Wittes' Point

Ben Wittes says that the California court declared Barack Obama a bigot. Well, he admits he's not actually saying that, because the court didn't. But he bridles at the notion that domestic partnerships are an invidiously "separate but equal" institution. He argues that to impute prejudice to those who support domestic partnerships as the equivalent of civil marriage is unfair. I see where he's coming from. I certainly don't want to alienate or insult those who want substantive state (but not federal) equality for gay couples in a separate and nearly-equal box.

But the question Ben does not answer is this: on what grounds should we call a same-sex marriage a civil union and not a civil marriage? What does it mean to have a different name? The California court went to some length to answer this question and could not come up with an answer that could square with the strong assumption of civil equality in California's constitution. It's not merely descriptive: we could call the two institutions "gay marriage" and "straight marriage" if we wanted to. But one is called a "domestic partnership" and one is called a "marriage". Why?

Tradition, obviously. But tradition is always threatened by any change. It was threatened by divorce, by miscegenation, by women's equality, by the pill, by every change in civil marriage over the past centuries. Why is allowing a tiny minority to be part of this such a uniquely rupturing change that it requires another name altogether?

It really does come down to this. Are gay relationships as good as straight ones? Do they deserve the same dignity and respect and support? If you believe they do, there is no logical reason to deny the term civil marriage.

I can understand, for example, a fundamentalist simply arguing that gay relationships should be stigmatized on religious and moral grounds. If gays have to have some legal rights in a free society, they could and do say, at least we should declare as a society that they are inferior to heterosexual relationships. The different name and fewer rights do that, and that is the primary goal of the anti-marriage-equality forces. But if you have no substantive objections to equal treatment, if you have conceded the entire substance, and have no moral or religious objections to a civil act of legal equality, then the stigma of withholding the name is in some ways more intense. That last step has nothing logical or substantive supporting it - and so it becomes purely symbolic stigmatization. Its only rationale can be marginalization.

Can you imagine, for example, the lawyers in the Loving vs Virginia case fighting all the way to the Supreme Court and then saying: "Okay, we know you have issues with this. We don't want the courts to impose inter-racial marriage on the country by fiat when huge majorities find such marriages repulsive and immoral. So we'll call inter-racial marriages "domestic partnerships" instead."

Of course you can't imagine that. And that speaks volumes. Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.