Now that the Massachusetts Supreme Court has ruled that marriage be open to gays and lesbians, it is time to consider the question that pops up more than mushrooms after a spring rain. How would the legalization of gay marriage harm current and future heterosexual marriages?

The answer at first glance is that it wouldn’t, at least not in individual cases in the short run. But what about the longer run for everyone?

It is a superficial kind of individualism that does not recognize the power of emerging social trends that often start with only a few individuals bucking conventional patterns of behavior. Negative social trends start with only a few aberrations. Gradually, however, social sanctions weaken and individual aberrations became a torrent.

Think back to the 1960s, when illegitimacy and cohabitation were relatively rare. At that time many asked how one young woman having a baby out of wedlock or living with an unmarried man could hurt their neighbors. Now we know the negative social effects these two living arrangements have spawned: lower marriage rates, more instability in the marriages that are enacted, more fatherless children, increased rates of domestic violence and poverty, and a vast expansion of welfare state expenses.

But even so, why would a new social trend of gays marrying have negative effects? We believe there are compelling reasons why the institutionalization of gay marriage would be 1) bad for marriage, 2) bad for children, and 3) bad for society.

1. The first casualty of the acceptance of gay marriage would be the very definition of marriage itself. For thousands of years and in every Western society marriage has meant the life-long union of a man and a woman. Such a statement about marriage is what philosophers call an analytic proposition. The concept of marriage necessarily includes the idea of a man and woman committing themselves to each other. Any other arrangement contradicts the basic definition. Advocates of gay marriage recognize this contradiction by proposing “gay unions” instead, but this distinction is, we believe, a strategic one. The ultimate goal for them is the societal acceptance of gay marriage.

Scrambling the definition of marriage will be a shock to our fundamental understanding of human social relations and institutions. One effect will be that sexual fidelity will be detached from the commitment of marriage. The advocates of gay marriage themselves admit as much. “Among gay male relationships, the openness of the contract makes it more likely to survive than many heterosexual bonds,” Andrew Sullivan, the most eloquent proponent of gay marriage, wrote in his 1996 book, Virtually Normal. “There is more likely to be a greater understanding of the need for extramarital outlets between two men than between a man and a woman. … Something of the gay relationship’s necessary honesty, its flexibility, and its equality could undoubtedly help strengthen and inform many heterosexual bonds.”

The former moderator of the Metropolitan Community Church, a largely homosexual denomination, made the same point. “Monogamy is not a word the gay community uses,” Troy Perry told The Dallas Morning News. “We talk about fidelity. That means you live in a loving, caring, honest relationship with your partner. Because we can’t marry, we have people with widely varying opinions as to what that means. Some would say that committed couples could have multiple sexual partners as long as there’s no deception.”

A recent study from the Netherlands, where gay marriage is legal, suggests that the moderator is correct. Researchers found that even among stable homosexual partnerships, men have an average of eight partners per year outside their “monogamous” relationship.

In short, gay marriage will change marriage more than it will change gays.

Further, if we scramble our definition of marriage, it will soon embrace relationships that will involve more than two persons. Prominent advocates hope to use gay marriage as a wedge to abolish governmental support for traditional marriage altogether. Law Professor Martha Ertman of the University of Utah, for example, wants to render the distinction between traditional marriage and “polyamory” (group marriage) “morally neutral.” She argues that greater openness to gay partnerships will help us establish this moral neutrality (Her main article on this topic, in the Winter 2001 Harvard Civil Rights and Civil Liberties Law Review, is not available online, but she made a similar case in the Spring/Summer 2001 Duke Journal Of Gender Law & Policy). University of Michigan law professor David Chambers wrote in a widely cited 1996 Michigan Law Review piece that he expects gay marriage will lead government to be “more receptive to [marital] units of three or more” (1996 Michigan Law Review).

2. Gay marriage would be bad for children. According to a recent article in Child Trends, “Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage.” While gay marriage would encourage adoption of children by homosexual couples, which may be preferable to foster care, some lesbian couples want to have children through anonymous sperm donations, which means some children will be created purposely without knowledge of one of their biological parents. Research has also shown that children raised by homosexuals were more dissatisfied with their own gender, suffer a greater rate of molestation within the family, and have homosexual experiences more often.

Gay marriage will also encourage teens who are unsure of their sexuality to embrace a lifestyle that suffers high rates of suicide, depression, HIV, drug abuse, STDs, and other pathogens. This is particularly alarming because, according to a 1991 scientific survey among 12-year-old boys, more than 25 percent feel uncertain about their sexual orientations. We have already seen that lesbianism is “chic” in certain elite social sectors.

Finally, acceptance of gay marriage will strengthen the notion that marriage is primarily about adult yearnings for intimacy and is not essentially connected to raising children. Children will be hurt by those who will too easily bail out of a marriage because it is not “fulfilling” to them.

3. Gay marriage would be bad for society. The effects we have described above will have strong repercussions on a society that is already having trouble maintaining wholesome stability in marriage and family life. If marriage and families are the foundation for a healthy society, introducing more uncertainty and instability in them will be bad for society.

In addition, we believe that gay marriage can only be imposed by activist judges, not by the democratic will of the people. The vast majority of people define marriage as the life-long union of a man and a woman. They will strongly resist redefinition. Like the 1973 judicial activism regarding abortion, the imposition of gay marriage would bring contempt for the law and our courts in the eyes of many Americans. It would exacerbate social conflict and division in our nation, a division that is already bitter and possibly dangerous.

In summary, we believe that the introduction of gay marriage will seriously harm Americans—including those in heterosexual marriages—over the long run. Strong political measures may be necessary to maintain the traditional definition of marriage, possibly even a constitutional amendment.

Some legal entitlements sought by gays and lesbians might be addressed by recognizing non-sexually defined domestic partnerships. But as for marriage, let us keep the definition as it is, and strengthen our capacity to live up to its ideals.

Robert Benne and Gerald McDermott, who both teach religion at Roanoke College, wrote an earlier version of this article for the Public Theology Project. Viewpoints published in “Speaking Out” do not necessarily represent those of Christianity Today.

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Florida? Try Vermont: The fate of our nation (National Review Online, 001131)

By Stanley Kurtz, a fellow at the Hudson Institute

The fate of our nation now hinges on a single state’s election, the meaning and outcome of which remain contested and unclear. Rarely has a vote given so piquant a mixture of pain and encouragement to two competing camps. Clearly, the key to our political future lies in the recent election in…Vermont. Florida may decide the next president, but the battle now prefigured in Vermont will dominate the country’s cultural politics for the next four years.

Vermont’s gubernatorial and legislative campaigns — a kind of collective referendum on gay civil unions — closely resembled the race for the presidency...only more so. As with the presidential race, the results were mixed, giving each side reason to claim victory. And the election in Vermont exposed a chasm between “two Vermonts,” one largely rural, one predominantly urban; one socially conservative, the other the product of cultural currents let loose during the sixties. This split — exactly — was evident in the presidential results, but with a difference.

Nationally, despite the emotions kicked up by the Florida vote-count, our divisions were relatively shallow. Many voters could have gone either way, and notwithstanding Gore’s feint to the left, both candidates avoided hot-button social issues and played to the mushy middle. Deeper cultural contrasts may underlie our national political divisions, but with social issues off the table, the election turned into a battle over money. But in Vermont, with gay civil unions in play, nearly every other issue was swept aside, and the underlying cultural division between the “two Vermonts” was honed to a knife-point.

Sometime during the next four years, gay marriage and other issues related to homosexuality are going to burst onto the national scene, sharpening our political and cultural differences. It’s already happened in a small way with the brush-war over the Boy Scouts, but pretty soon things are going to get serious — and politicians are going to find it tough to keep their distance.

To a large extent, gay marriage and “civil unions” are legislative issues. Even Vermont’s egregiously invasive Supreme Court was forced to refer the matter to the legislature for final disposition — with politically explosive results. And there are any number of ways in which the federal government can be drawn into the controversy over gay marriage. For decades, politicians have been able to sidestep the incendiary issues of abortion and affirmative action by passing them off to the courts. This will be far more difficult to do with civil unions and gay marriage.

So what exactly happened in Vermont? Although the results were apparently inconclusive, it would be more accurate to say that each side won an impressive victory. If the goal of gay activists was to preserve civil unions by blocking legislative repeal, then clearly they were successful. Thanks to a relentless campaign of vilification by Vermont’s leftist press, Ruth Dwyer, the conservative Republican gubernatorial candidate who pledged to repeal civil unions, was handily defeated by incumbent Democratic Gov. Howard Dean. The liberal governor can now veto any attempt to change or abolish civil unions. And although opponents of civil unions did pick up a single seat in the closely divided Vermont state Senate, the Democrats continue to hold a narrow edge. Only the House slipped into Republican hands. So civil unions are safe. And given the mixed results, a constitutional amendment that could countermand both the law and the original order by Vermont’s Supreme Court seems unlikely.

But if a key goal of the “take back Vermont” movement was to graphically illustrate the dangers of a vote for civil unions, then they succeeded brilliantly. The battle for the House turned into just the legislative landslide the take-back-Vermonters had hoped for. Republicans took control of the House for the first time in 14 years, and by a commanding majority. And all sides agree that civil unions were responsible for the turnover. Had it been introduced into the Vermont state legislature about to take power, a civil unions bill could never have passed.

And Vermont Republicans came within a hair’s breadth of capturing the state Senate. With opposition to civil unions often tracking the rural/urban divide, the vote for the House was a clear reflection of the countryside’s disaffection. In larger Senate districts, however, urban and rural votes were more likely to cancel each other out.

That gave a razor-thin margin to Democrats in some hotly contested Senate districts, but the vote could clearly have gone either way. What’s striking is that Republicans were able to take over the House and come close in the Senate in a state that not only voted heavily for Gore, but gave Ralph Nader a whopping 9 percent. They did it by adding the votes of socially conservative Catholic Democrats to the votes of rural Republicans.

So in the end, each side won.

Gay activists and their liberal allies can take heart from Vermont’s election. Although they know they’ll have a fight on their hands, victory is clearly possible. Activists have every right to expect that in a significant number of states, civil union legislation, once passed, will hold. At the same time, social conservatives can feel confident that the results in Vermont will sharply reduce legislative support for gay marriage initiatives in other jurisdictions. Any Democratic governor or state legislator casting an eye to the fate of civil unions in Vermont is bound to get queasy. Civil unions — not to mention gay marriage — clearly have the power to take over the politics of a state, poisoning relations among the parties and threatening the ouster of any official who supports them.

With any ordinary issue, these political dangers would easily be enough to scare off other states. But the issue of civil unions is not ordinary. However mistakenly, proponents of gay marriage believe that they are engaged in an heroic struggle for civil rights. Invocations of Selma, Alabama, are a staple of pro-gay marriage rhetoric. Advocates will not be deterred by pragmatic considerations. Expect proposals for civil unions and outright gay marriage to be introduced into a wide range of state legislatures over the next four years. The fight will be bitter, with the ultimate outcome as yet unclear.

What is clear, however, is that the implications of the coming war over gay marriage are national. By driving socially conservative blue-collar voters into the arms of the Republicans, gay marriage has the potential to reassemble the Reagan coalition. Al Gore’s populist rhetoric during the election was a bid for these very same voters. As it is, Gore was only partially successful. But once Gore (who has already endorsed gay “civic unions”) or a new Democratic leader becomes directly associated in the public mind with a nationwide campaign for gay marriage, the Reagan Democrats will come back to the Republicans. At least that is one plausible scenario.

The final outcome of our coming national war over gay marriage cannot be known. The battle pits a majority of the American people against a political and cultural elite firmly in control of the media and, to a lesser extent, the courts. In the short term, the bitter and complex stand-off in Vermont will probably play out nationally. And as Vermont’s civil war over civil unions has shown, once the battle is joined, nothing will be the same.

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Gay in Hollywood (NRO, 010507)

By Stanley Kurtz, fellow, the Hudson Institute

A gay leading man isn’t going to bring men to the theater. Nor is it democratic that, as a condition of getting pleasure or love, people should have to kowtow to conventions of masculinity and femininity. In fact, even when they’re enthusiastically embraced, masculine and feminine ways are a standing insult to liberty and equality. It’s undemocratic that a man should take more charge than a woman when it comes to driving, making money, the remote control, or the sexual act itself. What’s that you say? Part of the point of democracy is to leave people free to make their own private choices about beauty, sex, and love? That, my friend, is merely a rationalization for private bigotry. People need to be reeducated: taught to ignore physical appearance, taught to treat men and women alike, and taught to eliminate all traces of inequality from their sexual fantasies.

This line of thinking explains in a nutshell why feminism, in its more frank and consistent versions, has never managed to break out of the academy. At bottom, feminism is a futile attempt to democratize sex. But sex is incorrigible. In a sense, sex is a grown-up way of getting back to all those undemocratic pleasures of childhood — caring and being cared for, demanding and giving in, escaping and being caught, bouncing and being bounced, finding someone — or being someone — who’s too cute for words — and who belongs to you, and you alone. You name it. Nine times out of ten, if it’s sexy, it reeks of exclusiveness and hierarchy — and has little or nothing to do with democracy. Democracy protects our right (within reason) to be sexy as we see fit, but democracy certainly doesn’t describe, or account for, sexiness itself.

That brings me to Tom Cruise, who has just announced a $100-million libel suit against Kyle Bradford, a gay male porn star who claims that his secret affair with Cruise was the real reason for the recent breakup of Cruise’s marriage to the lovely Nicole Kidman. Cruise maintains that this rumor has seriously damaged his marketability as a leading man in films that feature “heterosexual romance and action adventure.” According to Cruise’s lawyer, “While plaintiff believes in the right of others to follow their own sexual preference, vast numbers of the public throughout the world do not share that view and, believing that he had a homosexual affair and did so during his marriage, they will be less inclined to patronize Cruise’s films …”.

It’s hardly surprising that an actor known for his James Bond-style roles would object to claims that a secret homosexual affair had destroyed his marriage. But Andrew Sullivan, maybe Washington’s quickest and canniest pundit — and a tireless and honorable crusader for gay rights — is distressed by Cruise’s lawsuit. According to Sullivan, Cruise’s suit exposes Hollywood’s hypocrisy on gay issues. If Hollywood’s moguls are as pro-gay as they claim to be, asks Sullivan, why aren’t there any openly homosexual leading men? Cruise’s suit, says Sullivan, is really just ostensibly liberal Hollywood’s way of “sending a deliberate message to gay stars and actors: Stay in the closet — or your career is toast.” And by the way, asks Sullivan, “what exactly ... is incompatible between being gay and ‘action adventure?’ (Is Cruise peddling stereotypes as well as urging gays in movies to stay closeted?)”

However trivial this tiff might seem, it speaks volumes about the follies and foibles of today’s movement for gay rights. Increasingly, that movement is pursuing a futile and counterproductive effort to democratize sex — to force people to act as though something as real and profound and undemocratic as sex itself — simply does not exist.

Everyone knows that a movie star’s magic is closely bound up with his off-screen image. The old Hollywood system was built on that truth, and anyone old enough to remember how disappointed young girls were as, one by one, the Beatles got married, will understand that a performer’s charisma cannot be completely separated from his off-stage life. But now we’re supposed to believe that it’s blatant discrimination if, having been told that he betrayed his famously beautiful wife for a gay male porn star, women find it harder to fantasize about — or men to admire and emulate — Tom Cruise. The denial of reality here is patent.

Of course a gay man is perfectly capable of playing either a heterosexual romantic lead (Rock Hudson proved that), an action adventure hero, or both. But in Hollywood, fantasy is currency. A gay James Bond isn’t going to bring men to the theater. A gay boy-group won’t sell copies of Tiger Beat. To condemn this as prejudice is to declare war upon sex itself.

No doubt the reply will come that this sort of logic could have justified racism in sports. If we’d given in to the prejudice of white audiences; if we’d catered to the well-established difficulty of identifying with sports heroes of another race; there would have been no Jackie Robinson, and thus no professional sporting world as we know it today.

It’s a great argument. The desire to think of a sports hero as a good and noble person in real life is immensely powerful. And for that very reason, allowing blacks into professional sports really did signal, and help to provoke, a much-needed expansion of our capacity to identify with the lives and struggles of someone of another race. But the analogy to sex just doesn’t hold up. Precisely because we insist on making a connection between the fantasy on screen and an actor’s real life, a homosexual actor playing a heterosexual romantic hero short-circuit’s an audience’s ability to fully enjoy his movie roles. There’s no real analogy to sports, but it would be something like finding out that your favorite baseball star was actually bored by the game and was only in it for the money. The point is, from the audience’s point of view, a star’s public performances should extend, not contradict, his real-life roles. That may often be an illusion, but the need for that illusion is real. And nowhere do fantasy and reality blend more powerfully or inextricably than in the delicate game of sex.

A more revealing analogy to the gay leading-man issue is “lookism,” that infamous bogeyman of radical feminism, quickly rejected by the public at large as a laughable instance of campus P.C. It may be unfair to treat people differently simply because of their looks, but it’s both an inescapable human reality, and an ineradicable part of our sexuality. And Hollywood, of course, is the worldwide capital of lookism. The fundamental problem with the modern gay-rights movement is that it falls somewhere in between the nobility of the civil rights struggle, and the hopeless absurdity of the battle against lookism — but can only see it self in the light of the former.

Andrew Sullivan isn’t just an advocate of gay romantic leads in Hollywood; he is also the most articulate and influential spokesman for the movement to legalize same-sex marriage. And Sullivan’s vision for Hollywood tells us something of profound importance about the meaning of same-sex marriage.

The institution of marriage offers special support and encouragement to heterosexual couples. Its purpose is to keep the sometimes fragile bonds between couples from fraying — ultimately, for the sake of the next generation. Marriage accomplishes this, in part, by encouraging the feeling that men and women belong together; that they complement and complete one another; that their deepest fulfillment rests with one another. Gay marriage is guaranteed to undermine that feeling, and thereby to advance the process of turning a sacred union (whether in the literal religious sense or not) into nothing more than a temporary and infinitely malleable contractual arrangement.

Agree or disagree, it is certainly possible to argue, as does Andrew Sullivan, that as a way of expressing social approval for homosexuality, gay marriage is a change worth making. But it is simply not credible to argue, as does Andrew Sullivan, that this fundamental transformation of the institution would in no way undermine heterosexual marriage. The demystifying effects of state-sanctioned homosexual coupling on the institution of marriage will be quite like the effects on a schoolgirl crush of a rumor that Justin Timberlake is gay. It’s true that in either case, heterosexual disappointment “sends a message” to gays that they are not full players in the game. This may be “unfair,” but the unfairness of sex simply cannot be got rid of.

Maybe 97% or so of the population is straight. It’s a tragedy that our social and cultural institutions must often slight the best interests of the minority in favor of the best interests of the vast majority, but it’s a fact that these interests often run at cross-purposes. An influx of gay actors playing heterosexual leading men will surely mean a decline in ticket sales. And just as surely, gay marriage will strike an immense blow against the prestige and power of marriage — at least for the overwhelming majority of the population. This is not completely democratic; but it is completely real.

A world in which sexuality had finally been tamed by democracy would be a world without Tom Cruises and a world without marriage. Tom Cruise and Nicole Kidman have been elevated to stardom in the first place only because of lookist prejudice. Surely there are better, if less visually appealing, actors out there. And marriage itself, in an important sense, is “undemocratic.” The strictly democratic solution to sexual relationships would be an infinitely flexible series of contracts binding any number or gender of people, for any length of time, under an endlessly variable set of rights and obligations. But the overwhelming fact of heterosexual dominance — and the compelling social interest in encouraging family stability for the sake of the next generation — make marriage as we know it the central and necessary institution that it is.

It is entirely possible to believe that society has a compelling interest in keeping marriage in its present form, while still supporting a goodly amount of freedom in private sexual conduct. That’s where Cruise’s lawyer got it wrong. There’s no real contradiction between the right of others to follow their own sexual proclivities and the understandable preference of moviegoers for heterosexual actors to play heterosexual parts. The right to practice homosexuality obligates no one to treat an actor’s homosexuality as irrelevant to their praise and enthusiasm for that actor.

So if all those liberal Hollywood types are hypocrites, maybe the accusation ought to be reversed. Maybe the real Hollywood hypocrisy is to pretend that gay marriage isn’t going to undermine marriage itself, when everything you know about the way the world works is telling you that it will.

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The Right Balance: When it comes to gay marriage, it’s going to be all or nothing (NRO, 010801)

Mr. Kurtz is also a fellow at the Hudson Institute

The storm that will break over America after but a single state legalizes gay marriage will surely be a moment of decisive cultural reckoning. In the wake of that first legalization, the battle over gay marriage will be characterized by rapidly escalating confrontation, followed by a radical, nation-wide resolution. It’s too soon to tell which way the battle will go, but it’s clear that a patchwork solution — gay marriage legalized in some states but forbidden in others — is next to impossible.

That’s not how Andrew Sullivan and Jonathan Rauch see it. These respected Washington journalists and long-time advocates of the “conservative” case for gay marriage maintain that supporters of the Federal Marriage Amendment (which defines marriage as a union of a man and a woman) are unreasonably panicked by the idea that legalization of same-sex marriage in a single state will lead to an imposition of the practice on the nation as a whole. Rauch goes further and accuses supporters of the Federal Marriage Amendment of being “disingenuous.” Opponents of gay marriage, claims Rauch, are hiding a decidedly un-conservative, anti-states’ rights position behind their groundless claim that judicial activism in a single state could easily lead to a national mandate for gay marriage.

Sullivan and Rauch are mistaken. There is every reason to fear that a legal mandate for gay marriage in but a single state will quickly result in the imposition of gay marriage on the nation as a whole. A federal amendment defining marriage as a union of a man and a woman is the only way to prevent this. And far from being an attack on states’ rights, the Federal Marriage Amendment is faithful to the principles of federalism — so faithful that the proposed amendment has already come under sharp attack from the conservative Family Research Council, precisely because it does not deny states the power to confer benefits upon homosexual couples. So on federalism, the Federal Marriage Amendment sits comfortably between the extreme and untenable positions of its critics on both the Left and the Right.

Yet according to Jonathan Rauch, conservatives have no reason to fear a national imposition of gay marriage. After all, Rauch claims, in 1996, Congress and President Clinton “foreclosed [the] possibility” of an imposed national solution by passing DOMA (the Defense of Marriage Act), which holds that no state need recognize a same-sex marriage performed in another state. And besides, says Rauch, three dozen states have passed pre-emptive legislative bans on gay marriage — almost 75% of the way to a national ban.

Yet it’s difficult not to think that it’s Rauch who’s being disingenuous here, since he surely knows, yet neglects to mention, that a veritable army of gay-rights advocates are poised to challenge the constitutionality of the Defense of Marriage Act, and of the various state bans. And after the legalization of same-sex marriage in even a single state, these legal legions will offer multiple arguments for imposed national recognition of gay marriage. David Coolidge, of the Marriage Law Project, puts it this way:

The major gay rights organizations have vowed to litigate everything — DOMA, civil unions, recently passed marriage amendments. We should take them at their word. They will throw in the constitutional kitchen sink. To the extent possible, they will select federal or state courts that are sympathetic to their cause, and it only takes one or two courts to throw everything up in the air.

Yet this is precisely what Andrew Sullivan denies. Sullivan claims that judgments legalizing gay marriage in a given state will have little effect on any other. Specifically, Sullivan takes issue with my claim that the U.S. Constitution’s Full Faith and Credit clause, (which hold that states must recognize the public acts, records, and judicial proceedings of other states) has the potential to override DOMA and force states that don’t recognize gay marriage to accept marriages celebrated in states that do.

According to Sullivan, anyone who reads the constitutional law section of his anthology, Same-Sex Marriage: Pro and Con, will see that supporters of the Federal Marriage Amendment are downright hysterical to claim that gay marriage in one state might force gay marriage onto another. After all, as Larry Kramer (the law professor, not the playwright and AIDS activist) argues in Sullivan’s reader, existing law already permits states to disregard a marriage performed in another state if that out-of-state marriage violates a clearly stated “public policy” of the first state. This “public policy exception,” insists Kramer (and following Kramer, Sullivan), is fully capable of protecting the right of a state to nullify same-sex marriages performed elsewhere.

Unfortunately, Sullivan’s assurances to conservatives are utterly unreliable. For one thing, Sullivan omits to mention that, in addition to Professor Kramer’s piece, his anthology is filled with articles suggesting legal scenarios by which a single state’s approval of gay marriage might result in the imposition of the practice on the nation as a whole.

But it’s worse than that. Even Professor Kramer’s law-review article — the very source of Sullivan’s claim that gay marriage will not be imposed by one state upon another — gives us very strong reasons to fear that exactly the opposite is true.

While Professor Kramer does indeed maintain that, under existing law, states may make use of the “public policy exception” to invalidate marriages performed in other states, Kramer also agues that the “public policy exception” is both nonsensical and unconstitutional. So whereas Sullivan points to Kramer’s law-review piece as evidence that the Full Faith and Credit clause poses no threat to either DOMA, or to “states rights,” the truth is exactly the opposite. Professor Kramer himself is actually an energetic advocate of the view that the very protections Sullivan is pointing to are unconstitutional, and therefore can and should be abolished.

It gets worse. Even Kramer’s assurances that existing law protects states against imposed gay marriage are anything but solid. For one thing, Kramer notes that legal advocates for gay marriage might very well succeed in persuading courts or legislatures to construe the “public policy exception” narrowly enough to force cross-state recognition of same-sex marriage. Kramer’s guess that these liberal successes will be relatively rare is — as he makes clear — a political judgment. But Kramer was writing almost five years ago, well before Vermont’s state supreme court mandated civil unions. If Kramer believed five years ago that a legal way around the “public policy exception” existed and might succeed in selected state courts, how much more do we have to be concerned about that legal maneuver now that the political climate has liberalized still further?

But the deeper issue raised by Kramer’s piece, and by the rest of the articles in Sullivan’s anthology, is the sheer impossibility of maintaining a state-by-state patchwork in the matter of gay marriage. While Professor Kramer is emphatic that the “public policy exception” is existing law, he also makes it clear that such exceptions are virtually never used — even when they are clearly embodied in statutes. In other words, even when they have a clear legal right to reject the legitimacy of marriages contracted in other states with different marriage laws, states almost never actually do so.

As a general matter, every state in the United States recognizes, and has always recognized, the validity of marriages celebrated in all the other states. There’s a good reason for that. Any other policy would lead to social chaos and an effective breakup of our federal system. Federalism is only partly about states’ rights. Federalism also requires that, whatever their differences, the states be transformed from separate sovereignties into a single nation.

Without the assurance that a marriage contracted in one state would be valid in another, our travel, and our legal-financial dealings would be thrown into a state of chaos. Imagine going on a cross-country vacation with your spouse and not knowing whether your marriage would be considered legitimate in a given state.

