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State of the Union

Why “civil union” isn’t marriage.

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.

This article appeared in the May 8, 2000 issue of the magazine.

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