Originally appeared in The New Republic, May 8,
2000.
PERHAPS THE CURRENT MOMENT WAS INEVITABLE. Around one-third of
Americans support civil marriage for gay men and lesbians; another
third are strongly opposed; the final third are sympathetic to the
difficulties gay couples face but do not approve of gay marriage as
such. In the last ten years or so, there has been some movement in
these numbers, but not much. The conditions, in short, were ripe
for a compromise: a pseudomarital institution, designed
specifically for gay couples, that would include most, even all, of
the rights and responsibilities of civil marriage but avoid the
word itself. And last week, in a historic decision, Vermont gave it
to us: a new institution called "civil union."
Understandably, many gay rights groups seem ready to declare
victory. They have long been uncomfortable with the marriage
battle. The platform of this weekend's Millennium March on
Washington for gay rights merely refers to security for all kinds
of "families." The Human Rights Campaign, the largest homosexual
lobbying group, avoids the m-word in almost all its literature.
They have probably listened to focus groups that included people
like my mother. "That's all very well," she told me in my first
discussion with her on the subject, "but can't you call it
something other than `marriage?'"
The answer to that question is no. Marriage, under any
interpretation of American constitutional law, is among the most
basic civil rights. "Separate but equal" was a failed and
pernicious policy with regard to race; it will be a failed and
pernicious policy with regard to sexual orientation. The many
advances of recent years--the "domestic partnership" laws passed in
many cities and states, the generous package of benefits finally
granted in Hawaii, the breakthrough last week in Vermont--should
not be thrown out. But neither can they be accepted as a solution,
as some straight liberals and gay pragmatists seem to want. In
fact, these half-measures, far from undermining the case for
complete equality, only sharpen it. For there are no arguments for
civil union that do not apply equally to marriage. To endorse one
but not the other, to concede the substance of the matter while
withholding the name and form of the relationship, is to engage in
an act of pure stigmatization. It risks not only perpetuating
public discrimination against a group of citizens but adding to the
cultural balkanization that already plagues American public
life.
This essay is not intended for those who believe that homosexual
love is sinful or immoral, or who hold that homosexuality is a
sickness that can be cured, or who claim that homosexual
relationships are inherently dysfunctional; these are not the
people pushing the civil-union compromise. With at least a veneer
of consistency, these groups want no recognition for gay couples at
all. No, the people heralding civil unions are generally
sympathetic to homosexual rights. They are the allies that the
marriage cause cannot afford to lose. They acknowledge the equal
humanity of their gay friends and fellow citizens. But they need to
see that supporting civil union while opposing marriage is an
incoherent position - based more on sentiment than on reason, more
on prejudice than principle. Liberals, of all people, should resist
it.
The most common liberal argument for civil union but against
marriage was summed up by First Lady Hillary Rodham Clinton in
January. "Marriage," she said, when pressed to take a position,
"has got historic, religious, and moral content that goes back to
the beginning of time, and I think a marriage is as a marriage has
always been: between a man and a woman." This statement, which is
more elaborate than anything said by Vice President Al Gore or
Texas Governor George W. Bush on the topic, is worth examining.
It has two aspects. The first is an appeal to the moral,
historical, and religious content of an institution unchanged since
"the beginning of time." But even a cursory historical review
reveals this to be fragile. The institution of civil marriage, like
most human institutions, has undergone vast changes over the last
two millennia. If marriage were the same today as it has been for
2,000 years, it would be possible to marry a twelve-year-old you
had never met, to own a wife as property and dispose of her at
will, or to imprison a person who married someone of a different
race. And it would be impossible to get a divorce. One might
equally say that New York's senators are men and have always been
men. Does that mean a woman should never be a senator from New
York?
Equally, an appeal to the religious content of marriage is
irrelevant in this case. No one is proposing that faith communities
be required to change their definitions of marriage, unless such a
community, like Reform Jewry, decides to do so of its own free
will. The question at hand is civil marriage and only civil
marriage. In a country where church and state are separate, this is
no small distinction. Many churches, for example, forbid divorce.
But civil divorce is still legal. Many citizens adhere to no church
at all. Should they be required to adhere to a religious teaching
in order to be legally married?
