MARITAL DIFFERENCES

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

By Benjamin Wittes

Will this year’s midterm elections feature a new raft of state ballot initiatives to ban same-sex marriage?

Definitely. Voters in eighteen states have already passed such bans, and the ballot initiatives have proven to be a major base-mobilizer for conservatives—so this year, there will be more. At least six states—Alabama, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin—will certainly hold referenda, and Arizona and Colorado are likely to do so as well. And given the success such measures have enjoyed at the ballot box, they will probably pass with strong majorities.

Yet these referenda—and the ongoing backlash they represent against the 2003 decision by the Massachusetts Supreme Judicial Court to legalize same-sex marriage—do not constitute the most interesting development in the emerging politics of gay marriage.

What development would that be?

A quiet countercurrent, driven by popular opinion, that’s making progress in several states, even in the face of the post-Massachusetts backlash.

Popular opinion? Isn’t gay marriage just the handiwork of “activist judges”?

Conservatives, including President Bush, often deride it as such. But the last few years have seen significant movement toward state recognition of same-sex relationships through normal democratic processes. In 2004, legislators in New Jersey and Maine passed domestic-partnership laws, joining Hawaii in formally recognizing same-sex partnerships and granting them certain rights associated with marriage. Last year, Connecticut’s legislature instituted civil unions (the bill was signed into law by a Republican governor); with Vermont, it’s one of only two states to have established this legal alter ego for heterosexual marriage. Even before the Massachusetts court ruled, California lawmakers had moved to beef up their own domestic-partnership law to grant nearly all the entitlements of a marriage license; then, last September, they passed a bill creating actual gay marriage—which Governor Arnold Schwarzenegger vetoed. Also last year, Maryland lawmakers passed a bill creating a formal statewide registry of “life partners” to facilitate medical decision-making. Republican Governor Robert Ehrlich vetoed it but took enough political heat for doing so that he came back in the following legislative session with a watered-down proposal of his own.

Then there’s Massachusetts itself. After the state high court’s ruling, the backlash seemed all but certain to provoke a state constitutional amendment to either outlaw gay marriage entirely or institute a “civil unions yes, marriage no” compromise. But then gay couples began marrying, the world didn’t end, and the political momentum shifted. In September 2005, the legislature decisively rejected an initiative that would have put a constitutional amendment on the ballot. Using a different procedure, gay-marriage foes may get one on anyway in 2008, but they may not—and even if they do, they may not win. The democratic politics of Massachusetts are proving far less hostile to gay marriage than the initial reaction to the court decision suggested.

It’s perhaps too early to call it a trend, but these signs of movement toward gay marriage suggest a more complicated dynamic than a simple confrontation between liberal judges and more traditional, conservative voters. Through a combination of litigation and legislation, we may well see marriage law liberalize dramatically in the bluest of the blue states, even as their red and purple counterparts move to constitutionally establish marriage as exclusively heterosexual. The result will be a dramatic divide in the legal structures that govern marriage—a gulf that will challenge federalism as few issues have in recent American history.

Which states seem likely to recognize gay marriage?

Currently, advocates are pursuing litigation in Washington—where a state Supreme Court decision could come down any time—and in California, Connecticut, Iowa, Maryland, New Jersey, and New York. In some of these states, gay-marriage proponents are simultaneously pursuing legislative change. We can also expect further pushes for reform in states like Maine, Hawaii, and Vermont. The interactions between the legislative efforts and the litigation are complicated—the threat of successful litigation can spur legislatures to reform marriage law themselves, but successful litigation can also trigger a backlash. So the likelihood of change varies from state to state, as does the specific mechanism. But I think it is reasonable to expect that ten years from now—perhaps much sooner—most of these states will have either formalized same-sex marriage or established institutions very much like 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.

This article available online at:

http://www.theatlantic.com/magazine/archive/2006/05/marital-differences/304834/