Marriage-lite

Public Interest, Summer, 2004 by Charles Murray

JONATHAN Rauch persuasively demonstrates, central to everything else, that those of us who are not proponents of gay marriage do not have the option of hoping the issue will go away. As Rauch puts it, we have reached a bend in the river. Major changes will happen concerning the right of gays to engage in unions similar to marriage. The question is: How can that which is inevitable be shaped for the better by those policy options that remain open to us?

On this point, I am more fatalistic than Rauch. He favors a process in which the states individually decide, one that lets us watch and learn from the different courses they take. He thinks a federal mandate would be bad. I agree wholeheartedly. But the constitutional scholars I have listened to lead me to conclude that Rauch's hopes that the courts can be restrained will be disappointed. Over the next few years, we will see carefully crafted cases brought to carefully selected courts. The Defense of Marriage Act will not hold. The full faith and credit clause of the Constitution will be interpreted to mean that all states must recognize a gay union recognized by, for example, Massachusetts. With that will come gay unions throughout the United States, very soon. I don't propose to argue this point--I'm not a constitutional scholar. But that's the assumption I am using in my own thinking about policy options. I also assume that a constitutional amendment banning gay marriage will fail. I personally oppose such an amendment, but that's not the point. The political reality is that it is not going to happen.

There are only two possibilities for influencing the course this revolution takes. One is a constitutional amendment that does not forbid gay unions, but expressly frees states not to recognize such marriages. This would have the effect of permitting the gradual adoption and evolution of statutes that Rauch and I both favor. The odds on this amendment being introduced and passed are also not good. But they are better than the prospects for an amendment banning gay marriage, and the effort is worth pursuing.

THE other pressure point is opposition to civil unions or other forms of what Rauch calls "marriage-lite" in his book. Rauch argues that marriage-lite is going to be seriously damaging to heterosexual marriage. He is right. Civil unions that are even easier to get out of than marriage is now, that enable people to get the economic and statutory goodies of marriage without taking on the full symbolic and legal obligations of marriage, will become an increasingly common alternative for heterosexuals. They will remove the last vestiges of stigma about cohabitation as a framework for having children. Everything I just said about the inevitability of the rapid nationwide spread applies here as well: If civil unions are the solution for gays, they are also going to be the "solution" for many heterosexuals, nationwide.

This brings us to what Rauch calls in his book "Rule 1," which reads, "If you want the benefits of marriage, get married." He wants full-blown marriage for gays, not civil unions. His reasons are powerfully argued, from a variety of directions, and, to me, wholly convincing. After reading his book, I have gone from being mildly positive about civil unions as a solution to the gay-marriage issue to being adamantly opposed.

Affecting policy on this issue is another matter. Civil unions are already recognized in various ways across the country, or are recognized by companies that allow benefits for unmarried partners. I don't know how one would go about mounting a campaign to have the laws permitting marriage-lite repealed--certainly not a campaign that has a chance of succeeding. Civil unions are increasingly seen as the way out by people across the political spectrum, as indeed I once saw them. In the case of private companies, it's none of the government's business, in this libertarian's view, how companies define eligibility for their benefit packages. The campaign against benefits for unmarried partners would have to be one of moral suasion, in an environment where getting tough on unmarried partners would be a public relations disaster for a large corporation.

To recapitulate: I favor a constitutional amendment permitting states to ignore same-sex marriages in other states, far-flung rollbacks in state laws that recognize civil unions, and a campaign of moral suasion to change corporate practice. None of these efforts is likely to succeed. The reality is that civil unions for gays and straights alike, and probably formal marriage for gays, are going to be legal throughout the United States within a few years.

BUT we are not merely engaged in a discussion of the nuts and bolts of what's going to happen. Rauch's book is above all about what should be. So to what extent has Rauch made a convincing case that gay marriage will be, as the book's subtitle says, good for gays, good for straights, and good for America?

Good for gays? Irving Kristol has a bon mot about gay marriage: "Let them have it. They won't like it." I think there is much insight in Kristol's observation, but Rauch has convinced me that he will like it, and that some unknown proportion of other gays will like it. I have no idea how large that proportion is. Rauch argues persuasively that the common perception of gays as hopelessly promiscuous needs much more data before we can accept it, and that the charge is probably exaggerated. I also agree that the proportion of gays who choose marriage may well increase over time, as marriage becomes an option that gays can think about, as it has not been in the past.