By Albert Samaha
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Such instruments exist in other democracies. While only the Netherlands, Belgium, and Canada permit same-sex marriage, governments offer extensive nonmarital partnership rights for gay and straight citizens throughout Scandinavia, and less comprehensive ones in much of Europe, Australia, and New Zealand. Some require what is essentially a legal divorce to break up; others, like the French Pacte Civil de Solidarité (PaCS), can be ended after one partner notifies the court.
Because American marriage is inextricable from Christianity, it admits participants as Noah let animals onto the ark. But it doesn't have to be that way. In 1972 the National Coalition of Gay Organizations demanded the "repeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit; and the extension of legal benefits to all persons who cohabit regardless of sex or numbers." Would polygamy invite abuse of child brides, as feminists in Muslim countries and prosecutors in Mormon Utah charge? No. Group marriage could comprise any combination of genders. Guarantees of women's and children's rights and economic well-being would be more productive than outlawing multiple marriage.
The opportunity most tragically missed in the race to get gays into the marriage club is to unpack the "bundle" of rights and protections notably health insurancethat now comes with the status and redistribute its contents to everyone. Marriage's sexual exclusion doesn't create unequal security in America. That's done by a system that loads responsibility for health care, child care, and disability support onto individual families and corporations. American reformers should demand what other industrialized democracies provide: tax-funded social benefits for every citizen. Even legal immigrant status needn't be dependent on whom you sleep with. French immigration officials consider that nation's civil-union equivalent as one of many eligibility factorsbut not an automatic green light. That's unfair if married people get preferred treatment. But no intimate couple should. People form commitments to home and country through children, work, ideology, and community too.
Marriage is probably here for the duration. But new forms could clarify church-state separation, leaving the sacrament to the clergy but divesting them of civil authority. "The role of progressive activists is to insist that more real choices be available," says Eskridge. That's why New Jersey's activists are aiming to include same-sex couples under marriage law and also create an alternative domestic partnership.
Vermont's civil union, though it confers every state right of marriage, may be unequal because it is separate. But in other ways it's excitingly progressive. It is stripped of marriage's religious and sentimental history. It even lets in nonsexual pairs. As a concession to opponents claiming that queers would get "special rights" denied to "maiden aunts" and others barred from marriage by incest prohibitions, the drafters included a less extensive class of mutual rights and responsibilities for cohabiting kin, called "reciprocal benefits." Perhaps unwittingly, the clause mitigates much of marriage's sexual-regulatory function.
Nobody writes songs about registered partnerships. But a legal rhapsody of moral affirmation, lifted from an institution whose other job is to hand out opprobrium to deviants, is more like a hymn, and the state that writes it treads close to theocracy. The government must distribute its material and legal benefits equally. As for love, let the partners write their own vows.