Civil Liberties

Next Stop: Same-Sex Divorce!

Gays beg the state for the right to beg the state


What do you do after you've won one of the most important Supreme Court cases in decades and shoved the state, kicking and screaming, out of your bedroom? Apparently, you beg the government to walk right back in. "The Marriage Revolution" has arrived, and homosexuals are the unlikely heroes of the quest to revive a fading institution.

Legalized marriage is the next item atop the "so-called homosexual agenda" to which Supreme Court Justice Antonin Scalia refers. After Hawaii's disappointing backtrack and Vermont's lackluster compromise, the focus is on Massachusetts, where seven same-sex couples are suing the Department of Public Health. Understandably, these couples want the legal protections that come with marriage. The interesting question here isn't whether they deserve the same protections as their heterosexual counterparts, but whether marriage is the proper vantage point from which to seek them.

The marriage rate has been dropping since 1970, while the number of cohabiting couples has increased over 1000 percent since 1960. According to the 2000 census, 11 million Americans live with an unmarried partner and 41 percent of those households are raising children. If the situation across the pond is any indication, those trends won't change any time soon. The youth of France have shown a particularly strong penchant for consensual unions, and the situation is even more marked in Eastern Europe.

"The War Against Marriage" is a favorite rallying cry of social conservatives, but the sentiment of the offending party is more a shrug than a call to arms. The young are no more engaged in a "war" against marriage than cell phone users are crusading against landlines. The need to involve the state in one's personal affairs has simply ceased to be an obvious step toward intimacy. A 2001 Gallup survey reveals that eight out of ten men and women ages 20-29 agree that marriage is nobody's business but the two people involved. According to the National Marriage Project at Rutgers University, "the acceptance of non-marital lifestyles has increased enormously over the decades."

That all this amounts to the degeneration of the family is hardly a foregone conclusion. Children are being born out of wedlock in ever-increasing numbers, but many of these children are raised in two-parent households, traditional in every way except that they've never asked for the government's blessing. Even the ultra-conservative Marriage Project concedes that "high school seniors seem to believe in monogamy more than ever." In 1975, the report states, 60% of students disagreed or mostly disagreed with the idea that "Having a close intimate relationship with only one partner is too restrictive for the average person." By 1995, it was up to 70%. The once inseparable ideas of marriage and monogamy may have quietly parted ways.

It is against this backdrop that the homosexual lobby moves onto its next challenge. The arguments are legally sound and emotionally compelling, but it is unclear that the problems of being homosexual in a homophobic nation will soften under state sanction. If 54 percent of Americans think it is "always wrong" to have same-sex relations, it's safe to assume they'll think the act is still wrong when it's sanctioned by a marriage license. Presumably, if you have a problem with lesbians, it isn't because they aren't doing enough marrying.

The most powerful arguments for same-sex marriage are anecdotal: the partners of 9/11 victims who had to fight for compensation, the men and women refused access to their hospitalized partners, the struggle for adoption rights. Homosexual couples want and deserve the same legal rights as married couples—the endless list of privileges that spans from health care to inheritance law to immunity from legal testimony. But should a person of any sexual orientation have to enter an entangling contract with the state in order to receive these benefits?

One problem with this particular contract is that you never know when the other party will change the rules. In 1996, "no fault" divorces came under attack for failing to uphold the nation's most sacred institution. State legislatures considered requiring one spouse to prove a specific fault if the other opposed a divorce. Had these measures passed, couples who had entered into what they thought was a voluntary contract, voluntarily dissolved, would have found themselves bound by very different circumstances. Given an always-active political class that views marriage as a social panacea, it's conceivable that the issue will come up again.

If marriage must be contractual, there is no reason that the state should play a role beyond enforcement. David Boaz has proposed that we "privatize marriage" by letting partners draw up their own contracts tailored to their own needs and standards. This may seem less than romantic, but then, filling out an application for a marriage license isn't exactly a trip down the Danube.

Seen in this light, the move to legitimize same-sex marriage is a profoundly conservative one. One can imagine a future in which the rate of same-sex marriage is higher than that of heterosexual marriage, as a traditionally marginalized segment of society seeks acceptance through dated social conventions. (Remember the wave of excitement that failed to engulf the nation when The New York Times began entombing same-sex unions in its wedding announcements?) At any rate, the legalization of same-sex marriage will no doubt slow the decline of the institution. Many who currently question the wisdom of offering special rights to married couples will be absorbed into the offending system.

As the states, one by one, grant permission for same-sex couples to wed, the country will be moving in the right direction. The real victory, however, will be when it no longer occurs to any couple, of any orientation, to bother asking.