So, if we accept that religion doesn't govern civil marriage and
that civil marriage changes over time, we are left with a more
nebulous worry. Why is this change to marriage more drastic than
previous ones? This, I think, is what Clinton is getting at in her
second point: "I think a marriage is as a marriage has always been:
between a man and a woman." On the face of it, this is a statement
of the obvious, which is why formulations of this kind have been
favorites of those behind "defense of marriage" acts and
initiatives across the country. But what, on further reflection,
can it possibly mean? There are, I think, several
possibilities.
The first is that marriage is primarily about procreation. It is
an institution fundamentally designed to provide a stable
environment for the rearing of children--and only a man and a
woman, as a biological fact, can have their own children within
such a marriage. So civil marriage is reserved for heterosexuals
for a good, demonstrative reason. The only trouble with this
argument is that it ignores the fact that civil marriage is granted
automatically to childless couples, sterile couples, couples who
marry too late in life to have children, couples who adopt other
people's children, and so on. The proportion of marriages that
conform to the "ideal" - two people with biological children in the
home - has been declining for some time. The picture is further
complicated by the fact that an increasing number of gay couples,
especially women, also have children. Is there some reason a
heterosexual couple without children should have the rights and
responsibilities of civil marriage but a lesbian couple with
biological children from both mothers should not? Not if
procreation is your guide.
Indeed, if it is, shouldn't we exclude all childless couples
from marriage? That, at least, would be coherent. But how would
childless heterosexual couples feel about it? They would feel,
perhaps, what gay couples now feel, which is that society is
diminishing the importance of their relationships by consigning
them to a category that seems inferior to the desired social
standard. They would resist and protest. They would hardly be
satisfied with a new legal relationship called civil union.
Another interpretation of Hillary Clinton's comment is that real
marriage must involve the unique experience of a man attempting to
relate to a woman and vice versa. Some theologians have even argued
that a heterosexual relationship is a unique opportunity for
personal growth, because understanding a person of the opposite sex
is more daunting and enriching than understanding a person of the
same sex. So opposite-sex marriage builds character and empathy in
a way same-sex marriage does not and therefore deserves greater
social encouragement. Opposite-sex marriage fosters the virtues -
communication, empathy, tolerance - necessary in a liberal
democracy.
Leave aside the odd idea that heterosexual relationships are
more difficult than gay ones. The problem with the
character-building argument is that today's marriage law is utterly
uninterested in character. There are no legal requirements that a
married couple learn from each other, grow together spiritually, or
even live together. A random woman can marry a multimillionaire on
a Fox TV special and the law will accord that marriage no less
validity than a lifelong commitment between Billy Graham and his
wife. The courts have upheld an absolutely unrestricted right to
marry for deadbeat dads, men with countless divorces behind them,
prisoners on death row, even the insane. In all this, we make a
distinction between what religious and moral tradition expect of
marriage and what civil authorities require to sanction it under
law. It may well be that some religious traditions want to preserve
marriage for heterosexuals in order to encourage uniquely
heterosexual virtues. And they may have good reason to do so. But
civil law asks only four questions before handing out a marriage
license: Are you an adult; are you already married; are you related
to the person you intend to marry; and are you straight? It's that
last question that rankles. When civil law already permits the
delinquent, the divorced, the imprisoned, the sterile, and the
insane to marry, it seems - how should I put this? - revealing that
it draws the line at homosexuals.
Indeed, there is no moral reason to support civil unions and not
same-sex marriage unless you believe that admitting homosexuals
would weaken a vital civil institution. This was the underlying
argument for the Defense of Marriage Act (DOMA), which implied that
allowing homosexuals to marry constituted an "attack" on the
existing institution. Both Gore and Bush take this position. Both
Bill and Hillary Clinton have endorsed it. In fact, it is by far
the most popular line of argument in the debate. But how, exactly,
does the freedom of a gay couple to marry weaken a straight
couple's commitment to the same institution? The obvious answer is
that since homosexuals are inherently depraved and immoral,
allowing them to marry would inevitably spoil, even defame, the
institution of marriage. It would wreck the marital neighborhood,
so to speak, and fewer people would want to live there. Part of the
attraction of marriage for some heterosexual males, the argument
goes, is that it confers status. One of the ways it does this is by
distinguishing such males from despised homosexuals. If you remove
that social status, you further weaken an already beleaguered
institution.
