I’ve said plenty on this topic in the past, but on marriage and civil unions and society, here is a very interesting series of posts from University of San Diego law professor Gail Heriot, which I have arranged chronologically:
http://therightcoast.blogspot.com/2005_01_01_therightcoast_archive.html#110585731178662036
Marriage, Schmarriage
By Gail Heriot
At USD’s Conference on the Meaning of Marriage this past weekend, my friend and colleague Larry Alexander asked why so many people are willing to tolerate or even endorse civil unions between same-sex couples and yet strongly oppose same-sex marriage. Here in California (and I suspect in some other places too), the legal rights and obligations that arise out the two institutions are precisely the same. The fight is thus essentially over the use of the word “marriage” Or, as Larry put it, what if we were to call same-sex unions “schmarriage,” but otherwise treat opposite-sex and same-sex unions the same? Would that be fine with a significant number of those who oppose same-sex marriage?
Well, maybe it would be. But I don’t think that’s evidence those people are acting irrationally. Symbols matter, especially in a debate that is about symbols. And I see the gay marriage debate as primarily about symbols–and only secondarily about marriage.
First of all, it’s important to remember that the debate over same-sex marriage is not about same-sex marriage at all. It’s about the legal recognition of same-sex marriage. There’s nothing to prevent a same-sex couple from simply declaring themselves married right now, this minute, anywhere in the United States of America. Indeed, there’s nothing to prevent the couple from having, as Shania Twain would put it, “the white dress, the guests, the cake, the car, the whole darn thing.” If they want to, they can start their own church to sanctify the union. After all, this is America. The only problem is that the law won’t recognize the marriage. But that doesn’t mean the couple and their friends and family won’t.
Strangely, however, not that many same-sex couples engage in this sort of “self-help.” (Though some do, and I’ll give them some respect for that.) When the City of San Francisco started granting marriage licenses to same-sex couples a little while ago, surprisingly few of the couples who lined up for blocks said that they already considered themselves married and they were just seeking to have the marriage legalized. They just weren’t married.
Why? There are two possible answers that would make sense to me. First is that it’s not the marriage itself that they are interested in, but rather the legal benefits that flow from the marriage. If so, legal recognition is crucial. But if that’s the case, one would expect that civil unions that provide identical benefits would be just as good. Somehow, however, for large numbers of same-sex couples, they wouldn’t be. Why not?
I think the answer is that for many same-sex couples, a legally-recognized marriage is desired precisely because they regard legal recognition as an endorsement by the community of their relationship. It says, “The State regards this relationship as a worthy one that should receive support.” The same is true of the push to have mainline churches recognize same-sex marriages. It’s not the bare fact of a religious marriage ceremony that is central, since some church, somewhere could easily be found (or created) to endorse same-sex marriage. The desire is to have a major church endorse same-sex marriage as a way of endorsing same-sex relationships generally. It’s just plain better to be able to say that the Presbyterian Church (USA), the Methodist Church or (perhaps even better) a very large church like the Roman Catholic Church, with millions of members, endorses your “life style” than it is to say that the “Tiny Church of the Castro District” endorses it. And, for many, having the church in which they were reared in is important. What being asked for is approval. It’s an undertandable thing; we all crave approval.
The problem is that other people’s approval is the one thing they’re just not entitled to. Nobody is. Approval comes voluntarily or not at all. And rightly or wrongly (and I’ll write on that later), most Americans do not wholly approve of same-sex relationships–at least not at this time and quite possibly never. That doesn’t mean that they don’t like gays or lesbians or that they want to ban same-sex relationships. And it certainly doesn’t mean that they want to turn gays and lesbians into lamp shades (One friend of mine recently suggested–with what I hope and believe was a certain degree of hyperbole–that that significant numbers of people do). But it does mean that they have reservations about public declarations that same-sex relationships are just as desirable as opposite-sex relationships. And recent elections suggest that they are not willing to be corraled into such a declaration.
