JULY 2 2003
Critics and enthusiasts of Lawrence v. Texas, last week’s Supreme Court decision invalidating state anti-sodomy laws, agree on one thing: The next argument is going to be about gay marriage. As Justice Scalia noted in his tart dissent, it follows from the logic of Lawrence. Mutually consenting sex with the person of your choice in the privacy of your own home is now a basic right of American citizenship under the Constitution. This does not mean that the government must supply it or guarantee it. But the government cannot forbid it, and the government also should not discriminate against you for choosing to exercise a basic right of citizenship. Offering an institution as important as marriage to male-female couples only is exactly this kind of discrimination. Or so the gay rights movement will now argue. Persuasively, I think.
Opponents of gay rights will resist mightily, although they have been in retreat for a couple of decades. General anti-gay sentiments are now considered a serious breach of civic etiquette, even in anti-gay circles. The current line of defense, which probably won’t hold either, is between social toleration of homosexuals and social approval of homosexuality. Or between accepting the reality that people are gay, even accepting that gays are people, and endorsing something called “the gay agenda.” Gay marriage, the opponents will argue, would cross this line. It would make homosexuality respectable and, worse, normal. Gays are welcome to exist all they want, and to do their inexplicable thing if they must, but they shouldn’t expect a government stamp of approval.
It’s going to get ugly. And then it’s going to get boring. So, we have two options here. We can add gay marriage to the short list of controversies—abortion, affirmative action, the death penalty—that are so frozen and ritualistic that debates about them are more like Kabuki performances than intellectual exercises. Or we can think outside the box. There is a solution that ought to satisfy both camps and may not be a bad idea even apart from the gay-marriage controversy.
That solution is to end the institution of marriage. Or rather (he hastens to clarify, Dear) the solution is to end the institution of government-sanctioned marriage. Or, framed to appeal to conservatives: End the government monopoly on marriage. Wait, I’ve got it: Privatize marriage. These slogans all mean the same thing. Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want. Let each organization decide for itself what kinds of couples it wants to offer marriage to. Let couples celebrate their union in any way they choose and consider themselves married whenever they want. Let others be free to consider them not married, under rules these others may prefer. And, yes, if three people want to get married, or one person wants to marry herself, and someone else wants to conduct a ceremony and declare them married, let ’em. If you and your government aren’t implicated, what do you care?
In fact, there is nothing to stop any of this from happening now. And a lot of it does happen. But only certain marriages get certified by the government. So, in the United States we are about to find ourselves in a strange situation where the principal demand of a liberation movement is to be included in the red tape of a government bureaucracy. Having just gotten state governments out of their bedrooms, gays now want these governments back in. Meanwhile, social-conservative anti-gays, many of them Southerners, are calling on the government in Washington to trample states’ rights and nationalize the rules of marriage, if necessary, to prevent gays from getting what they want. The Senate Majority Leader, Bill Frist of Tennessee, responded to the Supreme Court’s Lawrence decision by endorsing a constitutional amendment, no less, against gay marriage.
If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and are entitled to. And if the other side is sincere in saying that its concern is not what people do in private, but government endorsement of a gay “lifestyle” or “agenda,” that problem goes away, too.
Yes, yes, marriage is about more than sleeping arrangements. There are children, there are finances, there are spousal job benefits like health insurance and pensions. In all these areas, marriage is used as a substitute for other factors that are harder to measure, such as financial dependence or devotion to offspring. It would be possible to write rules that measure the real factors at stake and leave marriage out of the matter. Regarding children and finances, people can set their own rules, as many already do. None of this would be easy. Marriage functions as what lawyers call a “bright line,” which saves the trouble of trying to measure a lot of amorphous factors. You’re either married or you’re not. Once marriage itself becomes amorphous, who-gets-the-kids and who-gets-health-care become trickier questions.
So, sure, there are some legitimate objections to the idea of privatizing marriage. But they don’t add up to a fatal objection. Especially when you consider that the alternative is arguing about gay marriage until death do us part.
Michael Kinsley is a columnist, and the founding editor of Slate.