The word “marriage,” ever since the idea was coined some 3,000 years ago or so, has always meant one thing: the union of a man and woman as husband and wife. However, last month, San Francisco’s City Hall began handing out marriage licenses to same-sex couples in defiance of state law. Before that, Massachusetts’ highest court issued a ruling mandating that same-sex couples be allowed to marry. Is marriage under siege? Well, it depends on what you mean by “marriage.”
Socially, “gay marriage” already exists. If you can find a priest or justice of the peace to perform the ceremony, anybody can get married. Same-sex couples can have a full-blown wedding with all the attendant bells and whistles, followed by living together and wearing wedding bands and the whole nine yards, no matter what. The government can’t stop them. And this is important, because it tells us that there are two sides to marriage: The social/religious side (often performed by the church) and the civil/political side (where the government gets involved). Nobody is suggesting that churches be forced to conduct same-sex marriages; the entire debate is over what the government’s role should be.
From the government’s point of view, marriage is a legal contract between two people that comes with certain legal benefits. That’s it. Some politicians may think that the question of gay marriage is one of morality, but in reality it’s a question over who should be allowed to enter into a specific kind of contract.
The great thing about this contract is that it provides a valuable bundle of legal rights between two people with relatively little difficulty. Each spouse has automatic rights to shared property after a death, a legal privilege in testimony, and all sorts of other things. Many of these same legal rights can be obtained by a same-sex couple, but it’s an arduous process. Is there a detriment to allowing same-sex couples from inheriting their intestate partner’s estate easily, or spousal tax treatment, or testimony privileges? If so, we haven’t heard it.
The whole issue of how gay marriage might affect the existing legal structure has been mostly absent from the debate, probably because it wouldn’t change much. What everyone is arguing about are the moral effects, such as whether same-sex unions would “demean” marriage or some other such thing. Some gay activists think that gay marriage would hurt queer culture (by “straightening” them, so to speak), and some conservative activists think it would hurt heterosexual culture by encouraging homosexuality and promoting sin. Both are wrong. I have a hard time believing that supporting loving couples is in any way a bad thing. And besides, same-sex and heterosexual couples both benefit from a social institution that promotes fidelity and commitment, and these qualities benefit society as a whole. A gay couple pledging to the same ideals as a husband and wife wouldn’t hurt those ideals in slightest–ideals only get stronger as more people adopt them.
But with “marriage” being traditionally recognized as only for a man and woman, for many people it is worrisome to go about changing that definition. That’s why Congress has started kicking around a constitutional amendment that would conclusively declare, “Marriage in the United States shall consist only of the union of a man and a woman.” There is a lot of emotion bound up in that one word, and many are willing to fight to the end over it. But that doesn’t mean the same people oppose allowing same-sex couples from enjoying an identical situation to marriage. As columnist Ellen Goodman has pointed out in The Washington Post, allowing gays to partake in the contractual aspects of marriage “has become the moderate position. . . . The debate is now about names.”
Massachusetts, trying to placate everyone at once, crafted a bill that would allow “civil unions” for homosexuals. The bill went to great lengths to equate a civil union to a marriage, to the point that those in such a union would be “joined in it with a legal status equivalent to marriage,” with “all the benefits, protections, rights and responsibilities afforded by the marriage laws” of the Commonwealth. Readjusting the entire body of marriage law to have it apply to civil unions, the Massachusetts legislature only required the word “marriage” be reserved for heterosexual unions, while “civil union” be applied to same-sex couples. That was the sole difference.
But when the legislature asked the Massachusetts Supreme Judicial Court if having different names was allowed, the Court struck it down as a violation of equal protection. “The bill’s absolute prohibition of the use of the word ‘marriage’ by spouses’ who are the same sex is more than semantic,” wrote the Court in a sharply split decision. “The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.”
One then wonders if we may now be violating equal protection by referring to female thespians as “actresses” while males are called “actors” instead. But that’s ridiculous. “Civil union” isn’t demeaning language, and what’s more important is that a civil union is legally identical to marriage. But after the Court’s ruling, instead of passing a bill allowing civil unions, the state legislature deadlocked over whether to pass a state constitutional amendment to the effect of the federal one. Instead of smooth sailing, there’s a catfight. Over a single word.
There’s no need for this. Americans on the whole are fine with same-sex couples having all the legal rights of heterosexual couples, so let’s make it happen. There’s no need to lay siege to an age-old word definition in the process.
James N. Markels is a law student at George Mason University.