The Right Coast

January 26, 2005
Marriage, Schmarriage (Part VII): Partial Measures and the Ability to Reconsider
By Gail Heriot

In this series, I believe that I have laid out plausible conservative arguments in favor of and against the legal recognition of same-sex marriage. See here and here. But for reasons that I have already described, I am somewhat more persuaded by the argument against.

In this post, I want to get back to a point that I made in Part I–that the choice for same-sex couples is not between the legal recognition of same-sex couples and nothing at all. There are at least two options available under current law. First, nothing prevents a same-sex couple from simply declaring themselves to be married and attempting to live their lives accordingly. (See Part II). No, the marriage would not be legally recognized (and would not carry with it tax or other legal benefits). But marriage has been around a lot longer than governments, and I'll wager that if the state ever withers away, as Mr. Marx so famously predicted, marriage will still be here. For most purposes (and certainly for the most important purposes), legal recognition is quite beside the point.

Second, in many states now, a same-sex couple may enter into a civil union, which at least here in California carries with it precisely the same benefits as traditional marriage. What's at issue is simply the use of the word marriage--and the symbolic statement that homosexual unions and heterosexual unions are equally deserving of the state's protection and nurture.

It's interesting to think how our experience with these options will affect the debate over time. For example, if private marriages and civil unions turn out to have infidelity and divorce rates that are similar to those of traditional marriage, that would go a long way to convince skeptics like me that same-sex marriage would be a good thing and that present concerns are unfounded. Alternatively, if divorce rates are very high, that might help convince some same-sex marriage enthusiasts that same-sex marriage is not such a great idea after all.

Of course, the opportunity to re-evaluate the issue may never come in some states. When same-sex marriage advocates decided to pursue a litigation strategy rather than attempt to persuade voters to support their cause, opponents opted for the only counter-strategy available to them: They passed state constitutional amendments defining marriage to rule out same-sex marriage. (That's how democracy works you know.) Same-sex marriage advocates will thus have a tougher time switching to a "go slow" strategy than they would have had had they started with it. Now they will have to work to repeal these amendments--no easy task.