The truth is, there is simply no precedent for the national confusion that would follow on the acceptance of gay marriage by only a few states. Professor Kramer can argue that existing law would technically permit such a patchwork, but in practice, it’s never been tried. Sullivan points to national differences in miscegenation law as precedent for such a patchwork. But as another piece in Sullivan’s anthology makes clear, there have been only two cases in American history where a state that had banned miscegenation was forced to consider recognition of a mixed-race marriage, where the couple in question would actually reside in the state. (Mixed race marriage was rare, even in the North.) And despite an admitted “revulsion” at mixed race marriage, and a clearly stated conviction that miscegenation endangered civilization, in one of the two cases, the court actually recognized the racially mixed marriage. Why? Because the horror of miscegenation was outweighed by the fear of social chaos if parents and children could not be assured of their own legitimacy as they traveled from state to state. And the arguments over those cases took place over a hundred years ago, long before the automobile, telephone, and Internet shrank the country.

That is why, when it comes to gay marriage, it’s going to be all or nothing. Whatever current law technically is (and despite Sullivan’s assurances, that is by no means clear), a state-by-state patchwork of radically distinct marriage practices is unprecedented, untenable, and profoundly anti-federalist. Whether “conservative” advocates of gay marriage actually believe that such a patchwork is workable, I cannot say. But the idea of selective, state-by-state gay marriage is a fantasy.

As soon as even a single state legalizes same-sex marriage, the nation will be plunged into a furious legal, political, and cultural struggle. The bitter and ongoing polarization in even an exceedingly liberal state like Vermont is a clear foreshadowing of the conflict to come. As legal and political battles over traveling couples spread from state to state, the chaos will multiply and the courts, already inclined to mandate same-sex marriage, will grow increasingly receptive to arguments that the Full Faith and Credit clause demands national gay marriage. And the even stronger arguments for nationally mandated gay marriage under the Constitution’s equal-protection clause will also find favor with the courts.

Meanwhile, the drive for a Federal Marriage Amendment will quickly be transformed from an apparently unlikely crusade into the hottest issue in the country. As we saw in Hawaii, but this time on a national scale, a race between the liberal courts and a popular movement to amend the Constitution will ensue, with the final victor uncertain. But one thing’s for sure — one side or the other is going to win this one. It will be gay marriage everywhere — or nowhere.

Yet precisely because the Federal Marriage Amendment respects our federal system, that may not be the end of the matter. The amendment will still permit individual states to confer benefits short of marriage on homosexual couples. Because the conservative Family Research Council abhors such a possibility, they have criticized the Federal Marriage Amendment for not forbidding states to assign any benefits whatever to homosexual couples. Worries that liberal states may offer homosexual couples civil unions equivalent to marriage in all but name are justified. But out of respect to our federal system, the backers of the Federal Marriage Amendment understand that such battles will have to be fought democratically, on a state-by-state basis. An outcome in which some states offer limited partnership benefits to homosexual couples is a likely compromise, if imperfect in the eyes of both sides.

This intractable problem exists to begin with because the Founders took heterosexual marriage for granted. If they’d imagined the problem, they would surely have written heterosexual definitions of marriage into state and federal constitutions. But now that our cultural consensus on the meaning of marriage has been lost, we’re forced to craft an imperfect compromise. We need to do what is minimally necessary to insure consistent national law, while allowing for the possibility of greater variety in our domestic arrangements than the Founders would ever have thought possible or wise.

True federalism demands that we strike a balance between the rights of states in a culturally divided nation, and the social chaos that would inevitably follow if married couples could not rely on their married status as they moved from state to state. The Federal Marriage Amendment strikes that balance.

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Love and Marriage: A combination necessarily exclusive to a man and a woman (NRO, 010730)

Mr. Kurtz is also a fellow at the Hudson Institute

Let’s talk about sex. That’s the one thing proponents of same-sex marriage don’t seem to want to discuss. Yet sex has everything to do with the debate over gay marriage, and over the proposed Federal Marriage Amendment, which defines marriage as a union of a man and a woman. Until we face certain truths about sex — I mean heterosexual sex — we will never understand the real implications of the movement for same-sex marriage.

This was brought home to me with stunning clarity by William Raspberry’s column, “What’s Love Got To Do With It?” in last Friday’s Washington Post. Raspberry bemoans the near total absence of rules of courtship — indeed the absence of courtship itself — from our college campuses. Building on what he’s seen over several years as a college teacher, but even more so on a new report entitled, “Hooking Up, Hanging Out, and Hoping for Mr. Right: College Women on Dating and Mating Today,” Raspberry chastises parents and college administrators for having abandoned college women to the false equality of meaningless sex with men.

Although a majority of female students expect to meet their future husbands on campus — and expect the marriages to last — the campus culture of “hooking up” (quick, no-strings sexual encounters) makes those marriages impossible to achieve. These women are out of their minds, says Raspberry, to think that hooking up can ever lead to a wedding ring or a long-lasting marriage. But Raspberry reserves his greatest scorn for the adults who’ve effectively deserted their children by failing to teach or enforce reasonable rules of courtship.

In repudiating the bogus claim of sexual “equality” implicit in the culture of no-strings sex, Raspberry offers a remarkable statement: “I don’t doubt for a minute that women’s control of sex helped to tame men, to focus their attention and make them suitable for, and amenable to, marriage.”

Now nothing in that statement would have been remarkable a generation ago. And it’s certainly arresting that Raspberry is publicly willing to affirm today what ought to be obvious: that men and women approach sex differently, and that women, by waiting, help men to yoke together love and sex in a way that leads to and strengthens marriage. But what’s truly interesting about Raspberry’s column is that he wrote it after penning a piece only last year expressing puzzlement that anyone could find gay marriage a threat to marriage itself.

Raspberry wasn’t being dense — just honest. Marriage is one of those institutions we take for granted. The rationale for marriage isn’t so much written down somewhere as buried in the thing itself. That’s why neither Raspberry, nor other right-thinking liberals, can see the connection between the rise of the movement for gay marriage and the decline of heterosexual courtship and marriage. But the link is there.

In one way or another, the rules of courtship and marriage are all a way of insisting that, in matters of sex, men and women are different. And since courtship and marriage depend for their successful operation upon an ethos of sexual complementarity, people who imbibe the ethos of courtship can’t help but feel that there’s something not quite right about the idea of a homosexual marriage.

You can certainly argue that our growing tolerance for homosexuality is worth some weakening in the ethos of courtship, marriage, and sexual complementarity. But painful as it is to acknowledge, it’s a terrible mistake to pretend that our increased tolerance for homosexuality isn’t related to the weakening of modern marriage. It’s no coincidence that on the same college campuses where men and women “hook up” as though there were no real differences between them — as though they might as well be two men — it is forbidden to openly oppose same-sex marriage.

Yet for all that, William Raspberry still can’t see the contradiction between his call for a renewed acknowledgment of sexual difference in courtship and his inability a year ago to see the harmful effects of homosexual marriage upon the institution of marriage itself. How can we revitalize an ethos of courtship based upon the sexual complementarity of men and women while simultaneously declaring that marriage itself has nothing whatsoever to do with the differences between the sexes?

A world of same-sex marriages is a world of no-strings heterosexual hookups and 50 percent divorce rates. The divorce revolution, the sexual revolution, and the homosexual-rights movement all emerged simultaneously in the sixties, and the entirely related advances in these three social movements explain why we are on the verge of legalized same-sex marriage today. Again, you can argue that the gains in freedom and tolerance are worth it, but don’t try tell me that the costs to marriage — and to children — of our new cultural mode aren’t real.

Yet that’s exactly what Jonathan Rauch tried to tell us, in a critique of the Federal Marriage Amendment in last Friday’s Wall Street Journal, the very same day that Raspberry’s column on “hooking up” appeared in the Post. Rauch, a senior writer for National Journal, and one of the wisest observers of the Washington scene, is a chief exponent, along with journalist Andrew Sullivan, of the “conservative” case for gay marriage. For Rauch, same-sex marriage is a win-win-win proposition: good for homosexuals, good for heterosexuals, and good for marriage itself.

That’s because Rauch believes that marriage will help to transmute the sometimes fleeting love that gay couples feel for one another into stable and lasting commitments — just as it does for heterosexual couples — all the while strengthening, rather than weakening, the institution of marriage itself. But Rauch misses the fact that it’s women — not marriage as such — who make men, in William Raspberry’s words, “suitable for, and amenable to, marriage.”

It is the unique sexual dynamic between men and women that domesticates men. Marriage ratifies and reinforces the basic effect, but cannot create it out of whole cloth. The ethos of marriage builds upon a series of shared and pre-existing expectations about the way a man ought to treat a woman — because of her sexual vulnerability, and because of her need for support as a mother.

So contrary to Rauch’s hopes, simply redefining the union of two men as a “marriage” will not bring those social expectations into play. Whether the relationship is called marriage or not, if a man sleeps around on another man, or fails to offer him financial support, he will not be condemned as a cad or a shirker. Indeed, a substantial number of gay couples openly reject such expectations and declare that their interest in marriage is confined to its economic and legal benefits. More than this, many homosexuals look to same-sex marriage as an opportunity to intentionally subvert the ethic of sexual fidelity and ethos of sexual complementarity that they consider keys to the “oppressiveness” of marriage itself. So contrary to Rauch’s soothing promises, same-sex marriage will seriously undermine the ethos of marriage, without significantly stabilizing gay relationships in return.

The truth is, but for a few exceptional conservatives such a Rauch and Sullivan (and in some ways, even for them), the movement for gay marriage has little to do with an expanded regard for marriage and everything to do with an attempt to gain social approval for homosexuality. In effect, marriage is being “used” to send a message that has little to do with the institution itself — without anyone having honestly faced the real and harmful consequences to children and families of the change.

That’s why advocates of gay marriage and opponents of the Federal Marriage Amendment want to talk about civil rights, states rights, federalism, even love — anything but sex. Marriage springs directly from the ethos of heterosexual sex. Once marriage loses its connection to the differences between men and women, it can only start to resemble a glorified and slightly less temporary version of hooking up. And in the end, it is children who will pay the price.

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Give Federalism a Chance: The case for same-sex marriage (NRO, 010802)

By Jonathan Rauch, a columnist for National Journal, vice president of the Independent Gay Forum & a writer in residence at the Brookings Institution (a Liberal institution and pro-gay)

Hats off to Stanley Kurtz for one of the most thoughtful conservative treatments yet of gay marriage (“Love and Marriage” and The Right Balance). Kurtz has advanced the argument on both the social-policy and the constitutional side of the issue. Let me see if I can advance it further still, starting with his argument that sex difference lies at the core of successful marriage.

I’ve argued that marriage will have many of the same domesticating and healthful effects on homosexuals as on heterosexuals. Kurtz argues, by contrast, that it is women, not marriage, that domesticate men. Traditional marriage, in this view, is a male-female bargain: The man exchanges promiscuity for security and a stable love life. Male-male spouses, however, will continue to be promiscuous within marriage. This will weaken marriage itself. “A world of same-sex marriages is a world of no-strings heterosexual hookups and 50 percent divorce rates.” Indeed, “our increased tolerance for homosexuality” is already part and parcel of “the weakening of marriage.”

There are some important cavils with this line of thinking, the most obvious being (1) that it offers no argument against same-sex marriage for lesbians, (2) that America is already “a world of no-strings heterosexual hookups and 50 percent divorce rates” and has been for years, and (3) that “tolerance for homosexuality” is at most a trivial cause of marriage’s problems compared with such factors as liberalized divorce laws, women’s increased economic independence, the spread of contraception, the decline of the shotgun wedding, and the cultural changes of the 1960s and 1970s. Still, Kurtz’s argument goes deeper and deserves a deeper reply.

I think he’s right that women (and children) domesticate lusty men. That’s why everyone is so happy when the town bully takes a bride. But — a crucial point — women and children are not the only things that domesticate men. Marriage itself also does so. The reason is that marriage is not a piece of paper ratifying a pre-existing relationship. It is a caregiving contract that two people make not just with each other but with society, and it’s enforced with a whole bundle of rituals and expectations, from public gestures like weddings and rings and anniversary banquets to in-laws and shared finances and joint party invitations addressed to both spouses. Far from being a rubber stamp, marriage is a culture that actively binds people together.

Will extending this culture to homosexuals damage it by ratifying rampant promiscuity, or strengthen it by affirming and extending its reach? This is a question that can only be answered empirically, which is why gay marriage should be tried in a few states (see below). But we do have quite a bit of suggestive evidence, in the form of existing homosexual unions of the all-but-married sort. Of the ones I know, I can’t think of any that don’t aspire to aspire to fidelity and lifetime commitment, even without a woman in the house. More important, when they fail in this aspiration, they do so in private, so as not to embarrass each other or their friends and family, who accept and respect their partnership. That’s all we ask of straights.

In the real world, some married heterosexuals play around a lot (even if they’re president), some play around not at all, and some play around a little and get over it. All, however, are allowed to marry. It might be true that on average male-male pairs will be less faithful than male-female ones, who in turn will probably be less faithful on average than female-female ones. But if the question is whether gay marriage should be legal, rather than exactly what any given marriage looks like, those are the wrong averages to look at. Here are the right ones: The average married homosexual man will almost certainly be much less wanton than the average unmarried homosexual man. And I think it’s pretty likely that even the average unmarried homosexual man will be significantly less wanton in a gay culture where marriage is expected than in a one where marriage is illegal.

Really, truly, if I thought that homosexuals would treat marriage like an orgy and inspire millions of heterosexuals to do the same, I’d say we’re not ready for the privilege. But I don’t think that’s remotely likely; Vermont isn’t full of orgies posing as civil unions. And it’s at least as plausible that gay marriage will strengthen marriage as weaken it. When homosexual couples can legally commit to each other for a lifetime, they, too, will be able to say to each other: “If you really care about me, as opposed to just wanting to have sex with me, you’ll marry me.” Many, probably most, homosexual men want to get off the market and settle down, but it’s hard to sort out the serious partners if marriage isn’t an option. Allow gays to marry, you don’t wreck proper courtship — you allow it to begin. I’m not saying that male-male or female-female courtship is identical to male-female courtship (not that any two are alike anyway). But it doesn’t need to be. It only needs to work better than, “If you really care about me, you’ll move in with me.”

When I started to understand I was gay, a particularly bitter realization was that, whatever the future might hold for me, it would not hold marriage. A life without the possibility of marriage is a deprivation so severe that most heterosexuals can’t even imagine it. If I’m right, same-sex marriage will give stability and care and comfort to millions of homosexuals at little or no cost to anyone else. If I’m wrong, it’s not a good idea. The only way to find out is to try and see, which is why I favor a federalist approach that lets some state experiment with same-sex marriage when it feels the time and circumstances are right.

In his second article, Kurtz argues that my federalist approach is a daydream. For one thing, the courts might not go along with it. Kurtz is certainly right that the constitutionality of the Defense of Marriage Act, which says that no state need recognize any other’s same-sex marriage, will be challenged in the courts. Everything is challenged in the courts. I’m confident that the courts will uphold the act; I just can’t see this or any foreseeable Supreme Court imposing gay marriage nationally by fiat. But, of course, there’s no telling what courts may do. The answer is obvious: write DOMA into the Constitution. An amendment saying, “Nothing in this Constitution shall require any state to recognize as a marriage any union but that of one man and one woman,” does the trick. End of problem.

Such an amendment would be much less controversial, and much easier to pass, than the one that the would-be amenders have actually proposed, which bans gay marriage altogether. Why the “not one inch” position, which says that same-sex marriage must never be allowed on even one square inch of U.S. soil, regardless of what the people of any state want? Because, says Kurtz, even if states are not required by the courts to recognize other states’ gay marriages, they will be driven to do so by practicalities.

Now, hold on there. It’s true that having only a few states recognize gay marriage would lead to confusions and legal tangles. This, however, is what’s known as federalism. In other contexts — tax law, corporate charters, environmental rules — we live with confusingly disparate state laws routinely, as any attorney for a national bank will be quick to confirm. It’s a hassle, but the benefit is enormous: the ability to experiment with different policies and to let local people create a social and legal climate that suits them (or move to a state where they’ll be happier).

My guess is that, after an initial period of confusion, states and the courts would fairly quickly develop workable rules for gay marriage. For instance, a state that had a partnership program might automatically include any resident gay couple with an out-of-state marriage licenses. States that firmly object to same-sex unions, by contrast, will simply tell those couples, “Sorry, you’re not officially married here. If you want to be officially married, stay there. Here, you need to write a will.” This doesn’t seem “next to impossible.” It doesn’t even seem very difficult. Compared to the headaches of interstate banking laws, it’s a piece of cake.

And what’s the alternative? National culture war. Support for gay marriage, now at 35 percent, is likely to grow over time, and the argument is passionate. Kurtz’s insistence on “all or nothing” risks turning same-sex marriage into the next abortion issue, in which the stakes are so high — national imposition of gay marriage versus national abolition — that extremism runs riot on both sides. And what if Kurtz et al. gamble on all-or-nothing and lose? What if they refuse to try federalism and they fail to pass their constitutional ban and the courts actually do rule that all states must recognize one state’s same-sex marriages? Then their rejection of federalism will have brought about exactly the nightmare they feared. If that happens, don’t blame us homosexuals for polarizing the argument and “ramming homosexual marriage down the country’s throat.”

Believe me, Mr. Kurtz: Federalism is the solution, not the problem. At the very least, it should be given a chance. Isn’t that what conservatives always tell liberals?

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Point of No Return: Marriage needs a man and a woman. And, an amendment (NRO, 010803)

Mr. Kurtz is also a fellow at the Hudson Institute

I thank Jonathan Rauch for his thoughtful and courteous reply to my two earlier pieces, “Love and Marriage,” and “The Right Balance.” I have long admired Rauch’s command of this issue (and of other issues) and value this opportunity for an exchange.

Rauch, it seems to me, has missed my central point in “Love and Marriage.” It is true that marriage itself, and not merely women and children, domesticates men. But my point is that marriage is only able to do so by building upon the underlying dynamic of male-female sexuality. Marriage does indeed invoke public expectations of fidelity and mutual support through ritual gestures like weddings. But wedding or no, the public will not condemn a man who sleeps around on another man, or who fails to support his male partner financially. A wedding embodies and reinforces already existing public sentiments about a man’s responsibilities to a woman; it cannot create such sentiments out of thin air.

In an elegant little essay, “I Do?” David Blankenhorn, shows us why weddings don’t always do what they used to do. Blankenhorn focuses on the vogue for ceremonies in which couples create their own vows. In the old view, the vow existed prior to the couple, and therefore embodied a set of public standards to which the couple could be held accountable. But in a world of self-created vows, the couple is prior to the promise, which can be made (or withdrawn) at will.

Rauch wants to invent, not merely some vows, but a whole new form of marriage (two actually — gay and lesbian), all the while assuming that the standards and expectations of the most traditional forms of heterosexual marriage will trail along for the ride. But those expectations have been attenuated, even for many heterosexual marriages. And the very same people who now see marriage as a subjective projection, rather than a shared social standard to which to aspire, are the people who favor gay marriage, the idea of which appeals to them precisely as a symbol of the infinite flexibility of social life. Rauch seems to be depending on the Left half of the country to enact gay marriage, while assuming that the Right half will enforce the traditional social expectations on gay couples. Rauch’s intentions are admirable, but this simply will not happen.

Supporters of gay marriage keep telling us that the sky will not fall. What they do not understand is that, when it comes to marriage, the sky has already fallen. It is lying about our feet, and considerable effort will be required even to hoist it back a few yards over our heads. The trouble with gay marriage is that it forecloses that possibility. Personally, I neither seek, nor think possible, a complete restoration of the traditional system — when the expectations for marriage were so powerful that homosexuals felt compelled to wed heterosexually.

But gay marriage is a surpassingly radical attack on the very foundations of marriage itself. It detaches marriage from the distinctive dynamics of heterosexual sexuality, divorces marriage from its intimate connection to the rearing of children, and opens the way to the replacement of marriage by a series of infinitely flexible contractual arrangements (For more on this last point, see my piece in the September 2000 issue of Commentary.) All this can only destroy the finely woven web of social expectations upon which Rauch wishes to depend. As I argued in “Love and Marriage,” for example, once marriage has been divorced from heterosexuality, it will be impossible to induce even a partial restoration of traditional courtship. (And by the way, this subversive effect on the sexual complementarity so integral to marriage will derive every bit as much from lesbian marriages as from gay male marriages.)

For Rauch, our increased tolerance for homosexuality is of but trivial significance — in comparison with the cultural changes of the sixties and seventies — in bringing about the current weakening of marriage. But the point is, our increased tolerance for homosexuality is inextricably bound up with the cultural changes of the sixties — and is by no means trivial in its effects. As the ultimate symbol of the detachment of sexuality from reproduction, homosexuality embodies the sixties ethos of sexual self-fulfillment. That, after all, is why it is such a hot-button issue in the culture wars. So changing social attitudes toward homosexuality cannot help but have a profound effect upon the social and moral significance of sexuality itself.

In the mainstream press, we hear often (and rightly so) from brilliant moderates like Jonathan Rauch. Yet radical gays — the writer Michael Bronski, for example — have argued at length (and correctly) that complete social equivalence between homosexuality and heterosexuality cannot help but undermine social restraints upon sexuality, thus ushering in the final triumph of the sixties ethos. Like Bronski, vast sections of the gay community support gay marriage, not on Rauch’s “conservative” grounds, and not even simply as a road to social acceptance, but out of the entirely justified conviction that gay marriage will be a critical step in the undoing of marriage itself. These writings seldom find their way into the Wall Street Journal, yet they merit our attention.

Rauch claims that the effect of gay marriage on the larger institution is an empirical question. As it happens, we have some very important empirical evidence on the matter — all the more powerful because it was collected by a lesbian sociologist who writes as an advocate of gay marriage. That evidence paints a picture of gay marriage greatly at variance with Rauch’s assurances.

Gretchen Stiers’s 1999 study, From This Day Forward, makes it clear that while exceedingly few of even the most committed gay and lesbian couples believe that marriage will strengthen and stabilize their personal relationships, nearly half of those gays and lesbians who actually disdain traditional marriage (and even gay commitment ceremonies) will nonetheless get married. Why? For “the bennies” — the financial and legal benefits of marriage.

And as Stiers shows, many radical gays and lesbians who actually yearn to see marriage abolished (and multiple sexual unions legitimized) intend to marry, not only as a way of securing benefits, but as part of a self-conscious attempt to subvert the institution of marriage from within.

Stiers’s study was focused on the very most committed gay couples. Yet even in a sample artificially weighted with nearly every gay male couple in Massachusetts who had gone through a commitment ceremony (and Stiers had to go out of her research protocol just to find enough male couples to balance out the committed lesbian couples) nearly 20 percent of the men questioned did not practice monogamy. Obviously, in a truly representative sample of gay male couples, that number would be vastly higher. More significantly, a mere 10 percent of even these most committed gay men mentioned monogamy as an important aspect of commitment (necessarily meaning that even many of those men in the sample who had undergone “union ceremonies” failed to identify fidelity with commitment). And these, the very most committed gay male couples, are theoretically the people who will be enforcing marital norms on their gay male peers, and exemplifying modern marriage for the nation. So concerns about the effects of gay marriage on the social ideal of marital monogamy seem more than justified.

Rauch seems to think that if his cost-free portrait of gay marriage turns out to be mistaken, we can simply call off the experiment. But by then it will surely be too late. Such effects take years to play out, decades more to measure, and even when measured, agreement on the meaning of such data is nearly impossible to achieve. Just think of the battle over the effects of day care. There is no such thing as an experiment in gay marriage. Once legalized, the damage will have been done, and reversal, if possible at all, would take decades.

Rauch persists in identifying federalism with variable practices among the states. But federalism is actually a careful balancing of national unity with state diversity. And as I argued in “The Right Balance,” federalism has always demanded national commonality in the fundamental definition of marriage. The legal history of marriage demonstrates what should in any case be obvious, that traveling across country and finding out that you are no longer married is an entirely different matter than working up a will or taking a state bar exam. Imagine a married couple, where one spouse is hospitalized after a car accident in another state, losing visiting rights or the right to make medical decisions, because their marriage isn’t recognized in that state. If even what was once experienced as the horror of miscegenation could not stand against that, how can we expect judges to sit still for it now?

Rauch appears to have abandoned his own and Andrew Sullivan’s legal arguments and now rests his assurances on the matter of nationally imposed gay marriage upon a strictly political judgment. Naturally, at the moment, the Supreme Court would be loathe to impose gay marriage. But just wait until the practice is legalized in some state, or states, and the social and political chaos begins. At that point, the Court will take the case, and could easily go either way. (And that’s just this Supreme Court. Remember, we’re talking about future Supreme Courts as well.) At the time, the conventional wisdom was that the Supreme Court would turn Bush v. Gore back to Florida. But the specter of a national crisis goaded the Court into action.

So far as I can tell, Jonathan Rauch and Andrew Sullivan have welcomed the imposition of civil unions upon the Vermont state legislature by the Vermont state supreme court. Yet that action, which pretended to find a mandate for gay marriage buried in the state’s constitution, was surely one of the most egregious violations of the principles of judicial restraint in this country’s history.

The Federal Marriage Amendment not only guards against the nationalization of gay marriage by judicial fiat, it also guards against a state judiciary that has cast all democratic restraint to the wind and has taken the right to define and regulate marriage out of the hands of the people. Having broken faith with the principles of democracy, the nation’s judiciary has left the public with little recourse.

The decision in Vermont was a direct result of a national campaign by gay rights activists to make an end run around legislatures and impose gay marriage upon the country through the courts. So far as I can tell, “conservative” advocates of gay marriage have been acting in concert with that campaign, not calling it to account for its undemocratic excesses. And now we are told to make DOMA constitutional, which would do nothing to prevent judicial usurpations of democracy such as we saw in Vermont.

Anyone awake to this issue understands that there is already a national culture war over the issue of gay marriage. The Federal Marriage Amendment did not start this war. Judicial arrogance in Vermont did that. But as I have argued, the Federal Marriage Amendment, by balancing a national definition of marriage with at least the possibility of differential state-by-state benefits packages, might lead to a workable, if imperfect, solution to this intractable problem.

Despite my differences with both Jonathan Rauch and Andrew Sullivan, I greatly admire them both for the brilliance, honor, and tenacity of their fight to legalize same-sex marriage. As I have said publicly, I personally do not see homosexuality as sinful, and do not wish to see a return to the fifties. This battle has an element of tragedy about it, for while I do not believe gay marriage will succeed in domesticating gay men, or even in entirely removing the stigma of homosexuality, I do believe that gay marriage would be received by a stigmatized group as a welcome sign of social approval. But I also believe that the price of that sign is too high — that gay marriage will be a major step in the further unstringing of our most fundamental — and most fundamentally threatened — social institution. And in the end, because we are all children first, gay marriage will hurt all of us far more than it will help.