That doesn’t mean that some of them, perhaps many of them, might not be willing to compromise with … uh … schmarriage … I mean civil unions, which do not put same-sex relationships on the same symbolic footing with opposite-sex relationships and hence do not call upon them to endorse same-sex and opposite-sex unions as equally desirable.
But I’ll have to get back to this later …
posted by Gail at 1/16/2005 12:01:33 AM
http://therightcoast.blogspot.com/2005_01_01_therightcoast_archive.html#110585731178662036
Marriage, Schmarriage, Part II
By Gail Heriot
My friend and soon-to-be-colleague David McGowan wrote to me about my previous post:
“I don’t quite grasp the significance you see in the idea that a
same-sex couple could declare themselves married. That is true, but
what follows from it? To me it would be a frivolous act, akin to
declaring yourself a senator, which you could do so long as you did
not defraud anyone. Perhaps some would see it as an act of protest.
Either way, it would be a legally hollow statement.”
I don’t consider it frivolous at all (and I’m surprised a libertarian like David does). A couple is married when they have promised to love each, spend their lives together, and order their lives for the benefit of the two of them, and that promise has been made publicly. If the state were to get out of the marriage business (or even outlaw marriage!!), you can bet there would still be marriages. Unlike the office of Senator, the institution of marriage is by no means simply a creature of the state.
Current law does not forbid same-sex couples from making marriage promises to each other or from even holding themselves out as a married couple. It simply denies legal recognition to that marriage. They won’t get the benefit of court intervention, applying certain one-size-fits-all dissolution rules if things don’t work out. They won’t get the marital deduction on their income tax. It may be true that a marriage that isn’t recognized by law is “legally” hollow as David suggests, but so what? That doesn’t make it actually hollow. It is filled with whatever meaning the parties to that mutual promise bring to it.
How many brides and grooms walk down the aisle thinking about the protection of the divorce law or the tax code? I hope none; most are too busy thinking about the promises of love and faithfulness (and occasionally about whether the caterers and photgraphers have arrived on time). And if you were to tell the happy couple before the wedding that state was going to change its marriage code to make exit easier or to get rid of the favorable tax treatment or even to get out of the marriage business altogether, how many marriages would be called off? Not many, I don’t suppose. Why do they do it? They do it for that promise. They do it because marriage is not just a promise whispered in the night, but a public declaration, and thus more likely to be kept. The State of California and indeed the United States of America can dry up and blow away, and the couple will still be married. Until death.
David analogizes the case to Bradwell v. Illinois (1873) ( BRADWELL v. STATE OF ILLINOIS | FindLaw ), but I think the comparison is inapt. In Bradwell, Illinois prohibited women from practicing law. Had Myra Bradwell insisted on doing so anyway, she would have been thrown in the pokey. That’s not the case here. A same sex couple can do as it pleases with no such fear. And at least under California law, the civil union laws guarantee that the couple that (if they go through the motions of the civil union) they will get the equivalent legal protections available to married couples through the back door.
Sure, right or wrongly, many people will disapprove. But as I suggested before, neither same-sex couples nor anyone else is entitled to approval.
David made some other interesting comments too that I hope to get to soon. Right now, I must grade some more exams.
posted by Gail at 1/16/2005 10:54:28 PM
http://therightcoast.blogspot.com/2005_01_01_therightcoast_archive.html#110594960245943818
Marriage, Schmarriage (Part III): A Conservative Case For and Against Same-Sex Marriage
By Gail Heriot
Since I’ve already had two earlier posts that have drawn criticism, I might as well go all the way and offend everyone: supporters and opponents of same sex marriage alike. Why else have a blog?
Let me start with the very politically incorrect topic of promiscuity. (Phew, I said it!) As I see it, promiscuity is the starting point for both a secular conservative case in favor of and a secular conservative case against the legal recognition of same-sex marriage. Gay men on average have more sexual partners than heterosexuals or lesbians. A whole lot more. The numbers differ by an order of magnitude, as my friend the astrophysicist would put it.
