Thoughts from
San Diego on Law, Politics, and Culture

 
Marriage, Schmarriage
By Gail Heriot

At USD's Conference on the Meaning of Marriage this past weekend, my friend and colleague Larry Alexander asked why so many people are willing to tolerate or even endorse civil unions between same-sex couples and yet strongly oppose same-sex marriage. Here in California (and I suspect in some other places too), the legal rights and obligations that arise out the two institutions are precisely the same. The fight is thus essentially over the use of the word "marriage" Or, as Larry put it, what if we were to call same-sex unions "schmarriage," but otherwise treat opposite-sex and same-sex unions the same? Would that be fine with a significant number of those who oppose same-sex marriage?

Well, maybe it would be. But I don't think that's evidence those people are acting irrationally. Symbols matter, especially in a debate that is about symbols. And I see the gay marriage debate as primarily about symbols--and only secondarily about marriage.

First of all, it's important to remember that the debate over same-sex marriage is not about same-sex marriage at all. It's about the legal recognition of same-sex marriage. There's nothing to prevent a same-sex couple from simply declaring themselves married right now, this minute, anywhere in the United States of America. Indeed, there's nothing to prevent the couple from having, as Shania Twain would put it, "the white dress, the guests, the cake, the car, the whole darn thing." If they want to, they can start their own church to sanctify the union. After all, this is America. The only problem is that the law won't recognize the marriage. But that doesn't mean the couple and their friends and family won't.

Strangely, however, not that many same-sex couples engage in this sort of "self-help." (Though some do, and I'll give them some respect for that.) When the City of San Francisco started granting marriage licenses to same-sex couples a little while ago, surprisingly few of the couples who lined up for blocks said that they already considered themselves married and they were just seeking to have the marriage legalized. They just weren't married.

Why? There are two possible answers that would make sense to me. First is that it's not the marriage itself that they are interested in, but rather the legal benefits that flow from the marriage. If so, legal recognition is crucial. But if that's the case, one would expect that civil unions that provide identical benefits would be just as good. Somehow, however, for large numbers of same-sex couples, they wouldn't be. Why not?

I think the answer is that for many same-sex couples, a legally-recognized marriage is desired precisely because they regard legal recognition as an endorsement by the community of their relationship. It says, "The State regards this relationship as a worthy one that should receive support." The same is true of the push to have mainline churches recognize same-sex marriages. It's not the bare fact of a religious marriage ceremony that is central, since some church, somewhere could easily be found (or created) to endorse same-sex marriage. The desire is to have a major church endorse same-sex marriage as a way of endorsing same-sex relationships generally. It's just plain better to be able to say that the Presbyterian Church (USA), the Methodist Church or (perhaps even better) a very large church like the Roman Catholic Church, with millions of members, endorses your "life style" than it is to say that the "Tiny Church of the Castro District" endorses it. And, for many, having the church in which they were reared in is important. What being asked for is approval. It's an undertandable thing; we all crave approval.

The problem is that other people's approval is the one thing they're just not entitled to. Nobody is. Approval comes voluntarily or not at all. And rightly or wrongly (and I'll write on that later), most Americans do not wholly approve of same-sex relationships--at least not at this time and quite possibly never. That doesn't mean that they don't like gays or lesbians or that they want to ban same-sex relationships. And it certainly doesn't mean that they want to turn gays and lesbians into lamp shades (One friend of mine recently suggested--with what I hope and believe was a certain degree of hyperbole--that that significant numbers of people do). But it does mean that they have reservations about public declarations that same-sex relationships are just as desirable as opposite-sex relationships. And recent elections suggest that they are not willing to be corraled into such a declaration.

That doesn't mean that some of them, perhaps many of them, might not be willing to compromise with ... uh ... schmarriage ... I mean civil unions, which do not put same-sex relationships on the same symbolic footing with opposite-sex relationships and hence do not call upon them to endorse same-sex and opposite-sex unions as equally desirable.

But I'll have to get back to this later ....
posted by Gail at 1/16/2005 12:01:00 AM