WHY "CIVIL
UNION" ISN'T MARRIAGE.
State of the Union
by Andrew Sullivan
Post
date 04.27.00 | Issue date 05.08.00 |
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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 lifeto 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.
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ut 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.
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