Cross-examination May 2006

Marital Differences

The national divide over gay marriage is a recipe for legal confusion—but we should learn to live with it

What will happen then?

It’s hard to know, but the conflicts between state laws will present real difficulties. American federalism is enormously flexible, and varied state approaches to a social issue are unremarkable: Nevada law permits gambling and some prostitution, Oregon allows doctor-assisted suicide, and a number of states permit medical uses of marijuana—in spite of the federal law against it. But same-sex marriage is different. Whereas casinos don’t move between states, and Mississippi has no stake when an Oregonian kills himself, marriage is traditionally portable. Couples married in one state move to another, where they get divorced and fight over kids. They get sick. They die. All of these acts involve one state recognizing the marriage laws of another—yet most states not only don’t license gay marriages themselves, they don’t recognize the validity of out-of-state licenses either.

We are already seeing states wrestling with the conflicts in marriage law. For example, a trial court in Virginia—where state law declares any gay partnership “void”—has refused to enforce a custody order stemming from the dissolution of a Vermont civil union. Which state’s laws control such a fight? A great deal of American law depends on the willingness of each state to recognize and enforce the official acts of the others. An unwillingness to do so in an arena as fundamental as marriage will produce a lot of confusion and more than a little hardship—at least until we establish clearer rules of the road.

Can’t the federal government provide any guidance?

For the foreseeable future, the only reasonable federal approach is to embrace a certain measure of disorder. A federal law, the Defense of Marriage Act, placed the federal government in a position of virtual neutrality. DOMA does not prohibit states from licensing gay marriages. But it denies such unions federal recognition, and it permits any other state to refuse to recognize them as well. I can imagine the federal government moving toward a more liberal policy in terms of its own recognition of gay marriages, but I can’t see federal policy either forbidding the unions themselves or requiring unwilling states to recognize them.

Why not? Isn’t it the job of federal law to force states into harmony on a matter this fundamental?

No. Any aggressive attempt to impose a single principle on states headed in such different directions would be intolerably coercive. Advocates of a federal constitutional amendment to define marriage as an exclusively heterosexual affair, for example, pretend to be fighting activist judges. But the amendment wouldn’t just override the Massachusetts court decision—it would void the democratic decision of a state that adopted gay marriage legislatively. Why should these states not be permitted to go their own way if their voters so choose?

On the other hand, if the many ballot initiatives around the country prove anything, it’s that voters in many states—and not just in deeply conservative ones—are profoundly unready to accept gay marriage. To force them to recognize same-sex unions would effectively allow a small group of liberal states to set social policy for the rest of the nation. Respect for the democratic choices of divergent political cultures counsels patience.

But isn’t this a matter of basic civil rights? Why should people be patient?

It is and it isn’t. For those who support same-sex marriage—and I support it without reservation—the ideal of equality and the belief in the dignity of same-sex relationships necessarily makes the issue seem a great deal like the civil-rights struggles of the past. But the civil-rights movement was asking America to honor a set of principles it had already adopted into law—indeed, into the Constitution itself—a century earlier, after a bloody civil war fought precisely over the status of African-Americans. By contrast, America has never legally embraced the right of gays and lesbians to marry. So no matter how compelling, or seductive, the language of civil rights may be, gay-marriage advocates must remember that they are not asking for the recognition of an existing right, but the creation of a new one—which will require, for many people, a significant rethinking of a deeply established social institution.

This was the basic error of the abortion-rights movement, which “won” with Roe v. Wade without ever doing the political legwork to persuade legislatures to relax their abortion laws. As a result, the right to an abortion is perpetually threatened by the permanent anti-abortion constituency it mobilized, and it is protected only by the continued solicitude of judges. (See “Letting Go of Roe,” January/February 2005 Atlantic.) A more patient and democratic approach to social change carries risks—specifically, the risk of winning in a few states and then seeing progress stall and the divide harden. But I find this possibility implausible, because large numbers of same-sex marriages in some of the nation’s largest states cannot but affect the larger culture. Already, poll data suggests that younger people have a far more inclusive vision of marriage than their elders. The patient, slow, legislative route may be less emotionally satisfying than the big judicial win, but it will pay far greater dividends in the long run.

It is also less dangerous. Advocates of gay marriage have made impressive gains so far, but that progress remains fragile. Last year Maryland’s legislature passed a bill giving same-sex couples medical decision-making rights; this year the state fought an intense battle over whether to allow a ballot initiative banning same-sex marriage. The reason for the shift in the terms of the debate? A state trial court had ruled that gays must be allowed to marry. There’s a lesson here about the delicate politics of gay marriage in America: many people may be willing to contemplate greater acceptance of gay relationships than current polls would suggest, but they will not tolerate having their hands forced.

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Benjamin Wittes is an editorial writer at The Washington Post.

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