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Gay Rights and Federalism: An improbable marriage (NRO, 010806)

By Hadley Arkes, a professor of American Institutions at Amherst College (Liberal college) & an adviser to the Alliance for Marriage

Jonathan Rauch, ever thoughtful, ever artful, has displayed the art of the illusionist as he has shaped an argument against the Federal Marriage Amendment, proposed by the Alliance for Marriage [“Leave Gay Marriage to the States,” Wall Street Journal, and now in his response to Stanley Kurtz, on National Review Online, on August 2] With a certain bravado he has warned of the constitutional vice of shifting questions of marriage and family law from the traditional jurisdiction of the States and bringing them under the imperium of federal law. But by casting the problem in that way, he deftly draws attention away from the fact that the political strategy of his friends, the gay activists, depends thoroughly on the design of removing these legal issues to the forum of the federal courts. The law in Virginia once barred marriages across racial lines, and when the Supreme Court struck down that law in 1967, was that not a move to trump the local law on marriage with the law of the federal Constitution? And did we not find the same federal overriding of family law when the Court struck down a scheme of assigning children on the basis of color in dealing with divorce, and settling custody, in mixed racial marriages? If we take Jonathan Rauch at his word, he evidently thinks that the refusal of the states to encompass “same-sex” marriage represents a species of wrongful discrimination — on the same moral and legal plane as discriminations based on race. Would we not have to believe then that Mr. Rauch would of course support this move to challenge these laws in the federal courts, in the way that the laws on miscegenation had been challenged in the past? And if the courts gave him the result he regards as just, would that not amount to a federal revision of the laws on marriage — as surely as any change brought about in a constitutional amendment?

In Vermont, the legislature has provided an arrangement of “civil unions” for couples of the same sex. But from Vermont has come the news that most of the couples arranging those unions have come from outside the state. By the middle of July, there had been 2,258 “civil unions,” and of them, 1,795, or about 80 percent, involved people outside Vermont. The intention should be quite transparent: Since these unions are not recognized in their home states, these couples evidently intend to go into a federal court and invoke the Full Faith and Credit Clause of the Constitution [Art. IV, Sec. 1]. That clause leads us to presume that the marriage performed in Kentucky will be honored in Massachusetts. But activists are counting on that clause now as an engine for “federalizing” marriage — for extending same-sex marriage through the whole federal system as soon as it is installed in one state. As Mr. Rauch points out, the Defense of Marriage Act of 1996 sought to shore up the authority of the states to enter moral objections to certain kinds of marital unions (e.g., the incestuous) and refuse then to honor anything other than the marriage of a man and a woman. But Mr. Rauch clearly knows that when a state refuses to honor a “same-sex” marriage, the activists are preparing to challenge that decision in a federal court and invoke other parts of the Constitution (most likely, the Fourteenth Amendment and “the equal protection of the laws’).

Rauch also curiously omits any mention of Romer v. Evans in 1996, even though the activists are surely counting on that case to undermine the traditional authority of the states to withhold their recognition of same-sex marriage. In that case, the Supreme Court struck down the attempt by voters, in a referendum, to withhold from local governments the authority to pass laws that barred discriminations based on sexual orientation. In striking down that referendum, the Court suggested that the opposition to gay rights reflected an irrational “animus.” The lesson arising from that case was that it was no longer legitimate for a state to incorporate in its laws any understanding that homosexuality stood on a lesser plane of legitimacy than that sexuality “imprinted in our natures.” And if that sentiment carries over, the courts may deny to the states the authority to hold back, on moral grounds, from recognizing gay marriage.

Mr. Rauch ought to say then, with that other wizard, “pay no attention to the man behind the curtain” — the one who is depending on a strategy of invoking the federal Constitution to override the laws in the states, even while he warns gravely about the wrongness of making marriage the business of the federal Constitution. Could it be, though, that he is falling back on that older trick-of-the eye?: That somehow we never seem to think that the federal courts are part of the federal government? It is only with an odd assumption of that kind that we hear people persistently say that the federal government should have nothing to do with abortion — while the federal courts must be free of course to address the issue of abortion in all of its dimensions.

But this trick of the eye works in another way for Jonathan Rauch: He says that we should “[let] the States go their separate ways,” and that “same sex marriage could be tried in a few places where people feel comfortable with it.” And yet, he neatly avoids ruling out the possibility that the states will go their separate ways, not because the voters will support same-sex marriage, but because the scheme is imposed by the courts, as it was in Vermont. For our own part, in the Alliance for Marriage, we are willing to take our chances with the electorate in the different states. The amendment simply reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” [My italics.] Rauch probably knows that our proposed amendment has been criticized by some conservatives precisely because it leaves open the possibility that legislatures will grant legal recognition to partners of the same sex. Our hope is that, when people and legislators absorb the principle behind the amendment, they would not seek to offer, in that way, a counterfeit of marriage. We would oppose those devices to offer marriage under another name, but we would be prepared to debate the matter state-by-state, for a critical authority would indeed remain in the separate states to legislate on this issue in many ways.

The hard fact of the matter is that both sides find it necessary to make an appeal to the Constitution. As long as the Full Faith and Credit Clause remains in the Constitution, along with the clauses on Equal Protection and Privileges and Immunities, the Constitution itself will act as an engine to “federalize” the issue of marriage by bringing the matter into the federal courts. The difference between the two sides is that Mr. Rauch’s friends intend to accomplish that move covertly. With a concert of 12-15 federal judges, they may simply impose their policy. On our side, we would seek a wider deliberation, among the American people and their representatives, before a policy on marriage is installed. The point has been argued in the past that we did not strictly need constitutional amendments to do away with slavery, establish citizenship for the former slaves, and confer upon them the right to vote. But an earlier generation passed the 13th, 14th, and 15th amendments for the sake of taking these matters out of the hands of the judges who had given us the ruling in the Dred Scott case, and denied that blacks could claim any of these rights. And by securing those rights as part of the fundamental law, the Republican leaders sought to place those rights beyond the play of majorities shifting with the political seasons. In the current crisis, we have been compelled to take the same route in order to prevent a coup by judges at the state and federal level.

Many of those judges have shown a breathtaking willingness to assume for themselves the power to remodel the very matrix of our laws on the beginning and ending of life, on marriage and the family and the meaning of sexuality itself.

Our position has been that on matters that would remake the foundations of our laws, the decisions ought to made in the way that the Constitution itself maps out the plan for altering the fundamental law. By that plan, the “marriage amendment” could not succeed unless it draws a wide support among the people and their legislatures, and before it could do that it would have to set off an argument that ripples through the entire country.

That is the part of federalism that Jonathan Rauch has cagily held back from embracing, even as he offered a heartfelt plea for federalism. He has added to the debate a new twist of subtlety with his offer to shape the Defense of Marriage Act as a constitutional amendment. In that way, the federal judges would be barred from imposing same-sex marriage, and the matter would seem to be left to the states. But once again, the art of the illusionist has worked to conceal the decisive things that Mr. Rauch has left unacknowledged, and mainly concealed. It is worth taking account of them here:

— He no longer suggests that it is the product of an overheated imagination to seek a constitutional amendment on this issue. He implicitly concedes that an amendment is plausible, and that is precisely because the gay activists are gearing up at all levels to bring this issue into federal courts. And, very critically, he does nothing to disown those moves. They may not be his own choice, but he will not rule them out in principle. Therefore, with his reticence on this point, he confirms precisely the danger that has been cited by the Alliance for Marriage as the reason that brings forth this proposal for a constitutional amendment.

— Rauch has still left open the possibility that the decision in the states will not be made by the people or their representatives, but by judges, who now find, in their own constitutions, a principle of equality that majestically sweeps aside any denial of same-sex marriage. His proposal blocks out the federal judges, but still leaves the possibility of a coup staged by the local judges. What he might do is take one more step: He could add to his amendment a denial that anything in the constitutions of the separate states may be construed to require same-sex marriage. If he took that step, we might indeed have the grounds for a settlement. But with that step, he would have backed into our own position: for he would now accept a process in which this matter will be argued out in the political arena and not settled in the chambers of judges.

Would it be indecorous to point out to Jonathan Rauch that we have reached this point of shadowboxing over a constitutional amendment precisely because of the games that his friends have been playing in the courts — with the same feints reflected in his own pieces. We will leave to another time the account of why marriage simply could not preserve its coherence and durability if the notion of marriage were stretched out of shape to encompass same-sex marriage. We have already seen the claims emerging for polyamorous groups, whose loves are not confined to couples. and indeed, once we admit gay marriage, we would not stand on any principled ground for confining marriage to two people — or fending off the claims for all of the exotic ensembles of people who insist that their love, too, ought to recognized in a marriage.

I have had an esteem for Jonathan Rauch as a person and a writer, but I fear that he has been undone by his own cleverness. By design, he used his opening line in the Wall Street Journal to denounce the “disingenuous” — and then went on to make of the disingenuous a high art. But by engaging the issue seriously, in a public discourse, he might have wrought even better than he knew, for he has now confirmed precisely our sense of the way in which this issue ought to be played out under the Constitution.

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Who’s More Worthy? More Rauch vs. Kurtz on gay same-sex marriage (NRO, 010806)

By Jonathan Rauch, a columnist for National Journal, vice president of the Independent Gay Forum & a writer in residence at the Brookings Institution. (pro-gay)

Thanks to Stanley Kurtz for another provocative and richly argued article. Shall we drill a little deeper? If I read him correctly, his argument boils down to something like this:

1) Marriage is rooted essentially in “the underlying dynamic of male-female sexuality.” Nothing else can sustain marriage.

2) As a result, it is simply impossible for same-sex (especially male-male) couples to be good marital citizens. They may get married, but they won’t act married, and society won’t treat them as married.

3) Because homosexuals will do a bad job of “exemplifying modern marriage for the nation” and marriage is in bad enough shape already, homosexuals should not be allowed to marry.

4) Allowing same-sex marriage anywhere in America at any time is effectively the same as mandating it everywhere forever. So same-sex marriage must never be tried anywhere, ever.

Or, to put it a bit coarsely: “I don’t believe homosexuals can handle marriage responsibly. And they should never be allowed a chance to prove me wrong. Sorry, gay people, but that’s life.”

Kurtzism, as I’ll take the liberty of calling this approach, gets four things wrong. It misanalyzes marriage. It misunderstands homosexuality. It sits crosswise with liberalism. And it traduces federalism. Other than that, no problem.

Start with Proposition 1. Kurtz argues that, whatever else marriage is about, ultimately and indispensably it’s about “the underlying dynamic of male-female sexuality.” I’m not sure exactly what this means beyond saying that marriage must be between a man and a woman, so I’m not sure how to address it specifically. Here is what I think marriage is indispensably about: the commitment to care for another person, for better or worse, in sickness and in health, till death do you part.

A marriage can and often does flourish long after the passion has faded, long after the children have gone, and (yes) long after infidelity; it can flourish without children and even without sex. A marriage is a real marriage as long as the spouses continue to affirm that caring for and supporting and comforting each other is the most important task in their lives. A golden anniversary is not a great event because both spouses have held up their end of a “dynamic of male-female sexuality” but because 50 years of devotion is just about the noblest thing that human beings can achieve.

I can’t prove I’m right and Kurtz is wrong. But I think my view is much closer to what people actually think their marriages are fundamentally about, and also, by the way, to what marriage should be fundamentally about. Most married people I know regard themselves as more or less equal partners in an intricate relationship whose essential ingredient is the lifelong caregiving contract. Obviously, they’d agree that male-female sexual dynamics play an important role in their marriage; but then, they’re male-female couples, so they would say that. If you told them that marriage is fundamentally about (in Kurtz’s words) “a man’s responsibilities to a woman,” rather than a person’s responsibilities to a person, they’d look at you funny.

Why is Kurtz so reluctant to put commitment instead of sex roles at the center of marriage? Because, I suspect, he knows homosexuals can form commitments. To cut off this pass, he claims that in practice homosexuals too often won’t form commitments (Proposition 2). Same-sex couples, or in any case male same-sex couples, won’t act married, and society won’t be bothered if they don’t, so marriage will become a hollow shell.

I’ve explained why I believe that a world where everyone, straight and gay, can grow up aspiring to marry will be a world where gays and straights and marriage are all better off. Kurtz has explained why he thinks otherwise. All of that is well and good, but it only gets us so far, because the key questions are all empirical. How would married gay couples behave? How would married heterosexuals react? Unfortunately, we have no direct evidence. One can say that in Vermont, which has a civil-union law, “the institution of marriage has not collapsed,” as the governor recently said. One can say that gay men (no one seems worried about lesbians not taking marriage seriously) represent probably 3 percent of the population, and that it seems a stretch to insist that the 97 percent will emulate the 3 percent. But none of that proves anything. Absent some actual experience with same-sex marriage, everything is conjecture.

Still, I think Kurtz’s conjecture is based on a view of homosexuality that is both misguided and at least unintentionally demeaning. His article contains this arresting phrase: “As the ultimate symbol of the detachment of sexuality from reproduction, homosexuality embodies the sixties ethos of sexual self-fulfillment.” So there you are. My relationship with my partner Michael is about “sexual self-fulfillment,” because, I guess, we can’t have children. Let me gently but passionately say to Kurtz that this is an affront. It implies that a straight man’s life partner is his wife, while a gay man’s life partner is just his squeeze. Let me also gently but firmly instruct Kurtz on a point that I and other homosexuals are in a position to know something about. Our partners are not walking dildos and vibrators. Our partners are our companions, our soulmates, our loves.

I’m not familiar with the Stiers book he cites and I couldn’t get it on deadline, so I can’t comment on it. I can say, though, that I wouldn’t be the least surprised if right now, in 2001, grown gay men and women often regard marriage as a novelty or a convenient benefits package. What does Kurtz expect? These are people who grew up knowing they could never marry, who have structured their whole lives outside of marriage, and who have of necessity built their relationships as alternatives to marriage.

I don’t expect that homosexuals will all flock to the altar the day after marriage is legalized. You don’t take a culture that has been defined forever by exclusion from marriage and expect it to change overnight. I do think that, a few years after legalization, we’ll see something new: A whole generation of homosexuals growing up knowing that they can marry, seeing successfully married gay couples out and about, and often being encouraged to marry by their parents and mentors. Making the closet culture the exception rather than the rule for young gay people was the work of one or maybe two generations. The shift to a normative marriage culture may happen just as fast.

I know, I know. Kurtz will simply insist that real, committed marriage will never be normative for homosexuals; gays just don’t have that “dynamic of male-female sexuality” thing. Unfortunately, I don’t think I can persuade him by telling him about all the gay people I know who have committed their enduring love and care to each other. I doubt I could persuade him even by telling him about all the men I know who have fed and comforted and carried their dying partners, and covered their partners with their bodies to keep them warm, and held their hands at the end and then sobbed and sobbed. Who is more fit to marry, the homosexual who comes home every night to wipe the vomit from the chin of his wasting partner, or the heterosexual who serves his first wife with divorce papers while she is in the hospital with cancer so that he can get on with marrying his second wife? Alas, I think I know what Kurtz would say.

Kurtz cites figures on gay men’s fidelity and attitudes toward monogamy. There are lots of problems with these kinds of numbers, but the more interesting question is: Just what does Kurtz think this kind of data proves? Exactly how monogamous do homosexuals have to be in order to earn the right to marry? I’d have thought that being better than 80 percent faithful would be pretty darn good. Would 90 percent satisfy him? Maybe 98.2 percent? And if a group’s average fidelity is the qualification for marriage, shouldn’t Kurtz let lesbians marry right now? And why are homosexuals the only class of people who are not allowed to marry until they prove, in advance, that they’ll be good marital citizens? Last time I checked, heterosexual men were allowed to take a fifth wife, no questions asked, even if they beat their first, abandoned their second, cheated on their third, and attended orgies with their fourth.

For centuries, homosexuals have been barred from marrying and even from having open relationships. The message has been: Furtive, underground sex is all homosexuals deserve. And now Kurtz is insisting (Proposition 3) that homosexuals can’t wed because we’re not as sexually well-behaved as married heterosexuals? While also insisting that, no matter how badly heterosexuals behave, their right to marry will go unquestioned? Really, the gall!

Forgive my ill temper on that point. I understand that, to Kurtz and many other Americans, same-sex marriage seems a radical concept, an abuse of the term “marriage.” What I think Kurtz and too many other opponents of gay marriage fail to appreciate is the radicalism of telling millions of Americans that they can never marry anybody they love. To be prohibited from taking a spouse is not a minor inconvenience. It is a lacerating deprivation. Marriage, probably more even than voting and owning property and having children, is the core element of aspiration to the good life. Kurtz would deprive all homosexuals of any shot at it lest some of them set a poor example. I think this is both inhumane and cuts against liberalism’s core principle, which is that people are to be treated ends in themselves, not as means to some utilitarian social end. I am grateful to Kurtz for leaving the door open to domestic-partnership programs as a consolation prize; this is a good-hearted gesture, and I accept it as such. But surely he recognizes that domestic partnership is no substitute for matrimony. Surely, indeed, that is his point in offering it.

Same-sex marriage is too important to be approached thoughtlessly. I’m glad that Kurtz is thinking as strenuously about the possible downsides as I am about the possible upsides. Where he veers toward something like extremism is in his demand that homosexuals be denied any chance to prove his conjectures wrong (Proposition 4). “There is no such thing as an experiment in gay marriage,” he says. “Rauch seems to think that if his cost-free portrait of gay marriage turns out to be mistaken, we can simply call off the experiment. But by then it will surely be too late. Such effects take years to play out, decades more to measure, and even when measured, agreement on the meaning of such data is nearly impossible to achieve.”

But pretty nearly all major social-policy reforms play out over years and decades, and agreement on how to measure the results is never complete; Kurtz might just as well say that no state should be allowed to try welfare reform or charter schools or a “living wage” because the effects take years to play out, decades to measure, etc. The whole point of federalism is to allow states to try reforms that might not work, and to allow states’ voters — not me or Stanley Kurtz — to decide for themselves what counts as working. In rejecting this principle root and branch, Kurtz emerges as a radical enemy not just of same-sex marriage but of federalism itself.

I don’t have much new to say about his peculiar claim that, once any state adopts same-sex marriage, every other state will have to follow, because Kurtz doesn’t have anything new to say defending it. He simply re-asserts it. “Imagine a married couple, where one spouse is hospitalized after a car accident in another state, losing visiting rights or the right to make medical decisions, because their marriage isn’t recognized in that state,” he says, as if the situation is obviously untenable. OK, I’ve imagined it. That kind of arrangement would be perfectly manageable. Gay spouses in a state with same-sex marriage would understand that they will need a medical power of attorney that’s valid out-of-state. None of these complexities is remotely thorny enough to force any state to recognize same-sex marriage against its will. It seems to me that what Kurtz really fears is that one state will adopt same-sex marriage and others will look at it and say, “Actually, that doesn’t seem so bad — pretty good, even. We don’t mind recognizing it even if we don’t adopt it ourselves.” What he really fears, in other words, is not a disastrous state experiment but a successful one.

Again Kurtz asserts that federal judges will high-handedly impose one state’s same-sex marriages on all the others. Again I say that there is — just as he says — plenty of room in the law for determined judges to decide this legal issue either way, but that any sane Supreme Court will be determined not to impose same-sex marriage on an unwilling nation. And if undemocratic judicial fiat is what worries Kurtz, why does he greet with silence my suggestion that a simple constitutional amendment — far easier to pass than the one he supports — would solve the problem?

But all of this stuff about states’ being “forced” to accept same-sex marriage is a red herring. Kurtz makes it clear that he is no happier if a state adopts same-sex marriage by legislation or plebiscite than by judicial fiat. His proposed constitutional amendment accordingly strips states, and not just judges, of the power to permit same-sex marriage, even if everybody in some state wants to try it. What I suspect Kurtz really knows and fears is that as more homosexuals form devoted and visible unions, and as more of the public accepts and honors those unions, same-sex marriage will seem ever less strange and radical, and ever more in harmony with Americans’ core values — which it is. Although he fears that same-sex marriage will come to pass over the public’s objections, he fears even more that it will come to pass with the public’s assent.

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Code of Honor: Andrew Sullivan’s faulty arithmetic (NRO, 010806)

Mr. Kurtz is also a fellow at the Hudson Institute

When it comes to Andrew Sullivan, no question about it, I’m a fan. The New Republic under his editorship was my dream of a magazine; I’m a loyal reader of his pioneering “me-zine,” andrewsullivan.com; and I’m proud to call him a friend. Sullivan’s intellectual and rhetorical skills are the prerequisites of his success. They don’t really explain it, though. It’s Sullivan’s fearless disregard for ideological orthodoxies of both Left and Right that makes him the phenomenon that he is. I say this even though I periodically think the brickbats he hurls at his foes are off the mark (sometimes way off).

A champion of the campaign for gay marriage, Sullivan has nonetheless fiercely criticized the excesses of the gay-rights movement. For this, Andrew has been subjected to vicious personal attacks, all of which he has parried with pluck and dignity. I know of no better way to pay tribute to Andrew Sullivan than to firmly but respectfully pursue our honest disagreement over the issue of gay marriage.

I began that debate with an article critical of Sullivan in the September 2000 issue of Commentary, and with several earlier pieces at National Review Online, “ Gay in Hollywood,” “Love and Marriage,” and “The Right Balance.” Sullivan has now offered a partial answer by taking on “Love and Marriage” in his latest TRB column in The New Republic.

One of the glaring weaknesses of that column is Sullivan’s refusal to acknowledge or respond to the full range of arguments that I and others have made against gay marriage. Sullivan claims that several key arguments have actually been “abandoned” by the foes of gay marriage. Yet I myself have only recently offered up extensive versions of precisely the points that, according to Sullivan, the foes of gay marriage have forsaken.

Take, for example, the claim that gay marriage will lead inexorably to polygamy. This argument was derided by Sullivan and his allies as implausible fear-mongering when opponents of gay marriage raised the prospect, in a strictly theoretical way, in 1996, during the debate over the Defense of Marriage Act. Yet as I showed in my Commentary piece, the last five years have seen the rise of a movement for “polyamory” — a form of group marriage. Polyamorists are now organized throughout the country, with websites and regular conferences, and have gotten some national publicity. And the polyamorists have a cause celebre, the case of April Divilbiss, a woman living with two “husbands” whose child has been removed by the courts.

Can anyone doubt, then, that gay marriage will bring in its wake suits from polyamorists seeking the legalization of group marriage? What seemed laughable only five years ago is already both a practical reality and a profound threat to the future of marriage.

And Vermont’s supreme court will be hard pressed to show why the grounds upon which it mandated homosexual civil unions (the broad state constitutional claim that government is instituted for the “common benefit” of the people) would not also mandate polyamorous marriage. So the threat of legalized polygamy and group marriage has materialized, and I myself have put the issue forward in a recent article (several actually). Sullivan’s claim that the polygamy argument has been “abandoned” by foes of gay marriage is therefore demonstrably false.

Sullivan also claims that the opponents of gay marriage no longer maintain that, through an interpretation of the Full Faith and Credit Clause of the U. S. Constitution, the courts might overturn the Defense of Marriage Act and impose gay marriage on the entire country after it is legalized in but a single state. Here Sullivan conveniently passes over the very serious danger to DOMA posed by a constitutional challenge based upon the equal-protection clause. And only last week, in “The Right Balance,” I showed that Sullivan’s discounting of court-imposed gay marriage on “Full Faith and Credit” grounds is utterly unwarranted. Sullivan has yet to reply to that argument.

In “Love and Marriage,” I argued that gay marriage would make it difficult to combat heterosexual promiscuity or the high divorce rate. In his reply, Sullivan points out that heterosexual promiscuity and high divorce rates predate gay marriage. But this misses my point. The changes in heterosexual sex and marriage since the sixties have been bound up inextricably from the start with changed attitudes toward homosexuality. While I neither expect nor seek a full restoration of the social system of the fifties, gay marriage would lock in and radicalize the post-sixties separation of sexuality from reproduction within marriage, hampering attempts even to moderate current trends.

Sullivan claims that I take too little account of lesbian couples, who are generally models of monogamy. But as I showed in “Love and Marriage,” much of the problem of gay marriage is its undermining effect on the ethos of sexual complementarity — particularly the notion that men have certain responsibilities to women in light of their sexual vulnerability and their need for support as mothers. Many lesbian advocates of gay marriage actually look forward to the prospect of undermining the ethos marital complementarity, since they understand it as oppressive to women. (And by the way, this explains why, contrary to Sullivan’s claims, an infertile heterosexual couple is not equivalent to a homosexual couple. An infertile heterosexual couple embodies and strengthens the ethos of sexual complementarity. A homosexual couple does not.)

Sullivan offers a sort of arithmetical rebuttal to the claim that the lack of sexual fidelity in even many of the most committed gay male couples threatens to separate the ethos of marriage from monogamy. For Sullivan, the superior fidelity of many lesbian couples balances out the greater promiscuity of many gay male couples, making same-sex marriage, so far as its effects on monogamy are concerned, a wash. And if lesbians marry at a higher rate than gay men, there could even be a net gain in marital monogamy. Yet, Sullivan’s “mathematical” argument doesn’t work, precisely because marriage is so dependent upon a socially shared ethos of fidelity.

Consider the following example. I attended a college renowned for its honor code. Students signed a stringent pledge, promising not to cheat in any way, and promising to confront and, if necessary, report anyone seen cheating to the school’s honor council. Having signed the pledge, students were permitted to take exams unsupervised. There was great pride in the code, and the powerful ethos of honor gave the school its identity.

But what if a new group of students was admitted to the school, half of whom were paragons of honesty, but the other half of whom, although willing to sign the honor code, freely proclaimed their rejection of its fundamental principles. Suppose this group of new students admitted that they intended to cheat at will. Indeed, suppose they went further and rejected the whole notion of “cheating,” calling it outdated and oppressive, and speaking of what had once been called “cheating” as simply an “alternative form of learning.” What sort of effect would even this small but vocal group have upon the ethos of honor at this college?

Marriage also operates according to a code of honor — a code, as it happen, that forbids cheating. And that code of honor is enforced, not so much by the intervention of concerned individuals (although that is important) as by a shared ethos — an ethos that is powerful precisely because it is shared, and known to be shared. It is the delicate dignity and reputation of the institution (be it a college, or the institution of marriage itself) that confers honor upon those who publicly pledge to make the sacrifices necessary to maintain the code. Yet it would take only a small group willing to openly subvert the code, to break the spell, so to speak. That is why Sullivan’s “arithmetical” defense on the question of sexual fidelity will not do.