This argument is rarely made explicitly, but I think it exists
in the minds of many who supported the DOMA. One wonders, for
example, what Bill Clinton or Newt Gingrich, both conducting or
about to conduct extramarital affairs at the time, thought they
were achieving by passing the DOMA. But, whatever its
rationalization, this particular argument can only be described as
an expression of pure animus. To base the prestige of marriage not
on its virtues, responsibilities, and joys but on the fact that it
keeps gays out is to engage in the crudest demagoguery. As a
political matter, to secure the rights of a majority by
eviscerating the rights of a minority is the opposite of what a
liberal democracy is supposed to be about. It certainly should be
inimical to anyone with even a vaguely liberal temperament.
Others argue that they base their opposition to gay marriage not
on mere prejudice but on reality. Gay men, they argue, are simply
incapable of the commitment, monogamy, and responsibility of
heterosexuals. They should therefore be excluded as a group from an
institution that rests on those virtues. They suspect that if gay
marriage were legal, homosexuals would create a new standard of
adultery, philandery, and infidelity that would lower the standards
for the population as a whole. But, again, this is to set a bar for
homosexual marriage that doesn't exist for any other group. The law
as it now stands makes no judgments about the capacity of those
seeking a marriage license to fulfill its obligations. Perhaps if
it did the divorce rate would be lower. But it doesn't, and in a
free society it shouldn't. The law understands that different
people will have different levels of achievement in marriage. Many
will experience divorce; some marriages may not last a week, while
others may last a lifetime; still other couples might construct all
sorts of personal arrangements to keep their marriages going. But
the right to marry does not take any of this into account, and
failing marriages and successful marriages are identical in the
eyes of the law. Why should this sensible and humane approach work
for everyone but homosexuals?
Or look at it this way. Even if you concede that gay men - being
men - are, in the aggregate, less likely to live up to the
standards of monogamy and commitment that marriage demands, this
still suggests a further question: Are they less likely than, say,
an insane person? A straight man with multiple divorces behind him?
A murderer on death row? A president of the United States? The
truth is, these judgments simply cannot be fairly made against a
whole group of people. We do not look at, say, the higher divorce
and illegitimacy rates among African Americans and conclude that
they should have the right to marry taken away from them. In fact,
we conclude the opposite: It's precisely because of the high
divorce and illegitimacy rates that the institution of marriage is
so critical for black America. So why is that argument not applied
to homosexuals?
This, however, is to concede for the sake of argument something
I do not in fact concede. The truth is that there is little
evidence that same-sex marriages will be less successful than
straight marriages. Because marriage will be a new experience for
most gay people, one they have struggled for decades to achieve,
its privileges will not be taken for granted. My own bet is that
gay marriages may well turn out to be more responsible, serious,
and committed than straight ones. Many gay men may not, in
practice, want to marry. But those who do will be making a
statement in a way no heterosexual couple now can. They will be
pioneers. And pioneers are rarely disrespectful of the land they
newly occupy. In Denmark, in the decade since Vermont-style
partnerships have been legal, gays have had a lower divorce rate
than straights. And that does not even take into account the fact
that a significant proportion of same-sex marriages in America will
likely be between women. If gay men, being men, are less likely to
live up to the monogamy of marriage, then gay women, being women,
are more likely to be faithful than heterosexual couples. Far from
wrecking the neighborhood, gay men and women may help fix it
up.
There remains the more genuine worry that marriage is such a
critical institution that we should tamper with it in any way only
with extreme reluctance. This admirable concern seems to me easily
the strongest argument against equal marriage rights. But it is a
canard that gay men and women are unconcerned about the stability
of heterosexual marriage. Most homosexuals were born into such
relationships; we know and cherish them. It's precisely because
these marriages are the context of most gay lives that homosexuals
seek to be a part of them. But the inclusion of gay people is, in
fact, a comparatively small change. It will affect no existing
heterosexual marriage. It will mean no necessary change in
religious teaching. If you calculate that gay men and women amount
to about three percent of the population, it's likely they will
make up perhaps one or two percent of all future civil marriages.
The actual impact will be tiny. Compare it to, say, the
establishment in this century of legal divorce. That change
potentially affected not one percent but 100 percent of marriages
and today transforms one marriage out of two. If any legal change
truly represented the "end of marriage," it was forged in Nevada,
not Vermont.