No, I am not saying if you are gay that you are promiscuous. And no, I am not saying if you are straight or lesbian that you are not promiscuous. (And mercy no, I do not need to hear the story of your brother Ken and his ex-wife Tiffany.) I am talking about averages. But, at least when issues of public policy are being discussed, averages matter.
Socio-biologists claim to understand all this. As they explain it, men, who can in theory father an almost unlimited number of children, have a natural tendency toward promiscuity as a reproductive strategy, while women, whose physical investment in bearing each child is great, are better off being picky about their mates and pursuing a strategy of monogamy. In heterosexual relationships, therefore, women are typically the ones to put the brakes on things. And among gay men, no one is there to serve that function. In the end, however, I do not much care if the socio-biologists are wrong or right. For my purpose, it is enough to know that gay men are on average significantly more promiscuous than both women and straight men.
So what? you may ask, What is the matter with sex? And to be honest, you may be right. But the judgment of the ages has been that long-term promiscuity often leads to an unhappy life, to regret, and finally to a lonely old age and death�and that a few other people usually get hurt along the way. Don Juan is not a happy or sympathetic figure in literature, and neither are most of his fellow life-long libertines.
Can I absolutely prove that promiscuity leads to unhappiness? Of course not. There are limits to proving who is happy and who is unhappy and even greater limits to proving why. Social science cannot take you everywhere. These are among the reasons I would never dream of outlawing promiscuous conduct (or homosexual conduct). But that doesn�t mean that the traditional view is mistaken. And it does not mean that I would oppose all non-coercive sanctions that might subtly influence people to walk the traditional straight and narrow.
For example, if I were a mother, I would consider it my duty to cajole, to nag and, in extreme cases when I thought it would be effective, even to threaten to disinherit my adult son or daughter if I knew he or she was engaging in seriously promiscuous conduct. On this, it would not matter if they were gay or straight. And if the neighbor lady were to give them the evil eye when she observes a different man or woman leaving their apartment every morning, so much the better. The world is not black and white. The fact that certain conduct ought not be prohibited does not by any means that it ought not be subject to more subtle sanctions. Sometimes it means that subtle sanctions are all the more important.
Some would say that the government (as opposed to the neighbor lady and me) should not play favorites among what philosophers call �conflicting visions of the good life.� So long as it is not clearly and directly hurting anyone, conduct ought to be both legal and free from state influence, subtle or not-so-subtle.
But, to me, that seems both wrong in the abstract and not remotely the world we live in. Surely, when the Congressional Medal of Honor is awarded, the government is playing favorites between different visions of good conduct. Some people might regard an antiwar protester’s conduct as more praiseworthy than the military hero’s, but it seems odd (and probably in the end suicidal for the state) to take the position that it cannot choose to reward only the military hero. The same may go for other conduct that the state may wish to praise or even subsidize�including volunteering one’s time or spending one�s money on charitable activities. It would be odd to say that the state must also praise and subsidize those who spend their time and money betting on the ponies at the race track just because gambling is not actually prohibited.
Perhaps it ought to work this way: Conduct ought not be prohibited unless a strong case can be made for its harmfulness to third parties and the prohibition is applied evenhandedly. And sometimes the provision of benefits (or the imposition of fees) can be so large that the case ought to be treated as a prohibition. But lesser benefits and endorsements should be subject to somewhat lesser standards. The state should not be able to act whimsically by giving special recognition or small subsidies to people whose names begin with A-K, but it should not be held to the same standards of direct and provable harm (or benefit) that it would be if the conduct were being prohibited either.
All of this is a rather long way of getting around to say that it does not seem categorically wrong for the state to engage in some policies that are designed to subtly influence people away from promiscuous conduct. That’s not to say that all such policies would be a good idea; most would probably be too heavy handed. But the legal recognition of marriage and the creation of certain tax incentives in favor of marriage do not strike me as obviously inappropriate or any more objectionable than tax incentives to home ownership. It is important not to get overly puritanical about being anti-puritanical.
