A Different Take on Gay Marriage

It's been almost a decade since the unprecedented civil debate here in Vermont over the question of gay marriage, equal protection, and civil unions. I will always remember those evenings sitting in our kitchen listening to VPR live coverage of the statehouse open microphone sessions, as Vermont residents took turns speaking their minds for all to hear.

Struggling with my own thoughts, I came to appreciate the crucial difference between civil rights and social recognition.

Civil rights are those individual rights of conscience, choice, and self-determination which are protected by our laws. In Baker v. Vermont, the Vermont Supreme Court recognized the fundamenal inequity faced by homosexual couples who, as legally competent consenting adults, had chosen to share their lives with one another but whose choice had no legal protection. The Court, at that time, ruled that these couples must be given equal protection under the law, but left it to the legislature to devise the means.

The Baker decision framed the debate for the people of Vermont in terms of simple fairness. Whatever one's feelings regarding homosexuality in social or religious terms, one had to face a question of fundamental decency and, ultimately, privacy. If people choose to unite their lives as a household and family, how can our society deny them the right to share the complicated, difficult medical, financial, and end-of-life decisions that viscerally define household and family within broader society?

That argument is both effective and, ultimately, instructive. Doctrinal objections to homosexuality pale for most people in the face of the human choices and human struggle we all share, regardless of sexual orientation. Recognizing our common struggle with those fundamental questions begets greater tolerance of homosexuality and a better appreciation of the civil rights we all wish for ourselves and must afford one another. We saw as much here in Vermont as, in a matter of a couple years, civil unions went from being a controversial bill, to a contested law, to an election year rallying cry, to an uncontested matter of civil law.

That argument doesn't extend to gay marriage.

The problem is marriage. Marriage conflates the legal protections granted a couple's commitment to one another with the social recognition of that union.

Vermont's civil unions debate clearly delineated the two. Civil unions acknowledged that the state has no business discriminating against, or interfering in, the private decision to join oneself legally to another. Like the civil marriage license I got in Tracy Hall before we were married, civil unions do not guarantee that others will approve of that private decision, only that the state acknowledges that choice and the legal privileges that choice entails.

In terms of civil rights and equal protection, both Vermont and homosexual Americans would be better off if, rather than enshrining gay marriage, we instead extended civil unions to heterosexuals, replacing the marriage license with a civil union license. With a universal civil union license, both homosexual and heterosexual unions would be on an equal footing legally. The matter of social acceptance and definition of marriage would be left to the religious and social institutions those couples choose to sanctify and celebrate their union. Many faiths and institutions will allow "gay marriage" ceremonies and many will not. Whether a couple calls themselves married or partners is left to social norms, but the rights inherent in that choice to join together as a household and family would be supported by law.

It would also create the legal framework for extending similar rights throughout the country, not as an "assault on the institution of marriage," but as a matter of fairness and equality. That legal framework, firmly planted in the language and law of civil rights, can prevail across the country and in the federal courts. Both women's sufferage and the civil rights struggle of African-Americans followed a similar course, eventually recognizing that our laws should and must prohibit discrimination, but cannot legislate social acceptance.

In this respect, the gay marriage campaign can only become more entangled in the confusion between social acceptance and civil rights. The longer and harder proponents demand that the social institution of marriage be extended to gay couples as a matter of law, the more their campaign for civil rights will be stymied by a social backlash to an effort to redefine "marriage." A large number of states have already amended their constitutions to prohibit gay marriage. I don't see this Supreme Court striking down those state constitutional provisions on the basis that "marriage" is a fundamental right. I do see a real risk of the civil rights question being hijacked by social conservatives nationally and a long, acrimonious campaign to amend the federal constitution to prohibit gay marriage nationally.

The politics of gay marriage may work in Vermont, but it's a loser nationally. The civil rights struggle encapsulated in our pioneering civil unions law may not give good-hearted Vermonters the same sense of accomplishment, but it's a legal juggernaut that could and should eventually transform the nation. I am proud of my state for pioneering that path, forged from an open and difficult debate. This next step, I fear, is actually a step backwards.