New York Governor Andrew Cuomo has made the legalization of gay marriage a major goal for his 1st year in office. Whether he gets it–an early indicator of his influence over the often-divided New York Legislature–rests on his ability to make a conciliatory gesture to the measure’s implacable opponents. Gay marriage as a concept rests on its opponents’ conceptual terrain.
It might surprise readers to know that the Liberal Ironist supports civil unions as an alternative to gay marriage. While this may sound wishy washy or even over-analyzed, I have always found it more-helpful to assume the general Conservative premise–that marriage is a sacrament (not in the sense that it unites us with any divine power or authority, which nothing can do, but in that Americans generally regard it as a sacrament) and thus that the expansion of the term to unions preponderantly unrecognized by religious institutions would only achieve a civil right at the cost of violating both freedom of conscience and freedom of assembly. I’ve preferred civil unions as a meaningful way around a conflict between the law’s respect for gay and lesbian unions and concerns of religious groups for their own autonomy and prerogatives. This has been my position for as long as this issue has been prominent on the American political agenda. Aside from the politically-unlikely repeal of the Constitutionally-suspect 1996 Defense of Marriage Act, however, the Liberal Ironist also agrees with the cautious position of many recent Democratic Presidential hopefuls this as an issue properly left to the various States–however unsympathetic or regressive they may be towards the issue. Let Massachusetts be Massachusetts and Arizona be Arizona. (The many States which have passed constitutional amendments prohibiting all legal benefits towards same-sex couples, however, have gone pretty far to showcase hostility towards homosexuality; the precedent of civil unions laws in a slowly-growing number of States may eventually legitimize court challenges to such blanket bans.) Some on the progressive left have mocked Democratic candidates who have made this distinction for taking a political dodge on a civil rights issue; I positively prefer the distinction between the law and religious tradition that civil unions allows.
New York State is one of only 3 States (the other 2 being Rhode Island and New Mexico) that haven’t taken any position on the issue of marriage equality. An interesting variety of positions towards this social question are now embodied in the laws of various states, running the full range from the legalization of gay marriage by the State legislature and governor to a constitutional ban on gay marriage and civil union benefits approved by popular referendum. Several states have either statutory or constitutional bans on gay marriages and offer extensive gay civil unions rights at the same time. This latter combination, strange as it sounds, is the law of the land in California, Nevada, Oregon, Washington, Hawai’i, Illinois, and Delaware. Symbolically-offensive as it must be for some gays and lesbians, this position at least had an aspect of “positive neutrality” to it, establishing legal respect for gay unions and the prerogatives of religious institutions.
New York has a somewhat-unique partisan situation. Having been both the largest state and a swing state roughly until the 1960s-1970s migration to the Southern and Western “Sunbelt” (which immediately preceded the Republican Party’s long political ascendancy beginning in 1980), New York used to be the dominant fixture in American politics–rather than a Democratic political base and major bipartisan financier for national elections. When New York City was consolidated from 5 counties in 1898, much of the Bronx and most of Queens and Staten Island (previously known as Richmond County) was rural, but Manhattan and much of the Bronx and Brooklyn was already as developed as it is now; as a consequence most of New York State’s population lived in New York City! To allay the concerns of New York’s (Republican) rural residents, the New York State Senate was apportioned in a way that gave a disproportionate share of districts to the outlying rural areas, balancing a rural-Republican State Senate against a New York City–Democratic State Assembly. This was unconstitutional, of course, but through a series of court challenges New York has been delivered a State Senate that still has disproportional suburban, exurban and rural (and thus Republican) representation. Considering the vast post-World War II suburbanization trend (and New York City’s staggering loss of 1 million people in the 1970s, a development from which it only really recovered in the mid-1990s) the majority of New York’s population and a large share of its wealth has shifted out of New York City, thus making the Republican-favoring contrivance of its State Senate both less-justifiable in principle and harder to reform in practice. This contrivance that forces regular bipartisan compromise, however, is probably what explains New York’s lack of any policy towards gay marriage.
While Governor George Pataki, a moderate Republican, passed significant legal protections against anti-gay discrimination in 2002, New York continues to have no constitutional or legal policy towards gay marriage, and along with Rhode Island and New Mexico is only 1 of 3 states to have such a record of political inactivity on this issue. New York, Maryland and New Mexico do all recognize same-sex marriages performed out-of-state, due to court rulings. (Having such an underlying Liberal and Democratic political disposition, New York should presumably have recognized gay marriage or instituted gay civil unions like most of neighboring New England or New Jersey.) Back in 2009 a vote to institute gay marriage failed when the State Senate voted down the bill that passed overwhelmingly in the Assembly. At that time the Assembly was solidly-Democratic as ever, and the Governor, David Patterson, was a Democrat. But the State Senate then was also Democratic–an unprecedented event in the modern period. What makes the situation different now is an ambitious new governor who has campaigned aggressively for this cause, and the prospect of assuaging the concerns of Conservatives that religious organizations would have to recognize gay marriages due to lawsuits pressed under New York’s new law.
What’s all this got to do with gay marriage? Sorry, I was just getting to that: Leaders of Conservative religious organizations have issued an objection to New York’s pending bill to legalize gay marriage. These objections have held the legislation up for a week now–into the first 2 days of what is supposed to be the Legislature’s summer recess. This objection is that it will open individual religious organizations to lawsuits by gays and lesbians demanding sanction of homosexual marriages from the religious group of their choice–in effect, a violation of the 1st and 14th Amendment rights of religious organizations in favor of the 14th Amendment rights of gays and lesbians.
This objection may be the expression of an understandably intense fear by these religious group leaders that they may risk losing their autonomy and legitimacy in the name of a political good–equality–of 2nd-order importance to the morality of the faith itself. It might also simply be the last ploy available to Conservatives to prevent the institution of gay marriage in New York–essentially, an insincere attempt by religious leaders to cast themselves as the victims when they are the ones dictating their moral preferences to a minority. In the former case, sympathy and concern for religious organizations is in order; it is one thing to call a Conservative religious organization small-minded, repressive, bigoted, or even cruel—and another thing to use the force of law to require them to officiate over proceedings they consider illegitimate and immoral. Civil Unions allow us a way around that. If the expressed concern for sacramental autonomy is just a pretense, civil unions trivialize Conservative insistence that marriage is supposedly defined by God as being between a man and a woman: Create the legally-protected new category and let same-sex couples, their friends and their families through their personal practice demonstrate their significance.
Do civil unions make granting the legal rights of marriage to gays and lesbians more-acceptable to Conservatives? The somewhat-faster spread of civil unions, including in states with gay marriage bans, indicates that this is so, but that isn’t the primary reason why the Liberal Ironist is inclined to prefer them. This is about mutual respect between equality before the law and freedom of conscience. Both are important, and one or the other (usually equality before the law) gets glossed-over in the play over this debate. In this case, a politically-expedient hedge can also be a principled distinction.