given They are messing with our families now. This fight is for keeps. We must win it.