GAY MARRIAGE: INTO THE QUICKSAND

May 24, 2012

As usual, it all started with Joe Biden.

"Look," he said on Meet the Press on May 6, "I am the Vice President of the United States of America. The President sets the policy. But I am absolutely comfortable with," basically, anybody marrying anybody (space does not permit printing his entire sentence).

In rhetorical contrast, when Education Secretary Arne Duncan was asked if he supported same-sex marriage, he replied in three words: "Yes, I do."

I now pronounce you ....

It was Duncan's laconic response that some construed as a harbinger of an administration-wide position; why else would a cabinet officer weigh in, when he could have said the question is irrelevant to his job? But that was not to be.

Apparently taken by surprise at his subordinates' remarks, President Obama finally evolved to the point of offering a hesitating, rambling endorsement, marked by many pauses and restatements and using his I'm-just-folks voice, in his interview with Robin Roberts on ABC on May 9: "At a certain point, I've just concluded that — for me personally — it is important for me to go ahead and affirm that — I think same-sex couples should be able to get married."

The key word here is "personally." He said he didn't want to "nationalize the issue": "I continue to believe that this is an issue that's gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage." If he were a state senator, he said, "You know what? I think that — I would have voted yes" on same- sex marriage legislation.

This long interview was telling in its tenuousness: Of course I support full legal rights for gays and lesbians; of course I now realize that "civil unions" relegate same-sex couples to "less than full citizens"; of course I sympathize with "folks — who — feel very strongly that marriage should be defined narrowly as — between a man and a woman"; of course same-sex marriage laws must be "re — re - respectful of religious liberty, that — you know, churches and other faith institutions — are still gonna be able to make determinations about what their sacraments are."

Clearly, the President is not as absolutely comfortable with same-sex marriage as his V.P. claims to be, not only for the obvious political implications but "personally."

It's the way a lot of other heterosexuals feel — conflicted. They believe that same-sex couples should enjoy the same rights and privileges as heterosexual couples; they believe that same- sex couples should be able to call their unions marriages. But they also believe that religious traditions with a "narrow" definition must be respected for their integrity and in no way be considered discriminatory in the eyes of the law.

This last point indicates that same-sex marriage is not a Fourteenth-Amendment, civil-rights issue in the same way that racial and gender bias are. Instead it is a First-Amendment, disestablishment issue. Just as the state can neither establish nor prohibit the exercise of religion, so too should the definition of marriage be left to individuals, religious bodies, and other social groups to interpret in their own way.

I have long argued (see my blog, http://repohl.blogspot.com, for other articles) that the unaddressed problem in the so-called "marriage wars" is the presumption that a definition of marriage must be written into law. But I would contend that the word "marriage," because it no longer holds a uniform meaning, is no longer a viable legal term. It is instead a personal and cultural one, a symbol of sexual intimacy, love, and commitment — qualities that are beyond the scope of law.

Contemporary marriage law is essentially contract law — it deals with the distribution of property and other obligations and privileges between the partners and toward their children. The development of the right to privacy over recent decades has eliminated the state's interest in the partners' sexual activity, inherent in every definition of marriage. Thus I would propose a more realistic description of the legal contract: a generic term such as "domestic partnership," universally applicable to any two consenting adults regardless of gender. Eliminating the presumption of sexual activity implied in the word "marriage" would also allow states to extend the contract to other family configurations — for example, to two relatives or friends with an interdependent commitment to one another but who would never want to be considered "married."

Such an approach would extricate the state from the impossible task of defining marriage to everyone's satisfaction. It would resolve the predicament that courts, legislatures, and now the President find themselves in, forced to take official positions on a matter that is essentially personal. The meaning of marriage would be returned to the people, where it properly belongs.

Unfortunately, this won't happen any time soon. The sad fact is that marriage has become an ideological football, when actually it's all about love.