Clarifying an Intentionally-Complicated Position on Gay Marriage

I wanted to reply to responses I got on yesterday’s post, about the fight over legalization of same-sex marriage in New York and my own preference for civil unions as a way of sorting-out this extremely-contested issue.  Comments made by posters Kukri and Dodson differ from mine by a hair’s width (of maybe 2 hairs).  In any event, I felt I expressed myself more-clearly in the response, and when I finished I saw I had over 700 words on it, so here it is:

Kukri’s distinction–between the basis of marriage within religious institutions and that of civil unions as authorized by government whose role it is, and not religious groups’ to *enforce* our individual and civil rights–is useful because it reproduces the distinction I wanted to make between the legitimacy of the loving relationships of gay and lesbian adults and the traditional role religious institutions play (our various beliefs aside) in officiating over marriages.  The problem it poses is that municipal judges or clerks (and ship’s captains) officiate over marriages all the time, too–though certainly in a minority of cases.  This way of “partitioning” the issue into strictly-religious or secular dimensions would amount, in principle if not in practice, to telling traditional couples who happen to marry under a secular authority that they aren’t really married.  The religious Conservatives who have marshaled over the issue of gay marriage haven’t gone that far themselves, and if those who are to be married under their municipality or at sea are told that a status that they take for granted has been revoked, they are very likely to feel a more intense sympathy for gays and lesbians on this issue than they might feel already; as heterosexual couples they are also likely to inspire a great deal of sympathy for the cause of marriage equality.  So while that distinction sounds cleaner in principle than the obviously-political one I accept, in practice I would expect it to make the issue rawer, if anything, than it already is, and result in a stronger push for marriage equality.

This is why I see the “2nd from left” position of giving gay and lesbian couples the full legal benefits of marriage under civil unions while not forcing a legal tangle on an issue that religious institutions should really work-out for themselves, as giving all parties their due.  Governments and employers have no right to discriminate on the basis of sexual orientation; on the other hand, requiring or even implying that religious organizations should officiate over marriages that both their leadership and their laity view as immoral and illegitimate isn’t a blow for civil rights so much as a disfigurement of institutions which, like our consciences, by rights are free.  Gays and Lesbians might find my preference for civil unions insulting, even cowardly.  That’s not the point on either count: I’m confident that love between monogamous, consenting adults is real regardless of sexual orientation, and in agreeing that gays and lesbians deserve full equality of rights regarding their unions while expressing sympathy for the sense of vulnerability adherents might feel for their religious institutions, I’m saying that giving both parties their due is more-important than being fully in either party’s camp.

On the question of whether religious organizations lobbying against gay marriage in the State of New York have simply trumped-up this fear of liability to lawsuit on discrimination grounds as a last-ditch attempt to deny marriage equality to gays and lesbians, that’s certainly possible.  But this is yet-another reason, though only a weak one, why civil unions seem preferable to gay marriage to me: It seems pointless, in this instance, to speculate about whether leaders of religious groups claim to feel put-upon in good faith.  (If you want to say a group of people are holding this issue up on bad faith, blame New York Senate Republicans; I’ll readily agree with that.)  It seems that we can either concede that religious groups are concerned for their autonomy or call them liars as well as bigots.  The 3rd way is much more-just in that it allows religious leaders to maintain their traditional role in relation to a word–but in that all they are able to keep is that word.  Let the State confer gays and lesbians their rights of union; if religious groups decide they don’t want to take the side of civil rights and recognize loving couples that want to hold their rites of passage within a faith, let the leaders of that faith decide to close the door, and let the State protect the couple’s privilege to bind their lives together in their own way.  It might be called cabbage instead of marriage, but where it is necessary and expedient gays and lesbians will find their own traditions.

