Why Marriage Matters

December 27, 2003

What an amazing year 2003 has been for gay civil rights! Simply having the U.S Supreme Court strike down the Texas sodomy law would have been cause enough for celebration. But the breadth of the decision, which affirmed our most basic civil right, was stunning. Who knew that the decision would be followed by the extension of full marriage rights in Ontario, British Columbia and, eventually, all of Canada? And even further gains were had in the recent decision of the Massachusetts Supreme Court that marriage laws that excluded same sex couples violated those couples' civil rights.

Even the disappointment suffered in New Jersey, where a lower court dismissed a suit brought by seven same sex couples for the right to marry, is only a temporary setback, since there is an appeal planned, probably directly to the New Jersey Supreme Court. If nothing else, the suit here, and the result in Massachusetts, has prompted the New Jersey legislature to draft a domestic partners law similar to California's. The proposed law is expected to pass in January, 2004 and Governor McGreevey has stated he will sign it.

In this month's column, I want to address the point that marriage matters. I believe that this is one of those turning points in world history and that we should not settle for less than full marriage rights. I also hope to leave you with some arguments you can use in order to help change the minds of the people around you, for if you can change one person's mind, and they change someone else's mind, there will be fewer and fewer people against us.

My initial reaction when I read the decision in Massachusetts was sheer elation. However, the verbal backlash that began shortly after the decision was announced was particularly disconcerting. Would we achieve real equality in the U.S., or would there be a legal and political backlash that would set back gay rights for a generation? And would we be better served if we backed away from the push to marry and simply sought to protect our relationships with civil union or domestic partnership laws?

The Massachusetts decision imposes a 180-day deadline on the Massachusetts legislature to come up with a set of laws that don't exclude same-sex couples. If the legislature doesn't act within that time, the Supreme Court will act in its stead. The Court's decision seems unclear in that it does not give a good indication as to what sort of legislative changes it would uphold. Some believe the Court would uphold a civil union law, similar to Vermont's, that would extend most or all of the rights of civil marriage to same-sex couples, but would avoid the political minefield of calling it marriage. Others believe the Court would only uphold a rewrite of the state's marriage laws, replacing all references to man and wife with some sex-neutral equivalent, as in Canada. Even as I am writing this, the Massachusetts Senate has asked the Court for clarification as to whether civil union would be acceptable, and a civil union law could be introduced next week.

In response to the Court's decision, the current governor of Massachusetts has vowed to fight for a constitutional amendment that would define marriage as between one man and one woman. Fortunately, the process of amending the Massachusetts constitution would take at least three years, during which it is clear that some form of marriage or civil union will go into effect in Massachusetts anyway. Gay civil rights activists and supporters of gay marriage hope that during that time, the people of Massachusetts will get to see that gay marriage doesn't change much, if anything, about their own lives. Indeed, in Vermont, the backlash against civil unions has mostly faded away, and few people now realistically believe these rights will be rolled back.

Besides, rolling back these rights, once they have been in place for a while, creates a whole new set of legal problems. For example, if two men are legally married and buy a house, courts have to address what happens if that status changes. If a legally married same-sex couple has a child, is that child robbed of a legal parent if the parents are no longer considered married. When many states abolished common-law marriage, they had to grandfather those couples who had fulfilled the requirements for common-law marriage before the law went into effect.

As part of the backlash, there has been a lot of talk about passing an amendment to the US Constitution and, indeed, such an amendment has been introduced in Congress, and many Republican leaders, including Senate Majority Leader Bill Frist, have expressed support for such an amendment. However, many other members of Congress, including a number of conservative or libertarian Republicans are adverse to modifying the Constitution and have expressed reservations about such an effort. Furthermore, even among those who favor an amendment, there is much disagreement, with some favoring a ban on gay marriage only, and others favoring prohibitions against civil unions as well.

The power to amend the Constitution is found in Article V of the Constitution, which provides that the Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. The drafters of the U.S. Constitution wisely created a process that has resulted in the passage of only 17 amendments in the last 212 years (two of which don't really count since this number includes Prohibition, the 18th Amendment, and its Repeal, the 21st Amendment).

Thus, in order to pass an amendment prohibiting gay marriage, both the Senate and the House of Representatives must draft an amendment that both can agree on and that passes both houses by a two-thirds majority, rather than the simple majority that otherwise applies to the passage of laws in Congress. Assuming that all of this occurs, the second hurdle must be cleared, which requires at least 38 out of the 50 states to ratify the amendment. Until fully ratified, such an amendment would not be binding, and other states in the US are free to legalize marriage or civil union, or not, as they so desire. The last attempt to amend the Constitution, the Equal Rights Amendment, failed to be ratified by the requisite number of states, despite initial momentum in its favor, and it is likely that a gay marriage amendment similarly fail.

So why does gay marriage matter? After all, some gay and lesbian activitists have been preaching against marriage for years - that marriage was a heterosexist institution that should not be the model for our relationships. Furthermore, many couples today - gay and straight - would rather live together than marry. In Ontario and British Columbia, for example, there have been many same-sex couples who haven't yet tied the knot and don't plan on it, either.

Some people have argued that marriage provides legal protections that same-sex couples otherwise have to put into place with contracts. This is a valid argument, which underlies the reason why, over the centuries, civil marriage laws have come into place as a supplement to and, often a replacement for, religious marriage laws. If the bundle of legal rights associated with marriage is the sole purpose for civil marriage, then why shouldn't we put our efforts into enacting civil union laws?

The answer comes down to one single word, respect.

We should no more accept the separate but equal status of civil union than African-Americans should have accepted separate but equal in their struggle for rights. When the law treats you as inferior, then everyone around finds it easy to believe you are inferior, and you will find it hard to believe yourself that you are the equal of every other person. We cannot force others to respect us, but we can refuse to accept a status that denigrates our respect for ourselves. To settle for civil union is to buy into the lie that straight is normal and gay is not.

So what can you do to help? First, if you haven't done so already, consider coming out of the closet, even if just a little. The number one reason for the breakthroughs in civil rights that we have achieved in recent years is the number of straight people who now know they have a gay relative, friend, neighbor, or co-worker. It's hard to discriminate against someone you know. You'll also find many of the fears you had about coming out were simply in your mind.

Second, even if you don't believe you can come out, don't quietly sit by when someone spouts off against gay marriage or other gay rights. If someone tells you that gay marriage is a threat to straight marriage, tell them the biggest threat to marriage is the legalization of divorce. When they say the Bible forbids gay marriage, tell them that the highest divorce rates in the US are in the Bible Belt and that approximately 70% of marriages in the state of Mississippi end in divorce. Point out to them that shows like Who Want's to Marry a Millionaire and celebrity marriages like that of Britney Spears cheapen marriage far more than a civil ceremony for a same-sex couple. Let them know that every church in the US is free to refuse to marry an interracial couple even though every state in the US allows such marriages. When they try to say that gay marriage will lead to the legalization of marriages between brothers and sisters, adults and children, or that someone will want to marry their dog, tell them you think that if two consenting adults want to marry, it's their business not yours.

There are plenty of straight people who support our rights so you're not going to automatically brand yourself as gay simply because you tell someone you disagree with them and that you think gays and lesbians should have the right to marry.