June 06, 2005, 8:04 a.m.
Is There a Fourth Option?
Granting legal benefits to gay couples won’t mute the marriage debate.

By Maggie Gallagher

Ramesh Ponnuru proposes a "Fourth Option" in the gay-marriage debate in the current issue of NR, by which he means a form of civil union or domestic partnership that would be available to non-sexual unions as well as same-sex couples.

As a marriage advocate, I have no strong objection to such a proposal, provided that it is available only to couples who are not otherwise eligible for marriage, and provided that married couples are ineligible to enter such unions. (This is not a theoretical concern: The prestigious American Law Institute has already urged states to permit married people to create a legitimate domestic partnership with a third party under certain rare circumstances, creating a new path to legal polygamy.)

What I can't understand is why Ramesh thinks this is an option that will affect the course of the gay-marriage debate.

Gay-marriage advocates have proposed that they have a right to marry, that separate treatment is grossly unequal, and that there are no differences between same-sex and opposite-sex couples that justify differential treatment under the law. A court in California has just ruled that adopting a civil-union statute constitutes proof of the state's intent to discriminate, calling into jeopardy its marriage laws. Activists in states where civil unions have been proposed have offered the kind of changes Ramesh suggests only to be batted aside by gay-marriage advocates for whom "benefits" are clearly far less significant than affirming the equality of their relationship and families. (This is probably because marriage provides few if any legal "benefits" as ordinary people understand them. The net legal effect of marriage is a financial penalty for most couples.) In Canada, gay couples had all the legal "benefits" of marriage (as did cohabiting opposite-sex couples), yet this did not blunt the drive for what they define as "marriage equality." The Canadian parliament is about to pass a national gay-marriage statute.

Gay-marriage advocates have explicitly rejected civil unions as a stable compromise. They will of course take it as a partial victory en route to a total victory, which is the redefinition of marriage. After their horrendous defeat on the ballot last year in 13 states as diverse as Louisiana, Oregon, and Michigan, gay-marriage advocates have made a tactical retreat, emphasizing civil unions, which indeed a majority of Americans say they support in some form.

Elaborate discussions of the kind of civil unions we should endorse are perfectly legitimate, but they do not address the core proposition raised by the gay-marriage debate, and they distract from the actual question at stake, i.e., marriage. They will not affect the "rancor" of the marriage debate, which is rooted in the honest, deeply felt assertion of gay people that they have a right to marry, not a right to nonsexual domestic cohabitations, and that anyone who says otherwise is like a bigot.

What I dislike most about Ramesh's essay is the assumption that civil unions of any kind represent a "fourth option" in the marriage debate. This implicitly suggests that we must "buy" the right to keep marriage as the union of husband and wife by offering benefits to gay couples to ameliorate the hardship.

This strategy implicitly concedes that marriage is discriminatory and offers a remedial compromise that frankly will not hold. Discrimination may be temporarily ameliorated but in the end it must be eradicated.

The key to the marriage debate, in my view, is to persuade the American people, including the next generation, that opposite-sex-only marriage is not discriminatory. It has its own dignity, purpose, meaning, and history that are not rooted in animus toward gay people or anyone else. People who are attracted to the opposite sex need a social institution that channels erotic desires into the kind of sexual unions that do not hurt them or the children their sexual unions produce. To say that there are no important differences between gay couples and opposite-sex couples is to deny that the one great feature of opposite-sex couples — that these unions, and only these unions, can both produce children and unite that child with his own mother and father — is unimportant. This is the end of the marriage idea as we have understood it. Because marriage is a necessary social institution, it is not in the interests of gay people or other caring Americans to redefine it. The question of what we ought to do for gay people must and should be taken up on its own merits, as a separate question.

I do not underestimate the difficulties of recapturing this conjugal vision of marriage in the public square, even though the 60 to 70 percent level of opposition to gay marriage among the American people, the recent drop in support for gay marriage among college freshman, and the rising rates of opposition to same-sex marriage among teenagers strike me as reasons for optimism.

Whether we need innovative social institutions for gay couples, or others who cannot marry, is a perfectly fine debate. But it is not the debate we are currently engaged in, and those who take it up should not do so under the delusion it will mute or avert the clash of values and visions at the heart of the marriage debate.

— Maggie Gallagher is president of the Institute for Marriage and Public Policy.

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