Tuesday, February 24, 2004
Well, the battle is joined.
As I've said before, the idea of calling same-sex couples marriage is seriously misguided, and will do real damage to the institution. I worry less about the "slippery slope" arguments that Stanley Kurtz focuses on - the fact that cultural radicals who are highly influential in the academy will use this as the opening wedge to polyamory and whatnot - than about the direct violence to the meaning of the word, as I've talked about before. Marriage is an institution created for men and women. To say that the word applies to same-sex couples is to say that there is no way of talking anymore about men and women, only about people. And that's a very significant loss. Phyllis Schlafly opposed the ERA in part because she said it would lead to same-sex marriage. I've described my own opposition to same-sex marriage as "Schlafly in reverse" - I am primarily opposed to the idea because it implies that androgyny is now the law of the land, not because I have any interest in denying any particular benefits to gay couples.
For that very reason, I'm supportive of the idea of civil unions, open *only* to same-sex couples who are single and are not blood relations. Civil unions would provide for many of the rights and benefits that are at the core of the same-sex marriage agitation: hospital visitation, inheritance rights, etc. I'd be entirely comfortable with a Federal law that provided for Federal benefits for couples in civil unions that tracked the benefits (tax, Social Security, etc.) for marrieds. I would *not* be comfortable with a blanket anti-discrimination law that made civil unions *entirely* congruent to marriage, for a few reasons, most notably that I think adoption law should favor married couples over gay couples. (For similar reasons, I would be fine with adoption law favoring *gay couples* over singles. We have no real data on how gay couples perform as parents. We have a *lot* of data on single women parents: the outcomes are significantly worse than for married couples. So single women should face a greater negative presumption than gay couples in this area, in my view.) But, in general, this is the sort of thing that ought to be fought out in every state, as different states seek their own solutions for how to properly accommodate gay people, for whom marriage is not a realistic option but who have formed long-term relationships of mutual assistance and, quite reasonably, want some public support for those relationships.
(As aside: I'm often asked how I can possibly reconcile the above view with Biblical prohibitions against homosexual acts. First, those prohibitions are considerably narrower than generally thought; among other things, female same-sex relations are not biblically prohibited, but are condemned by the rabbis as an instance of the general category of "lewdness." Second, we're talking about civil law here, and it can be prudent to permit legally what one condemns morally in certain instances. Morality is not irrelevant to law, but it's not identical to it either. Third, I believe that there is an irreducible core of people who cannot relate to the opposite sex and for whom celibacy is not a realistic option. They fall into the Jewish category of one who sins "under compulsion" and this is, in some circumstances, exculpatory. Here I'm going out on a limb; this is *not* the accepted interpretation of Jewish law, though there are a handful rabbis who have made this argument. But the fourth reason is most important: a civil unions law such as described above says *nothing* about whether the parties involved are having sexual relations. Marriage carries with it all sorts of connotations about sex; non-consummation was, for example, traditional grounds for annulment. There is *no reason* why a civil unions law would need to say *anything* about sexual relations, precisely because these relations (being *necessarily* non-procreative) are something the state has no interest in promoting. Couples entering into a civil union could be celibate and the state would be perfectly satisfied.)
So this is where I've been for some time on the question. I'd call it the mushy middle, except I don't think it is. I don't think it's a compromise between two principled positions; I think it is a principled position, one that tries to be true to what marriage essentially is and what gay people - including friends of mine - tell me they essentially are.
Now that the battle has been joined, however, sides will have to be chosen in a war I do not want to wage. I do not believe that a Constitutional amendment is the appropriate response to lawless local officials in California or an activist Supreme Court in Massachusetts. This is not the sort of thing that belongs in the Constitution. If courts are to be rebuked, rebuke them directly - impeach judges, pass an Amendment restricting their authority, put the fear of God into them that they remember who has granted them the authority to interpret the law. This is not a solution to the particular challenge of the same-sex marriage advocates and it is not a solution to the general problem of judicial over-reaching.
I worry about the specifics of the proposed Amendment as well. Most obviously, it strikes me as unclear whether civil unions would be struck down under its terms. Proponents of the amendment themselves can't agree on this question, and arguments I've read on both sides strike me as good enough that I could see a court ruling either way, leaving it to Sandra Day O'Connor to decide. (I wonder why we don't just make her Queen and be done with it.) So I worry that my own preferred solution to the question would be banned, but also that there's enough ambiguity to keep the war going over this question for years. What a wonderful achievement. That's what happens when you try to set social policy with Constitution-appropriate language.
