Civil Liberties

The Union Label

Is allowing gay marriage the same as endorsing it?


A casual observer could be forgiven for concluding that the heated debate over gay marriage boils down to a semantic dispute. Many people seem willing to extend to gay couples rights and privileges similar to those enjoyed by husbands and wives, as long as the relationship is not called a marriage.

Ramesh Ponnuru highlighted the importance of this distinction in a National Review article published a few weeks before the Supreme Judicial Court of Massachusetts ruled that marriage licenses should be available to gay couples. Ponnuru noted that supporters of an amendment that would incorporate the traditional understanding of marriage into the U.S. Constitution disagreed about whether it should apply to "civil unions" as well.

Some believed that a broad amendment was not politically feasible or that the question of civil unions should be left for each state to decide. Others "argued strongly that it would be pointless to fight for an amendment that allowed gay marriage in all but name. The amendment had to 'protect an institution, not a word.'"

The compromise they arrived at "would allow civil unions so long as eligibility for them is not based, even in part, on the fact, supposition, or presumption that the people involved are having sex," Ponnuru explained. "The amendment would thus make it theoretically possible for gay couples—and cohabiting straight couples—to have any of the benefits of marriage, except for governmental recognition of their relationships as equivalent to those of married people."

What sort of equivalence are we talking about, and why is it so troubling? By the Massachusetts court's reckoning, the issue is equality before the law: The government should not discriminate based on sexual orientation when dispensing marriage licenses. As a matter of policy and basic fairness, I think this principle is sound, although the court's constitutional reasoning was somewhat less compelling.

For many Americans, however, the issue raised by official recognition of gay unions is not merely legal but moral equivalence. Tech Central Station columnist James D. Miller argues that "on the issue of gay marriage there can be no neutral position. If a state allowed gay couples to marry, it would clearly be endorsing gay marriage and proclaiming to America that homosexual love is equivalent or at least morally equal to its heterosexual counterpart."

In this light, the prophecies of doom that accompanied the Massachusetts ruling are easier to understand. The government has become so entangled in marriage that people have trouble distinguishing between the conditions for obtaining a license and the conditions for maintaining an institution that predates such requirements by thousands of years.

Even if we accept marriage licenses as a convenient way to make various legal and contractual arrangements simultaneously, it does not follow that granting them amounts to a moral judgment. Marriage licenses do not distinguish between people who marry for love and people who marry for money, or between couples who plan to have children and couples who don't. By Miller's logic, that means the government is discounting the importance of love and procreation.

More to the point, as the Massachusetts court recognized, civil marriage is "a wholly secular institution"—a fact that all the talk of defending "the sanctity of marriage" tends to obscure. Atheists and agnostics have been known to marry, after all, and states recognize unions—between Jew and non-Jew, for example, or between Catholics whose earlier marriages have not been annulled—that are forbidden by religious law.

"Given that much of the opposition to homosexuality is religiously based," Miller acknowledges, "if a state denies gays the right to marry it is essentially endorsing certain religious views of marriage." But it's not true that the state disdains those views if it treats gay and straight couples equally when granting marriage licenses—unless it is disdaining Judaism and Catholicism by permitting civil marriages of couples who would be turned away by most rabbis or priests.

Human Events Editor Terence Jeffrey, speaking for many social conservatives, argues that marriages are "made in heaven" and that civil laws relating to marriage should be "man's best effort to codify his understanding of God's law." But once you get beyond the basic rules that are necessary for peaceful coexistence, Americans do not share a single understanding of divine law. And as history amply testifies, using the state to impose one view of God's will is a recipe for perpetual discord.