But if civil union gives homosexuals everything marriage grants
heterosexuals, why the fuss? First, because such an arrangement
once again legally divides Americans with regard to our central
social institution. Like the miscegenation laws, civil union
essentially creates a two-tiered system, with one marriage model
clearly superior to the other. The benefits may be the same, as
they were for black couples, but the segregation is just as
profound. One of the greatest merits of contemporary civil marriage
as an institution is its civic simplicity. Whatever race you are,
whatever religion, whatever your politics or class or profession,
marriage is marriage is marriage. It affirms a civil equality that
emanates outward into the rest of our society. To carve within it a
new, segregated partition is to make the same mistake we made with
miscegenation. It is to balkanize one of the most important
unifying institutions we still have. It is an illiberal impulse in
theory and in practice, and liberals should oppose it.
And, second, because marriage is not merely an accumulation of
benefits. It is a fundamental mark of citizenship. In its rulings,
the Supreme Court has found that the right to marry is vested not
merely in the Bill of Rights but in the Declaration of Independence
itself. In the Court's view, expressed by Chief Justice Earl Warren
in Loving v. Virginia in 1967, "the freedom to marry has long been
recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men." It is one of the most
fundamental rights accorded under the Constitution. Hannah Arendt
put it best in her evisceration of miscegenation laws in 1959: "The
right to marry whoever one wishes is an elementary human right
compared to which `the right to attend an integrated school, the
right to sit where one pleases on a bus, the right to go into any
hotel or recreation area or place of amusement, regardless of one's
skin or color or race' are minor indeed. Even political rights,
like the right to vote, and nearly all other rights enumerated in
the Constitution, are secondary to the inalienable human rights to
`life, liberty and the pursuit of happiness' ... and to this
category the right to home and marriage unquestionably
belongs."
Prior even to the right to vote! You can see Arendt's point.
Would any heterosexual in America believe he had a right to pursue
happiness if he could not marry the person he loved? What would be
more objectionable to most people - to be denied a vote in next
November's presidential election or to no longer have legal custody
over their child or legal attachment to their wife or husband? Not
a close call.
In some ways, I think it's because this right is so taken for
granted that it still does not compute for some heterosexuals that
gay people don't have it. I have been invited to my fair share of
weddings. At no point, I think, has it dawned on any of the
participants that I was being invited to a ceremony from which I
was legally excluded. I have heard no apologies, no excuses, no
reassurances that the couple marrying would support my own marriage
or my legal right to it. Friends mention their marriages with ease
and pleasure without it even occurring to them that they are
flaunting a privilege constructed specifically to stigmatize the
person they are talking to. They are not bad people; they are not
homophobes. Like whites inviting token black guests to functions at
all-white country clubs, they think they are extending you an
invitation when they are actually demonstrating your exclusion.
They just don't get it. And some, of course, never will.
There's one more thing. When an extremely basic civil right is
involved, it seems to me the burden of proof should lie with those
who seek to deny it to a small minority of citizens, not with those
who seek to extend it. So far, the opposite has been the case.
Those of us who have argued for this basic equality have been asked
to prove a million negatives: that the world will not end, that
marriage will not collapse, that this reform will not lead to
polygamy and incest and bestiality and the fall of Rome. Those who
wish to deny it, on the other hand, have been required to utter
nothing more substantive than Hillary Clinton's terse, incoherent
dismissal. Gore, for example, has still not articulated a
persuasive reason for his opposition to gay marriage, beyond a
one-sentence affirmation of his own privilege. But surely if civil
marriage involves no substantive requirement that adult gay men and
women cannot fulfill, if gay love truly is as valid as straight
love, and if civil marriage is a deeper constitutional right than
the right to vote, then the continued exclusion of gay citizens
from civil marriage is a constitutional and political enormity. It
is those who defend the status quo who should be required to prove
their case beyond even the slightest doubt.
They won't have to, of course. The media will congratulate
George W. Bush merely for conceding that the gay people supporting
his campaign are human beings. Gore will be told by his pollsters
that supporting the most basic civil right for homosexuals would be
political suicide, and he will surely defer to them. That is
politics, and I have learned to expect nothing more from either
candidate. But the principle of the matter is another issue. To
concede that gay adults are responsible citizens, to concede that
there will be no tangible damage to the institution of marriage by
their inclusion within it, and then to offer gay men and women a
second-class institution called civil union makes no sense. It's a
well-meaning surrender to unfounded fear. Liberals of any stripe
should see this. The matter is ultimately simple enough. Gay men
and women are citizens of this country. After two centuries of
invisibility and persecution, they deserve to be recognized as
such.