When he is not putting forward his “mathematical” argument, Sullivan assumes that only those gay couples who embrace the traditional ethos of monogamy will marry. But this is almost certainly a mistaken assumption. As I showed in my earlier piece, “Point of No Return,” there is every likelihood that many homosexual couples who reject monogamy will nonetheless marry — for the sake of the financial and legal benefits. And many of these couples hope to use their marital status to actively subvert conventional cultural notions of marital honor.

Perhaps under pressure from my arguments in “Love and Marriage,” Sullivan now claims that even gay male marriages will be at least as monogamous as straight ones. But this claim clearly contradicts Sullivan’s own position in his book, Virtually Normal. There, Sullivan actually praises the “openness of the contract” that characterizes so many gay male unions and offers it as something that might actually strengthen marriage as an institution (pp. 202-203). While I strongly disagree that the “openness” of gay male marriage will do anything but weaken marriage for heterosexuals, the point is that, in Virtually Normal, Sullivan actually concedes what he now denies — the carry over effect on marriage from gay sexual “openness.” And like those hypothetical collegiate advocates of “alternative modes of learning,” Sullivan even attempts to redefine cheating by turning it into a plus. If even the conservative Sullivan once openly put forth this argument, just wait until large numbers of married gay radicals get to work.

But for the really serious “subversion” to begin, the radicals will need full-fledged gay marriage, not simply civil unions. Only when gay couples are formally married will everything they say and do, in the nature of the case, work a change within what marriage actually is. That’s one reason why Sullivan’s pointing to the seeming lack of negative effects from Denmark’s system of “registered partnerships” doesn’t begin to show us what full-fledged gay marriage will actually mean for the institution of marriage itself.

But the deeper reason why we aren’t even close to the point where the real effects of gay marriage will become evident is that the shared moral ethos that supports an institution doesn’t generally change in simple or strictly incremental fashion. It will take a few years of full-fledged gay marriage in several Western cultural centers to reach a critical mass of “subversion” sufficient to set off the next big implosion in the institution of marriage. In Virtually Normal, Sullivan himself describes a parallel effect when he speaks of the relative collapse of the belief in the sinfulness of homosexuality (p.53). To reach the point where claims of the perverse or sinful nature of homosexuality no longer “worked their magic” on the public at large, it was first necessary to create substantial zones of disagreement about what homosexuality was. Once the issue was thrown up for discussion, the old codes and exhortations (which were powerful precisely because they were taken for granted) lost much of their effect.

But isn’t the institution of marriage itself vulnerable to just such a collapse? After reaching a critical mass of social space in which the link between marriage and monogamy is actively questioned, don’t we risk precipitating a radical disenchantment of the old codes of honor? And by the time we reach that point, it will be far too late to turn back. It will take a few years, but once advocates of gay marriage have got what they want and no longer need to be on their best behavior, Hollywood’s cutting edge directors and television producers will quickly discover that the “edgiest” topic in town is the new kind of marriage being pioneered by homosexual couples who combine emotional commitment with sexual “openness.”

Andrew Sullivan’s great strength is also his weakness. Even as Sullivan defends the gay-marriage movement, the particular arguments he employs put him at some distance from the cultural and political heart of the gay community. It is precisely Sullivan’s tendency to understate the persistence and influence of gay cultural radicalism that gives rise to his unduly sanguine claims about the positive effects of gay marriage upon the institution of marriage itself. Yet that is something about which, as a society, we simply cannot afford to be wrong.

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Getting It Right: Explaining federalism to conservatives (NRO, 010807)

By Jonathan Rauch, a columnist for National Journal, vice president of the Independent Gay Forum & a writer in residence at the Brookings Institution. (pro-gay)

Ah, now we’re getting somewhere! In articles that I wrote recently in The Wall Street Journal and on this site, I’ve argued that the proposed “Federal Marriage Amendment” — a national ban on same-sex marriage — is a broadside against federalism, and that states should be allowed to go their own ways. I suggested that the problem of activist federal judges foisting one state’s gay marriages on the whole country is easily remedied with a narrower constitutional amendment barring them from doing just that.

In his reply, Arkes suggests “one more step: [Rauch] could add to his amendment a denial that anything in the constitutions of the separate states may be construed to require same-sex marriage. If he took that step, we might indeed have the grounds for a settlement.” OK, here’s the amendment:

Nothing in this or any state’s Constitution shall require any state to recognize as a marriage any union but that of a man and a woman.

Dear Mr. Arkes: How about it?

I’ve consistently argued that gay marriage should be left to the states, both to allow small-scale experimentation with what I believe will be good social policy — good for gays, for straights, and for marriage itself — and to prevent an all-or-nothing national culture war. I also believe, as does Arkes, that gay marriage is too sensitive and important to be left to judicial fiat. It should be decided by the political branches.

In Vermont, state judges effectively ordered up a civil-unions program. In Hawaii, judges ordered same-sex marriage (the voters overruled them). Though I don’t know enough about either state’s constitution to have a good legal opinion, my knees jerk in the direction of thinking that both sets of judges overreached. So, Arkes asks, how about a U.S. constitutional amendment preventing state judges from foisting gay marriage on a state? Would I support that?

No, because I believe in federalism. I can’t very well oppose, on federalist grounds, stripping away states’ power to pass same-sex marriage while also advocating stripping away state courts’ power to interpret state constitutions. I may not have liked what Vermont’s judges did, but the question is whether Vermont should be allowed to have a system in which the judges could do it. If the answer is no, then people outside Vermont could wind up deciding how many chambers the state legislature should have, whether state judges are elected or appointed, how often the board of prisons should meet — you name it.

I’m not saying, pace Arkes, that states should be allowed to do anything they want with family and marriage laws. They should not be allowed to enact family laws that violate the U.S. Constitution, as the anti-miscegenation laws did. But I don’t believe that banning gay marriage, as three dozen states have done, violates the U.S. Constitution, and I also don’t think that adopting gay marriage violates the U.S. Constitution. Unless some federal prerogative is impinged upon (and none was in the Vermont civil-unions case), reining in Vermont’s judges is the business of Vermont’s voters. So I think the feds should stay out. (I’m surprised to hear myself patiently explaining all this to conservatives who are supposedly proponents of federalism. Oh, well.)

Arkes, however, already favors a constitutional amendment that would withdraw from the states a power (to define marriage for state purposes) that has been exclusively theirs since the republic was born. So he ought to have no federalist qualms about the aforementioned amendment banning judge-ordered gay marriage at both the state and federal levels. I’ll be surprised if Arkes accepts this amendment in preference to the Federal Marriage Amendment, but I’d like to know. Finding out would help clear away the Looking Glass rhetoric that Marriage Amendment supporters are using in support of their proposal. Consider the following statement by Arkes:

For our own part, in the Alliance for Marriage, we are willing to take our chances with the electorate in the different states. The amendment simply reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

I had to rub my eyes when I read this. I had to read it three times. Arkes says he’ll take his chances with the states’ electorates, and then in the very next sentence quotes language that plainly, clearly, and unambiguously takes the matter out of the states’ hands. The amendment says that no state can allow same-sex marriage even if every voter and legislator in that state favors it. That the amendment strips power not just from judges but from states cannot be rationally contested.

I’m totally perplexed. I know Hadley Arkes to be a bright and sophisticated fellow, so I have to assume he understands the plain meaning of his own amendment. If so, he and other Federal Marriage Amendment supporters are indeed being disingenuous, as I charged in my Journal article, when they insist that their federal ban on gay marriage is nothing but a reining-in of unruly judges. In that case, who, I wonder, is trying to “accomplish [their] move covertly”? On the other hand, I also know Arkes to be an honest and estimable fellow; and even if he weren’t, the contradiction between what the amendment does and what its supporters say it does is too glaring to fool anybody. So perhaps Arkes and the others endorsed an overly broad Federal Marriage Amendment because the idea of a narrower amendment had not occurred to them.

If the latter, I offer Arkes the chance to rectify his error by supporting an amendment that would do exactly what he says he wants to do, no more and no less. If he means what he says, he should support the ban on judge-ordered gay marriage instead of the ban on state-approved gay marriage. What do you say, Mr. Arkes? Surprise me.

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Stop Courts From Imposing Gay Marriage: Why we need a constitutional amendment (NRO, 010807)

BY ROBERT H. BORK

Of all the contested terrain in the culture war, the subject of homosexual rights is the most awkward to discuss. Almost all of us know homosexuals who are decent, intelligent and compassionate people, and we have no inclination to wound them.

Yet “gay rights” have come to the fore and we must have a discussion, free of ad hominem accusations, about whether homosexual acts and relationships are to be regarded as on a par with the marital relationship of a man and a woman. The immediate problem is the homosexual activists’ drive for same-sex marriage.

The activists want it as an expression of moral approbation of homosexual conduct. Many Americans have no desire to impose criminal sanctions on homosexual sodomy. Nevertheless, it is clear that most Americans do not want to create special rights for homosexuals or to consider their behavior morally neutral.

For that reason, the activists have concentrated their efforts on courts, knowing that judges have pushed, and continue to push, the culture to the left. One of the last obstacles to the complete normalization of homosexuality in our society is the understanding that marriage is the union of a man and a woman.

The activists breached that line when the supreme courts of Hawaii and Vermont, purporting to interpret their state constitutions, held that those states must recognize same-sex marriage. The Hawaiian electorate quickly amended their constitution to override that decision. The Vermont Constitution was extremely difficult to amend, and so the Legislature capitulated and enacted a civil-unions law, marriage in all but name, as the less repugnant of the alternatives the court allowed. More state courts are sure to follow.

Many court watchers believe that within five to 10 years the U.S. Supreme Court will hold that there is a constitutional right to homosexual marriage, just as that court invented a right to abortion. The chosen instrument will be the Equal Protection Clause of the 14th Amendment. After all, if state law forbids Fred to marry Henry, aren’t they denied equal protection when the law permits Tom and Jane to marry? The argument is simplistic, but then the argument for the result in Roe v. Wade was nonexistent.

To head off the seemingly inexorable march of the courts toward the radical redefinition of marriage, the Alliance for Marriage has put forward the proposed Federal Marriage Amendment: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

The first sentence means that no legislature may confer the name of marriage on same-sex unions and no court may recognize a same-sex marriage contracted in another country. We would hope that if people understand the principle behind the amendment, they would not try to contrive counterfeit forms of marriage. We would oppose such attempts, but are prepared to debate the matter in the political forum. So far as legislatures are concerned, the primary thrust of the sentence’s prohibition is symbolic, reserving the name of marriage to its traditional meaning. But symbolism is crucial in cultural struggles.

The second sentence expresses the main thrust of the amendment. It recognizes that liberal activist courts are the real problem. If courts are prevented from ordering same-sex marriage or its equivalent, the question of arrangements less than marriage is left where it should be, to the determination of the people through the democratic process.

To try to prevent legislatures from enacting permission for civil unions by constitutional amendment would be to reach too far. It would give opponents the opening to say we do not trust the people when, in fact, we are trying to prevent courts from thwarting the will of the people. The history of the effort to obtain a constitutional amendment relating to abortion is instructive. There was a chance to get an amendment overturning Roe v. Wade and returning the issue to the state legislatures. Purists opposed to abortion would not settle for that. They demanded an amendment prohibiting abortion altogether. The result was that they got nothing. An amendment against judicial validation of same-sex marriages would similarly be doomed by pressing for too much.

Some proponents of gay marriage, such as Jonathan Rauch, have tried to split cultural conservatives by invoking federalism. Family law, he argues, has always been governed by the states. Though that is not entirely true, it is entirely irrelevant. A constitutional ruling by the Supreme Court in favor of same-sex marriage would itself override federalism.

Activists are already trying to nationalize same-sex unions: Same-sex couples will travel to any state that allows them to marry or have civil unions, relying on the constitutional requirement that states give full faith and credit to the judgments of other states to validate their status in their home states. They will attack the constitutionality of the federal Defense of Marriage Act, which seeks to block this. One way or another, federalism is going to be overridden. The only question is whether the general rule will permit or prohibit the marriage of same-sex couples.

Traditional marriage and family have been the foundations of every healthy society known in recorded history. Only in the past few decades of superficial liberal rationalism has marriage come under severe attack. The drive for same-sex marriage ordered by courts is the last stage of the assault. The Federal Marriage Amendment is an attempt, and perhaps the only hope, to preserve marriage as an institution of incalculable value.

Mr. Bork, a former federal appeals court judge and solicitor general, is a fellow at the American Enterprise Institute.

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Listening Attentively: Ideas have consequences (NRO, 010808)

Mr. Kurtz is also a fellow at the Hudson Institute

In his latest contribution to our exchange on gay marriage, Jonathan Rauch portrays me as coldly saying to gays, “You can’t handle marriage, and shouldn’t even get the chance to prove yourselves. Sorry, gay people, but that’s life.”

I see the matter differently. If I bring something new to the debate over gay marriage, it is chiefly the fact that I have respectfully read and attended to the arguments about marriage offered by gay people themselves — not just “conservative” advocates of gay marriage like Jonathan Rauch and Andrew Sullivan, but the many gays who see marriage as an essentially oppressive institution, and who wish to either abolish it directly, or to subvert it from within. These gays — and there are many of them — are saying, “Just wait till we get a hold of marriage, purge it of it’s demands for fidelity and monogamy, and turn it to the task of promoting androgyny instead of sexual complementarity.” So it’s not so much that I am telling something to the gay community as that I am listening attentively to what it says.

Reading Rauch, one would never know that the gay community has been, and still is, deeply divided on the subject of marriage. Initially, the drive for gay marriage provoked intense debate among gays, with many arguing that it was a terrible mistake to join so oppressive an institution as marriage. That argument wasn’t so much “won” as it was set aside. In pursuit of social acceptance, gays now give near universal assent to the idea that they ought to have the right to marry one another, yet gays are still deeply divided about whether they ought to marry or, if so, whether they ought to conform to traditional notions of what marriage means. The truth is, Rauch’s conservative argument for gay marriage puts him on the far end of the spectrum in this debate, and Rauch has done a poor job of either acknowledging or coming to terms with the existence of diverse views on the marriage question within the gay community itself.

Rauch is affronted by my point that gay sexuality, because it is detached from reproduction, stands as a critical symbol of the contemporary ethos of sexual self-fulfillment. But I drew this point from Michael Bronski, a gay writer whose important book, The Pleasure Principle, I linked, and recommended in my last reply to Rauch. It’s Bronski who argues, with insight and energy, that the collapse of the imperative to “reproductive heterosexuality” embodied in traditional marriage will provoke an end to monogamy and the traditional family. Bronski supports gay marriage, if with limited enthusiasm, because he sees it as a means to that end.

Or consider E. J. Graff, a important advocate of gay marriage who openly argues that conservatives are absolutely right to see gay marriage as a “breathtakingly subversive idea.” Graff welcomes gay marriage precisely because she sees that it detaches marriage from heterosexuality and reproduction, and will therefore bring about a legal structure and a social ethos that presume androgyny. When I say that detaching marriage from heterosexuality will have deep-lying cultural consequences, Rauch treats my statement as a transparent debaters point designed solely for the purpose of excluding homosexuals. Bronski and Graff know better.

Marriage works through a sort of “enchantment” of heterosexual relationship. It lends a feeling of “meant to be” to the union of a man and a woman, and to the conventions of respect, responsibility, and fidelity associated with marriage and courtship. Of course many favor gay marriage precisely because they wish to remove the sense that it is only heterosexual relationships that are somehow “meant to be.” But the end result will not be, as Rauch hopes, to spread the enchantment around. Instead, once the enchantment of heterosexuality is broken, marriage will be transformed from something that seems written in the world into just another contract, as flexible and breakable as any other, and therefore a contract that might easily include numerous partners and an open sexual code. The “subversive” proponents of gay marriage understand this very well.

Of course Rauch is correct to say that marriage is not only about the complementarity of the sexes, but also mutual love and loyalty. But the point is that marriage works by yoking several elements together — the ethos and etiquette of heterosexuality, parenthood, and long term love and friendship. Again, gay proponents of the “subversive” effects of gay marriage look forward to breaking apart these united elements, precisely in order to achieve their cultural goals of promoting androgyny and increased sexual “openness.”

But I don’t want to imply that it’s only radical gays who make such arguments. The truth is, even so-called conservative advocates of gay marriage concede that gay marriage will work a profound transformation within the pattern of monogamy, parenthood, and fidelity that has heretofore characterized the institution of marriage. In a piece in the September 2000 issue of Commentary, I showed how even the “conservative” gay-marriage advocate William Eskridge looked forward to gay marriage for the novel family configurations it would bring about. And with David Crosby’s donation of sperm to Melissa Etheridge and Julie Cypher, haven’t we already seen the beginnings of a three-parent system? Be assured that there will be suits for the legal recognition of such triple unions. And as I showed in my earlier piece “Code of Honor,” in his book, Virtually Normal, Andrew Sullivan has advertised “the greater understanding of the need for extramarital outlets” as a positive transformation that gay marriage would work on the institution of marriage itself (pp. 202-203). So instead of chastising me for my supposedly jaundiced portrait of the effects of gay marriage, Rauch ought to address himself to both his opponents and allies within the gay community.

Rauch’s portrait of the depth of love, service, and friendship between many gay couples is both true and important. I can well understand why he seeks the recognition of marriage for these alliances. As I’ve said before, this debate has an inescapable element of tragedy about it. We are, I believe, arguing about how best to balance competing goods. If someone were to say to me, “Even if gay marriage further weakens marriage itself — maybe even substantially so — it’s still worth it. The practical and emotional costs of the failure to recognize gay partnerships are just too great for us not to make the change,” I would take that to be a very powerful argument (and far more accurate than the claim that gay marriage will actually strengthen marriage).

In reply, I would say that, at one level, it’s a judgement call, with no clear answer. We have here an exceedingly painful case in which the interests of approximately 3 percent of the population cut against the interests of the other 97 percent, and in a way that matters tremendously to both groups. Yet I also believe that marriage won’t really work the wonders for the gay community that Rauch thinks it will, but will instead simply end up losing its power as an institution for all segments of society. And the real source of gay alienation will not disappear. It is the experience of growing up gay in a world in which 97 percent of those around you are heterosexual that creates the alienation — even if no-one ever had a harsh word to say. Gay marriage is a false solution to the problem of gay alienation.

Rauch is indignant that I would even think to withhold “the right to marry” based on a judgement about how sexually well-behaved gay couples will or won’t be. This takes us to a core contradiction within Rauch’s case for gay marriage. On the one hand, Rauch makes an argument for gay marriage grounded in the claim that the change will domesticate gay couples. He suggests careful experimentation in just a few states, leaving society itself the option of deciding that the experiment has failed.

Yet challenge the basis of Rauch’s own “conservative” case for gay marriage — his claims about its domesticating effects — and he indignantly condemns you for even bringing up the issue, instead of treating same-sex marriage as a “right” to begin with. In my earlier piece on gay marriage in Commentary, I pointed out the same contradiction in Andrew Sullivan’s arguments for gay marriage, which began as a “conservative” claim for a domestication effect, yet quickly veered into a rights-based case under challenge.

The trouble with the rights-based side of Rauch’s argument is that it cannot help but lead to the dissolution of marriage and its replacement by an infinitely flexible series of relationship contracts between persons of any number or gender. Be assured that groups of three, four, and more will come before the public and the courts — with arguments that equal Rauch’s in passion — demanding recognition for their “equal right” to a loving collective marriage. But as I showed in my piece in Commentary, the end result of such group marriages will be a serious rise in marital instability, and chaos for the children of these multiple households.

There’s another problem with Rauch’s resort to a rights-based argument; it makes it very difficult to take his case for federalism seriously. Rauch says he wants us to launch a careful experiment with gay marriage in just a few states, and then carefully judge the empirical results. But it now looks as though any attempt to roll things back based on poor results will be met with impassioned claims that this is a matter of rights, after all, and not of empirical behavior. Rauch calls me an extremist for denying gays the chance to prove me wrong, but he clearly makes it impossible to imagine a scenario in which he would acknowledge that the experiment had failed. And even setting his rights-based argument aside, since Rauch claims that a whole new generation will have to grow up and play out their lives under the new scheme for its effects to be evident, he will clearly oppose a rollback, on principle, anytime before the next 50 years.

Although Rauch says that he can imagine and bear the chaos created by travel restrictions under a state-by-state patchwork arrangement, the important point is that no one else will accept it. Here is another point at which Rauch’s distance from the gay community as a whole becomes important. A veritable army of gay advocates are prepared to litigate a national imposition of gay marriage on grounds of “portability,” and as I showed in “The Right Balance,” they have an excellent case.

I did not, by the way, greet Rauch’s proposal for a constitutional DOMA with silence. What I said is that a constitutional DOMA would do nothing to prevent the undemocratic imposition on gay marriage on states by judges who have long ago disregarded the principles of judicial restraint and substituted their own cultural preferences for the law.

Finally, Rauch seems to think that my views on gay marriage “sit crosswise with liberalism.” Certainly the framers of our Constitution and the great theorists of liberalism would be puzzled by that remark. Liberalism has never been incompatible with our traditional family structure. On the contrary, liberalism depends upon it. But if liberalism now means that society can no longer offer special support and encouragement to the traditional family, then I assure you that marriage will be abolished, and a system of strictly private contracts set up in its place. Any argument Rauch might choose to make against legal polygamy or group marriage (and perhaps even incest as well) will necessarily fall every bit as far outside of what he now defines as liberalism as my own arguments against gay marriage. And be assured, this is where we are headed. With the advent of gay marriage — already mandated in Vermont on right-based grounds (rather than on Rauch’s “conservative” grounds) — we face legalized polygamy, group marriage, and the eventual legal abolition of marriage itself and its replacement by an infinitely flexible contractual system.

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No Room for Compromise: Lending legitimacy to any sex outside marriage is not a reasonable position. (NRO, 010809)

By Robert H. Knight, director, Culture and Family Institute, an affiliate of Concerned Women for America.

Stanley Kurtz in “A Cultural Antidote: Why we need a Federal Marriage Amendment” insists that “reasonable people can disagree on the question of homosexual marriage” and that “reasonable people will differ on the subject of homosexuality.”

Maybe not. Imagine Mr. Kurtz strolling by Moses and dropping those lines as Moses is about to present the Ten Commandments. Of course, not everyone might consider Moses a particularly “reasonable” guy.

But there is nothing “reasonable” about two men or two women having sex. There is something deeply wrong. The practice should be discouraged and resisted, not accommodated. One can love friends and relatives who have a homosexual problem without caving in to the politically correct campaign for mandated acceptance.

Lending legitimacy to any sex outside marriage is not a “reasonable” position but an abandonment of moral principle. It is a disservice to call the principled stand against any government promotion of homosexuality an “extreme” position, as Mr. Kurtz did in his follow-up column (“The Right Balance”). In fact, it is a sad day when National Review and National Review Online run columns that assail a respected institution like the Family Research Council for holding “extreme and untenable positions” and comparing them to the extremism of the radical Left.

It is also a disservice to those trapped in homosexuality, who suffer shortened lives (see the International Journal of Epidemiology) as well as astronomically heightened risk for body damage, disease, and domestic violence. Seeking “a rough sort of compromise” with homosexual activists, as Mr. Kurtz advocates, is not only impossible but is not “conservative,” unless one defines conservatism as preserving incremental leftist victories.

Given what we have learned about the dangers of sex outside marriage, why aren’t we talking about how to roll back the depredations of the sexual revolution instead of how to institutionalize them? Why aren’t we treating homosexuality as preventable and treatable, which it surely is?

As for the Federal Marriage Amendment, it may be well intentioned, but it allows for legislatures to enact the rest of the homosexual agenda right up to civil unions and other forms of counterfeit marriage. As written, the amendment will give politicians cover while they promote homosexuality by other means. Just ask the front-line pro-family activists who are fighting domestic-partner legislation in California, Maine, and elsewhere. Marriage is too important to be defended in name only.

This is why CWA’s Culture and Family Institute and other pro-family groups cannot support the amendment as written, nor the “compromise” positions articulated by Mr. Kurtz.

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Middle Ground: The choice has been made (NRO, 010810)

Mr. Kurtz is also a fellow at the Hudson Institute

I have great respect for the work of the Family Research Council, the Concerned Women for America, and for Robert Knight. Although I am often in sympathy with their views, it is also true that, in important ways, I see the matters of marriage and homosexuality differently than they do. I do not personally view homosexuality as sinful, nor am I even opposed to some of the sexual loosening that has emerged in the wake of the Sixties. I neither deem possible, nor seek, a return to the system of the Fifties. Instead I think we need to find a way to live in the sometimes muddled middle ground between the traditional system and the more extreme expressions of the sixties ethos.

Mr. Knight’s position in “No Room For Compromise” is seemingly more consistent than this, as are the positions of, say, gay or feminist radicals who wish to subvert or replace marriage. But I believe that the social basis of the old system has been destroyed, while the utopian visions of the radicals are both flawed and unworkable. So as I see it, we have little choice but to work toward a moderate middle ground.

That does not mean that strong and conservative religious communities should not, or cannot, continue to exist in many parts of America. And under the Federal Marriage Amendment, social conservatives, both religious and secular, have every opportunity to persuade their state legislatures not to grant benefits of any kind to homosexual couples. The Federal Marriage Amendment does not in any way mandate domestic partnership benefits, and such benefits are only a possibility to begin with because the Constitution, not the Federal Marriage Amendment, places such decisions within the discretion of state legislatures.

For Mr. Knight to allege that the Federal Marriage Amendment “allows” state legislatures to enact, say civil unions, makes no more sense than to say that the amendment “allows” state legislatures to enact no-fault divorce. It is not the Federal Marriage Amendment, but our Constitution that allows state legislatures to parcel out benefits and regulate divorce. If this is what troubles Knight, his quarrel is not with the Federal Marriage Amendment, but with the Founders of our nation.

As I argued in “The Right Balance,” the Founders did indeed presuppose heterosexual marriage, and our country’s unity depends upon holding fast to a single basic definition of marriage. That is why the Federal Marriage Amendment’s definition of marriage makes sense. But states have always had authority over the detailed parceling out of benefits, and it is unlikely that even a single state legislature (much less legislatures in three quarters of the states) would ever ratify Knight’s proposed version of the amendment, since that would mean deeding away their constitutionally delegated authority over a whole range of family law matters.

It is worth noting that Gary Bauer, the man who established the Family Research Council as a premiere defender of America’s families, has joined with such conservative luminaries as Judge Robert Bork, Robert P. George, and Hadley Arkes in supporting the Federal Marriage Amendment. These distinguished leaders consider the Federal Marriage Amendment to be, not only consistent with federalism, but also the only politically achievable solution to this problem. And as our expanding debate on same-sex marriage at National Review Online indicates, those who favor same-sex marriage view the Federal Marriage Amendment with alarm. Why would they do so if it was toothless?

