A few issues ago, I reported on the emerging consensus among social-conservative activists about the proper scope of a Federal Marriage Amendment. These activists had disagreed about whether an amendment should bar gay marriage only, or gay marriage and civil unions. The people who wanted to bar both said that there was no point in protecting a “word” rather than an “institution.” The consensus all the activists reached was that the FMA should prohibit courts or legislatures from granting any benefit to gay couples or unmarried straight couples unless those benefits were also available to other unmarried people who were not involved in any sort of sexual relationship. If a gay couple could receive the benefit, two sisters who were living together would have to be able to get it too. I noted that proponents of this idea for an amendment thought that it was compatible with some kinds of civil-unions laws but not others, and that they thought that leaving some room for civil unions would give Republicans some defensible political ground on which to stand.
Maggie Gallagher signed off on the concept at a meeting on October 14–but then sent out a letter backpedaling. Now she has a cover story in the Weekly Standard arguing that the amendment should leave civil unions alone. She makes three major points: 1) Most of what people describe as the “benefits” of marriage are pretty small beer. Those benefits could be extended more widely without creating gay marriage and without doing damage to the institution. 2) The real benefit of marriage that remains in the law inheres precisely in the word: in the ability to say that some couples are “married” and some are not. 3) Taking on gay marriage is a winnable fight, while taking on gay marriage and civil unions is a non-starter.
It’s a very interesting article. It would be stronger if Gallagher addressed the distinction the other social conservatives tried to make among types of civil unions–if, for example, she tried to explain why that distinction would not help them in the political battles to come as much as they think it would. Also, she does not address whether those other social conservatives are right to believe that there is value to having no governmental benefit depend on a sexual relationship outside of a traditional marriage, even if the particular benefits in question are not themselves of earth-shattering importance.
Two more observations: As I reported, two of the drafters of the original FMA language, Robert P. George and Gerard Bradley (of Princeton and Notre Dame, respectively), believe that a constitutional reference to “marriage” being between a man and a woman would, if properly interpreted, have the effect of barring benefits that were contingent on non-(traditional )marital sex. Presumably Gallagher’s ideal amendment would have to read something like the following: “In the U.S. Code and in the laws of the states, the word ‘marriage’ will refer to the union of a man and a woman.”
Last, in the course of her article Gallagher makes one truly bone-headed argument against the people who say they want to protect the institution rather than the word: “Marriage is a word, yes, but so are property, freedom, democracy, morality, and love. The Ten Commandments are made of words.” Well, sure. (The Constitution is made of words too!) But nobody is arguing that words do not mean anything. Does it really need pointing out that the value of freedom does not primarily reside in our ability to label some things as free or unfree, but rather in the realities to which the word freedom refers (i.e., the ability to say, think, and do as we wish consistent with others’ ability to do the same)? Gallagher’s whole argument is that the value of marriage would be reduced if we called other relationships “marriage.” The value of freedom would not be reduced if we called despotism “freedom” or “democracy.” Some editing would have come in handy here.