Second, I don't think there's been enough discussion of the implications of the amendment beyond the same-sex marriage debate. Let me give one example: common-law marriage. It's not a highly-regarded concept in these liberated days, but it has a long history and I daresay it might be due for a revival. I see no reason why a man who fathers children by a woman and then abandons her *shouldn't* be subject to the legal disciplines of marriage as well as fatherhood; he has, after all, done the woman injury, and this must somehow be made good. But if the Constitution *forbids* the extension of "legal incidents of marriage" to "unmarried couples," doesn't that imply that the Constitution *forbids* any statutory recognition of common-law marriage? I should think so. And what about statutes that explicitly forbid discrimination based on marital status? I'm not crazy about such laws, but I think they are legitimate, and I think they could come under challenge under the FMA. After all, if they are *not* illegitimate under the FMA, what would stop a locality from passing a civil unions law under the banner of an anti-discrimination statute? Simply forbid the state from discriminating on the basis of marital status in all areas associated with marriage law, and suddenly gay couples have equal status in all areas to married couples. Regardless of whether these particular examples would actually be endorsed by the courts, my point is that they could; that Constitutional language is necessarily vague and therefore the potential for unintended consequences from putting social legislation like this into the Constitution is quite significant.
For all these reasons, I hope the amendment doesn't pass. But what else is to be done? I've suggested elsewhere that Bob Lafollette's proposed amendment to empower a Senate super-majority to override a Supreme Court decision be revived in some form or another. Massachusetts is currently being tested as to whether they are ruled by a court or by the people. That's a matter for the people of Massachusetts to resolve, and I suspect they will do so. I don't see why the people of Wisconsin or Kansas or anywhere else have to opine. If the people of Massachusetts decline to rebuke their Supreme Court, and meekly accept its diktats, so much the worse for the sons and daughters of Cotton Mather. More generally, we should be rolling back the scope of equal-protection language in our state constitutions, because this is the banner under which same-sex marriage and legal androgyny generally is advancing, just as Phyllis Schlafly said it would. And we should be pushing for laws that would strengthen marriage explicitly: reintroducing the concept of fault into divorce law, and the distinction between divorce and annulment; restoring the presumption of paternity (the "marriage veil") that has been pierced in recent years; etc. Passing these laws will necessarily result in the reintroduction of a certain asymmetry in the treatment of men and women in marriage law, which in turn will make it clear - to the courts and to the people - that marriage is about men and women - and children - and not abstract "people" and their love. Same-sex marriage is a symptom of an underlying legal dysfunction, and amending the Constitution to treat a symptom strikes me as very foolish indeed.
Let me close by talking about the politics of the question. They are awful for the President, and I'm sure he knows it. The notion that the President is doing this for political reasons strikes me as prima facie bizarre. Jonah Goldberg is right: most of the country just wants this issue to go away. They certainly don't want a fight about an amendment to the Constitution. Kerry can look "centrist" simply by opposing an amendment while reiterating that he's against "gay marriage." That kind of waffle makes him look ridiculous when he's talking about the war; it will dovetail perfectly with swing voters' preferences on this issue. Heck, it even sounds, superficially, like my own view. As with most of the President's decisions, the best bet as to why he made them is he thought they were the right thing to do. He may be wrong. He may be ill-informed. (Certainly, critics of his decisions on Iraq and on immigration think he is both, frequently.) But I find it bizarre that people think Bush would embrace an amendment *opposed* by most Americans in order to win votes. Will it fire up his base? I suppose it will. But frankly, if Christian right types need a Presidential endorsement of this amendment to justify their support, Bush is in a weaker position than I thought. That's the one part of the base I thought he had pretty well locked up.
A final word to the wise on politics. I said I hoped the amendment wouldn't pass. I'm sure that supporters of the amendment hope it passes, but I'm sure they also hope that, if it doesn't, they'll have made their point, and will still have an impact on how the law develops. Don't bet on it. If the amendment fails, that will be interpreted by its opponents as an endorsement of precisely what the amendment proposes to prohibit. Opponents of same-sex marriage have brought out the big gun. If this doesn't win them the war, who will fear them further? What could they possibly threaten if they can't pass this?
I said once before that I think the FMA is more a cry of anguish than a proper piece of legislation. I still believe that. Conservatives - understandably - think they are losing on an issue that means everything to them. This is a desperation move. For that very reason, it unnerves me to see the President endorse it. If this issue is so important - and it is - the President should be thinking not only about what he thinks is right, but what will win. The FMA won't.