June 12, 2008
Now the marriage wars are really heating up.
On June 2, the California Secretary of State announced that the initiative measure to inscribe an exclusively heterosexual definition of marriage into the state Constitution will qualify for the November ballot. If passed, the amendment would trump the California Supreme Court’s May 15 ruling that expands the legal designation "marriage" to include same-sex couples, since now the word would be explicitly defined in the determinative document of the state.
The day before the California court’s decision, New York Governor David Paterson nationalized the issue by ordering all state agencies to treat as marriage every type of unitive contract from any state, no matter what it is called — marriage, domestic partnership, civil union. This highly creative directive makes an end-run around both the state’s high court, which in 2006 left the definition of marriage to the legislature, and the legislature itself, which has been deadlocked on a gay-marriage bill ever since. Though Paterson’s order will not affect court-related matters such as child custody, it is expansive enough to include, as the New York Times described it, "everything from joint filing of income tax returns to transferring fishing licenses between spouses."
And then, to further demonstrate the repercussions of one state’s marriage policy on others’, ten state attorneys general petitioned the California Supreme Court to stay the June 17 implementation date of its gay-marriage ruling, pending the results of the November amendment initiative; the AG’s feared being buried in an avalanche of legal challenges from gay couples who would drop in for a marriage license in California, which has no residency requirement, then press for validation from their own states. The Court turned them down.
So the circle gets wider and wider: more litigation, more legislation, more bitter contention, for a very long time to come.
In my two previous columns, I suggested that this legal morass would dissolve if states would disestablish marriage as the U.S. Constitution disestablished religion, affirming marriage as a fundamental civil right but declining to endorse any particular form of it. They would abolish their marriage and civil-union/domestic-partnership laws in favor of a universal contract with a neutral name, open to any two consenting adults regardless of sex or even implied sexual activity, with the full range of rights, benefits, and responsibilities formerly accorded only to marriages.
Officially disestablishing marriage would not be a contrary step; it would in fact most accurately reflect the changes that have been spontaneously occurring in American society over the last 40 years.
Nancy F. Cott, in her book Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000), describes this organic development: "By analogy," she writes, "one could argue that the particular model of marriage which was for so long the officially supported one has been disestablished. Continuing the analogy to religious disestablishment, one could say that with the weight of the one supported faith lifted, plural acceptable sexual behaviors and marriage types have bloomed." She compares our situation with that of early America, "when laws regulating marriage were on the books everywhere but the more effective validation of marriage came from local communities."
The pragmatic reasons for taking the logical step to disestablishment are summarized by Mark Poirot, a professor of law at Seton Hall University in New Jersey and an expert on gay-rights legal issues: "From the point of view of moderating cultural conflict and removing the culture war over marriage from the temptation of interminable battling over control of various territorial jurisdictions, perhaps another version of disestablishment should be considered: the state would no longer marry anyone, and would relegate the culture war over marriage to the private sphere altogether. In other words, the state would cease to provide the contested public good of the status of civil marriage, period."
From the perspective of public good, both governmental and private-sector policy has also decisively shifted away from supporting marriage per se and toward supporting family in its many forms as the fundamental good. Single parents, adoptive parents, and even (as in Salt Lake City’s health-care plan) dependent "adult designees" of a person’s choosing are increasingly being accorded the benefits and rights previously reserved to the married. And, as Nancy D. Polikoff, in her detailed study, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press, 2008) points out: "A legal system in a pluralistic society that values all families should meld as closely as possible the purposes of a law with the relationships that that law covers. Marriage is not the right dividing line."
Polikoff asserts that the gay-marriage movement has shunned the needs of the wider alternative community by, ironically, employing the same argument as their traditionalist foes: that marriage retain preferred legal status over other kinds of family relationships. "While the movement for marriage equality has insisted it is fighting for same-sex couples to have the choice to marry, marriage is not a choice if it is the only way to achieve economic well-being and peace of mind." Instead, Polikoff calls for a single contract and body of laws encompassing every form of dependent or interdependent relationship — a "civil partnership," she calls it.
The idea of abolishing civil marriage has yet to exert much force in the marriage wars. There is still a presumption, both in the popular mind and in the body of judicial rulings, that government is either the guardian of a uniform divine or natural law or itself the creator of marriage. History has shown that neither of these positions is the case. Marriage in its essence and its interpretations — in its sexuality, psychology, spirituality, and communality — lies far beyond government’s control. The California Supreme Court’s majority opinion that civil marriage is necessary "to publicly and officially express one’s love" oversteps the legitimate function of law, which is to adjudicate contracts and protect families. Love is best expressed in the community, not the courthouse.
Marriage is a reality too intimate to suffer the pettiness of politics. As Harvard law professor Stephen Carter puts it: "Official acknowledgment of marriage causes enormous difficulty. One of the difficulties it causes is that marriage, precisely because of its honored status, becomes a prize for which people fight in the political arena instead of a part of the sacred side of life."
The public battle over marriage is destructive to the national fabric. It is also unnecessary. For the sake of the institution of marriage, the institution of government should get out.