In June 1996, Miss Florence King, author of O Wasp, Where Is Thy Sting, quondam NR columnist, and America’s premier social critic, saw exactly where we were headed. She wrote then: “Gay marriage is a consummation devoutly to be missed, but it’s a dead cert. If you doubt it, try to remember the last time America turned down a vocal minority.” Her clinching argument was that Bill Clinton had announced that he was “personally opposed” to gay marriage — the standard explanation of a willingness to vote for something.
That was seven years before the U.S. Supreme Court, in its decision overturning state sodomy laws in Lawrence v. Texas, made sexual relations between consenting adults a legal right rooted in a supposed constitutional right to privacy. And that right, as critics as different as Supreme Court Justice Antonin Scalia and liberal commentator Michael Kinsley seem to agree, is almost destined to morph over time into the right of gay and lesbian couples to legal marriage.
Admittedly, a good lawyer could fashion a strong argument that a constitutional right to privacy cannot be cited to transform a public institution like marriage. But that is exactly the kind of argument that, as Miss King foresaw, cannot withstand the strong currents of “diversity” and “inclusion” sweeping through America’s institutions. Give the courts another seven years and Supreme Court Justice Sandra Day O’Connor will discover that marriage is more private than public — and split “Vive la difference.”
Columnist Michael Kinsley is terrified by this. Not by the prospect of gay marriage itself, let me be clear, but by the intervening seven years of public controversy with their ritualized, unproductive, and boring debates over whether gay marriage will in effect mean that society endorses homosexuality as a “normal” or “respectable” lifestyle. In last week’s Washington Post, therefore, he tried to short-circuit the debate with his own radical proposal that marriage be “privatized.”
In other words, government would get out of the marriage business altogether and leave solemnizing marriage to churches and other institutions. People could then get “married” by whatever institution, in whatever combination, for whatever period, under whatever rules they chose. And the rest of us need not feel that “we” are sanctioning their behavior because this new-style unofficial marriage would be a genuinely private institution.
As Kinsley concedes, his proposal is freighted with problems. Traditional marriage is entangled with laws and legal precedents that handle child care, pension rights, health insurance, and a raft of other arrangements going back beyond 1776. These entanglements are so complex that simply abolishing civil marriage outright is probably impractical. Also, as its author doubtless realizes, such a proposal would frighten the voters horribly — and delay the process somewhat.
But be of good cheer. The same result might be achieved by less radical methods.
My starting point is the assumption that civil marriage will be reformed by the courts to include single-sex couples in the next decade. So gay (and straight) civil marriage becomes an available option.
At that point several religious bodies — probably the Catholic Church, the Southern Baptists, Orthodox Jews, various Muslim mosques — might announce that they no longer regard civil marriage as valid. So they would no longer require people marrying in church to contract civil marriages as well. They would recognize only their own marriages and, with certain obvious qualifications, the marriages solemnized by other religions. The Catholic Church, for instance, would recognize an Episcopalian’s first marriage but not any subsequent one. All of these contracting churches, however, would presumably have rules on divorce and related matters far stricter than civil law.
Thus, a fairly strict religious marriage would be a second option.
Where would this leave the current half-way house to gay marriage — namely, civil partnerships? It would no longer be needed to mollify gays. But it might nonetheless be expanded into a very useful social institution by one simple legislative reform: Remove all reference to sex from civil partnerships and allow any household, however constituted, to establish a civil partnership that would allow its members to share pension rights, inherit tenancies, enjoy certain tax benefits, and so on.
Thus, a household might consist of a “cohabiting” couple either gay or straight, but also of two crusty old bachelors living under the same roof for convenience, or of a widowed mother and single son, or of five young women just down from college and starting their first jobs, or whatever. Not all households would wish to form such a partnership, but there would be no requirement on those that did to claim they were sleeping together. No doubt the laws regulating these civil partnerships would be difficult to draw up — though probably less so than the laws consequent on abolishing marriage entirely — but much work has already been done on this. And since the government would not be concerned with any household’s sleeping arrangements, none of the usual fears relating to sex and social approval would arise. Such legislation as was required might therefore go through without passionate opposition.
And there would be an unlooked-for benefit. People thinking of living together would then have three choices: civil marriage, religious marriage, and household partnerships. In effect there would be a competition between these three institutions for their custom. Which would be likely to prove most popular and durable? One can only guess at the result of such choices. Here’s my guess.
Household partnerships would probably thrive for the eminently practical reason that they would provide a wide range of people with a good financial basis for non-sexual companionship and mutual help. Also, young men nervous of commitment (both gay and straight) would sometimes be able to persuade their partners to stick with this half-way house.
Strict religious marriage, I suspect, would thrive even more for a variety of reasons. As the comparative success of evangelical over “mainstream” Protestantism demonstrates, people actually prefer institutions that make stern demands upon them to those that assume failure and forgive it in advance. Religious marriage would benefit from that yearning. Young women too would demand it of their swains (“If you really loved me, you’d marry me for keeps — in church.”) And those who did marry in church would be more likely to have children (and so perpetuate their kind) than those who were, however subconsciously, hedging their bets.
With responsibility-shy young men sticking with easy-to-dissolve household partnerships and heterosexual girls demanding “real marriage,” where would that leave civil marriage now open to couples of every description? It would very likely dwindle into the preserve of two groups: faithful lesbians and secular intellectuals. Neither group is very large. Before long articles would appear in Time and Newsweek lamenting the decline of marriage outside church.
Traditional marriage might well emerge strengthened from this evolutionary test. At which point, of course, the cry would be raised that churches should not be allowed to discriminate against gays. Bill Clinton would be declaring that he was “personally in favor” of traditional marriage. And I would be turning to Miss King to find out what happens next.
— John O’Sullivan is editor-at-large of National Review. A version of this piece ran in the Chicago Sun-Times; it is reprinted with permission.