It is fair to ask at this point which way all of this cuts when it comes to same-sex marriage. And I think the best answer is that it is not completely clear. On the one hand, one could make the argument that the legal recognition of same-sex marriage might promote monogamy among the gay population and hence conservatives interested in dampening promiscuity ought to support it, maybe even promote it. If gay men were given an extra incentive to enter into long-term, monogamous relationships, more of them might do it.
All that does not strike me as obviously wrong. But the opposite argument is also plausible: that legal recognition of same-sex marriages might in the long run have negative effects. First, by removing some of the subtle social and political pressures not to be gay, those men with bisexual tendencies who might otherwise have identified themselves as primarily straight and entered into a monogamous relationship or marriage might just start identifying themselves as primarily gay and not enter into a monogamous relationship. Second, same-sex marriage may inevitably have higher rates of faithlessness and divorce than opposite-sex marriage (particularly opposite-sex marriages with children) and this might further damage the already-embattled institution of marriage. Conservatives should therefore oppose same-sex marriage.
I freely admit that my conservative case against same-sex marriage is riddled with the word might. But that does not resolve the issue, since my conservative case in favor of same sex marriage is riddled with the word might too. Which forecast is right and which is wrong? Where does the burden of proof lie? And is there anything same-sex marriage advocates (or opponents) can do to improve the appeal of their arguments? What role, if any, should civil unions play here? Or same-sex marriages that do not enjoy legal recognition?
Fortunately for you the reader, this post is already much too long, so I can beg off until at least tomorrow. But stay tuned for Part IV …
posted by Gail at 1/18/2005 10:56:20 PM
http://therightcoast.blogspot.com/2005_01_01_therightcoast_archive.html#110618969701725706
Marriage, Schmarriage (Part IV): Edmund Burke Weighs In
By Gail Heriot
When I left off last time, I was saying that there are two conservative arguments that can be made on same-sex marriage–one in favor and the other against. Both can begin with the (undeniable) fact that gay men on average, though not necessarily in individual cases, have many more sexual partners than do straight men or women and the (more contestable, but in my view probably correct) view that in general this promiscuity is not a good thing.
Talking about this issue can be hazardous, so I would prefer that you go back and read my earlier posts. That way if you are unhappy, you will at least be unhappy over what I am actually saying, rather than some mistaken notion of it. But to recap: One could argue that the recognition of same-sex marriage will promote promiscuity by removing some of the traditional stigma that once attached to a gay lifestyle, hence increasing at the margin the number of people who engage in that lifestyle (or in a promiscuous heterosexual lifestyle). One could also argue that extremely high rates of infidelity and divorce are likely to result from such marriages, which could end up having negative effects on the already-embattled institution of traditional marriage. The problem is that the opposite argument is plausible too. Allowing same sex-marriage might, to some extent, “domesticate” gay relationships and dampen gay promiscuity by causing a larger number of gays to commit to monogamy. Dampening that promiscuity might also have an indirect effect on straights.
It’s worth noting, however, that while one “can make” a plausible argument in favor of same-sex marriage from the standpoint of social conservatism, one doesn’t often hear it actually being made (except as part of a Right Coast law professor’s musings). And I don’t think this is because conservatives are stupid or motivated by ill will. I think it is something more fundamental to the conservative psyche (and I believe on the whole quite reasonable).
Nobody knows with anything approaching certainty which of the many plausible predictions about the effects of a change in public policy on this issue would actually come true. And anybody who thinks he does is a fool. What we can say is that marriage is one of the most fundamental institutions in our culture. It has a lot to do with how we rear our children (at least when we do it well), how we care for the elderly and infirm, how we pass on property from one generation to the next, and how we love and live our lives. And in the past several decades, it has been under considerable pressure. Rates of illegitimacy and divorce have been high. Celebrity marriage have helped to bring the institution into disrepute. From the standpoint of many conservatives, therefore, the issue is, Should we risk even the possibility of further harm?