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9 thoughts on “Clarifying an Intentionally-Complicated Position on Gay Marriage

  1. Kukri

    1) “The problem it poses is that municipal judges or clerks (and ship’s captains) officiate over marriages all the time, too–though certainly in a minority of cases.”
    So how hard would it be to change the wording on a few government documents, considering we live in the age of computer processors? 🙂

    2) “This way of “partitioning” the issue into strictly-religious or secular dimensions would amount, in principle if not in practice, to telling traditional couples who happen to marry under a secular authority that they aren’t really married.”
    If A, then B. If you consider marriage to be a religious institution, then you shouldn’t be concerned that we are separating a religious union from a secular union. Why be concerned if atheist or agnostic loving couples might be offended? What is their beef? “Eeeeww, I’m now on the same level as gay or lesbian couples because our unions use the same term?” How tolerant of them. If gays and straights both go to a ship’s captain or town judge for the same certification, call it the same thing, a civil union. If a religious straight couple and a gay couple both go to the same priest for the same certification, call it the same thing, a marriage.

    At this point, the issue of semantics is starting to bug me. Hypothetically, the government document would say “civil union” for straight couple Mr. and Mrs. Smith, but there’s absolutely nothing that prevents them from going around telling their friends “Hey, we’re married” and showing off their rings, and most people wouldn’t know any better, so who cares? If you’re both wearing rings, both getting the full legal benefits as joined spouses, and you both love each other that’s the most important thing, not getting upset that a town judge’s paperwork says “civil union.”

    Reply
  2. Steven

    As I understand it, gays and lesbians do not object to civil unions as a solution primarily because they want the legal system to call their unions marriages (although that is part of it), but because they doubt that civil unions would ever in practice grant the same rights as do marriages. What would making civil unions legally equivalent to marriages actually look like? Until convincing answers to that question enter the conversation, I think civil unions are going to remain a hard sell.

    Reply
    1. Tara

      I think as long as the category is different, then civil unions and marriages are never going to be fully equal. The only reason to maintain separate categories is to maintain a tiered system, in which the rights across the categories are different. Aside from more material differences, even the act of naming these two things independently contributes to the perception that gay and straight relationships are somehow inherently different. The solution is not going to be parallel systems, but one system that applies to everybody.

      Reply
  3. Tara

    There are 3 issues here:
    1) Equal Rights — Civil unions do not come with the same rights that marriage does. In some cases the state-level rights are almost the same, but equality will never be achieved until gay and lesbian couples can get federally recognized marriages. This is important for immigration, taxes, benefits, among other things.
    2) Religious Gays — The “rights of the religious organization” should have nothing to do with legal benefits. This might be remedied by Kukri’s suggestion, but not all lgbt folks are atheists. I don’t think we can do anything about that — however i do think intolerant congregations will go the way of the dodo eventually. In the meantime the best we can do is actively promote tolerance in our society, and one of the best way we can do that is to stop differentiating between straight and non-straight families, even if it’s just a semantic one.
    3) Separate is not Equal — We’ve learned this lesson before. Let’s not do it again. Maintaining separate categories only encourages differential treatment.

    Speaking personally, if there were a federal “civil union” option that included all the same rights as straight marriage, that’s all I need. But it’s not just about me. I’m not religious, and I’m not particularly concerned about being recognized as a “married” couple — I am married, as far as I’m concerned, and to hell with anyone who doesn’t respect that. But if there actually is no difference between a “straight marriage” and a “gay/lesbian civil union” why maintain different categories? If it’s a necessary step on the way to equality, then fine, but it’s also a dangerous one, in that people think “oh, they’ve got most of the rights, what are they complaining about” and mobilization becomes more difficult. But let’s not confuse a step on the way with the ultimate goal.

    Reply
    1. liberalironist Post author

      I take these 3 objections seriously but I don’t fully agree with them, for different reasons.

      1.) I accept the charge that the unequal rights of gay and lesbian couples go unaddressed, under prevailing law where extant or even under some conceptions of civil unions. But you say yourself that civil unions can establish legal equality of heterosexual and homosexual unions under State law; the failure of Federal law to provide any of the traditional spousal benefits to gay and lesbian couples is of course codified under the Defense of Marriage Act. For the foreseeable future, legislative repeal of this glaring example of political, intrusive and unjust law just isn’t politically possible–but the possibility of a Constitutional challenge before the Supreme Court intrigues me. 6 States and the District of Columbia now recognize same-sex marriages, 8 States offer full civil unions to gay and lesbian couples, and 4 other states now recognize some civil rights of gay and lesbian couples. For tax-filing benefits and inheritance purposes, the Defense of Marriage Act may now be in real practical conflict with the 9th and 10th Amendments. This issue may become compounded now that gays and lesbians can serve openly in the military.

