Wednesday, November 12, 2003
Andrew Sullivan misrepresents the conflict over the Federal Marriage Amendment. But I don't think this invalidates the heart of his argument, which remains telling.
First: the misrepresentation. No one is suggesting that the government check whether people are having sex before granting them marriage-like benefits. Indeed, the whole point of the additional sentence in the amendment is precisely the opposite: the government, under the amendment, could *not* premise benefits outside of marriage on the existence of a sexual relationship. That's the status-quo now in, for example, New York, where roommates can register as domestic partners with no suggestion that they are necessarily romantically involved.
Whether this is a conservative position is another story, but that's effectively the position that the proponents of the additional sentence have signed on to: states and localities (and, presumably, the Federal Government) can extend the incidents of marriage (piecemeal) to any other arrangement, so long as there is no limitation to gay couples.
It should be clear from the foregoing that Sullivan's key argument - that the social right, in embracing this idea, is effectively siding with the radicals who want to end marriage altogether - is entirely correct. The revised amendment would do nothing to shore up the status of marriage. Indeed, assuming the entire country went on to establish domestic-partnership laws - or even laws covering groups - with its own body of family law, the question could quite legitimately be raised why marriage continued to exist as a legal concept?
On any sane utilitarian calculus, and even assuming that public recognition of homosexuality is morally damaging, getting rid of domestic partnerships should be a much higher priority for the social right than preventing that public recognition, because domestic partnership powerfully and directly undermines the ethos of marriage among straights. Indeed, we are far enough gone down that road that major cultural changes will be needed to get marriage back on track to being a social norm.
But I'm not even sure that a civil unions law that was open only to same-sex couples necessarily does imply public approval of gay sex. Why should it? Suppose, for the sake of argument, that the LDS Church decided that the best way to keep gay Mormon men from sinning would be for them to form celibate pair-bonds with other gay Mormon men - let's call them "buddies." Such buddies would be analogous to the companionships formed on mission, which are similarly pairs of men who live together and are charged with keeping one another from sin. If a civil-unions law existed in, say, Arizona, such a gay, celibate Mormon couple could go to a judge and be joined in the eyes of the civil law. And, by the same token, a gay couple with a sexual relationship could do the same before the same judge under the same law. So the same civil ceremony is used by one pair of men to cement a celibate companionship devoted to mutual aid through life in, among other things, resisting the sin of homosexual sex, and by another pair to cement a companionship devoted to mutual aid through life and, as well, a romantic and sexual relationship. Ergo, the law itself doesn't imply approval or disapproval of gay sex per se. A civil unions law would recognize that marriage (the union of a man and a woman) doesn't work for everyone, and that close companionship for gay people is a positive good for which society should provide structural support. But it's not clear that it says anything at all about the proper sexual content of such companionship.
(I'm not completely clueless here, by the way; obviously pretty much all if not precisely all of the couples who take advantage of such a law will do so in the context of a sexual relationship, will kiss in front of the judge, will bring their own readings attesting to their love, etc. etc. But nothing in the law requires this to be the case, and I should think that would be sufficient fig-leaf for the social right if the issue is public endorsement of homosexual behavior.)