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The Meaning of Marriage

July 14, 2004

Even many people who favor gay marriage, including some gays, are shocked by it. Or they were until recently. Half a dozen years ago, the notion that two men or two women could marry had never occurred to most citizens -- even to most liberals. Today it is an article of the liberal faith, up there with abortion rights. And half a dozen years from now, gay marriage may well be established and commonplace beyond the need for editorial comment.

So President Bush's decision to make gay marriage a political issue, and to endorse a constitutional amendment banning it, might be a miscalculation. Politicians contemplating a strong stand on any issue must balance the benefit of pleasing their core supporters against the cost of alienating swing voters (or, on other issues, vice versa). But how many voters are actually pleased at the thought of a big fuss over gay marriage? Some folks who were horrified when they first heard of the idea have decided, Why should I care? If it makes two other people happy, what's it to me? Some have noted that conservatives are supposed to believe that marriage is good for society, and most of the reasons for that belief apply to gay marriage as well. Among those who remain horrified, many find the subject so distasteful that they wish it would go away. They do not want it shoved in their faces.

Politics aside, a constitutional amendment banning gay marriage is a terrible idea. It is a terrible idea because banning gay marriage is a terrible idea. Opponents of this amendment try to make the case against it without getting to this central question. They say an amendment is unnecessary or the subject is beneath the dignity of the Constitution. But this won't do. For those who oppose gay marriage, a constitutional amendment is their only choice. One state, Massachusetts, has legalized gay marriage, by order of the state supreme court. It is not clear whether the U.S. Constitution requires other states to give "full faith and credit" to Massachusetts marriages. But there is no guarantee that it doesn't. A law cannot override the Constitution. Only a constitutional amendment can do that.

Compare and contrast: abortion and gay marriage. In the case of abortion, liberals (to generalize) are happy to see the federal courts overruling state laws and invoking the Constitution to guarantee an important right. Conservatives (to generalize) believe just as strongly that abortion has no place in the Constitution, that state legislatures should make the law regarding abortion and that federal courts should butt out. In the case of gay marriage, conservatives want to use the Constitution as a bulldozer to flatten a dangerous social experiment. Meanwhile, liberals wax lyrical about the rights of individual states to make their own laws and deplore trashing up the Constitution with issues like gay marriage.

The gay rights movement has protected and expanded freedom for all by getting the government out of our bedrooms. A tempting solution to the gay marriage controversy would be to extend that triumph one more step and get the government out of our marriages. Let churches and other private institutions define marriage however they wish. Gay marriage and traditional marriage would have the same legal status, and yet there would be no official sanction or approval of gay marriage. Both sides would have what they say they want. And what principled conservative could object to this major retrenchment of government authority in our lives?

Unfortunately for this notion, the concept of marriage is enmeshed in the details of government -- in the tax code, in inheritance and child custody laws and so on. In practice, it cannot be extracted. And even in theory, what lawyers call a "bright line" -- speeding means more than 55 mph; you're either married or you're not -- is often needed to keep the rules from becoming impossibly complicated.

But the notion of "privatizing" marriage remains a good one. And the concept of civil union may be a promising approach. Right now, civil union is just an evasion for politicians trying to sidestep the gay marriage controversy. But it could be a model for a different official attitude toward marriage. You could imagine trying to separate the various aspects of marriage into those that are primarily administrative and those that reflect primarily some kind of moral approval. It couldn't be a clean break. But if, for example, a marriage license was no fancier than a voter registration card, and if obtaining one was just as mundane an experience, that would help. No one thinks that a voter registration card reflects societal approval of a citizen's voting preferences.

Couples who wanted a more serious and ceremonial recognition of their union would get it from their church or similar institution, even one that does not recognize gay unions.

Gay marriage advocates tell tragic stories of, for example, gay men and women banned from a longtime partner's hospital room by vindictive parents. How many opponents of gay marriage actually want to keep a dying man away from the person he loves the most? Probably not many. It is the implied approval that bothers them.

We support gay marriage. Redefining the state's role in marriage might dampen the doubts of others.

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