Juggling Spheres in the Marriage Debate

Posted: June 23, 2005
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The danger, and the opportunity, of the marriage debate is precisely that which gives the issue its contentious edge and its win-or-lose feel. It will resist amicable resolution because people's positions on it are rooted in more fundamental differences — about sex and morality, yes, but more precariously about social structure.

Notre Dame Cathedral in Paris has witnessed its first gay marriage — except the officiant wasn't a priest, but a costumed activist, and the event wasn't a ceremonial joining of two families, but a demonstration by the gay rights group Act Up. All were promptly chased from the scene. (Presumably the getaway car wasn't dragging cans.)

No doubt, the more prudent among same-sex marriage's supporters grimace at such news, which angers the opposition and gives reason for concern that these incidents — and activism that goes beyond flamboyant disrespect to legal duress — might cross the border into America as state and federal laws give marriage a definition that cultural institutions do not recognize. But the danger, and the opportunity, of the marriage debate is precisely that which gives the issue its contentious edge and its win-or-lose feel. It will resist amicable resolution because people's positions on it are rooted in more fundamental differences — about sex and morality, yes, but more precariously about social structure.

For many of its advocates, same-sex marriage is the next bold step in a long push for complete acceptance of homosexuality, and an opportunity to leverage civil laws to change the culture. In an August 2003 piece in which he emphasized a shift among radicals from opposing to supporting the idea of gay marriage, Stanley Kurtz quotes activist and law professor Paula Ettelbrick as declaring that being "queer means pushing the parameters of sex and family, and in the process transforming the very fabric of society." Pushing the parameters of the law to a redefinition of marriage would be transformative, indeed. The Catholic Church, for example, would become not just a representative of the "conservative" or "traditional" side in a cultural dispute, but an institutional holdout against government-approved "progress."

In his 1995 book "Virtually Normal," Andrew Sullivan argued that creating civil marriage for gays would enable society to leave "all of the inequalities of emotion and passion to the private sphere." Given the momentum of change, as well as liberals' greater propensity toward statism, the opposite will surely prove true in practice. An utter conviction that one's cause is both morally and politically right combines with confidence in the inevitability of success to make the barrier that separates public prerogative from private freedom easily trampled.

In the course of conversation about the range of the private sphere, a relatively conservative supporter of same sex marriage wrote on my blog, "If you don't think gays should be shacking up, you shouldn't own a hotel." His essential point was valid: that we coexist under a "social contract" that requires "mutual respect." The restraints on government coercion are certainly loose, however, if they permit it to enforce a social contract in which two men's right to share a bed for the night trumps another's right to choose his life's work.

The more substantial mutual respect in a Constitutional, federalist, representative democracy requires a willingness to allow everybody the opportunity to "win" a particular issue in the largest space possible. In other words, moving down from the federal government to states then to towns, smaller areas can more specifically accord with citizens' visions of the world in which they would like to live. Shifting to private businesses and then to the home, those visions ought generally to prevail.

Consequently, the law advisably acknowledges cultural formation, but does not preempt it. In the case of same-sex marriage, something akin to the "Option Four" that Ramesh Ponnuru suggests in the June 6 issue of National Review would seem to most accurately address the momentum of the issue. Ponnuru's compromise would separate marital recognition from the legal incidents of marriage, such that any two people, whether or not their relationship were sexual in nature, could designate each other for marriage-like benefits such as visitation rights and inheritance. The danger of the solution, as Ponnuru presents it, is that the unique recognition of marriage could come under redoubled attack as unnecessary and discriminatory if it isn't associated with tangible benefits.

Perhaps a slight tweak would forestall that route toward civil equivalence. Such "civil unions" could be defined at the state level, with itemized bundles of rights. Preferably without reference to marriage, states could grant most or few of its rights. Similarly, the unions need not be universally identical with respect to eligibility; some states could limit them to same-sex pairs, while others could adopt the "any two people" approach.

This tweak would capitalize on something about which Ponnuru is a bit optimistic: his compromise's effect on the culture of marriage. The broader culture would surely transform his proposal in ways that undermine the intended separation. Best to make that possibility an explicit opportunity — to deliberately make civil unions, not the preexisting institution of marriage, the target of dispute.

It is the promise of that opportunity — the risk of that loss, from the other side's perspective — in the cultural sphere that makes it possible to compromise in the civil sphere, making it possible, in turn, for us all to have the mutual respect that allows others to have their own space in which to disagree. If all sides are potentially dominant in limited segments of society, activists might hesitate before assaulting the opposition in ways that elicit grimaces through their gaudy contempt.

 Justin Katz writes for the blogs Dust in the Light and Anchor Rising.