First, two gay men known to their friends as “the Michaels” sealed their marriage with two rings and a champagne toast in Toronto. Then American queers broke out the bubbly when the U.S. Supreme Court declared the constitutional right to gay sex in the privacy of the bedroom, clearing the way to same-sex marriage here. If the Massachusetts Supremes rule in favor of seven same-sex couples challenging that state’s marriage statute (that decision is expected imminently), Provincetown could see a run on champagne flutes.
It’s not hard to understand why America’s Michaels (and Michaelas) want the right to marry. With the nuptials comes a truckload of rights of marriage, including the secure habitation of your joint home, custody of your kids, tax-free inheritance of your partner’s property, and citizenship in her country. And that’s not to mention the nongovernmental goodies, from health insurance to joint gym memberships to Le Creuset casseroles showered on the wedded pair along with the rice. For all that, marriage is a bargain. In New York City, licenses go for $30.
From a civil rights standpoint, the correctness of gay marriage is obvious. To forbid the status to couples in possession of matching genitals, when the complementary-genitalia crowd is welcome at the altar, denies a class of citizens equality under the law. As long as marriage exists, the status must be open to all adults straight, G, L, B, T, Q, or not sexually connected at all. A strong argument being made on behalf of the Massachusetts plaintiffs is that the current law violates the state constitution’s declaration that “all people are born free and equal.”
But many gay marriage advocates want more than legal freedom and equality. Understandably, they want what the state confers on their straight friends’ relationships: sentimental and moral validation. Vermont’s Freedom to Marry Task Force pronounced civil unions a “bitter compromise”—and not just because the law won’t affect Social Security or federal taxes. To win fence-sitters’ votes, the bill’s authors retained all of marriage’s rights but silenced its religious resonance. For instance, where a marriage is solemnized (the church organ swells), a CU is certified (a bureaucrat’s stamp thuds). This dispassion seemed to add insult to the substantial injury of exclusion from the privileged institution. As Beth Robinson, co-counsel to the plaintiffs in Baker, put it, “Nobody writes songs about registered partnerships.”
Still, in seeking to replicate marriage clause for clause and sacrament for sacrament, reformers may stall the achievement of real sexual freedom and social equality for everyone. For that, we need new songs.
Gay marriage, say proponents, subverts religion’s hegemony over the institution, with its assumption of heterosexual reproductive pairing. It makes homosexuality more visible and therefore more acceptable, not just for judges or ER doctors but for the lesbian bride’s formerly homophobic cousin. Because gay marriage renders queerness “normal,” notes Yale legal scholar William Eskridge, it is both radical and conservative.
But marriage—forget the “gay” for a moment—is intrinsically conservative. It does not just normalize, it requires normality as the ticket in. Assimilating another “virtually normal” constituency, namely monogamous, long-term, homosexual couples, marriage pushes the queerer queers of all sexual persuasions—drag queens, club-crawlers, polyamorists, even ordinary single mothers or teenage lovers—further to the margins. “Marriage sanctifies some couples at the expense of others,” wrote cultural critic Michael Warner. “It is selective legitimacy.”
In Vermont, his words were borne out. Shortly after passage of the law, a coalition of liberal clergy implied that same-sex married people, like straight ones, are more godly than couples in unofficial unions: married gays, they wrote, “exemplify a moral good which cannot be represented by so-called registered partnership.” And legitimacy is more than symbolic. As soon as the law passed, the University of Vermont announced it would no longer grant health benefits to gay and lesbian employees’ domestic partners unless they got legally hitched. Straight domestic partners, because they had the option of marriage, never were eligible for these benefits; nor were other cohabiters.
Just as the Supreme Court’s recognition of the “dignity” of private gay and lesbian sex won’t help the street hustler or the backroom tryster from being hassled by the cops, gay marriage won’t help the leather queen. It could even leave these outliers more vulnerable, as wedded homosexuals cease to identify as sexual outlaws.
In American history, religion and marriage go together like a horse and carriage. But (sorry to inform you, George W.) a modern secular state in a pluralistic democracy has no business affirming any religious version of relational morality. That said, abolishing marriage would leave undone what the state should do: ensure the individual and collective interests of people sharing homes, expenses, and children. “You can call it anything you want,” remarks Brooklyn Law School professor and sex-law expert Nan Hunter. “But you have to have some mechanism by which people can easily, quickly, and cheaply designate another person for a whole list of purposes”—co-parent, co-homeowner, medical proxy, heir.
Instead of conceiving of these associations as “marriage lite,” think of them as personal partnerships and the body of law regulating them as analogous to that for commercial partnerships. A housing co-op has different concerns than a medical practice, a mom-and-pop enterprise differs from a publicly traded corporation—and so do the statutes that limn them. The point is to limit the law to issues germane to the relationships it oversees. For instance, if kids are involved, they and their parents need legal protections, especially in the event of a split-up. Adultery, on the other hand, is not the state’s affair.
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 insurance—that 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 factors—but 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.
“Love and War: Gay Americans Won a Court Victory. Now Comes the Fight to Wed.” By Laura Conaway