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 his
country is headed for a social and constitutional crisis over the
issue of gay marriage. A significant level of conflict over this
issue is unavoidable. Yet through the passage of a constitutional
amendment defining marriage as the union of a man and a woman, a
political-legal crisis can be averted and our society's central
institution protected. More than this, passage of a Federal Marriage
Amendment might enable a rough sort of compromise on this difficult
issue to be hammered out.
We are hurtling
toward a crisis because too many judges have cast aside the principle
of judicial restraint and taken into their own hands the essentially
democratic and legislative task of defining and regulating marriage.
The constitution of the state of Vermont says that government is
"instituted for the common benefit, protection and security
of the people." That broad affirmation has never prevented
— nor was it ever meant to prevent — the Vermont state legislature
from defining and regulating marriage by, say, setting a minimum
age of marriage or by prohibiting incest or bigamy. Yet the Vermont
state supreme court pretended to find a right to gay marriage hidden
in the "common benefits" clause of its state's constitution,
thereby forcing a state legislature into an action (the creation
of homosexual civil unions) that it would not have taken on its
own.
A polygamist
could as easily have demanded legal recognition for his several
marriages on the grounds that polygamists are entitled to the same
benefits as anyone else. Reasonable people can differ on the question
of homosexual marriage, but our nation must shape and define the
institution of marriage through democratic means, not by judicial
fiat.
Vermont was
torn apart — is still being torn apart — by that act of judicial
arrogance. But the conflict that turned Vermont upside down gives
only the barest foretaste of the crisis that will set in on the
day the first American state government recognizes full-fledged
gay marriage. On that day, many will insist that the U.S. constitution's
"full faith and credit" clause demands immediate recognition
of gay marriage throughout the fifty states. Others will maintain
that the 1996 Defense of Marriage Act prevents such automatic recognition.
The issue will quickly find its way to the United States Supreme
Court, which will be forced to decide the issue of gay marriage
for the country as a whole. Should gay marriage be imposed upon
the nation by such means, even after 34 states have enacted laws
or state constitutional amendments prohibiting same-sex marriage,
expect our cultural civil war to take its ugliest turn yet.
Given the degree
to which the modern judiciary has abandoned the principle of judicial
restraint, a Federal Marriage Amendment is the only way to avoid
this divisive and undemocratic scenario. That is why a movement
to pass such an amendment was announced today in Washington, D.C.
The proposed amendment declares that "Marriage in the United
States shall consist only of the union of a man and a woman,"
and further stipulates that, "Neither this constitution nor
the constitution of any state, nor state or federal law, shall be
construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups."
In other words,
in addition to defining marriage as a union of a man and a woman,
the amendment would prevent the courts from imposing same-sex marriage
on the country through the "discovery" in some general
constitutional provision of a previously unrecognized mandate for
gay marriage.
Same-sex marriage
is a tough and complicated issue. As a nation, we have barely begun
to explore and debate it. Up to now the matter has been cast as
a simple question of civil rights. But this view is extremely misleading.
Gay marriage would be a fundamental reform in marriage, so it quite
legitimately raises the question of whether such a reform would
strengthen or weaken marriage as an institution. I myself set forth
an extended argument in the September 2000 issue of Commentary
to the effect that gay marriage would undermine, rather than strengthen,
the institution of marriage. Unfortunately, up to now, serious national
debate on this question has been short-circuited by accusations
of bigotry leveled at gay marriage's opponents, and by a general
refusal of mainstream media outlets to explore both sides of the
question.
It is precisely
because judges have accepted the false and simplistic analogy between
the fight for gay marriage and the earlier struggle for civil rights
that they have not scrupled to take the matter out of the hands
of state legislatures. But the truth is, neither these judges nor
the public at large have fully grasped the challenge to the institution
of marriage represented by this proposed reform. The country is
entitled to a legitimate intellectual, political, and legislative
debate on the matter before this decision is made.
Marriage in
the United States consists of special social support and encouragement
for the stable union of a heterosexual couple, chiefly for the sake
of that couple's children. Who then is not married? Single people
are not married; homosexual couples are not married; and sexual
collectives are not married. The last decade has seen challenges
to the institution of marriage raised by each of these groups. In
addition to the movement for gay marriage, single people have begun
to organize and complain of the "discrimination" that
they suffer when various social and legal benefits are offered to
married parents. There is even a group called "polyamorists,"
beginning to agitate for legal recognition of group marriage.
Under the present
course, it is entirely likely that an interpretation of federal
or state constitutions such as that offered by Vermont's supreme
court will someday rule the special social support and encouragement
afforded to heterosexual couples by the state under the name of
marriage effectively unconstitutional. The result will be a kind
of de facto abolition of marriage and a move to an infinitely flexible
system of private contracts. Yet the framers of our federal and
state constitutions never deemed our principles of equality and
liberty inconsistent with the special recognition and support offered
to heterosexual couples by marriage. The overwhelming social prevalence
of heterosexuality and the tie between heterosexuality and reproduction
creates a compelling state interest in supporting this particular
form of family relationship. And the cultural individualism that
pervades American society grounds our marriages on the love of one
for one, making polygamy or group marriage impractical and unstable
environments for the rearing of children.
The impulse
to heterosexual coupling is powerful on its own, but fragile over
the long-term. So American marriage is designed to support and encourage
long-term heterosexual unions. Same-sex marriage will do much to
remove that support, while doing little to extend conventional marital
norms into the homosexual community.