      2.) You say that “The ‘rights of the religious organization’ should have nothing to do with legal benefits;” I agree completely. I agree that justice demands that State law (and applicable Federal policy) recognize the equal rights and privileges of gay and lesbian couples; I do not think this includes the right of religious gays and lesbians to institutional recognition of their relationships by their congregations. Part of the reason I’ve been unable to share the passion of fellow-Liberals for same-sex marriage as opposed to civil unions is because I’ve never been able to feel great sympathy for religious gays on this point. What does it mean for a gay man to be Catholic–to believe that the Pope could infallibly resolve that Mary conceived Jesus Christ through the Holy Spirit without sin, but also that his homosexuality is authentic and not a moral issue–and further that the Church is unjust and sanctions bigotry in a fundamental sacrament? Even as an atheist I’m aware that there are proliferating complexities in religious perspective, but I don’t agree that the government has a role in “kicking in the door” of such private institutions as a matter of civil rights.

      3.) Speaking of civil rights, I certainly understand why you invoke the “separate but equal” allegory in a discussion of civil unions, but I don’t accept that either. While I have sometimes detect an unfortunately-hostile animus build up around this denial, I somewhat share the skepticism I’ve detected in Black activists and politicians when gays and lesbians liken the issue of gay marriage (as opposed to somewhat-pervasive conditions of bigotry and marginalization generally) to the Civil Rights movement. Again, I think this voiced skepticism sometimes goes to far, glossing-over the outward and inward violence gays and lesbians have sometimes experienced. But I think comparing this issue to a century of 2nd-class citizenship (and in most places where they form a sizable population, physical ghettoization) of Black Americans sort of “bleaches” what is at play in this issue. You certainly aren’t obligated to find civil unions satisfactory (and I admitted some gay and lesbian readers could even find my position on this insulting), but I do not think civil unions represent the institutionalization of 2nd-class citizenship even though they do constitute a parallel institution to marriage. I think it’s clear that they advance the cause of gay and lesbian equality in substance even if they provide symbolic acknowledgment of religious non-recognition. In practice they certainly don’t do injustice to the capacity of gays and lesbians to form permanent unions the way segregation undermined the political power and educational and economic opportunities of Black Americans. So while I admit a certain insensitivity to the social mistreatment gays and lesbians have experienced or continue to experience, I still reject that analogy.

      I understand why you feel I’ve confused a political accommodation with a goal. If public sentiments on this issue change profoundly-enough, my distinction may simply become obsolete; that’s fine. But I don’t know that this is going to happen. As I said, 18 States and the District of Columbia have passed some level of recognition of gay unions, from providing the most emotionally-charged civil rights to full marriage equality. (New Mexico also recognizes same-sex marriages performed elsewhere.) But 29 States (and Puerto Rico) have laws or even constitutional amendments banning gay marriage; 19 States–including Wisconsin which recognizes some civil rights of same-sex couples–have denied marriage rights and civil unions to gays and lesbians under their constitutions. Maybe attitudes on this issue will in fact shift as radically as they have towards homosexuality generally, or towards same-sex civil rights in some States. Or maybe this will become a partisan issue and different political identities will ossify opinion; the uneasy breakdown on sentiments toward abortion hasn’t really shifted since the Roe vs. Wade decision in 1973. You’ve expressed a belief that “intolerant congregations will go the way of the dodo eventually,” and that would be nice. But from around the 1870s to around the 1970s everyone from Nietzsche to the New York Times predicted that congregations in general would go the way of the dodo, and (the combative New Atheists notwithstanding) that is a very difficult future to entertain today. I want to see the cause of wider acceptance of homosexuality served. To the extent that this argument must be made in the public sphere, I welcome it. In the Letter of Paul to the Romans 12:2, the Apostle Paul says “Do not conform any longer to the pattern of this world.” This is an exhortation to a free conscience. While I agree with this blog’s namesake Richard Rorty–that it is the proper role of government to redress social injustice and, where possible, to defend individuals against cruelty–I also believe it is important, for similar reasons, to respect the autonomy of institutions that put freedom of conscience 1st–even where they symbolically conflict with the political purposes of Liberalism.