Judge Robert Bork, in his recent call for support of the Federal Marriage Amendment, pointed out that there was once an opportunity to pass a constitutional amendment overturning Roe v. Wade and turning the question of abortion back to the states. Purists who demanded an amendment banning abortion outright instead got nothing. In just this way, Mr. Knight’s reluctance to face the social and political realities of the same-sex marriage debate risks losing the chance for an amendment of any sort, thereby allowing the courts to impose gay marriage against the will of the American people.

The Alliance for Marriage, sponsor of the Federal Marriage Amendment, has succeeded in forging a broad-based coalition that includes liberal civil rights leaders, secular and moderate social conservatives like myself, and religious people from a wide array of faiths. No campaign to pass a constitutional amendment can succeed without building a broad coalition at the national level. Such an alliance must necessarily extend beyond the bounds of any one religious community or political position. As a practical matter, the Federal Marriage Amendment represents our best chance of gathering together a winning coalition, while there is still time to prevent the courts from taking marriage out of the hands of the people.

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Marriage for All: A simple request (NRO, 010810)

By Jonathan Rauch, a columnist for National Journal, vice president of the Independent Gay Forum & a writer in residence at the Brookings Institution (pro-homosexual)

I read Stanley Kurtz’s latest contribution to our gay-marriage discussion several times, and I came away concluding that his position really does, as I said last time, essentially boil down to: “I don’t believe homosexuals can handle marriage responsibly. And they should never be allowed a chance to prove me wrong. Sorry, gay people, but that’s life.”

Although I do think it’s wrong to demand that homosexuals who want to marry prove they’ll meet sexual-behavior standards that are never applied to heterosexuals, I don’t believe that homosexuals have an absolute right to marriage, and I’ve been careful, pace Kurtz, not to rest my case on rights. (When I talk casually about, for example, “denying homosexuals the right to marry,” I mean ‘right’ only in the weaker sense of statutory entitlement.) If I thought that legalizing same-sex marriage would destroy or seriously damage marriage for everyone, then I would oppose same-sex marriage as a self-defeating entitlement. My argument is one about presumption. If there is significant doubt about the effects of same-sex marriage — and of course neither Kurtz nor I nor anybody else really knows what would happen, and in truth many good and bad and indifferent things would happen — then the presumption ought to be that everyone should have a chance to participate in society’s most important civic institution. At a bare minimum, if the claim is that homosexuals will wreck marriage, we should not be forever denied any hope of showing that we won’t wreck marriage.

It means a lot to me to hear Kurtz say that there is an “inescapable element of tragedy” in having to deny marriage to homosexuals in order to preserve it for everybody else. Many conservatives, probably almost all until very recently, have viewed gay lives and loves as a more or less inconsequential factor in the debate over gay marriage. Their attitude has been, “Why do these homosexuals insist on wrecking marriage? Why don’t they just go away and leave well enough alone? So what if they can’t marry? Pass the potato chips.” Kurtz will have none of that. I thank him.

But “so sorry” only gets Kurtz so far if the tragedy is of his own making. If he really believes that denying marriage to homosexuals is tragic, he should seek to avoid rather than perpetuate the tragedy. If there is any reasonable possibility that the alleged tragic trade-off between gay and straight marriage is imaginary — that same-sex and opposite-sex marriage could happily coexist — he should look for and embrace a reasonable option that could test that possibility. One such option is to let our federalist system run its course, letting individual states try same-sex marriage if and when they please. Then we’ll see what happens. Yet it is Kurtz who seeks to foreclose this option, with a constitutional amendment banning same-sex marriage. He would thus rule tragedy into being: tragedy in the form of perpetual homosexual alienation from the social institution that’s most important for a happy and healthy life. For all that I appreciate Kurtz’s stated solicitousness of gay lives and loves — and believe me, I do — it may be that the old-fashioned conservative “We don’t care” was in some ways more honest.

How would we know if gay marriage works? Kurtz charges that it would be very hard ever to persuade me that a state gay-marriage experiment failed, and that I “will clearly oppose a rollback, on principle, anytime before the next 50 years.” Here, I think, Kurtz again misapprehends federalist (and democratic) principle. The question isn’t what Jonathan Rauch or Stanley Kurtz or any other pointy-head thinks of a state’s experience with gay marriage; the question is what the people of that state and of other states think. The whole point of a federalist approach is that it lets the voters of the states decide what sort of arrangement counts as a social-policy success. I will accept their judgment. Why won’t he?

Well, on that subject I think Kurtz and I have reached the point of repeating ourselves. Anyway, I’ve reached that point. So I’ll leave the arguments before the reader and pass on to a couple of other threads. Kurtz says that I’m at the conservative end of the gay intelligentsia on marriage, and that a lot of gay radicals and intellectuals think I’m wrong. That’s certainly true, but I don’t see why it’s important. Gay radicals and intellectuals think all sorts of things but are no more likely than anyone else to be right; it’s the argument and evidence, not the source, that counts. I think the gay left-winger who says gay matrimony will undermine the norms of marriage is just as wrong as the conservative right-winger who says it. What else can I say?

In any case, the gay intelligentsia are all over the map on marriage. Not long ago, in an article in Reason magazine, I dissected a book by Michael Warner, a prominent and very smart gay radical who argues that sexual norms of any kind are oppressive. He loathes the idea of same-sex marriage precisely because “the effect would be to reinforce the material privileges and cultural normativity of marriage,” which would reduce the amount of sexual experimentation going on, which he thinks would be awful. As I’m sure Kurtz knows, there are a lot of gay radicals who share Warner’s fear that marriage will change gay culture in appallingly bourgeois ways. Does that show I’m right? Really, I don’t think brandishing gay intellectuals gets us anywhere.

It may be more productive to focus on an odd convergence of interests between the world’s Michael Warners and Stanley Kurtzes. Warner and his ilk dislike gay marriage, but they can’t be against it because they think homosexuals should have equal rights, including the right to marry. So how do they get out of this box? By arguing for a multiplicity of alternatives to marriage, thus eroding marriage’s unique prestige.

Don’t get me wrong; if I can’t get gay marriage, I’ll reluctantly take partnership programs, which would do at least something to recognize and nourish stable gay relationships. But from a social point of view, a partnership program — indeed, anything that competes with marriage — is a poor second choice. Most gay-marriage opponents just say, “Fine, then homosexuals should get nothing.” But a few more compassionate and far-sighted opponents — people like Kurtz — understand that telling homosexuals to go fly a kite is not an option. Americans really believe in the Golden Rule, equal opportunity to pursue happiness, and all that. They’re going to want to do something for homosexuals, a desire that will increase as more sons and daughters and siblings and friends come out.

Something really new, without historical precedent, is happening in America. Today, for the first time, a majority is coming to realize that homosexuals actually exist: that we’re not just heterosexuals who need treatment or jail. This realization will, must, and should drive change in a society whose institutions are premised on the notion that homosexuals do not actually exist. The question is whether marriage or something else should be the template. If there’s one social regularity I can think of, it’s that marriage — the commitment to care for another person for life — has good effects on human populations, and that its denial has bad effects, and that the alternatives are worse. But if Kurtz absolutely cannot accept that this might be true in the case of same-sex unions, then he had better start planning for a nation full of Vermonts, with all kinds of sort-of-marriage programs.

Note that, once partnership programs are set up, heterosexuals who don’t want to get married invariably clamor to get in. “How come only the gays get this? No special rights!” As of 1998, all three of the states and all but a handful of the municipalities that offered domestic-partner programs for their workers included opposite-sex couples; so did the large majority of corporate programs. I grant that to some extent “marriage lite” will spread anyway, because some states that bar gay marriage will offer alternatives. But a constitutional ban on gay marriage will force all states that want to do anything for homosexuals to create alternatives to marriage. Employers, too, will create multifarious partnership programs that would be unnecessary if homosexuals could just get married. Is all this good for marriage? Kurtz worries about “the dissolution of marriage and its replacement by an infinitely flexible series of relationship contracts.” But that is exactly what he guarantees by withholding the template of marriage!

Polygamy, which rears its ugly head in Kurtz’s last paragraph and in his argument against Andrew Sullivan, merits a discussion of its own; here, just a few words. On grounds of both equality and social policy, gay marriage is completely consonant with liberal principles, and polygamy just as completely isn’t — and the distinction is not hard to understand and sustain. Homosexuals are not asking for the legal right to marry anybody or everybody we love. We are asking for precisely and only the same legal right that heterosexuals enjoy, namely the right to marry somebody we love: one person, as opposed to no one at all. Liberalism holds that similarly situated people should be similarly treated by law. Americans increasingly understand that a gay man who is allowed to marry a woman is not situated similarly to a straight man who is allowed to marry a woman. Nor is a gay man who wants to marry a man situated similarly to a straight man who wants to marry three women or a man who wants to marry his dog or his Volkswagen; he is situated similarly to a heterosexual man who wants to marry one woman. Saying that gay marriage leads to polygamy is no more logically coherent than saying that if blacks (say) demand and are given one vote, whites (say) will inevitably demand and be given two.

Moreover, a liberal regime has a strong social-policy interest in making marriage universal. There’s a reason why no polygamous countries are liberal: if some men — usually high-status men — get multiple wives, then by definition other men — usually low-status men — get no wives. The result is a restless and destabilizing sexual underclass that must be subdued by some form of repression. Not coincidentally, gay culture, in its own way, for many years had some characteristics of a restless and destabilizing sexual underclass, and it was subdued to some extent by repression. That all began to change when open gay relationships started becoming socially acceptable. Gay marriage is, obviously, completely consonant with liberal aspirations to make marriage something that everyone can aspire to. In fact, it fulfills those aspirations.

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Radical Proposal: Not a conservative argument (NRO, 010813)

Mr. Kurtz is also a fellow at the Hudson Institute

In “Listening Attentively,” the last entry in my exchange with Jonathan Rauch on gay marriage, I pointed to a core contradiction in Rauch’s position. On the one hand, Rauch puts forward a “conservative” case for gay marriage, arguing that marriage will domesticate gay couples, and can be proven to do so through experimental adoption in a few key states. At the same time, Rauch puts forward a rights-based case for gay marriage. That rights-based case, I claimed, leaves no real space to judge an experiment in gay marriage a failure, and will surely lead to legalized “polyamory” (group marriage). In effect, underneath his “conservative” and “federalist” case for gay marriage, Rauch is offering a radical, rights-based case for replacing marriage with a system of infinitely flexible relationship contracts.

Nothing in Rauch’s reply, “Marriage for All,” allays this concern. On the contrary, despite his being careful not to overtly rest his case on an infinitely flexible right to redefine marriage, Rauch continually invokes just such a “right.” According to Rauch, his argument is not about rights, but about a “presumption.” In the absence of certainty about the socially disruptive effects of a change, there ought to be a presumption that everyone should have a chance to participate in marriage. Well, everyone does have a right to participate in marriage — as it is currently defined. So what Rauch really means is that there ought to be a presumption that everyone may redefine marriage so as to insure participation on their own terms. And what is the basis of that presumption? Rauch doesn’t say, but it is obviously the belief that everyone has an equal right to rework marriage to suit his tastes. In effect, a radical rights-based argument is the hidden grounding for Rauch’s doctrine of “presumption.”

For example, Rauch claims that, because a gay man is “not situated similarly” to a straight man, it is unfair to deny him the “right” to marry someone who shares his distinctive situation. But marriage as it exists now is based on a judgment that a compelling social interest justifies special support and encouragement for people who inhabit a very particular “situation” — the heterosexual couple. Society judges that people in this situation are particularly well suited to create a stable family environment conducive to the rearing of children. A “conservative” case for gay marriage would have to establish that homosexual couples are equally likely to create such a socially beneficial environment, and also that this innovation would not undermine the stability of the already existing heterosexual family system. Yet Rauch’s interpretation of liberalism casts aside his avowed concern for these issues and simply insists that we must reshape the “right” to marriage to fit any social or sexual “situation.”

Despite his attempts to show that this interpretation of liberalism would disallow group marriage, it’s easy to see how a “polyamorist” could make exactly the same argument as Rauch. (For more on polyamory, see my article in the September 2000 issue of Commentary.) Polyamorists rest their case for group marriage on their “sexual orientation.” They claim that a significant percentage of humanity is born “polyamorous” — i.e. with a special need and desire to have multiple and simultaneous sexual partnerships. (They point to the persistent and widespread existence of polygamy throughout world history as proof.) So after the legalization of gay marriage, what’s to stop a polyamorist from saying that it is unfair to expect him to marry only one woman. After all, given his polyamorous sexual orientation, he is “situated differently” than either a couple-oriented heterosexual or a couple-oriented homosexual. Should not marriage therefore be redefined in order to fit his “situation,” thus granting him the very same “right” that pair-oriented heterosexuals and homosexuals now enjoy? You may be certain that sometime after gay marriage is legalized, polyamorists will offer just such an argument (and others as well).

In an attempt to show why gay marriage will not lead to polygamy, Rauch moves away from his hidden rights-based argument and back to a claim about social impact. He notes that in polygamous societies, relatively few men marry many women, thus leaving a restless group of undomesticated low-status men to form a trouble-prone underclass. But this objection to polygamy does not apply to modern polyamory, which allows group marriage in any combination of gender and number. Indeed, April Divilbiss, whose court case polyamorists hope might provide a first glimmer of legal recognition for their right to group marriage, is not one of many wives, but a woman living with two “husbands.” So it can by no means be shown that legalized polyamory would create the problem of surplus unmarried men described by Rauch.

Why then, cannot the polyamorists, following Rauch, say that since “nobody really knows what will happen” if polyamory is legalized, the “presumption” ought to be that polyamorists can marry on their own terms? In other words, exactly as I claimed in “Listening Attentively,” Rauch’s talk of “presumptions” and “differential situations” amounts to an infinitely flexible right to redefine marriage — a “right” that can only lead to legalized polyamory, and a “right” that is sure to be invoked, even if a “federalist” experiment in gay marriage empirically fails.

It is important to note in this connection that Rauch has not commented upon my criticisms of the Vermont supreme court’s decision mandating gay marriage or civil unions. If Rauch really rejects the rights-based case for gay marriage, shouldn’t he also reject the Vermont Supreme Court’s decision in Baker v. Vermont? That decision was based on a vague “equal benefits” clause, rather than on a compelling state interest in supporting a particular marital form. Yet that equal-benefits clause was never taken by the framers of Vermont’s state constitution to be incompatible with the state’s ability to define, regulate, and support a “situationally” particular form of marriage. Shouldn’t anyone who prefers a “conservative” case to a rights-based case for marriage disavow Baker v. Vermont, the broad claims of which could clearly lead to legalized group marriage?

Let us return to the polyamorists for a moment and reflect upon the remarkable fact that they exist as a public movement to begin with. In 1996, when the prospect of legalized polygamy was raised in connection with the congressional debate over gay marriage, the argument was derided by proponents of gay marriage as ludicrous fear-mongering. Is it not extraordinary that only a few years later the polyamorists were openly organizing as a group and garnering national publicity? It is likely that this is more than coincidence. The very fact that arguments for gay marriage have been “in the air” has helped give license for the polyamorists to organize their movement for group marriage. I submit that, in the rise of the polyamorists, we have already seen an important example of the “subversive” cultural feedback effect of gay marriage on the culture of marriage at large. With actual legalization of same-sex marriage, that effect is sure to grow exponentially.

Rauch claims that, by blocking gay marriage and giving rise to forms of “marriage lite” in certain states, it is the Federal Marriage Amendment that will actually bring about an infinitely flexible series of relationship contracts. Yet whatever threat limited domestic partnership arrangements pose, they would be far less disruptive than full-fledged gay marriage and polyamory. It is by no means certain that such limited domestic partnership arrangements will multiply to begin with. If such arrangements do arise through democratic means — and they may well — they can be restricted to couples not otherwise eligible to marry, thus preventing the rise of a “marriage lite” option for heterosexual couples. That such a provision cannot be guaranteed in advance hardly justifies giving up and simply authorizing the radical undermining of marriage that gay marriage would represent. But of course, Rauch and I disagree in the first place about whether gay marriage will undermine or strengthen marriage.

In reply to my claim that despite Rauch’s offer of an empirical and revocable experiment in federalism, his argument not only offers no real grounds on which the experiment could ever be called off, but in fact makes revocation impossible, Rauch claims that what a couple of intellectuals say doesn’t really matter anyway. All that matters is what the people of the state in question will say, many years from now. But this draws an artificial distinction between the public debate that is occurring now and the one that will occur later. Surely there must be some relationship between the two. If we are persuaded in good faith to adopt an experiment on the grounds that it is revocable, yet a bar to revocation is hidden within the grounds for the experiment itself, then the “experiment” is a sham. That is not a legitimate basis upon which to achieve public agreement on a radical and deeply controversial social reform.

Indeed, given the entirely justified seriousness with which he takes his own role in this debate, Rauch is far too dismissive of the role of intellectuals. When I invoke the many gay intellectuals who claim that gay marriage will subvert and even destroy the institution of marriage, I am not simply arguing from authority. The widespread agreement about the subversive cultural implications of gay marriage that I demonstrated among gay intellectuals on all sides of this question is vital evidence in this debate. That is because the effect of gay marriage depends in great part upon the attitudes toward marriage of gays themselves. If gays are looking to marry merely for the economic benefits and the social affirmation of homosexuality, rather than to embrace and adhere to the conventions of marriage itself, that gives us vital information about the likely effects of same-sex marriage on the larger institution. And in this case, as I showed in “Point of No Return,” sociological data on the attitudes of ordinary gays tally’s very well with the arguments of gay intellectuals. Large numbers of gays look forward to gay marriage, more as a way of subverting the conventions of marriage than as an incentive to adopt them.

Rauch mentions Michael Warner, a radical gay intellectual who opposes gay marriage and worries that it will in fact domesticate gays. Interestingly, even Warner, in a 2000 interview in The Chronicle of Higher Education, acknowledged that gay marriage may well end up subverting marriage rather than supporting it. Warner’s fear was that the public arguments for gay marriage were rights-based. He wants more foregrounding of the “subversive” argument for gay marriage, as the best way to insure that the reform will in fact undermine social convention. That may be politically naive, but it shows that Warner recognizes the potential for a subversive effect. And after gay marriage is actually legalized, and gays no longer have to present a moderate face in order to achieve it, the subversive argument (which has never gone away) will emerge still more openly, and with a vengeance.

Yes, this issue has an inescapable element of tragedy about it. But the tragedy is not of my making. As I explained in “Listening Attentively,” the nature of the gay situation, regardless of what does or does not happen with marriage, will always produce a significant degree of alienation. The tragedy is also rooted in the fact that two important needs are clashing here. On the one hand, we have the desire of gays for greater social recognition. On the other hand, we have the need to protect and support the vital and already greatly weakened institution of marriage. Rauch says that if there is any reasonable possibility that the tragic trade-off is imaginary, the need to relieve the condition of gays obligates us to adopt same-sex marriage. But can we not say with equal or greater justice that if there is any reasonable prospect that the tragic trade-off is real, the need to protect marriage obligates us to reject so radical and dangerous a social experiment?

Jonathan Rauch has pressed his case with intelligence, force, and gravity. He has also been gracious to me, and for that I am extremely grateful. There is no easy way in this matter, for any of us. Every option, whatever it’s benefits, is in some important measure unsatisfactory. Any public stance inevitably places an advocate, of whatever position, directly in the path of impassioned opponents, often attacking from several directions at once. In some important sense, every one of the several positions in this debate puts forward insights and interests that deserve acknowledgment and protection. So the battle will and must be fought — but fought honorably. For somehow, we must reconcile when it is over.

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Sleight of Hand: Gay marriage and federalism — again (NRO, 010814)

By Hadley Arkes, Ney Professor of Jurisprudence at Amherst College, and a fellow of the Ethics & Public Policy Center (pro-homosexual)

I know that Jonathan Rauch would not take for himself the role of Slick Willie, or start offering us deals that hinge on what the meaning of the word “is” is. And yet, what would we make of his recent comeback in the exchange over gay marriage and federalism? I have charged him, in that exchange, with feigning a devotion to federalism while he would leave it in the power of activist judges in the states to impose gay marriage under the pretext of their own constitutions. At the same time, his friends have been busy litigating in federal courts to override the laws on marriage in the states. Rauch conceded that a constitutional amendment could be apt and warranted, and I invited him then to take an additional step: He “could add to his amendment a denial that anything in the constitutions of the separate states may be construed to require same-sex marriage. If he took that step, we might indeed have the grounds for a settlement.” But when he took that step, I said, he would have backed into the text of the Federal Marriage Amendment.

Rauch affected to take me up on the invitation by making this counter-offer as an amendment: “Nothing in this or any state’s Constitution shall require any state to recognize as a marriage any union but that of a man and a woman.” To see the sleight of hand at work, one has to compare this formulation with the language already contained in the Marriage Amendment: “Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” The amendment explicitly bars any officer of the law from construing the constitution of a state to require, and therefore, impose same-sex marriage. Rauch, with a trick of the eye, adopts part of the language, but he still leaves the judges free to decide that the local Constitution “permits” gay marriage. From there, it is a short step to the conclusion that the legislature must make it clear that the laws are indeed open to this possibility, by altering the traditional laws of marriage, which now preclude this wholesome novelty.

But why the sleight of hand? If Rauch truly accepted our argument that the decision ought to be left in the hands of the voters in the separate states, he could simply have accepted the language of the amendment. The only rationale for resisting that language was that in fact he refused to join us in barring the judges from changing the laws on their own. Yet, in that case, why would he feign to offer a compromise that pretends to meet our concerns, while not meeting them at all? The gesture requires an added measure of chutzpah when, in the same essay, he makes clear that he is indeed determined to do nothing to restrict the role of the judges here. As Rauch puts it:

I may not have liked what Vermont’s judges did, but the question is whether Vermont should be allowed to have a system in which the judges could do it. If the answer is no, then people outside Vermont could wind up deciding how many chambers the state legislature should have, whether state judges are elected or appointed, how often the board of prisons should meet — you name it.

Jonathan Rauch is well versed in the Constitution, and he knows quite well that, under the Constitution, it has indeed been legitimate and necessary to put restraints on the power of judges. In the 1930’s, liberals led the move to restrict the power of federal judges to intervene in disputes with unions, and make ready use of injunctions to break the backs of strikes. That legislation sprung from the power of Congress, under the Constitution, to alter the jurisdiction of the federal courts — and even determine whether there will be lower federal courts in the first place. If a state used devices to bar blacks from being selected as judges, Rauch knows that there would indeed be a move into federal court and a willingness to interfere with the authority of the state to arrange the selection of its own judges. If we think that there is a distinct danger right now of judges misusing their authority to reshape the very matrix of our laws on marriage and the family, there is nothing in the Constitution or the federal structure that bars us from dealing with that danger. We can deal with it while leaving quite unimpaired the authority of the states to determine the number of houses in their legislatures or whether their judges are elected or appointed.

Rauch raises the question of whether my own side is feigning: We profess our willingness to take our chances with the electorate, while at the same time we are seeking to establish, in the fundamental law, the essential meaning of marriage as the union only of a man and a woman.

We are not seeking local options, or the varieties of federalism, on that sovereign point. After all, when we speak of amending the Constitution, or fixing the terms of the fundamental law, the purpose is to secure something of substance, beyond the shifts and vagaries of local politics. But Rauch, with his criticism, misses a couple of critical points that run to the heart of things.

He curiously overlooks the fact that, in moving into the arena with a constitutional amendment, we are indeed taking our chances with the electorate. In order to succeed, we need to persuade two-thirds of the Congress and the people in three quarters of the states. Rauch’s friends, in contrast, hope to accomplish their own ends by recruiting to their side about a dozen judges. Still, Rauch would charge us with being insincere friends of federalism because we would actually seek a policy of securing the substance of marriage. He would counsel to be neutral or detached on the things that are chosen in the separate states, and to affirm instead the importance of leaving the states free to make their own choices. That is an ancient lure, and by this time in the seasons of our experience, we should know what is wrong with it. Consider the form of the argument stated differently: “You think that it is wrong to burn widows on the funeral pyres of their husbands. We think it is a matter of private choice. Therefore, let us have a ‘neutral’ rule: If people think it wrong, let them refrain from doing it; but if they think it right, they should be free to honor their own judgments. Let us be, then, ‘pro-choice.’”

But of course, there is nothing the least “neutral” in this arrangement. It merely installs the premises of one side, the side that insists that there is no moral right and wrong here that can override anyone’s personal choice. When Jonathan Rauch asks us to join him in a neutral rule of federalism, he does not ask us merely to accept a set of procedures. He asks us to accept a policy that installs his own premises; an arrangement that virtually gives the victory to his side. To put it another way, his notion of federalism is that the states are free to decide, within a framework built upon the notion that no form of marriage is more rightful than another.

As Rauch knows, there is a continuing argument, even among conservative friends, as to whether the Amendment could do more to ban domestic partnerships and civil unions under various names. But the authority to devise those alternatives does not spring from anything in the Amendment. It finds its source in the legislative powers of the states themselves, and there may be no practicable way of removing that power to invent all kinds of new names for alliances that look like marriage. We have said, however, that we are willing to face that question, and make the argument, state-by-state, in defending marriage. What we are not willing to do is enter into a scheme of local options, or a false federalism, that begins from the premise that we leave the decision to the states because there is no truth to declare, no sense of right and wrong that finally commands our judgment. The Marriage Amendment contemplates an active politics in the states, but it begins with the proposition that “Marriage in the United States shall consist only of the union of a man and a woman.” That is the central point of substance that we seek to plant in the law. That is the step that Jonathan Rauch is determined to resist, and no verbal formulas can finally cover over, or get around, that decisive point.

What Rauch seems to ignore is that a federal structure is the structure, nevertheless, of an integrated polity. As the Supreme Court itself suggested, the prospect of wives being burned on funeral pyres could not be permitted by the civil law even if it were taking place under the auspices or religion — or even if the practice were confined to one state. The Court made this argument in the course of explaining why the federal government was justified in repressing polygamy even though this novelty in the laws of marriage was confined to Utah. Somehow there seemed to be an awareness in the country that the effects of polygamy could not be confined in that way. Once it were admitted into the laws of the United states, the federal constitution would make it hard to cabin that practice in one or two states. Jonathan Rauch knows himself that, on anything he regards truly as a wrong, he would not waive his objection if the wrong were confined to one state. He would not find human sacrifice something he could tolerate if it took place only in New Jersey. And on the other side, if he thought he had a rightful freedom to enter into a marriage with another man, he would not think much of that franchise if he lost it when he crossed the border into another state. It is illusory to think that the gay activists would settle for that arrangement, even if Jonathan Rauch would. But if gay marriage is installed in any state, how could there not be seepage if we adopted Rauch’s premise and said, “We are farming these decisions out to local choice precisely because there are no rightful and wrongful notions of marriage that deserve to be enforced in the laws.” To accept a premise of that kind is not to firm up marriage in the states that hold back from adopting same-sex marriage. It is to plant, rather, the premises that would surely undermine the institution of marriage by eroding the convictions that sustain the idea of marriage as a distinct, intrinsic good. As Maggie Gallagher has remarked, it is not free love, but the marriage vow, that is daring. We are at the edge of a grave, flippant mistake if we discount how easy it may be to undercut conventions long established simply by switching from veneration to mild scoffing; by suggesting that the vow has become implausible because, in the end, no form of marriage is more rightful than another.