Amy Wax (U. Penn.) presented a paper at USD’s recent Conference on the Meaning of Marriage, which she has tentatively titled, “The Conservative’s Dilemma: Social Science, Social Change and Traditional Institutions.” The article is still in very preliminary form, so I won’t quote from it, but I will summarize one or two of her points as I understand them. She argues that the conservative position against same-sex marriage has not been well-represented in the newspapers, magazines or the academic literature, but that a conservative in the tradition of Edmund Burke might articulate it this way: It is precisely because we cannot be sure of the consequences that we should avoid tinkering with the traditional concept of marriage. (Or as Burke put it, when man “tinker[s] impudently with [tradition] … [he] is left awfully afloat in a sea of emotions and ambitions, with only the scanty stock of formal learning and the puny resources of individual reason to sustain him.” Since we cannot know in advance what effects our social experiments will have, we had better be careful. Incremental change should be strongly preferred over more radical approaches.
All of this seems reasonable to me. When it comes to institutions as important and potentially fragile as marriage, we need to be cautious about the winds of change and humble about our ability to judge how they will affect us. For me, that means that a heavy burden of proof must be upon those who advocate the legal recognition of same-sex marriage, especially when they attempt to do so via the courts rather than the ballot box.
Does that end the matter? Not quite. As I suggested in my original Marriage, Schmarriage post, there are less sweeping approaches that make sense to me, which I will elaborate on in my next (and perhaps final) post on same-sex marriage. In the meantime, don’t touch that dial …
posted by Gail at 1/20/2005 12:41:52 AM
http://therightcoast.blogspot.com/2005_01_01_therightcoast_archive.html#110643344048892642
Marriage, Schmarriage (Part V): Same-Sex Marriage and Lesbians
By Gail Heriot
In my last installment in this Marriage, Schmarriage series (for earlier posts see here, here, here, and here), I said that maybe my next post would be the last. No such luck. I’ve gotten lots of thoughtful responses, so I have to try to do justice to at least some of them. If you haven’t been keeping up with the series, I urge you to go back through the earlier posts to get a sense of what I’m trying to say. As I am sure you are aware, Gentle Reader, this is a bit of a touchy subject with some people.
Brett McDonnell (U. Minn), who is visiting here at USD this semester, urges me not to ignore lesbians in my argument. He writes, “The very same factors that make gay men more promiscuous than straight couples should make lesbians less promiscuous.” Brett is, of course, quite right. Both the theory and the empirical evidence suggest that lesbian couples are, if anything, more monogamous than straight couples. The issue of lesbian marriage is thus arguably different, and I can easily imagine thoughtful people coming to a different conclusion concerning it.
But in the public mind the issues are bundled together–in part because most members of the public haven’t given it much thought, in part because the same-sex marriage movement and the gay movement generally have presented the issue as a bundled one, and in part because modern constitutional law doctrine would probably make it impossible to unbundle them. As a result, if lesbian marriage were legally recognized, same-sex marriage between men would follow almost immediately (and vice versa). A person who believes that same sex marriage between women by itself would, all others things considered, be a good thing, but that same-sex marriage between men would be a bad thing, must somehow balance the two against each other and arrive at a single conclusion.
Is that a slippery slope argument? If so, it’s worth pointing out that it has been repeatedly said that Burkean conservatism and slippery slope arguments are antithetical. And, in a limited sense, that’s true. Much of Burke’s argument is that cultural context and nuance matter. If he was able to distinguish between the American and the French Revolutions, then Burkean conservatives ought to be willing to distinguish among issues that are similar but not identical, even when other people can’t or won’t.
