August 6, 2006
The Gay Marriage Question Posted by Fredric Smoler at 05:15 PM EST Fred Schwarz writes that he agrees with the argument “that the reason behind the push for same-sex marriage is not that gays are being denied any rights. Rather, it is meant to be a statement—to give gays a new triumph and give their opponents a thumb in the eye. In this sense, gay marriage is the tribute that radicalism pays to tradition.” I am not sure the first half of this argument is true, and I think the second half of it—the part about the thumb in the eye—can be phrased differently, in a fashion that may alter people’s assessment of the merits (of extending the right to marry). First of all, I have the impression that the campaign for gay marriage preceded the creation of same-sex domestic-partner status in many and possibly any jurisdictions. So to some degree, inertia may be at work. The fight for the right to marry began as a demand for the extension of rights unjustly denied, and the motive for pressing the campaign may still be energized by its original moral impetus. It is worth remembering that strong domestic-partner laws do not yet exist all over the country. With neither strong domestic-partner laws nor gay marriage, people are denied real and valuable rights—rights to pensions, the right to take over a lease, to survivor benefits in medical insurance, etc. A good test of whether someone who claims to want to “protect marriage” without harming anyone’s legitimate rights is to find out whether that person is in favor of strong domestic-partner laws. Happily, my memory of the polling data is that a majority of Americans want gays to have the rights to heritable benefits of the sort described about. Okay, but what about pressing for the right to marry rather than pressing for the right to domestic-partner status? Is that a desire to put a thumb in someone’s eye? Another way to look at this is to imagine what it feels like to be denied the right to marry when heterosexuals who do not intend to have children, indeed who cannot have children, possess the indisputable and frequently exercised right to that legal status. In at least some cases, that apparently (and I think understandably) feels like a thumb in the eye of the person being denied the right. So the demand for equal rights is at least in part a demand for a thumb to be removed. In this light, the demand for the right to marry is a demand to enjoy a right enjoyed by the vast majority of citizens and denied on a basis that feels like simple and unjustifiable discrimination. The peculiar status created by denial of the right to marry is experienced as a stigma; whether or not there is an injury, there is an insult, and the insult is delivered by the American institution which is expected to refuse to create or defer to stigma, the law. Americans have a notoriously complicated history with respect to creating equal and unequal status under law. The bulk of the history of race sits very conspicuously on one side of the ledger, much of our happier and more honorable history squarely on the other side. My guess is that in the long run the weight of the American commitment to expanding equality under law will carry the day, and homosexuals will possess either the right to marry or the right to domestic-partner status, all across the nation. In the short run, ballot initiatives on the subject seem to be poison for the Democrats.
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