9/28/00 3:40 p.m.
Gore on Gay Marriage
Does he understand what he's saying?

By NR's John J. Miller & Ramesh Ponnuru

l Gore has taken a logically untenable position on gay marriage. And as one would expect of a position that can't hold, it isn't holding. The latest evidence is Gore's advocacy, at an MTV forum, that same-sex unions should be treated like marriages for immigration purposes.

The central contradiction in Gore's position is inherent to the idea of establishing an institution called a "civil union" (or as Gore put it on MTV, a "civic union") that is legally equal to marriage. If civil union is going to be legally equivalent to marriage, it pretty much has to be marriage; and if it isn't marriage, it's going to be legally inferior. Take Vermont's civil unions as an example. To enjoy equality with marriage, it would have to be portable: Just as a couple married in Vermont is considered to be married in Georgia, so would a gay couple have to be able to travel without a change in the legal status of their relationship. Since Georgia, in all likelihood, won't treat civil unions that way, gays in Vermont may well object that the new "civil union" does not meet the standard of strict equality and demand full-fledged marriages.

The question before Gore on MTV was whether a U.S. citizen should be able to bring a same-sex partner from another country to the United States just as U.S. citizens can get residency for foreign spouses. Gore's answer: "The rights that are afforded an American who gets married to someone from another country should be afforded under a legally protected civic union in the same way."

A President Gore couldn't do this by himself. He would have to get Congress either to change the immigration law or repeal the Defense of Marriage Act. That act, passed in 1996, stipulated that in federal law (including immigration law), "marriage" is between partners of opposite sexes. (Gore, by the way, says he would not have voted for the act. Not a peep was heard from him, however, when Clinton signed it, or later, when Clinton-Gore campaign ads on Christian radio stations bragged about it.)

Then there is the question of what will count as a "civic union." Should the INS bless only those unions that enjoy legal protection in the country from which the foreign partner is emigrating? (And would it matter what that country's standards for civil unions are? France's civil unions cover unmarried heterosexual couples.) Or should the INS bless only those unions that enjoy legal protection in the state in which the American partner resides? (Surely the INS can't issue green cards, or not, depending on the destination state.) Or will the INS have to come up with its own criteria for evaluating same-sex unions? And how will this INS practice affect tax law, Social Security benefits, and a hundred other federal rules?

All of this, presumably, Gore would happily leave to the courts to figure out. The result could be a national policy of recognizing civil unions or even gay marriages. It would be peculiar if such a policy were to begin with the INS.

Now that he has proposed a change in federal immigration policy, Gore can no longer dodge the gay-marriage question by calling it a state issue. What does he think about it, and why? Jacob Weisberg speculates, plausibly enough, that Gore would like to be for gay marriage if he could. If he would have us start heading in the direction of gay marriage, he ought to say so.