But that argument applies only when the Burkean conservative is himself or herself the policymaker. It seems perfectly reasonable for the Burkean conservative to take the position that when two issues cannot realistically be separated from each other in the minds of the ultimate decisionmakers (which in a democracy will ordinarily be the voters, though in our democracy is sometimes the judiciary), it doesn’t matter if they are arguably distinguishable. Fate has put them together.
posted by Gail at 1/22/2005 01:58:36 PM
http://therightcoast.blogspot.com/2005_01_01_therightcoast_archive.html#110644213678760029
Marriage, Schmarriage (Part VI): Will Same-Sex Marriage Really Affect Anything?
By Gail Heriot
A couple of my correspondents have expressed doubt that same-sex marriage will have either of the effects that I’ve talked about in my earliers posts here, here, here, here and here.
Tom Chatt, for example, who sent me an extremely thoughtful response favoring same-sex marriage, expressed doubt that it will have the upside effect of dampening promiscuity among members of the gay community and suggested instead that only committed couples will enter into such marriages. (I liked his teasing example: “‘Oh honey, why don’t we get married? True, we’ll have to give up promiscuity, but we’ll get tax breaks!’”)
On the other hand, Brett McDonnell, whose interestng and fair-minded response I mentioned in my last post, concentrated his doubt on my downside effect–that traditional marriage will be harmed by the introduction of same-sex marriage. He asks: “Is the idea that straight people will see gay men being unfaithful to their husbands, figure it’s OK, and go out and do the same? … Is that really a plausible story?”
(Somehow this reminds me of “Broken Windows,” James Q. Wilson and George L. Krelling’s 1982 article in Atlantic Monthly. They suggested that scrubbing away graffiti, cleaning up trash, and fixing broken windows might reduce crime in high-crime neighborhoods. Many people, used to the modern cliche that you shouldn’t “sweat the small stuff,” considered all this counter-intuitive and teased them with scenarios like this: “Sluggo, that new flower pot in the park is so pretty that I think I’m going to give up my life of crime!” But Wilson and Krelling stood their ground, and the evidence now suggests that they may well have been right. (See
Fixing Broken Windows by George L. Krelling and Catherine M. Coles.))
The truth is that there are eight million stories in the Naked City. And at every given moment thousands and thousands of people are facing tough questions for which they plausibly could go either way. Should I get married? Should I get divorced? Should I tell my husband what I really think of him? Should I punch my brother-in-law in the nose for what he did to my sister? And the ever popular, should I give this damn thing one more try?
Can the legal recognition of same-sex marriage (which fair-minded people agree is likely to have higher rates of break-up than traditional marriage, particularly traditional marriages that involve children) affect some of those decisions? I can’t see how it could fail to. To me, the interesting issue is which effects will dominate, not whether there will be such effects. Consider these hypotheticals:
****Susan may be the sort of woman who has a hard time committing to anything, but once she does, she tends to do well. Her problem is that when she is considering whether to marry her boyfriend, she can’t help but remember what a terrible time her older brother had when he was divorcing his same-sex spouse. In the end, it’s just enough to give her cold feet.
****Beth learns that her husband has been spotted in a restaurant stroking the shoulder of a female colleague. It’s not clear that he has actually cheated on her (and in fact he hasn’t–yet). Her instinct is to confront her husband and ask for an explanation (and in this case her instinct would have been correct, since it would have snapped her husband back into reality, before things had gone too far). But she confides in a gay friend who advises her that he keeps his own same-sex marriage intact by ignoring minor indiscretions. Only half-convinced, she reins herself in somewhat and simply asks her husband where he had lunch that day. When he answers that he had lunch at his desk, she stares darts at him, but he is too thick to notice. Undeterred, his relationship with his colleague gets out of hand.