The near unanimous
support of American homosexuals for same-sex marriage disguises
a deep fissure within the gay community. Many gays take marriage
to be an inherently oppressive institution and wish to see it effectively
abolished. That is, many gays hope to see all social support and
encouragement for any particular form of sexual union eliminated
in favor of a free and infinitely flexible system of social-sexual
contracts. Many other homosexuals would redefine marriage itself
by, for example, separating the idea of long-term personal commitment
from the ethic of sexual fidelity.
About a decade
ago, in the conviction that legal same-sex marriage would represent
an important statement of social acceptance for homosexuality, a
divisive internal debate in the gay community over same-sex marriage
was set aside. But the underlying ambivalence of the homosexual
community toward marriage has never been resolved. That ambivalence
will have profound and disturbing effects on the institution of
marriage should same-sex marriage be legalized.
The institution
of marriage is based, in deep and taken-for-granted ways, upon the
particular dynamics of heterosexual coupling. Once homosexual couples
marry, the meaning of marriage itself will be fundamentally changed
— and changed in a way that undermines the encouragement to monogamy
and fidelity essential to stable heterosexual unions. Sociological
research, moreover, now indicates that many homosexuals — even those
openly hostile to marriage as an institution — will marry, if only
for the economic and legal benefits. In other words, large numbers
of homosexual couples who either believe that marriage is oppressive,
or that marital commitment can be separated from marital fidelity,
will marry for the sake of legal-financial benefits, thereby undermining
the traditional ethos of marriage.
Same-sex marriage
is not a simple question of civil rights, but is instead a complex
balancing of crosscutting social goods. Same-sex marriage would
indeed be a powerful social statement of social acceptance for homosexuality,
but it would also be a giant step toward the effective abolition
of marriage itself and it's replacement by a system of infinitely
flexible contracts. The upshot will be a profound undermining of
an institution already seriously weakened, with far less than has
been hoped for gained in return.
The social
stigma on homosexuality is grounded in the experience of growing
up homosexual in an overwhelmingly heterosexual society. Even a
total elimination of legal and social messages of disapproval would
not prevent that experience from being alienating. Nor will an extension
of legal marriage to homosexuals succeed in somehow transferring
the sexual dynamics of heterosexual coupling to homosexuals (as
many supporters of gay marriage claim it will do). Social support
can reinforce the side of heterosexual coupling that inclines toward
monogamy and fidelity, but it cannot create such an ethic where
it does not already exist. So same-sex marriage will undermine the
stability of heterosexual coupling by weakening the essential ethos
of marriage, without either significantly "domesticating"
homosexual couples or removing the social stigma on homosexuality.
Is a compromise
on this difficult issue possible? There is no completely satisfactory
solution, but passage of the Federal Marriage Amendment makes a
rough sort of settlement conceivable. The Federal Marriage Amendment
does insure that marriage in the United States can be nothing other
than the union of a man and a woman. But it does not prevent state
legislatures from assigning various sorts of benefits, short of
marriage, to homosexual couples. The FMA would have prevented Vermont's
supreme court from forcing Vermont's legislature to pass civil unions,
but it would not prevent a legislature from doing so on its own.
Vermont-style
civil unions, being equivalent to marriage in all but name, undermine
marriage almost as profoundly as would full-fledged same-sex marriage.
Yet it seems likely that after passage of the Federal Marriage Amendment,
a patchwork arrangement will emerge in which some states will offer
a number of marriage-like benefits to homosexual couples, other
states will offer a few, and still others none. Such an arrangement
may entirely please no one, but it would nonetheless offer minimal
protections to the institution of marriage and would be far more
conducive to social peace than would the universal imposition of
gay marriage by judicial fiat.
The Federal
Marriage Amendment is being sponsored by the Alliance for Marriage,
a broad coalition of community organizations that crosses political
lines and that includes many leaders — black and Hispanic and white
— who are not conventionally conservative in their orientation.
The aim of this coalition — whose activities in support of marriage
go far beyond sponsorship of the Federal Marriage Amendment — is
not to criticize homosexuals, but to strengthen marriage. Although
efforts to dismiss the Alliance for Marriage as the captive of a
single political perspective will no doubt be made, the truth is,
those who oppose same-sex marriage and support this amendment come
from a wide range of communities and political points of view. Popular
referenda in opposition to same-sex marriage have regularly passed
by wide margins — even in socially and politically liberal states.
Reasonable
people will differ on the subject of homosexuality. Some Americans
see no moral and little practical difference between homosexuality
and heterosexuality. Others understand homosexual activity as intrinsically
immoral. Still others do not see homosexual behavior as sinful,
but do believe that the traditional heterosexual family deserves
and requires special social support and encouragement. This last
group, I believe, holds the balance of cultural and political power
on this issue (and in an earlier piece, " The
Ashcroft-Logger Alliance," I sketched out such a position
in some detail).
Americans,
on balance, do not wish to see a return to the fifties on the matter
of homosexuality. To a greater or lesser degree, many welcome the
increased tolerance of homosexuality. But most Americans also wish
to see traditional marriage strengthened, and certainly do not want
to see it further weakened. Passage of the Federal Marriage Amendment
is the best way to do justice to all of these impulses — and to
head off the social, political, and constitutional crisis that is
sure to come if we do not act now.
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