      Reply
  4. Nick

    The problem with favoring civil unions over marriage is that it splits the difference between opposing viewpoints. This is fine for most arguments, because, usually, both sides have a point. On abortion, for example, if the fetus is an independent human being, then killing it is murder, and murder is wrong. If it’s part of the mother’s body, then interfering with her decision is wrong. (It’s both, that’s what makes the topic interesting).

    But on the question of gay marriage, those opposed are wrong. Flat out wrong. As Dick Cheney put it, this is America, and “freedom means freedom for everyone.” Allowing gay marriage benefits some people while harming none. Religious organizations already do not have to endorse anything they believe violates their religion; no synagogue is legally required to host a Neo-Nazi rally, even with Skokie v. Illinois, because it’s private property. Actually, as Republican lawyer Ted Olson asserted, no one has ever been able to make any argument against gay marriage that doesn’t depend on prejudice.

    (This is especially problematic for the people who try to claim that “you two adults who love each other can’t get married because your skin colors don’t match up right, it’s unnatural” is completely different from “you two adults who love each other can’t get married because your genitals don’t match up right, it’s unnatural.”)

    There is nothing to be gained by endorsing a separate-but-equal policy to appease bigotry.

    Reply
    1. Tara

      wait, was “smite the breeders” not part of the homosexual agenda? crap. been doing it wrong all these years… 😉

      Reply
  5. Tara

    I think at a basic level you’re simply drastically under-recognizing the difference between civil unions and marriage (at a federal level, like straight folk). There is nothing “parallel” about civil unions — they are a less privileged arrangement including fewer rights and protections, limited by federal laws, and only available in some areas. LG couples generally have to pay several thousand dollars more taxes every year, they bear further expense for legal costs (since there is no marriage-like package deal that allows you to make a number of these changes at once), paying for benefits for couples where both partners do not work, and for a variety of costs involved in starting a family. They cannot travel as easily (ISA in New Orleans, for example, was boycotted by a number of folks because Louisianna does not allow hospital visitation — so if I’d been in an accident, Jen would have no right to see me before I died.) The list goes on… civil unions are not equivalent to marriages.

    Claiming that federal marriage is politically problematic is what people have been claiming about any kind of lgbt rights or protections for years. It’s only that far off if we content ourselves with half-measures. We’ve now passed the 50% marker on support for gay marriage, and trends all seem to indicate increasing growth for this support as an older, more traditional generation passes on and a younger generation raised in a much more tolerant world step into their shoes. DOMA is inconsistent with other law, as you’ve noted, and I don’t expect it to last. After that, the path becomes easier. It’s not as politically problematic as you seem to think — largely because the incentives for politicians to reject gay marriage (constituent homophobia) are decreasing.

    Religions play host to all kinds of contradictions. I don’t see it as any more inherently illogical to be a catholic gay than to be a catholic (full stop). But that’s my bias, and I can’t adequately represent the opinions of religious queers, so I’m not gonna try. I will reiterate my belief that religious acceptance of lgbt folks will grow, however. A similar process has occurred for women — not all religions have women leaders, but certainly more of them than before the women’s rights movement.

    Of course there are differences between the civil rights movement and the gay rights movement. There are also parallels. Denying either of those things is simply reactionary. What I am pointing to is that there is a parallel in that “separate but equal” systems are systematically not going to be equal. The act of separation itself indicates inequity. Otherwise why keep them separate? If I do not have the rights that you do, to marry whom I love, then I AM a second-class citizen. The reasons are different — race as opposed to sexuality — but unless you want to argue that sexuality is somehow a less serious social cleavage, the similarity is clear.

    Reply
    1. Tara

      oops, i guess i clicked the wrong reply button… this is supposed to be in response to jason’s response…

      Reply

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