****Bob’s marriage to Carolyn has generally been a happy one, both inside and outside the bedroom. Bob, however, has always regarded himself as a potential bisexual. He has never acted on this interest of his; ten years ago he considered it, but decided that getting caught by anyone would be the most humiliating thing that could happen to him, even if Carolyn and the children never found out. Lately, however, he’s noticed that such things just don’t seem to carry with them the same social stigma they used to, in part because of the legal recognition of same-sex marriage. This time he decides to go through with it.
Similar hypotheticals can be imagined for the upside argument that same-sex marriage could somehow “domesticate” the gay lifestyle. Of course, Tom is right that few gay couples would be thinking, “Hey, now that the law has changed, we should give up our promiscuous lifestyle and get married!” But that’s not the point. The idea is not that a proposed change in the law could move some people from A to Z. Instead, such a change could move a lot of people a little bit–from A to B, B to C, and Y to Z. A previously committed couple may get married and even hold a big wedding to mark the occasion. Their best friend, who is not so committed, but on the whole would prefer it, is inspired by their example and tries a little harder to find someone special. And he succeeds. His neighbor has an adult son who is into the bathhouse scene, and she steps up her criticism of him. The son responds not by giving up the bathhouse, but by joining to local gay youth club that goes bowling on Friday nights (one of three nights a week he previously used to frequent the bathhouses.) Gradually, he is pulled away from the most promiscuous lifestyle into to one that is somewhat less promiscuous–a small victory for Mom, but still a victory.
Well, that’s just six stories. There are 7,999,994 more to tell. When we add them all up, which of these effects–upside or downside—will ultimately outweigh the other? As I suggested in my earlier posts, I don’t know. I am just another of Burke’s error-prone mortals “with the puny resources of individual reason to sustain” me. But to me, that’s precisely why caution is in order.
posted by Gail at 1/24/2005 03:49:53 PM
http://therightcoast.blogspot.com/2005_01_01_therightcoast_archive.html#110679487376448528
Marriage, Schmarriage (Part VII): Partial Measures and the Ability to Reconsider
By Gail Heriot
In this series, I believe that I have laid out plausible conservative arguments in favor of and against the legal recognition of same-sex marriage. See here and here. But for reasons that I have already described, I am somewhat more persuaded by the argument against.
In this post, I want to get back to a point that I made in Part I ( The Right Coast ) that the choice for same-sex couples is not between the legal recognition of same-sex couples and nothing at all. There are at least two options available under current law. First, nothing prevents a same-sex couple from simply declaring themselves to be married and attempting to live their lives accordingly. (See Part II The Right Coast ). No, the marriage would not be legally recognized (and would not carry with it tax or other legal benefits). But marriage has been around a lot longer than governments, and I’ll wager that if the state ever withers away, as Mr. Marx so famously predicted, marriage will still be here. For most purposes (and certainly for the most important purposes), legal recognition is quite beside the point.
Second, in many states now, a same-sex couple may enter into a civil union, which at least here in California carries with it precisely the same benefits as traditional marriage. What’s at issue is simply the use of the word marriage–and the symbolic statement that homosexual unions and heterosexual unions are equally deserving of the state’s protection and nurture.
It’s interesting to think how our experience with these options will affect the debate over time. For example, if private marriages and civil unions turn out to have infidelity and divorce rates that are similar to those of traditional marriage, that would go a long way to convince skeptics like me that same-sex marriage would be a good thing and that present concerns are unfounded. Alternatively, if divorce rates are very high, that might help convince some same-sex marriage enthusiasts that same-sex marriage is not such a great idea after all.
Of course, the opportunity to re-evaluate the issue may never come in some states. When same-sex marriage advocates decided to pursue a litigation strategy rather than attempt to persuade voters to support their cause, opponents opted for the only counter-strategy available to them: They passed state constitutional amendments defining marriage to rule out same-sex marriage. (That’s how democracy works you know.) Same-sex marriage advocates will thus have a tougher time switching to a “go slow” strategy than they would have had had they started with it. Now they will have to work to repeal these amendments–no easy task.
posted by Gail at 1/26/2005 10:17:29 PM
