The only way to marriage equality

Marriage is open to all couples in Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, and Washington, D.C.; all marriages are recognized by New York, Rhode Island, and Maryland; civil unions are granted by Vermont, Connecticut, New Jersey, and Illinois; domestic partnerships are issued by Nevada, California, Washington, Oregon, and Maine; and some partner benefits are afforded to residents of Hawaii, Colorado, and Maryland. (Sources: Extensive Wikipedia articles on same-sex marriage and civil unions.) Facebook now lets its users specify they’re in domestic partnerships and civil unions.

Meanwhile, dozens of states have explicitly banned non-heterosexual marriage (hi Nebraska), various refuse to recognize such marriages granted out-of-state, and the battle rages back and forth in Iowa, California, Indiana, Wyoming, and elsewhere. I don’t expect to see anything happen either way on the federal level for some time (where the Defense of Marriage Act leaves the states to each do their own thing).

Oh hey! Obama’s Justice Department has decided to stop defending Section 3 of DOMA — which defines marriage as between one man and one woman. The US Attorney General writes that, for one, the President has said he finds the section is unconstitutional because its use of sexual orientation as classification doesn’t stand up to scrutiny, and for another:

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.”

…In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.

(For more, read the full letter from USAG Eric H. Holder, Jr., to Speaker of the House John Boehner, via the Huffington Post.)

So we have some encouraging signs of progress. Still, a lot of people are asking how long the wait will be until they can form legally recognized partnerships, with the same benefits heterosexual married couples enjoy, that will be valid in each and every state. I’m asking why marriage is a government issue at all.

Communities have recognized (semi-)permanent partnerships for thousands of years, although the assertion that only one-man-one-woman pairings made the cut is patently false. Religion, as part of or alongside the community, has also often been involved in the ceremony of marriage, and has recognized the particular bonds of marriage. But government involvement is definitely not a constant. England (and thus the American colonies) didn’t regulate marriage until 1754. Meanwhile there are legal records from medieval France that suggest the existence of state-recognized, same-sex romantic partnerships. (It’s worth noting that our present concept of homosexuality is a 20th-century innovation of thought, so I refrain from using terms like “ancient gay marriage.”)

And there’s really no reason why the state should be part of the mix. Any “important government objectives” can be achieved without considering marital status or who you’re partnered to. (Will people form partnerships-of-convenience? Guess what, they already docollege students take note too.) Tax and employment benefits can be granted per household, or perhaps granted to you, one person of your choosing, and your and their dependents. Child-rearing responsibilities, division of property, and medical decision-making powers can be set out in advance like any other legal agreement. The best part is it’s flexible; pre-nuptial agreements already let couples record in advance how they want to deal with particular marital issues, but otherwise state-granted marriages are one-size-fits-all.

As for civil unions and domestic partnerships, I view them not as gay marriage prototypes, but as proof that blanket terms like “marriage,” “union,” and even “partnership” can be made utterly irrelevant to the government. Leave it to the people getting hitched, and maybe their particular religious institutions, to call their arrangements what they will, and to determine what rights and responsibilities they give each other.

“Privatizing marriage” would also obviate the common claim that religious institutions will be forced to perform (gay) marriages, and call them marriages. It would even let churches be more restrictive! A church could choose to only officiate marriage ceremonies for heterosexual couples whose partnership agreements are permanently binding. That ought to make various conservatives happy — unless, of course, they’re hell-bent on using legislation to enforce their moral agendas on the world. (What are the odds?) The Catholic Church, if they were honest, would have to breathe a sigh of relief that the government definition of marriage were no longer present to contradict the doctrine that marriage is forever.

There are no good arguments against marriage privatization. Many of them are moral ones that are inappropriate in our secular society — the federal and state governments are not enforcers for your church’s doctrine, and if the government lets gays declare themselves married, it has no impact on the strength of your own heterosexual shack-up. Arguments from the gay community, and its opposition, focus on how using the M-word will let gays “normalize” their relationships in the broader culture. They’re somewhat right, but there’s only ever been a subjective benefit to touting your marital status and how the government recognizes it. It was never their business in the first place.

Will I cheer victories for marriage equality as they spread from state to state? Sure, because the willingness to budge on this issue does indicate that people are realizing how little another’s orientation affects them. But I’ll cheer even harder when people realize what David Boaz already has:

Marriage is an important institution. The modern mistake is to think that important things must be planned, sponsored, reviewed, or licensed by the government.

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