Not for the first time, I read the same text that Andrew Sullivan does but understand it entirely differently. Here’s National Review’s editorial on a Federal Marriage Amendment; here’s Sullivan’s attack on it.
Before explaining why I think he’s wrong about the editorial, let me also say that I disagree with his insinuation–he has made the argument several times before–that the judicial imposition of a policy becomes less anti-democratic if people eventually come to support the policy. To describe the public acceptance of judicial faits accomplis as “democratic” is not to take seriously in the first place the critique of judicial activism as anti-democratic. (It is also to skip entirely the critique of judicial activism as lawless.) It means that an act of judicial activism is to be condemned only when the public is moved to overturn it, which is to say: when the act was ineffective.
Sullivan says that he used to believe the anti-gay marriage forces were sincere in claiming to be concerned about marriage, but he now thinks they (with parenthetical exceptions) care more about stigmatizing gays. (I had not noticed this former charity toward social conservatives, myself, but I assume it existed.) His evidence for his new view? “NR editors want to trash traditional marriage by creating a civil unions structure open to absolutely anyone – gay couples, straight couples, aunts and nephews, college room-mates, bridge partners, whoever. So if you’re a young straight couple considering marriage but unwilling to embrace all the responsibilities, National Review will provide you with an easy alternative. That measure would do more to undermine marriage than anything the pro-gay marriage advocates are supporting, or have ever supported. (My original case for gay marriage was designed specifically to avoid the anti-marriage civil unions option that NR is now endorsing.)”
A couple of points here: 1) The editorial does not advocate the creation of the civil unions structure he outlines or indeed any other civil unions. It suggests that it would be worth supporting a constitutional amendment that would leave it open to states the possibility of creating certain kinds of civil unions. States would be free to reject these civil unions. (They have both these options now.) Leaving this option open to states is explicitly defended in terms of federalism and compromise–two things Sullivan has said he is interested in on this question. 2) When John O’Sullivan suggested a flexible contractual system which any two people could join, whether or not they were engaged in a sexual relationship, Andrew Sullivan commended him for his fresh, creative thinking about marriage. He did not claim to find ulterior anti-gay motives for his suggestion. He was right back then.
Sullivan continues: “[NR's editors] argue that these other relationships would not undermine marriage because they could not include sex. But how on earth could this be enforced? Videocams in bedrooms? The whole idea is preposterous.” Yes it is, but I don’t see how the editorial came close to proposing any such idea.
Let’s back up a minute here. Several issues of NR ago, I reported on the development of social-conservative thinking about a Federal Marriage Amendment. Some conservatives, I wrote, had reached the conclusion that an amendment should not ban all civil unions, but rather ban only those civil unions that granted governmental benefits on the basis of the fact, expectation, or supposition of a sexual relationship outside traditional marriage. So, for example, the government could provide a benefit to any two roommates whether or not they were involved in a sexual relationship with each other. Sullivan took from this the idea that the benefits would be conditioned on celibacy, and nothing seems capable of changing his mind on this point.
But the editorial could not be clearer about it: “But availability [of some government benefit] must not be limited only to homosexual couples or to cohabiting heterosexuals. Siblings, friends, and roommates who are not in sexual relationships would also have to be eligible. A person’s homosexuality would, in other words, not be of interest to the government when distributing any benefit” (emphasis added). There would be no requirement of celibacy. You could be having all the sex you want and still get these benefits, so long as they were also available for people who are not having sex. Domestic-partnership laws often exclude siblings precisely because they are for people involved in presumptively sexual relationships. Under the idea outlined in the editorial, such domestic-partnership laws would have to be expanded or abolished. Note also that the amendment would not preclude sexually active gay couples from receiving any benefit or set of benefits–other than governmental recognition of their relationships as equivalent to traditional marital ones. Sullivan would of course object to that denial of equivalence, but he would be more persuasive if he attacked it instead of this videocam fantasy.
Sullivan says that the only point of the distinction made is to discriminate. But “discrimination” occurs whichever view we adopt. If Sullivan has his way, we are to provide the option of marriage for any two committed, loving people, gay or straight. (I have not, by the way, read his past writings to mean that only people involved in a sexual relationship would be eligible for marriage. He has lately been saying that sex is incidental to marriage.) He would exclude siblings, bridge partners, etc., from these benefits. If the social conservatives mentioned above have their way, marriage continues to be defined as the union of a man and a woman and the government does not discriminate within the class of people outside that institution. In other words, the question is how marriage should be defined. In either case, the government would “discriminate” between people who do and do not fit the definition.
But all of the above misses an important point. The editorial expresses its support for the idea of a constitutional amendment that bans gay marriage, allows civil unions only if they do not grant benefits that depend on non-marital sexual relationships, and keeps judges from second-guessing legislative choices about benefits that should be reserved to marriage. But it also suggests a further compromise. It says, at the end of the editorial, that the most important goal is the restriction of the courts. That is: The editorial says it’s more important to take decisions about marriage away from judges than it is to ensure that there are no civil unions for gays only. It even says that it is more important to make these decisions democratically than to ban gay marriage.
The bottom line of the editorial is that the amendment should restrict judicial authority and that an amendment that did that would be okay even if it preserved the ability of state legislatures to enact full-fledged gay marriage. I would think that Sullivan would, while criticizing this editorial to some degree, welcome its spirit of compromise–instead of assuming that its stated concerns about marriage and judicial power were merely covers for hostility to gays.