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It’s a Sin: One of the weaknesses of the current campaign for the FMA (NRO, 010815)

By Robert H. Knight, director, Culture and Family Institute, an affiliate of Concerned Women for America.

I appreciate Stanley Kurtz’s kind words and also his candor. He acknowledges that he does “not personally view homosexuality as sinful,” and endorses “some of the sexual loosening that has emerged in the wake of the Sixties.”

This helps explain why an intelligent, articulate writer like Mr. Kurtz can shrug at the homosexual agenda in all but marriage. If you don’t see anything wrong with two men or two women having sex, you can’t object much to sexual license, including the homosexual variety.

The sexual revolution, which began in earnest with Alfred Kinsey’s fraudulent sex studies in the late Forties, is about much more than sex. It’s about rejecting natural law (created by God) and substituting the relativistic concept that sin is a matter of individual taste.

I am puzzled as to how America has benefited from the “loosening” of sexual mores. Marriage has been cheapened, divorce is rampant, and then there is the floodtide of promiscuity and pornography and the sexualization of children. Government has exploded, largely to pick up the pieces from the sexual “loosening.” The biggest victims have been among the poor, where marriage has virtually collapsed.

In the 1950s, health authorities contended with syphilis and gonorrhea. Now they deal with more than 25 sexually transmitted diseases, including the incurable AIDS, herpes, chlamydia, and Human Papillomavirus (HPV — the primary cause of cervical cancer). All too many of the patients in STD and abortion clinics are 14 years old.

Mr. Kurtz says he would not want to go back to the “system of the Fifties.” For all its flaws, that decade had a marriage-centered culture that discouraged homosexuality, kept the historical ban on abortion, and maintained social stigmas for sex outside marriage. This is the rational and workable alternative, not some extreme, utopian position. In fact, it is the only thing that has worked over the centuries in all successful cultures. Sexual morality was not invented in the 1950s by prudes. It is the heartbeat of family life, without which we will not remain a self-governing people.

Sanctioning homosexual behavior is not the “muddled middle ground.” If homosexual behavior is not one of the “more extreme expressions of the sixties,” then what is? Homosexual pressure groups say they just want to live and let live, but they are trying to fashion a system that brooks no dissent. Mr. Kurtz’s assurance that “strong and conservative religious communities” can exist outside his “moderate middle ground” sounds a bit like authorizing Indian reservations for the devout.

Mr. Kurtz has done an admirable job taking apart Jonathan Rauch’s case for “gay marriage,” but he still shares a foundational, faulty premise: There is nothing wrong with homosexuality.

Once you abandon morality, you must rely solely on utilitarian arguments. This is one of the weaknesses of the current campaign for the Federal Marriage Amendment: Its defenders have purposely avoided making moral arguments. No constitutional amendment campaign can succeed without a great moral principle driving it. Curbing judicial power is appealing, to be sure, but it is not enough to motivate the mass movement necessary to generate success. Nobody goes into the trenches to preserve a “national debate.” Just because homosexual pressure groups are attacking the proposal with vehemence does not mean it is the best vehicle. They react with outrage at any resistance to their agenda.

Mr. Kurtz, as well as Robert Bork in his recent Wall Street Journal column, argues eloquently as to why the very adoption of a constitutional amendment ends any concerns over unconstitutionality.

Likewise, both would probably argue that the federal ban on slavery is not an infringement on states’ rights, since slavery violates the “unalienable rights” guaranteed by the Constitution (not to mention our Creator). The authors of the 13th Amendment added the phrase “involuntary servitude” to the ban on slavery, lest anyone get ideas about practicing slaveholding in all but name. Similarly, there is no “right” to create counterfeit marriage by other means, whether through a legislature or a court decision. Demolishing natural law is already forbidden under our Constitution. Americans have an unalienable right to live where marriage is preserved and protected.

As for Mr. Kurtz’s fear that a stronger amendment would strip the states of “constitutionally delegated authority over a whole range of family law matters,” that is a red herring that could be applied as well to the Federal Marriage Amendment. The states would retain their traditional authority to set requirements for marriage licenses, such as age and residency. They just could not create counterfeits.

Mr. Kurtz says that because the Founders did not mention marriage in the Constitution, my quarrel is with them, not with the Federal Marriage Amendment. But I think I would be in good company with the Founders on this. Imagine Mr. Kurtz, on the other hand, trying to persuade James Madison, Thomas Jefferson, George Washington and John Adams that states should have the right to create counterfeit marriage. These men would be appalled that the sodomy laws are no longer on the books in many of the original states. They’d glance at the AIDS epidemic and ask: “Are you people mad?”

Homosexual strategists understand that civil unions will eventually doom marriage. New York Blade Executive Editor Chris Crain noted on August 3 that because many straight couples are signing up for partner benefits, thus creating competition for marriage: “…a popular and easier alternative is increasingly available. There’s your threat to traditional marriage. … It is ironic that the short-term resistance from some quarters to recognition of gay marriage has contributed significantly to the very harm that our foes fear the most-the piecemeal destruction of traditional marriage.”

Mr. Crain is right. Anything short of an amendment protecting marriage and its benefits from tampering will not only fail to do the job; it will invite counterfeits.

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Marriage’s Best Chance (NRO, 010816)

Robert Knight and I are not as far apart as he seems to think.

Mr. Kurtz is also a fellow at the Hudson Institute

In, “It’s a Sin,” his reply to my earlier piece, “Middle Ground,” Robert Knight makes a telling error.

Although Mr. Knight claims that I “shrug at the homosexual agenda in all but marriage,” readers of National Review Online know better. I have vigorously, repeatedly, and publicly opposed Vermont’s civil-unions law, and most other reforms sought by gay-rights activists. Two of my pieces of special importance in this regard are “The Problem With Equivalence,” and “The Ashcroft-Logger Alliance.” While my position may not be that of Mr. Knight, in the latter piece, I clearly state that, with only a very few exceptions, we ought to firmly defend, not simply marriage, but the whole range of our current legal and institutional arrangements regarding homosexuality.

Knight’s mistake is important because it says something crucial about his attitude toward the Federal Marriage Amendment. Knight seems to assume that because the Federal Marriage Amendment does not explicitly forbid, say, Vermont-style civil unions, the amendment or its supporters actually endorse these innovations. But that is in no way the case. It is entirely possible to support the Federal Marriage Amendment while also energetically opposing civil unions.

The important point is that an amendment containing a blanket prohibition of even limited domestic-partnership benefits stands absolutely no chance of passage. An observation which Mr. Knight does nothing to rebut. So Knight will maintain his admirable consistency, yet come up empty handed. The result will be court-imposed national gay marriage. Will such an outcome advance or retard Mr. Knight’s stated goal of a return to the moral system of the fifties? The Founders created a system that allowed the people to pass laws that the Founders themselves may or may not have approved of. That is democracy. We must work within the realities of the political present. That is something the Founders would have understood very well.

Nothing in the Federal Marriage Amendment forces state legislatures to pass domestic-partnership laws. Conservatives have every opportunity to oppose such laws in their own states. If the battle to stop such laws cannot be won at the state level, it cannot be won at all. That is Mr. Knight’s fundamental error. There is a difference between fantasizing about an amendment that will accomplish all of one’s goals, and actually passing it. The only viable way for Mr. Knight to achieve his own stated ends is to combine support for the Federal Marriage Amendment with successful state-by-state campaigns to block domestic partnership benefits. That will be difficult enough for him to achieve. But passage of a federal amendment to his liking will simply never happen, and in holding out for that, Mr. Knight will lose all — locking into place the new moral system that he says he abhors.

While it is true that I do not work within Mr. Knight’s religious framework, it is not at all true that my stance lacks a moral dimension. I am deeply concerned for social and family stability precisely because I see such stability as a moral imperative. By the same token, the religious understanding of the family contains profound sociological insights. We are not as far apart as Mr. Knight seems to think. And that is why it is all the more important that we join forces in backing the Federal Marriage Amendment, the best and most realistic chance we have to preserve and protect traditional marriage

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What Is Wrong with Gay Marriage (NRO, 020900)

Author/s: Stanley N. Kurtz

A CLEAR majority of the American public opposes same-sex marriage, a social reform already making headway in a number of states. And yet this opposition, though real, is by and large silent. Just prior to the close vote on “civil unions” in the Vermont state assembly this past April, a number of anguished legislators pleaded for more time. Our society, they said, had only begun to consider the full implications of same-sex marriage; how could they be expected to make so fateful a decision in the absence of informed and substantive discussion? But the vote was taken anyway; the Vermont measure has passed into law; and still the hoped-for discussion has failed to materialize.

So striking is this general silence that one cannot help wondering about the reasons for it. They are not far to seek. In April, just after Reform rabbis had been authorized by their movement to conduct same-sex wedding ceremonies, and as Methodists, Presbyterians, and Episcopalians were debating whether to do likewise, a story appeared in the New York Times about three respected and moderately liberal Protestant theologians known to be opposed to such a move who had been invited to air their views on television. All three had declined to appear, and on more or less the same grounds: fear of being publicly smeared as “homophobic.”

In a democracy, Tocqueville warned, the threat of social ostracism can be too easily turned against minority viewpoints. How curious, then, to see it being deployed so effectively today against the majority. True, even a relatively small group of deeply committed partisans can always impose certain costs on its adversaries, and the cause of same-sex marriage is certainly one to which gay activists and their allies are deeply committed. True, too, the positions espoused by these activists are generally supported by the American cultural elite, including the mainstream media, which exercise a powerful censoring role of their own. But one also senses that the silencing of the majority would never have been possible were the majority itself more certain of its ground.

Although most Americans are indeed opposed to the legalization of same-sex marriage, large numbers of these same Americans do not consider homosexuality itself a sin, and they welcome greater tolerance for homosexuals. Favoring equality, they do not wish to see anyone denied his rights. It is the seeming ambiguity in this position that has been seized upon by activists to stigmatize any opposition to same-sex marriage as evidence of homophobia, or prejudice against homosexuals per se. But a hirer way of putting it would be to say that we have allowed a muddled understanding of democracy to subvert our capacity to speak on behalf of those human forms and traditions upon which democracy itself crucially depends.

NOT THAT the arguments in favor of same-sex marriage are themselves models of clarity. Quite the contrary: they have shifted with the moment, and with their proponents’ sense of political expediency.

Perhaps the most articulate of these proponents is the British-born Andrew Sullivan, who just over a decade ago launched his campaign for same-sex marriage in the pages of the New Republic, the magazine of which he was then the editor. True to his self-description as a conservative, Sullivan put forward a conservative argument. Marriage, he proclaimed, is an institution worthy of preservation, and society is correct to extend legal advantages to couples who choose to live under its formal sanction. For marriage provides a counterbalance to sexual adventurism, especially male sexual adventurism, and thus serves to encourage the socially beneficial ends of emotional stability, economic security, and a healthy environment in which to rear the next generation. But precisely for that reason, Sullivan concluded, the legal benefits of marriage ought to be extended to gays as well, who if anything stand in even greater need of its ameliorating spirit than do heterosexuals, and who could contribute most to society if brought under the healing embrace of bourgeois respectability.

Would homosexuals actually choose to marry? Sullivan, after all, was speaking of a community--his own community--that has put a premium on sexual promiscuity, as well as on rebellion against everything subsumed under the word “proper.” Not to worry, he reassured his readers: while some gay activists and a number of aging radicals might cling to an outdated notion of homosexuals as the quintessential outsiders, in the community as a whole the impulse to rebel was giving way to the impulse to belong. Indeed, his “guess” was that, if only the straight world would accept them, many would happily wed--and they might well prove to be more committed marriage partners than heterosexuals themselves. At the very least, by turning marriage into a shared institution, America could heal the gay/straight rift, make headway against the scourge of AIDS, and ensure that a restless and endangered class of citizens would be happier, more productive, and better cared for.

Several years later, Sullivan fleshed out this argument in a book, Virtually Normal, which garnered generally enthusiastic reviews. It also attracted at least two vigorous counterresponses: one by James Q. Wilson in COMMENTARY (“Against Homosexual Marriage,” March 1996) and a shorter piece by William J. Bennett in Newsweek. Bennett raised the interesting possibility that Sullivan’s “guess” might prove wrong--that legalized marriage would not in fact domesticate gays but rather the reverse: that an often openly and even proudly promiscuous population would fatally undermine an already weakened institution by breaking the bond between marriage and the principle of monogamy. Besides, Bennett asked, once we arbitrarily redefine marriage to take in couples of the same sex, what would be the stopping point? Why not legalize polygamy, even incest?

This last point Sullivan himself was, in turn, quick to disparage as irrational fear-mongering, likening it to the disaster scenarios trotted out decades earlier during the debate over interracial marriage. “To the best of my knowledge,” he scoffed in reply to Bennett, “there is no polygamist’s rights organization poised to exploit same-sex marriage and return the republic to polygamous abandon.”

But at the same time, Sullivan was already beginning subtly to shift ground. In the case of heterosexuals, he complained in his response to Bennett, we have never been in the habit of making “nitpicking assessments of who deserves the right to marry and who does not” (emphasis added); why do so in the case of homosexuals? This was a portent of things to come. From urging that the benefits of marriage be extended to gays as a matter of society’s own self-interest--that is, in order to tame an antinomian force by, in effect, co-opting it--Sullivan and others soon began to build a case for gay marriage on the basis of human and civil rights.

Gone now was the earnest contention that marriage both solemnized and reinforced a worthy moral code. Gone, too, was any serious effort to show that gays, if allowed to marry, would adopt that code. In “State of the Union,” a piece published in the New Republic earlier this year in the wake of the Vermont legislature’s action, Sullivan conceded in one breath that many gay men had no interest in marriage with its expectations of fidelity, while insisting in the next that even if they did marry, the impact on the institution as a whole, given the tiny percentage of homosexuals in the population, would be negligible. But all that was beside the point, which was one of principle: in a free society, Sullivan declared, we allow anyone to marry who so wishes. And although we naturally hope for the best from all those marriages, the actual outcome is irrelevant; marriage itself is an elementary right, and to deny it to anyone, not only in substance but in name (by adopting such halfway measures as domestic partnerships or civil unions), is a species of discrimination, pure and simple.

Thus the “debate” so far. To judge by the silence on the other side, the proponents of same-sex marriage would seem to have won hands down, no matter which argument they happen to base themselves on at any given moment. In instructing the state legislature last December to authorize either same-sex marriage or, as the closest thing to it, civil unions, Vermont’s supreme court unabashedly invoked what it called a “recognition of our common humanity” as the ground for its decision. “Our common humanity”: who could be so retrograde, or so callous, as to say no to that?

BUT THE fact is that our common humanity has nothing to do with the case. After all, we recognize a common humanity with all sorts of people, some of them even criminals, to whom we would not consider extending many of the normal benefits of society. As a social and legal institution, marriage exists not because it is a universal right but only because, historically, certain human communities have decided that this particular form of personal alliance between a man and a woman both needs and deserves societal encouragement. In fact, a rights-based argument, if it were honest, would reject this social favoritism altogether, calling instead for the abolition of state-sponsored marriage and, perhaps, its replacement by contracts in which personal alliances of any kind would be arranged solely by the parties concerned, in whatever number or gender, and with whatever associated responsibilities, they saw fit to stipulate.

Of course, advocates of same-sex marriage do not (generally) espouse so radical a position. But neither do they concede what is manifestly the case: that they already have the same legal right to marry as everybody else--to marry, that is, members of the opposite sex. What they claim instead is a new right: the right to reconfigure the conditions of marriage in such a way as to change its very definition, while denying they are doing any such thing. And this right to reconfigure marriage in favor of gays is indeed tantamount, just as Bennett warned, to a right to reconfigure it in favor of polygamists, or pederasts, or practitioners of incest--do we not share a common humanity with each of them?--and thus, in effect, to eliminate heterosexual monogamous marriage as a legal and, ultimately, a social category. As we shall see, at least some advocates of same-sex marriage are frank enough to say so.

What we are thrown back on, in other words, are the fundamental questions of what marriage is, and what it is for. It was the answers to these questions that gave rise to the determination in the West to give a privileged status to monogamous heterosexual unions in the first place, and even though those millennia-old answers may have been momentarily forgotten, or have fallen into disrepute, they remain as sound and as compelling as ever.

IN A great many non-Western cultures, polygamy and polyandry (a marriage of one woman and several men) have long existed; it is even possible that the great majority of human societies throughout history have allowed polygamy even if most did not practice it. By contrast, monogamous heterosexual marriage arose for specific reasons, of which the more venerable has to do with the complementarity of the sexes and the more recent with the fundamental liberal belief in the primacy of the individual. If we begin with the second of these, that is only because it is the less controversial.

Societies that practice polygamy tend to be built around life within groups, where the rights of the individual are subordinated to the honor and fate of the clan or joint family. Marriages in such societies are undertaken not so much to join forever with a distinctive beloved but first and foremost to further alliances between families and clans, and the children of these marriages are raised less by their parents alone than by some larger association of kin. Hillary Clinton’s favorite proverb, “It takes a village to raise a child,” is meaningful in just these sorts of settings, which may indeed be stable, and which are certainly complex, but where the chief source of authority is not the individual but the group.

That our own society is rather different hardly needs to be demonstrated. In the modern period, families in the West are for the most part based not on large associations of kin with whom we live cheek by jowl but rather on deeply personal ties established over time between two unique individuals. These emotionally intimate ties are the fundamental glue of Western marriage, which is monogamous not only because it represents the free choice of autonomous persons but because anything other than monogamy would fatally undercut the primacy of the individual and force us back either into social chaos or into the straitjacket of large, rule-bound groups.

To be sure, individualism like every other form of human expression can be carried to excess, and in ways that promote its own subversion. The same regard for our individual uniqueness that pushes in favor of romantic love can, if unbridled by other considerations, make us chafe at any restrictions whatsoever on our freedom, enticing us to believe that we can have whomsoever we desire, whenever it strikes our fancy, and no matter what prior obligations we may have undertaken to any one person. “The heart wants what it wants,” said Woody Allen famously, at a moment when he was upending his own family arrangements dramatically. But that too is precisely why society has stepped in to reinforce, through the legalized institution of marriage, the notion of committed romantic love: that is, the side of individualism that draws men and women together rather than the side that pulls them restlessly apart. Its interest in doing so goes beyond the stake every society has in settled order; the fact is that the continuity of these two-person bonds is, once again, all that stands between our children and chaos.

What, one may ask, does this have to do with homosexuality? After all, as proponents of same-sex marriage remind us, gay couples can be drawn together by romantic love, and stay together, too. And at least some homosexual couples have children as well--through adoption or artificial insemination, or from previous marriages. Not only that, but nobody bars heterosexual couples who are sterile or childless from getting or staying married. Maybe there is good reason for marriage to be monogamous; does that mean it also has to be exclusively heterosexual?

BUT THAT brings us to the complementarity of the sexes, a concept so politically incorrect that even to mention it these days is to invite ridicule. For if it implies anything, the complementarity of the sexes implies that men and women are different--and that, where the formation of families and the rearing of children are concerned, heterosexual parents are and should be preferred to homosexual parents: two ideas that are anathema to radical feminists and gay activists alike. Nevertheless, whether it is a biologically based fact or a cultural artifact, or both, the complementarity of the sexes is real, and it is not about to disappear. And a good thing, too, since the stability of marriage depends on it.

In speaking of the complementarity of the sexes, I do not have in mind the old “division of the spheres”--the doctrine that, to put it crudely, men’s natural place is to occupy themselves with labor outside the home while women’s natural bent is to care for hearth and children. But neither is that idea to be lightly disparaged. True, increasing numbers of women work outside the home these days, and their access to prestigious and highly remunerative jobs is approaching that of men. But when it comes to sex and marriage, the old patterns, the old attitudes, and the old instincts stubbornly refuse to lie down and die. The woman who pulls down a six-figure salary still waits for a man to call for a date, and the woman who comfortably commands men at the office still waits for a man to hold the door open for her. In our fantasies and in the details of our intimate lives, as in our popular songs, the complementarity of the sexes lives on, and will not be eradicated.

This complementarity is absolutely crucial for married life. To Andrew Sullivan, it is the institution of marriage itself that “domesticates” men. But he has it wrong, or at best half-right: it is women who domesticate men. This is hardly to say that women themselves are never promiscuous; it is to say, rather, that what characteristically leads a man to abandon the quest for sexual conquest and, as the phrase has it, settle down and raise a family is the companionship and (yes) the possession of a beloved woman. Upon this basic dynamic of sexual coupling, society puts its imprimatur in the form of legalized marriage and, at least until recently, has also put its sanctions in the laws regulating divorce, laws that were typically much harder on men as the “naturally” promiscuous partners than on women.

There is still another aspect to the complementarity of the sexes that might be mentioned in this context, and that is hierarchy. If a man’s proprietary interest in wife and family--his sense of possession and responsibility--is what both induces and permits him to give up the restless search for sexual conquest, the maintenance of this interest depends on, at a minimum, the tokens of entitlement suggested (again, however risibly to feminists and others) by the image of a home as a castle and the father and husband as its king. Of course, everyone knows and has always known that this kingship is more often symbolic than real: a rough sort of equality has always lain hidden under the idea of heterosexual hierarchy, and the question of who is the conqueror and who the conquered as between men and women is one of the oldest themes of high literature and folk humor alike. There is plenty of winning and losing all around.

But, to put it plainly, what the Promise Keepers have the audacity to say out loud about a man’s authority within the marriage bond remains, in subtler form, the formula of heterosexual marital success. The mere fact that, to the abiding frustration of feminists, 90 percent of married American women still take their husbands’ surnames, while only 2 percent retain their maiden names alone, is powerful testimony to the enduring relevance of this ageless and complex drama of pursuit and possession by means of which individual men and women complete and “own” one another exclusively.

IN SUM, to suppose that legally conferring the word “marriage” on the union of two gay men will somehow magically domesticate them both is to indulge in fantasy; only sexual complementarity can do that. The state can reinforce the effect, but it cannot create it out of whole cloth.

In saying all this, I am merely reiterating something that heterosexual men and women have always known. More significantly, it is something that at least one segment of the homosexual community has been similarly frank to affirm: the segment, that is, that acknowledges the difference between heterosexuality and homosexuality. In contrast to moderates and “conservatives” like Andrew Sullivan, who consistently play down that difference in order to promote their vision of gays as monogamists-in-the-making, radical gays have argued--more knowledgeably, more powerfully, and more vocally than any opponent of same-sex marriage would dare to do--that homosexuality, and particularly male homosexuality, is by its very nature incompatible with the norms of traditional monogamous marriage.

Such people are represented most prominently in the trendy academic discipline known as “queer theory.” Some of them simply scoff at the idea of same-sex marriage as a contradiction in terms, and will have nothing to do with it. But for others, the prospect of legalizing same-sex marriage is in fact quite attractive--because, in making a mockery of the forms and traditions of monogamous unions, it holds out the promise of eventually undoing the institution altogether.

Take, for instance, Gretchen Stiers, a lesbian theorist and advocate of gay marriage: “Two women or two men who marry subvert the belief that women and men take on separate but complementary roles with marriage and overtly resist the notion that marriage functions to support specifically defined gender roles.” Indeed, in her recent book, From This Day Forward, the best study to date of gay and lesbian attitudes on these matters, Stiers shows that many homosexuals who disdain the idea of conventional marriage or even “commitment ceremonies” would nonetheless marry for the “bennies”--that is, the legal and financial benefits involved (such as shared health insurance). Far from reinforcing the marriage ideal, then, these couples would in effect be putting into practice the program of cultural “resistance and subversion” that she and other queer theorists favor.

Or take Michael Bronski, another radical advocate of same-sex marriage for whom “homophobia” is hardly an irrational prejudice but a “completely rational fear.” After all, writes Bronski, homosexuality posits “a sexuality that is justified by pleasure alone” and that is “completely divorced from the burden of reproduction”; as such, it “strikes at the heart of the organization of Western culture and societies,” destabilizing both monogamous marriage and the role of two sexually complementary parents within the nuclear family.

Nor does one have to look only to the radicals for a recognition of the subversive potential of gay marriage. William Eskridge, who like Andrew Sullivan lauds its power to tame and civilize promiscuous gay men, also frankly hopes that the institutionalization of same-sex marriage will in turn encourage a greater experimentation with all family forms. Gay marriages are bound to be more “fluid,” in Eskridge’s term, not so much because homosexual men will be less constrained by notions of fidelity but because, where children are concerned, sperm donors and others will be incorporated into “novel family configurations.” Thanks to the example set by these “configurations,” we can look forward to all sorts of beneficial changes in the structure of Western marriage.

From this perspective, in short, gay marriage represents but a critical first step toward the legitimation of multipartner marriages and then, perhaps, the eventual elimination of state-sanctioned marriage as we have known it. Once gay male couples with open sexual relationships or lesbian couples with de-facto families are legally married, the way will be open to even more imaginative combinations. On what grounds, for instance, could the sperm donor and aging rock star David Crosby be denied the right to join in matrimony with both the lesbian rock singer Melissa Etheridge and her lover Julie Cypher, the “mothers” of his child?

ENTER, NOW, polygamy, an idea so outrageously offensive to Andrew Sullivan that he held William J. Bennett up to scorn for raising it a few short years ago. But those same years, as it happens, have seen the rise of a movement, known delicately as “polyamory,” many of whose proponents are indeed “poised,” in Sullivan’s derisive words, “to exploit same-sex marriage and return the republic to polygamous abandon.”

Although exact numbers are hard to come by, and one does not wish to exaggerate, one measure of the growth of the polyamorist idea is the jump in Web-based support groups from three to upward of 250. A polyamorist organization, Loving More, now holds two conferences a year, and a magazine under the same name claims a circulation of 10,000 and growing. The movement even boasts a cause celebre in the case of April Divilbiss, a woman living openly with two “husbands” whose “immoral life-style” resulted in a court’s awarding custody of her child to a grandparent. A defense fund has been set up for her, and the case has attracted the usual media attention, figuring centrally, for example, in the full-page article Time magazine devoted to the polyamorist movement last year.

The most common form of polyamory is “couple-centered,” essentially an updated version of that ill-fated experiment of the 70’s, the “open marriage.” Couples attend sex parties together or meet prospective partners through ads or Internet chat rooms. Some prefer three-way sex, while others have sex only with other couples; some insist on the presence of their “spouse,” while others permit one partner to go off on his or her own, on condition that no emotional involvement will ensue. (Of course, exactly as in open marriage, these outside relationships frequently lead, inside, to jealousy and breakup.) Although polyamorist couples are predominantly heterosexual, homosexuals are involved as well.

In addition to the couple-centered kind, which is perhaps familiar enough, there are two more innovative forms of polyamorous relationship: so-called group marriages, and networks of sexual connection that are even more open and “fluid” (to use William Eskridge’s word). Group marriages can consist of anywhere between three and six adults who live together, sharing finances, children, and household responsibilities. Every adult is expected to be in a sexual relationship with others in the group, and if bisexuals are involved they may have sex with both men and women. The groups themselves are usually closed, although new members can join if all the existing partners agree. In the still looser forms of “polyfidelity,” the group forms and re-forms according to shifting tastes and sexual orientations. Polyamory websites regularly describe multipartner sexual liaisons among gay, straight, and bisexual individuals.

Needless to say, the loss of autonomy and the high potential for conflict in all of these arrangements do not exactly make for stability, and (as in 60’s-style communes) one can well imagine that the fate of the children involved is particularly harsh. But that hardly deters the enthusiasts, who, spurred by the success of the gay-marriage movement, see legalized polyamory as the wave of the future. One such enthusiast, a de-facto polyamorist though she may never have heard the word, is the respected mainstream feminist Barbara Ehrenreich, who has forecast the rise of a whole variety of personal arrangements entered into voluntarily by consenting parties and protected by law. Although entry into and exit from these associations would be free, the marriage contract as we know it would be replaced by a parenting contract in which the parties agreed to provide in perpetuity for whatever offspring might emerge from their shifting liaisons; as for the children themselves, they could be raised in, for example, mixed-sex communes whose residents were both gay and straight.

Ehrenreich and the polyamorists are hardly unaware of the liabilities attendant upon their utopian schemes. Polyamory websites are filled with chatter about techniques for overcoming the effects of sexual jealousy, as, again and again, the seething passion for open-ended emotional exploration yields agonies of personal humiliation and betrayal, not to mention the smash-up of innocent children’s lives (which does in fact usually go unmentioned). But, bringing us full circle, the polyamorists also insist there must be a cure for this debility: if other cultures can do it, we can, too. After all, they point out helpfully, many Pacific Island societies have permitted multiple and shifting sexual unions, and the majority of non-Western cultures also feature complex networks of aunts, uncles, and other kin to nurture the children. Why not us?

Why not, indeed? For sheer amusement, it would almost be worth it to see how long a fiercely willful feminist like Barbara Ehrenreich would last in a real Pacific Island society, with its tightly bound groups of kin, its intricate rules of respect, its complex and often rigid hierarchies, and its constant demands for personal sacrifice. Indeed, it is tempting to laugh at all these laborious re-creations, whether in theory or in practice, of some of the most disastrous social experiments of the last 40 years. But they are even less laughable this time around than they were in the 1960’s and 70’s. For now, in the form of the movement for legalized gay marriage, the machinery of the state itself has, for the first time, been mobilized to sanction, bless, and protect those very same experiments.

ULTIMATELY, IT may be that what lies behind the demand for same-sex marriage, whether couched in conservative or in “civil-rights” terms, is a bid to erase entirely the stigma of homosexuality. That bid is utopian; as radical gays like Michael Bronski acknowledge, the stigma arises from the fundamental separation between homosexuality and reproduction, which is to say from the fundamental fact that the world is, for the overwhelming part, heterosexual. Nevertheless, in pursuit of this utopian end, we are being asked to transform, at unknown cost to ourselves and to future generations, the central institution of our society. And we are being admonished that to reject this demand is to repudiate our “common humanity” with those who are advancing it: that is, to repudiate them as persons.

That is simply not so. There is not the slightest evidence that either the civil status of homosexuals or the increased sympathy and respect they now enjoy in America will in the least suffer from a continued refusal to redefine marriage so as to include homosexual unions. The real danger, rather, lies in the opposite direction--in the emptying-out of every last vestige of meaning from an institution already under siege by the disintegrative sexual and social forces of the last decades. If ever there was a place to draw a line, this is it.

“What is distinctive about marriage,” wrote James Q. Wilson four years ago in COMMENTARY, “is that it is an institution created to sustain child-rearing.” The reason that role is “entrusted in principle to married heterosexual couples,” he added, is “because after much experimentation--several thousand years, more or less--we have found nothing else that works as well.” It would be hard to improve on Wilson’s quiet formulation of the case. Yet today, the war against this “institution created to sustain child-rearing”--that is, against marriage and the family--continues in force. Spearheaded by the campaign for same-sex unions, and under the reassuring but radically false guise of preserving marriage and the family, it is, in fact, intensifying. For that reason, among a host of others, it ought to be resisted--firmly, politely, but above all unashamedly.

STANLEY N. KURTZ, a new contributor, is an anthropologist and an adjunct senior fellow at the Hudson Institute. He is currently working on a book about feminism.

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The Coming Battle (NRO, 021126)

Gay marriage set to become an issue like never before.

This coming summer, the Massachusetts Supreme Judicial Court is likely to legalize gay marriage. If that happens, a convulsive national battle over gay marriage will break out — right in the middle of the next presidential-election season. The ultimate outcome of our coming national culture war over gay marriage will either be legal gay marriage throughout the United States, or passage of the Federal Marriage Amendment, which defines marriage as the union of one man and one woman. There will be no middle ground.

Last year, in “The Right Balance,” I explained why the institution of gay marriage in even a single state would quickly lead to a massive legal-political struggle to ban or nationalize the reform. As of now, a variety of mechanisms are in place that would seem to allow a state to deny recognition to a gay marriage performed elsewhere. The Defense of Marriage Act was passed in 1996 for this express purpose. Also, nearly three quarters of the states have passed laws or constitutional amendments defining marriage as the union of a man and a woman. And the “public policy exception” doctrine provides grounds on which a state can deny recognition to a gay marriage performed in another state.

Yet each of these mechanisms is vulnerable to challenge on constitutional, legal, or political grounds. The Full Faith and Credit Clause of the Constitution compels each state to recognize the public acts of all the others. While the clause does grant Congress the right to manage such recognition (thus apparently validating the Defense of Marriage Act — DOMA), there is no doubt that DOMA will be challenged on Full Faith and Credit grounds as soon as we have gay marriage in a single state. Powerful constitutional challenges to DOMA on Equal Protection Clause grounds will also be filed just as soon as gay marriage is legalized in a single state. Attempts to prevent recognition of gay marriage on grounds that a state has a right to declare a “public policy exception” are also highly vulnerable to legal and political pressure.

Above all, as I explained in “The Right Balance,” the nature of marriage, and of our federal system, make it exceedingly unlikely that the nation will be able to tolerate a situation in which people who are legally married in one state are considered unmarried in another.

So if gay marriage is legalized in Massachusetts this coming summer, several things will ensue. First, gay couples will flood into Massachusetts from across the country to get married. Returning to their home states, they will file a series of lawsuits at the state and federal levels seeking to compel recognition of the marriages performed in Massachusetts. The airwaves will be filled with tales of gay couples outraged by the fact that a simple drive across state lines invalidates their marriage.

All this will galvanize opponents of gay marriage. It will immediately become apparent that the extra-legislative decision of a few judges in Massachusetts threatens to impose gay marriage on the entire country. The only viable solution will be passage of the Federal Marriage Amendment, and the campaign for the FMA will immediately move into high gear.

Right now, hardly a politician in the country wants to talk about gay marriage. Liberals fear that favoring it will mark them as culturally radical. Conservatives fear that opposing it will label them as hard-hearted “homophobes.” Like abortion, politicians dread the gay-marriage issue because it cannot be easily compromised. Yet after Massachusetts acts, and the campaign for the Federal Marriage Amendment kicks into high gear, every politician in the country, and certainly every presidential candidate, will be forced to take a stand on gay marriage.

It’s difficult to say exactly how the gay-marriage issue will play out politically, but the likelihood is that it will help the Republicans. Substantive issues aside, a court-imposed national culture war over gay marriage would be the most powerful conceivable illustration of over-reach by liberal judges. Every Republican will begin his statement on gay marriage the same way: “Whatever you think about the rights and wrongs of this issue, this is a matter for the people of this country to decide through their elected representatives, not something that should be imposed on them by the courts.” The Republican case for the appointment of strict constructionists will never be stronger than during the next campaign.

The gay-marriage battle will accentuate the culturally based red/blue split in the electorate. On balance, though, this issue tilts against the Democrats. In 2000, the imposition of gay civil unions by the Vermont supreme court resulted in a Republican takeover of the house of representatives in a state that went overwhelmingly for Gore (and Nader). Blue-collar Reagan Democrats moved over to the Republicans in droves. (For more, see my “Florida? Try Vermont.” )

Once the gay-marriage issue is federalized, the same sort of shift is likely to harm the Democrats nationally. So even if opponents of gay marriage fail to muster the number of votes in Congress and state legislatures needed for passage of the Federal Marriage Amendment, this issue has the potential to decide the race for Congress and the presidency, and to color the image of both parties for many elections to come. With the Democrats meeting in Boston in 2004, the connection between the party and the state court that tried to impose gay marriage on the nation will be permanently cemented in the public mind.

By the way, the legal briefs filed in the Massachusetts court case argue that there is a “right to marriage” for same-sex couples under the U.S. Constitution. The briefs also argue that DOMA is unconstitutional. So this case is an unambiguous attempt to move beyond a single state and impose gay marriage on the nation as a whole. And while no one is going on the record, the scuttlebutt among court watchers in Massachusetts is that the Supreme Judicial Court is very likely to legalize gay marriage.

Right now, proponents treat the gay-marriage debate as a question of civil rights. But the real issue is what effect gay marriage will have on the institution of marriage itself. The media has so far suppressed that critical question (although, in the summer of 2001, we debated it extensively on NRO). Yet, if Massachusetts does legalize gay marriage, the national debate may change. Once the gay-marriage issue becomes both unavoidable and national, pundits and politicians opposed to the change will be forced to speak up, and the press will be forced to cover both sides. And just now, with the publication of Joined at the Heart, a book about the changing American family by Al and Tipper Gore, an opening to real debate on the issue of gay marriage and family stability has emerged.

Superficially, Joined at the Heart is a socially liberal, but nonetheless moderate and levelheaded book. The Gores do criticize conservative defenders of the traditional family, and they do argue that emerging family forms are generally to be welcomed. At the same time, the Gores are careful to worry about the high divorce rate and the high rate of single motherhood. For the most part, the book quotes liberal family experts, but a few conservatives are called on as well. All in all, the book gives an impression of carefully moderated and balanced social liberalism.

Yet the book’s central conceit is almost breathtakingly radical. By “joined at the heart,” the Gores mean that the family should no longer be defined by its “structural” characteristics, but only by emotional ties. Whatever the legal or biological facts of the matter, if a group of people love each other — if they are truly “joined at the heart” — then they are a family.

The Gore’s borrow this concept from a legal argument made by feminist Harvard law professor Martha Minow. Minow defended a woman who had been the lesbian partner of a woman who gave birth to a child through artificial insemination. The couple reared the child together, but broke up after two years, at which time the birth mother cut off visitation rights to her former partner. When that partner sued for visitation rights, Minow argued on her behalf that legal marriage and biological connection were less important to the definition of a family than emotional ties.

Wisely, the court ruled against Minow. To have done otherwise would have been a major step toward the elimination of any stable legal or social concept of marriage. Once legal marital status and biological connection can be set aside by a court on grounds of emotional connection, the notion of marriage itself is effectively mooted. At that point, anyone who claims emotional connection can gain court recognition as a de facto parent or marriage partner. Minow was careful to frame her notion of family as “any group of people” who care for each other. Obviously, under that definition, not only gay marriage, but polygamy and group marriage would gain de facto legal status.

Among other examples, the Gores use a couple named the Logans to illustrate creative and flexible family forms of the type they want to encourage. The Logans are a white gay male couple who adopted a child from a black HIV positive mother. (The child turned out to be HIV negative.) Since both men had fulltime jobs, they hired a nanny to care for their new son. The nanny, an Hispanic woman, was herself a single mother with two children, the second a mere three months old. The nanny found it difficult to support and care for that second child. When the nanny saw the loving and prosperous family she was working for, she asked the Logans to adopt her second child, which they immediately did (allowing her to visit it periodically, to this day).

The Gores find this story inspiring. Yet it’s possible to respect and empathize with the Logans, while still doubting that their story is a positive development. While the Bush administration is sponsoring programs that try to get poor women, like the Logan’s nanny, to wait until marriage to have children, the Gores are not attracted to traditionalist solutions. Instead, the Gores seem to be saying, “Have the child on your own. If it’s tough to raise him, you can always give him to a wealthy gay couple for adoption.” Of course, the Gores claim to be concerned about the rise of single parenthood, but it’s tough to see how the Logan family model will do anything but encourage it.

Gay marriage is interesting because couples can only parent through adoption or artificial insemination. The same is true for infertile heterosexual couples, of course, but gay marriage will radicalize the pattern in several ways. First, it will lead to a numerical proliferation of ties between married couples and third parties (like the Hispanic nanny). Second, it will change the idea of adoption or insemination from the status of “second best” to the status of first principle. Third, because gay marriage itself will fundamentally redefine marriage, it will open up marriage to yet more radical redefinitions. So at some point after gay marriage has been legalized, a gay couple, in partnership with a birth parent or inseminator, are likely to seek recognition as a collective “family.” (In fact, “polyamorists” already seek legal recognition for group marriage.) Under the Gore doctrine, such a family, being “joined at the heart,” ought to be recognized by the courts. The difficulty is, group marriages are unstable, and their very existence tends to undermine the social reinforcement currently offered to traditional married couples. Once marriage can mean anything, it will mean nothing.

The Gores don’t see this (although I’m sure Martha Minow does). In their formulation, any group of people who are “joined at the heart” ought to be informally considered a family, regardless of their formal legal status. That formula allows the Gores to sidestep direct advocacy of gay marriage. But by endorsing Minow, the Gores are really endorsing a system wherein the courts disregard formal marital status, effectively abolishing marriage, superceding the legislature, and setting up a system of infinitely flexible family forms with no commonly agreed upon rights or responsibilities. All such rights and responsibilities will be subject to legal wrangling, based only on subjective judicial judgments about the strength of emotional ties.

So underneath the Gores’ moderate liberalism lies a shocking radicalism, the full implications of which even they do not see. In general, political avoidance of the gay-marriage issue, combined with the false analogy to civil rights, has obscured the true effect that same-sex marriage will have on the institution of the family. Yet as soon as next summer, the gay-marriage issue may finally beak out into the open. At that point, the Republicans will have to call Al Gore and the Democrats on the radical and damaging implications of their social philosophy for the institutions of marriage and the family.

— Stanley Kurtz is a research fellow at the Hoover Institution at Stanford University.

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The gay-marriage debate continues (NRO, 021204)

It looks as though Andrew Sullivan and I are engaged in another one of our periodic exchanges on gay marriage. Let me continue my response to Sullivan’s posts on my column, “The Coming Battle.” Sullivan had two posts on the subject on Tuesday, December 3, and I responded only to the first. That’s because I was traveling Tuesday, and only noticed the first of his two posts as I quickly monitored the net from a Kinko’s. In his second post, Sullivan makes an analogy between the lifting of a ban on inter-racial marriages, and the legalization of gay marriage. I do not see these issues as analogous. Sexual-orientation matters to our social arrangements in a way that skin color does not, and should not.

Explicitly and implicitly, in virtually all of my pieces on gay marriage, I’ve argued against the notion that gay marriage is analogous to classic “civil-rights” issues. My original piece in the September 2000 issue of Commentary, “What is Wrong With Gay Marriage,” is a good place to turn to see why I think the issues are different. The problem with the civil-rights analogy also underlies the entire “Gay Marriage Debate” that we had on NRO last year. To give another example, have a look at “Gay in Hollywood,” where I argue directly, against Sullivan, that the gay-rights/civil-rights analogy is flawed.

I’ve noted that there are many ways in which the Massachusetts case threatens to impose gay marriage on the nation. Nationalization on “Equal Protection” grounds is even more likely than on “Full Faith and Credit” grounds. Sullivan claims it’s absurd to suggest that gay marriage in one state will mean gay marriage in all states. Yet in the very same blog he shows that the court nationalized a right to interracial marriage on “Equal Protection” grounds. While I do not believe that interracial marriage and gay marriage are legitimate analogues, it’s obvious that Sullivan and many others do see them as analogous. So by his own standards, Sullivan must believe that, on “Equal Protection” grounds, gay marriage in Massachusetts ought to mean gay marriage in the entire United States.

In general, I think that Andrew Sullivan contradicts himself on this issue. In some of his writings, Sullivan makes a “conservative” argument on gay marriage, eschewing talk of rights. Yet when pressed, Sullivan reverts to a rights-based case, arguing that the right of marriage (really the right to redefine marriage) is a fundamental civil right. The latter position has to commit him to the belief that gay marriage in Massachusetts ought to be generalized nationally on “Equal Protection” grounds. Yet when arguing against the Federal Marriage Amendment, Sullivan claims that nationalization is an impossibility.

Finally, I note that, while Andrew Sullivan has asked me to respond to a pointed question (as I have done), Sullivan himself has never responded to my arguments in either “The Right Balance,” (where I directly address his points on the federalism issue) in “Code of Honor,” (where I directly address many of his other substantive arguments for gay marriage) or in the Commentary piece, “What is Wrong With Gay Marriage,” (where I address the contradictions in his stance, as well as many of his substantive points.)

— Stanley Kurtz is a research fellow at the Hoover Institution at Stanford University.

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Gay-Marriage Endgames: Andrew Sullivan’s error (NRO, 021209)

Slowly but surely, Andrew Sullivan’s actual position on gay marriage and federalism enters into the light. On December 3 (inspired by Monty Python’s dead-parrot routine), this is how Sullivan characterized my warning that gay marriage in Massachusetts could be imposed on the whole country:

The notion that marriage in one state means marriage in every state is false. It is untrue. It is not rooted in fact. It is an unfact. It’s veracity is pushing up daisies. Next time you read or hear someone making such an argument, make a mental note that he or she is either ignorant or happy to lie to advance his or her political agenda.

Yet three days later, on December 6, under pressure of my argument in “Responding to Sullivan,” Sullivan let it be known that he himself hopes and believes that the Supreme Court might one day, under the equal-protection clause of the Constitution, impose gay marriage on the nation. In other words, after years of assuring conservatives that it is an impossibility, Sullivan now admits that court-imposed national gay marriage is not only a possibility, but something he favors! The parrot, it would seem, has risen.

Sullivan tries to cover over the significance of his admission by claiming that the Supreme Court won’t nationalize gay marriage until sometime in the far distant future. That assurance is utterly unreliable. Recall that the Court declined to force the Boy Scouts to admit homosexuals, by only a single vote. Trouble with the president’s war on terror, public impatience over an occupation of Iraq, or a serious economic downturn could easily bring a Democratic president and a more liberal Supreme Court. Under pressure from a massive media campaign on behalf of the hundreds — or thousands — of gay couples whose Massachusetts marriages will be unrecognized elsewhere, such a Court would almost certainly nationalize gay marriage. In fact, the monumental social battle that gay marriage in Massachusetts will surely set off might force even the current Court, however reluctantly, to nationalize gay marriage.

Sullivan claims that I have misled readers through a form of “bait and switch.” According to Sullivan, I initially argued that the Supreme Court would nationalize gay marriage through the Constitution’s full-faith-and-credit clause. But now, says Sullivan, confronted by his supposedly iron-clad legal evidence that gay marriage cannot be nationalized on such grounds, I have reverted to an argument based on the equal-protection clause.

Sullivan is flat-out wrong. He has either been negligent, or has boldly and blatantly ignored the plain language of my initial piece on this issue. I have not in any way changed my argument from full-faith-and-credit to equal-protection grounds. In “The Coming Battle,” I clearly stated that gay marriage could be nationalized on either full-faith-and-credit or equal-protection grounds. Here is a quote from that piece, “Powerful constitutional challenges to DOMA on equal-protection-clause grounds will also be filed just as soon as gay marriage is legalized in a single state.”

I call on Andrew Sullivan to acknowledge that his characterization of my argument in “The Coming Battle” is mistaken. I call on him to acknowledge that, in that piece, I did in fact argue that gay marriage could be nationalized on either full faith and credit or on equal protection grounds.

In all of his recent posts on this topic, Sullivan has simply ignored my clear invocation of the equal-protection issue in “The Coming Battle.” His tactic has been to pretend that I spoke of full-faith-and-credit alone, and then to confront my full-faith-and-credit argument with a law review article by Larry Kramer that supposedly proves that nationalized gay marriage on full-faith-and-credit grounds is impossible.

In point of fact, well over a year ago, in “The Right Balance,” I refuted Sullivan’s claim that the Larry Kramer law-review article proves that nationalized gay marriage on full-faith-and-credit grounds is an impossibility. Only last week I called on Sullivan to respond to my arguments in that piece, but he continues to pretend that I have somehow been scared into changing my views by an argument that I actually addressed and refuted over a year ago.

According to Sullivan, Professor Larry Kramer establishes that a legal principle called “the public policy exception” will enable any state to resist recognition of gay marriages performed in other states. With “the public policy exception” doctrine in hand, says Sullivan, the full-faith-and-credit route to nationalization supposedly poses no danger. But as I show in “The Right Balance,” Kramer himself believes that the public-policy exception doctrine is unconstitutional, and that it can and should be abolished. So the very protections that Sullivan points to are deemed to be unconstitutional by the very legal expert Sullivan relies on!

More than that, Kramer’s claim that the public-policy exception might stand up against the full-faith-and-credit clause is a political judgment, not a legal one. And the politics of gay marriage has changed substantially in the years since Kramer wrote. So the truth is, the Larry Kramer law-review article in no way proves that gay marriage cannot or will not be nationalized on full-faith-and-credit grounds. If Sullivan were conducting this argument properly, he would respond to these points, all of which I raised over a year ago, and called to his attention again only last week.

Sullivan has accused me (falsely, I have shown) of playing bait and switch, but the truth is, Sullivan himself has been playing a double game. For a year and-a-half, Sullivan has been assuring conservatives that nationalized gay marriage was impossible. Yet all the while, he favored court imposed national gay marriage himself. Only under pressure of my arguments has Sullivan finally acknowledged this. Sullivan has been using his well earned credibility with conservatives to persuade them that support for the Federal Marriage Amendment is unnecessary, even though he himself would like to see the Supreme Court force gay marriage on the country on grounds of equal protection. Sullivan knows that only the Federal Marriage Amendment can thwart that plan. All this may account for Sullivan’s silence on the equal-protection issue until our recent debate, and for Sullivan’s refusal to acknowledge that I myself raised the equal-protection issue in “The Coming Battle.”

But the truth is, if Massachusetts legalizes gay marriage, Sullivan’s hopes of holding conservatives back with a (bogus) federalism argument will quickly collapse. That’s because the overwhelming majority of those who favor gay marriage care nothing for federalism. Once conservatives see this, they will quickly realize that the Federal Marriage Amendment is the last best hope for holding off national gay marriage.

The moment Massachusetts acts, be assured that supporters of gay marriage will kick into high gear with an attempt to nationalize gay marriage. The gay couples who flood into Massachusetts to marry will not return home to study the Federalist Papers. They will instead organize a public campaign to force every state to recognize their marriages. It is certain that they will ask the courts to overturn the Defense of Marriage Act on constitutional grounds. In that battle, every available legal argument will be made. Equal-protection claims will be the strongest, but as I have shown, full-faith-and-credit arguments will also be made, and may well succeed.

If Andrew Sullivan doubts this, let him finally acknowledge and respond to my refutation of his points about the work of Professor Larry Kramer, and of his larger argument on federalism. I repeat. If Andrew Sullivan wishes to call my arguments on gay marriage and federalism into question, let him acknowledge and respond to the points I make in “The Right Balance. If he does not or cannot do so, then despite appearances, Andrew Sullivan is not really debating me at all. He is merely having a dialogue with a figure of his imagination.

While Sullivan has appeared to respond to me directly on the question of federalism, he has linked to blogger Julian Sanchez’s in hopes of rebutting my substantive arguments on gay marriage in “The Coming Battle.” This is important, because it puts Sullivan in league with someone who obviously has no problem at all with polygamy or polyamory. Sullivan himself has been at pains to deride the notion that polygamy or polyamory might follow in the wake of gay marriage, but Sanchez provides the perfect illustration of how gay marriage means group marriage, and thus the effective end of marriage itself.

For the sake of argument alone, Sanchez claims that any problems with polygamy or polyamory would be grounds for banning those practices. Yet I showed in “The Coming Battle,” and have shown repeatedly, that the rights-based grounds on which we are being given gay marriage will not be able to exclude polygamy or polyamory.

Sanchez chastises me for my “breathtaking stupidity,” my “heroic inanity,” my being “brain dead,” etc., but his litany of insults does little to disguise the superficiality of his argument. Sanchez admits that he doesn’t know what to do with my claim that the analogy between civil rights and gay marriage is flawed. The point of my earlier writings on gay marriage (of which Sanchez appears to be ignorant) is that skin color has no effect on the functioning of marriage as an institution, but that sexual orientation will. Sanchez needs to address the arguments I make in my Commentary article, “What Is Wrong With Gay Marriage,” in the gay-marriage debate, and in pieces like “Gay in Hollywood.” But of course, he does not. Sanchez also seems to be unfamiliar with the well-established idea that the state’s “compelling interest” in marriage, and in the children marriage produces, entitles it to abandon strict neutrality in structuring this institution.

To his great credit, Andrew Sullivan has been conducting a brilliant campaign against the New York Times for its hyping of a story about a prestigious golf club that does not admit women. (Despite our differences on gay marriage, I have always been — and remain — an unabashed fan of Sullivan’s work.) Here’s a case where the Times is motivated by a false analogy between skin color and gender. In some important contexts, gender matters, and should matter, in a way that skin color does not. That’s why single-sex clubs, schools, or the exclusion of women from combat, are not really analogous to clubs, schools, or armies that separate the races. But if gender and skin color can be different in the matter of private clubs, schools, and the military, why can’t skin color and sexual orientation be different with respect to marriage?

Mr. Sanchez has little regard for the health of marriage as an institution. The already alarming divorce rate is for him, nothing but proof that polygamy or gay marriage need not be feared. I take a different view. I favor the president’s efforts to strengthen traditional marriage, thus reducing both the divorce rate, and the rate of out of wedlock births. In a sense, that is an argument against adoption, just as Sanchez claims. Adoption and/or single parenting are sometimes necessary, and can often be happy. But our goal should be to strengthen marriage, reduce out of wedlock birth, and thus make adoption and single parenting less necessary than they now are. The Sanchez-Sullivan way will bring us polygamy, polyamory, and an increase, rather than a decrease, in social chaos for our children. It is disturbing, and revealing, that Sullivan has linked an argument of this sort as a way of responding (and of not responding) to me.

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The Real Issue: Getting down to brass tacks on gay marriage (NRO, 021211)

Andrew Sullivan has posted a detailed response to “Gay-Marriage Endgames,” my latest piece in our ongoing debate over gay marriage. Sullivan denies that he misrepresented my position. I don’t buy it, and I’ll say why below. But Sullivan’s larger response raises truly interesting and important questions. So let me address what I think are the underlying issues behind my recent exchanges with Sullivan — and ultimately, behind the entire gay-marriage debate.

Sullivan has answered me by denying that there is any contradiction in his position. Yes, Sullivan affirms, he believes that gays have a fundamental right to marry — a right that is prior to the right to vote; a right that is constitutionally more significant than any of the amendments to the Constitution; a right that is vested in the Declaration of Independence. While Sullivan would ideally like this right to be recognized by the Supreme Court, he says he understands that this is unlikely any time soon. So instead, Sullivan is content to let state-by-state experiments proceed, in the hope that in the far-distant future, the country will finally be persuaded that gay marriage is not socially dangerous. At that point, perhaps the courts will formally recognize a fundamental right to marriage that includes gay marriage.

This position works reasonably well on two conditions. First, it has to be true that gay marriage will not undermine the institution of marriage. After all, if gay marriage will undermine marriage, then Sullivan is arguing for the existence of a right that will harm a vital social institution. Second, Sullivan’s stance works only so long as the great majority of those who support gay marriage are not attempting to nationalize the practice in the near present, rather than in the far distant future. If few supporters of gay marriage (including supporters on our courts) share Sullivan’s federalist sensibilities, then Sullivan’s willingness to go slowly doesn’t matter — at least it gives no comfort to conservatives concerned about forced federalization of gay marriage. These are the contradictions that have been playing themselves out in Sullivan’s debates with me, and with others.

But the truth is, the contradiction goes deeper than this. It isn’t just a question of simultaneously claiming that a right to gay marriage exists now (and has always existed), while also claiming that this right will (and should) only be recognized in the far distant future. The deeper problem is that, as Sullivan uses it, the radical and pre-existing right of gays to marry is really a right to abolish marriage. As Sullivan uses it, the pre-existing “right to marry” can only lead to an infinitely flexible system of private contracts between any combination of people, of any number or gender — i.e. to polygamy, group marriage, etc.

If a right to marry that includes gay marriage inheres in the Declaration of Independence, then clearly the actual definitions of marriage that real societies have produced are all subordinate to a larger right of anyone to have their union, of whatever sort, be a legally recognized marriage. Sullivan’s reply provides no way at all of distinguishing between gay marriage and practices like polygamy or group marriage (polyamory). Sullivan does deploy his formula: “...all we are fighting for is not the right to marry anyone, but the right to marry someone.” But this does nothing to meet the polygamy problem.

And all attempts to draw distinctions between gay marriage and polygamy or polyamory on grounds of social utility would fall before a pre-conventional right to marriage. If the pre-existing right to marry entails the right to redefine what marriage means in actual social practice, then there is simply no way that Sullivan can deny to polyamorists that right to marry. After all, polyamorists believe that their propensity for multiple sexual union is a “sexual orientation,” precisely on the model of homosexuality. The two cases are quite parallel.

By the same token, it follows from Sullivan’s premise about a pre-existing right to marry that trumps existing social definitions of marriage, that anyone can redefine the content of marriage by weakening or changing its obligations or benefits. Their right to create weaker forms of union and to call these marriage overrides established social practice.

So the real contradiction in Sullivan’s position (which is also the deep contradiction at the heart of the gay-marriage movement) is that its premises inevitably lead to the abolition of marriage, and its substitution by a series of infinitely flexible individual contracts — even as it is claimed that traditional marriage is being supported and endorsed. Many gay-marriage advocates, and many libertarians, are open about their ultimate aim — the elimination of all socially shared legal conventions of marriage. Sullivan denies that this is his position, yet his way of positing and making use of a fundamental and pre-conventional right to marry necessarily entails the most radical libertarian consequences.

It is quite true, as Sullivan says, that he has always been open about his belief in a fundamental pre-existing right to marry that includes the right to gay marriage. By the same token, for some time I have been pointing out the many contradictions in which this position embroils Sullivan. When Sullivan is pressed on the potential social dangers of gay marriage, he generally answers that these dangers really don’t matter, since gay marriage is a fundamental right. But if a right to marriage, as Sullivan defines it, would effectively abolish marriage as a real social institution, then the contradiction in his position matters very much.

Now turn to the more pragmatic side of the contradiction — Sullivan’s take on the legal campaign to nationalize gay marriage. Sullivan stands by his “dead parrot” quote, his claim that the threat of federalized gay marriage is bogus, an unfact, pushing up daisies, etc. Sullivan’s detailed claim is that DOMA is unnecessary, that the “public policy exception” will protect states that don’t want to recognize gay marriages performed in Massachusetts, that federalization of gay marriage on constitutional grounds is a distant and unlikely prospect, and that legalization of gay marriage by a single state is, in any case, irrelevant to the case for federalizing gay marriage.

Alright, let’s have a look at the reality of the current legal campaign for gay marriage. Here is a passage from the “Friend of the Court” brief by the Boston Bar Association in the Massachusetts gay-marriage case:

A practical problem with civil unions is that their legal recognition beyond state borders is uncertain.... Thus, even if a state attempts to protect same-sex couples through civil unions, those citizens would have no basis for federal recognition of their unions. With the grant of marriage under state law, however, such couples would have strong federal constitutional claims in favor of recognition.

Here, the Boston Bar Association contradicts Sullivan’s various assertions. It argues that gay marriage in one state will be a critical step in the campaign to nationalize gay marriage on constitutional grounds. Briefs in this case also argue that there is a constitutional right to marriage, and that gay marriage is the only way available for same-sex couples to challenge the constitutionality of the Defense of Marriage Act.

Of course, Sullivan can claim that the prospect of federalized gay marriage — as clearly called for by the Boston Bar Association — is nothing but a dead parrot. However, I submit that anyone opposed to gay marriage would be a utter dunce not to take the claims of the Boston Bar Association seriously. Contrary to Sullivan, The Boston Bar Association clearly sees the Massachusetts case as a critical step in a campaign to federalize gay marriage on constitutional grounds. It also appears to believe that the elimination of DOMA is a vitally necessary part of that larger campaign. So advocates of gay marriage have already undertaken the very project of imposing gay marriage on the nation that Sullivan says is not only ill advised, but a political-legal impossibility (although, of course, Sullivan also says that he agrees with the project’s larger aims and arguments). Sullivan can resolve these contradictory views as he will. But any opponent of gay marriage who doesn’t see the legal freight train that’s headed straight for us is a fool.

The Supreme Court decided the Boy Scout case by only one vote. Sandra Day O’Connor could easily shift over and federalize gay marriage, if the chaos in the wake of a Massachusetts legalization was powerful enough. O’Connor has always been at least as interested in social pragmatics as in legal principle. A social crisis could certainly push her to act.

As I show in “The Right Balance,” there is no precedent for what we are about to face. There have really been only two cases seeking to force recognition of transplanted mixed-race marriages by couples actually residing in a non-recognizing state. And in one of those two cases, despite the clearly stated horror of miscegenation, the marriage was recognized anyway. Why? Because horror at miscegenation was outweighed by the fear of social chaos if marriages could not be recognized from state to state.

That was over 100 years ago, when mixed-race marriage was rare (even in the North), and before the advent of telephones, automobiles, television, and the Internet. With hundreds or thousand of married gay couples regularly traveling between recognizing and non-recognizing states, there will be an ongoing media firestorm over the problem. In such a case, with no real compromise available, I believe that there is a serious chance that O’Connor will shift and nationalize gay marriage.

Would O’Connor base her decision on full-faith-and-credit grounds, equal-protection grounds, some combination of the two, or some other ground? I don’t know. But I do know that gay-marriage advocates will make every available argument. O’Connor will listen carefully and cook up something that works, something that stops the chaos and complaint of couples whose marriages disappear and reappear on the Interstate. To deny that this is a real possibility is utter naïveté. And that’s not to mention the possible advent of a more liberal Court.

Sullivan’s claims about my shifting views are all wrong. In “The Right Balance,” I did mention equal protection. I even said clearly that the case on equal protection was stronger than the case on full-faith-and-credit grounds. I simply spent time on the somewhat weaker case on full faith and credit in order to show that the FFC issue cannot be dismissed. I took the same position in “The Coming Battle,” and in “Responding to Sullivan.” Sullivan has simply mischaracterized my views. (Note: I see that at the top of his posts for Tuesday, December 10, Sullivan has finally acknowledged his error.) At this point, though, I care much less about who’s misrepresenting who than the fact that my differences on this smaller matter have led to a discussion of what I think is the fundamental issue.

Of course, Sullivan is a brilliant fellow. The contradictions in his position are certainly not a function of any lack of intellectual acuity. They are deeply written into the issue itself. I honor Andrew Sullivan for his courageous, creative, and thoughtful advocacy on this issue. I also acknowledge that Sullivan has done a magnificent job of balancing reason and personal passion in his defense of gay marriage. I admire Andrew Sullivan. We should all honor him for his willingness to argue with conservatives respectfully, and on our own terms, on gay issues, while also standing up to extremists on the Left. I consider Andrew a friend and, frankly, I hate being at odds with him.

Yet the deeper contradiction will not go away. Marriage is not an abstract pre-conventional right, but an institution that rests on the characteristics of real societies — and of particular “genders.” Sullivan has been creative in melding a radical rights-based case to a “conservative” case based on social particulars, and to federalism as well. Ultimately, however, the contradictions cannot hold.

A radical pre-conventional right to marriage is really a right to redefine marriage into nothingness. Many will avail themselves of such a right. And a radical pre-conventional right to marriage is also an authorization to prosecute a fast-moving campaign of nationalization. Thoughtful people like Andrew Sullivan often hold together contradictions that others cannot. Maybe that’s why those who share Sullivan’s views about the right to gay marriage see no need to adhere to his strictures about federalism. In fact, they feel a positive compulsion to move quickly. That may be why Andrew Sullivan’s federalist claims, whether intentionally or not, amount to an attempt to distract opponents of gay marriage from reality.

The plain truth is that the legal campaign for gay marriage is a massive and carefully coordinated attempt to bring about the very program of rapid federalization that Andrew Sullivan calmly assures us cannot and will not come to pass. When opponents of gay marriage see that campaign in action, they will quickly move to support the Federal Marriage Amendment.

— Stanley Kurtz is a research fellow at the Hoover Institution at Stanford University.

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Beyond Gay Marriage: The road to polyamory (Weekly Standard, 030804)

Volume 008, Issue 45

AFTER GAY MARRIAGE, what will become of marriage itself? Will same-sex matrimony extend marriage’s stabilizing effects to homosexuals? Will gay marriage undermine family life? A lot is riding on the answers to these questions. But the media’s reflexive labeling of doubts about gay marriage as homophobia has made it almost impossible to debate the social effects of this reform. Now with the Supreme Court’s ringing affirmation of sexual liberty in Lawrence v. Texas, that debate is unavoidable.

Among the likeliest effects of gay marriage is to take us down a slippery slope to legalized polygamy and “polyamory” (group marriage). Marriage will be transformed into a variety of relationship contracts, linking two, three, or more individuals (however weakly and temporarily) in every conceivable combination of male and female. A scare scenario? Hardly. The bottom of this slope is visible from where we stand. Advocacy of legalized polygamy is growing. A network of grass-roots organizations seeking legal recognition for group marriage already exists. The cause of legalized group marriage is championed by a powerful faction of family law specialists. Influential legal bodies in both the United States and Canada have presented radical programs of marital reform. Some of these quasi-governmental proposals go so far as to suggest the abolition of marriage. The ideas behind this movement have already achieved surprising influence with a prominent American politician.

None of this is well known. Both the media and public spokesmen for the gay marriage movement treat the issue as an unproblematic advance for civil rights. True, a small number of relatively conservative gay spokesmen do consider the social effects of gay matrimony, insisting that they will be beneficent, that homosexual unions will become more stable. Yet another faction of gay rights advocates actually favors gay marriage as a step toward the abolition of marriage itself. This group agrees that there is a slippery slope, and wants to hasten the slide down.

To consider what comes after gay marriage is not to say that gay marriage itself poses no danger to the institution of marriage. Quite apart from the likelihood that it will usher in legalized polygamy and polyamory, gay marriage will almost certainly weaken the belief that monogamy lies at the heart of marriage. But to see why this is so, we will first need to reconnoiter the slippery slope.

Promoting polygamy

DURING THE 1996 congressional debate on the Defense of Marriage Act, which affirmed the ability of the states and the federal government to withhold recognition from same-sex marriages, gay marriage advocates were put on the defensive by the polygamy question. If gays had a right to marry, why not polygamists? Andrew Sullivan, one of gay marriage’s most intelligent defenders, labeled the question fear-mongering--akin to the discredited belief that interracial marriage would lead to birth defects. “To the best of my knowledge,” said Sullivan, “there is no polygamists’ rights organization poised to exploit same-sex marriage and return the republic to polygamous abandon.” Actually, there are now many such organizations. And their strategy--even their existence--owes much to the movement for gay marriage.

Scoffing at the polygamy prospect as ludicrous has been the strategy of choice for gay marriage advocates. In 2000, following Vermont’s enactment of civil unions, Matt Coles, director of the American Civil Liberties Union’s Lesbian and Gay Rights Project, said, “I think the idea that there is some kind of slippery slope [to polygamy or group marriage] is silly.” As proof, Coles said that America had legalized interracial marriage, while also forcing Utah to ban polygamy before admission to the union. That dichotomy, said Coles, shows that Americans are capable of distinguishing between better and worse proposals for reforming marriage.

Are we? When Tom Green was put on trial in Utah for polygamy in 2001, it played like a dress rehearsal for the coming movement to legalize polygamy. True, Green was convicted for violating what he called Utah’s “don’t ask, don’t tell” policy on polygamy. Pointedly refusing to “hide in the closet,” he touted polygamy on the Sally Jessy Raphael, Queen Latifah, Geraldo Rivera, and Jerry Springer shows, and on “Dateline NBC” and “48 Hours.” But the Green trial was not just a cable spectacle. It brought out a surprising number of mainstream defenses of polygamy. And most of the defenders went to bat for polygamy by drawing direct comparisons to gay marriage.

Writing in the Village Voice, gay leftist Richard Goldstein equated the drive for state-sanctioned polygamy with the movement for gay marriage. The political reluctance of gays to embrace polygamists was understandable, said Goldstein, “but our fates are entwined in fundamental ways.” Libertarian Jacob Sullum defended polygamy, along with all other consensual domestic arrangements, in the Washington Times. Syndicated liberal columnist Ellen Goodman took up the cause of polygamy with a direct comparison to gay marriage. Steve Chapman, a member of the Chicago Tribune editorial board, defended polygamy in the Tribune and in Slate. The New York Times published a Week in Review article juxtaposing photos of Tom Green’s family with sociobiological arguments about the naturalness of polygamy and promiscuity.

The ACLU’s Matt Coles may have derided the idea of a slippery slope from gay marriage to polygamy, but the ACLU itself stepped in to help Tom Green during his trial and declared its support for the repeal of all “laws prohibiting or penalizing the practice of plural marriage.” There is of course a difference between repealing such laws and formal state recognition of polygamous marriages. Neither the ACLU nor, say, Ellen Goodman has directly advocated formal state recognition. Yet they give us no reason to suppose that, when the time is ripe, they will not do so. Stephen Clark, the legal director of the Utah ACLU, has said, “Talking to Utah’s polygamists is like talking to gays and lesbians who really want the right to live their lives.”

All this was in 2001, well before the prospect that legal gay marriage might create the cultural conditions for state-sanctioned polygamy. Can anyone doubt that greater public support will be forthcoming once gay marriage has become a reality? Surely the ACLU will lead the charge.

Why is state-sanctioned polygamy a problem? The deep reason is that it erodes the ethos of monogamous marriage. Despite the divorce revolution, Americans still take it for granted that marriage means monogamy. The ideal of fidelity may be breached in practice, yet adultery is clearly understood as a transgression against marriage. Legal polygamy would jeopardize that understanding, and that is why polygamy has historically been treated in the West as an offense against society itself.

In most non-Western cultures, marriage is not a union of freely choosing individuals, but an alliance of family groups. The emotional relationship between husband and wife is attenuated and subordinated to the economic and political interests of extended kin. But in our world of freely choosing individuals, extended families fall away, and love and companionship are the only surviving principles on which families can be built. From Thomas Aquinas through Richard Posner, almost every serious observer has granted the incompatibility between polygamy and Western companionate marriage.

Where polygamy works, it does so because the husband and his wives are emotionally distant. Even then, jealousy is a constant danger, averted only by strict rules of seniority or parity in the husband’s economic support of his wives. Polygamy is more about those resources than about sex.

Yet in many polygamous societies, even though only 10 or 15 percent of men may actually have multiple wives, there is a widely held belief that men need multiple women. The result is that polygamists are often promiscuous--just not with their own wives. Anthropologist Philip Kilbride reports a Nigerian survey in which, among urban male polygamists, 44 percent said their most recent sexual partners were women other than their wives. For monogamous, married Nigerian men in urban areas, that figure rose to 67 percent. Even though polygamous marriage is less about sex than security, societies that permit polygamy tend to reject the idea of marital fidelity--for everyone, polygamists included.

Mormon polygamy has always been a complicated and evolving combination of Western mores and classic polygamous patterns. Like Western companionate marriage, Mormon polygamy condemns extramarital sex. Yet historically, like its non-Western counterparts, it de-emphasized romantic love. Even so, jealousy was always a problem. One study puts the rate of 19th-century polygamous divorce at triple the rate for monogamous families. Unlike their forebears, contemporary Mormon polygamists try to combine polygamy with companionate marriage--and have a very tough time of it. We have no definitive figures, but divorce is frequent. Irwin Altman and Joseph Ginat, who’ve written the most detailed account of today’s breakaway Mormon polygamist sects, highlight the special stresses put on families trying to combine modern notions of romantic love with polygamy. Strict religious rules of parity among wives make the effort to create a hybrid traditionalist/modern version of Mormon polygamy at least plausible, if very stressful. But polygamy let loose in modern secular America would destroy our understanding of marital fidelity, while putting nothing viable in its place. And postmodern polygamy is a lot closer than you think.

Polyamory

AMERICA’S NEW, souped-up version of polygamy is called “polyamory.” Polyamorists trace their descent from the anti-monogamy movements of the sixties and seventies--everything from hippie communes, to the support groups that grew up around Robert Rimmer’s 1966 novel “The Harrad Experiment,” to the cult of Bhagwan Shree Rajneesh. Polyamorists proselytize for “responsible non-monogamy”--open, loving, and stable sexual relationships among more than two people. The modern polyamory movement took off in the mid-nineties--partly because of the growth of the Internet (with its confidentiality), but also in parallel to, and inspired by, the rising gay marriage movement.

Unlike classic polygamy, which features one man and several women, polyamory comprises a bewildering variety of sexual combinations. There are triads of one woman and two men; heterosexual group marriages; groups in which some or all members are bisexual; lesbian groups, and so forth. (For details, see Deborah Anapol’s “Polyamory: The New Love Without Limits,” one of the movement’s authoritative guides, or Google the word polyamory.)

Supposedly, polyamory is not a synonym for promiscuity. In practice, though, there is a continuum between polyamory and “swinging.” Swinging couples dally with multiple sexual partners while intentionally avoiding emotional entanglements. Polyamorists, in contrast, try to establish stable emotional ties among a sexually connected group. Although the subcultures of swinging and polyamory are recognizably different, many individuals move freely between them. And since polyamorous group marriages can be sexually closed or open, it’s often tough to draw a line between polyamory and swinging. Here, then, is the modern American version of Nigeria’s extramarital polygamous promiscuity. Once the principles of monogamous companionate marriage are breached, even for supposedly stable and committed sexual groups, the slide toward full-fledged promiscuity is difficult to halt.

Polyamorists are enthusiastic proponents of same-sex marriage. Obviously, any attempt to restrict marriage to a single man and woman would prevent the legalization of polyamory. After passage of the Defense of Marriage Act in 1996, an article appeared in Loving More, the flagship magazine of the polyamory movement, calling for the creation of a polyamorist rights movement modeled on the movement for gay rights. The piece was published under the pen name Joy Singer, identified as the graduate of a “top ten law school” and a political organizer and public official in California for the previous two decades.

Taking a leaf from the gay marriage movement, Singer suggested starting small. A campaign for hospital visitation rights for polyamorous spouses would be the way to begin. Full marriage and adoption rights would come later. Again using the gay marriage movement as a model, Singer called for careful selection of acceptable public spokesmen (i.e., people from longstanding poly families with children). Singer even published a speech by Iowa state legislator Ed Fallon on behalf of gay marriage, arguing that the goal would be to get a congressman to give exactly the same speech as Fallon, but substituting the word “poly” for “gay” throughout. Try telling polyamorists that the link between gay marriage and group marriage is a mirage.

The flexible, egalitarian, and altogether postmodern polyamorists are more likely to influence the larger society than Mormon polygamists. The polyamorists go after monogamy in a way that resonates with America’s secular, post-sixties culture. Yet the fundamental drawback is the same for Mormons and polyamorists alike. Polyamory websites are filled with chatter about jealousy, the problem that will not go away. Inevitably, group marriages based on modern principles of companionate love, without religious rules and restraints, are unstable. Like the short-lived hippie communes, group marriages will be broken on the contradiction between companionate love and group solidarity. And children will pay the price. The harms of state-sanctioned polyamorous marriage would extend well beyond the polyamorists themselves. Once monogamy is defined out of marriage, it will be next to impossible to educate a new generation in what it takes to keep companionate marriage intact. State-sanctioned polyamory would spell the effective end of marriage. And that is precisely what polyamory’s new--and surprisingly influential--defenders are aiming for.

The family law radicals

STATE-SANCTIONED polyamory is now the cutting-edge issue among scholars of family law. The preeminent school of thought in academic family law has its origins in the arguments of radical gay activists who once opposed same-sex marriage. In the early nineties, radicals like longtime National Gay and Lesbian Task Force policy director Paula Ettelbrick spoke out against making legal marriage a priority for the gay rights movement. Marriage, Ettelbrick reminded her fellow activists, “has long been the focus of radical feminist revulsion.” Encouraging gays to marry, said Ettelbrick, would only force gay “assimilation” to American norms, when the real object of the gay rights movement ought to be getting Americans to accept gay difference. “Being queer,” said Ettelbrick, “means pushing the parameters of sex and family, and in the process transforming the very fabric of society.”

Promoting polyamory is the ideal way to “radically reorder society’s view of the family,” and Ettelbrick, who has since formally signed on as a supporter of gay marriage (and is frequently quoted by the press), is now part of a movement that hopes to use gay marriage as an opening to press for state-sanctioned polyamory. Ettelbrick teaches law at the University of Michigan, New York University, Barnard, and Columbia. She has a lot of company.

Nancy Polikoff is a professor at American University’s law school. In 1993, Polikoff published a powerful and radical critique of gay marriage. Polikoff stressed that during the height of the lesbian feminist movement of the seventies, even many heterosexual feminists refused to marry because they believed marriage to be an inherently patriarchal and oppressive institution. A movement for gay marriage, warned Polikoff, would surely promote marriage as a social good, trotting out monogamous couples as spokesmen in a way that would marginalize non-monogamous gays and would fail to challenge the legitimacy of marriage itself. Like Ettelbrick, Polikoff now supports the right of gays to marry. And like Ettelbrick, Polikoff is part of a movement whose larger goal is to use legal gay marriage to push for state-sanctioned polyamory--the ultimate subversion of marriage itself. Polikoff and Ettelbrick represent what is arguably now the dominant perspective within the discipline of family law.

Cornell University law professor Martha Fineman is another key figure in the field of family law. In her 1995 book “The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies,” she argued for the abolition of marriage as a legal category. Fineman’s book begins with her recollection of an experience from the late seventies in politically radical Madison, Wisconsin. To her frustration, she could not convince even the most progressive members of Madison’s Equal Opportunities Commission to recognize “plural sexual groupings” as marriages. That failure helped energize Fineman’s lifelong drive to abolish marriage.

But it’s University of Utah law professor Martha Ertman who stands on the cutting edge of family law. Building on Fineman’s proposals for the abolition of legal marriage, Ertman has offered a legal template for a sweeping relationship contract system modeled on corporate law. (See the Harvard Civil Rights and Civil Liberties Law Review, Winter 2001.) Ertman wants state-sanctioned polyamory, legally organized on the model of limited liability companies.

In arguing for the replacement of marriage with a contract system that accommodates polyamory, Ertman notes that legal and social hostility to polygamy and polyamory are decreasing. She goes on astutely to imply that the increased openness of homosexual partnerships is slowly collapsing the taboo against polygamy and polyamory. And Ertman is frank about the purpose of her proposed reform--to render the distinction between traditional marriage and polyamory “morally neutral.”

A sociologist rather than a professor of law, Judith Stacey, the Barbra Streisand Professor in Contemporary Gender Studies at USC, is another key member of this group. Stacey has long championed alternative family forms. Her current research is on gay families consisting of more than two adults, whose several members consider themselves either married or contractually bound.

In 1996, in the Michigan Law Review, David Chambers, a professor of law at the University of Michigan and another prominent member of this group, explained why radical opponents of marriage ought to support gay marriage. Rather than reinforcing a two-person definition of marriage, argued Chambers, gay marriage would make society more accepting of further legal changes. “By ceasing to conceive of marriage as a partnership composed of one person of each sex, the state may become more receptive to units of three or more.”

Gradual transition from gay marriage to state-sanctioned polyamory, and the eventual abolition of marriage itself as a legal category, is now the most influential paradigm within academic family law. As Chambers put it, “All desirable changes in family law need not be made at once.”

Finally, Martha Minow of Harvard Law School deserves mention. Minow has not advocated state-sanctioned polygamy or polyamory, but the principles she champions pave the way for both. Minow argues that families need to be radically redefined, putting blood ties and traditional legal arrangements aside and attending instead to the functional realities of new family configurations.

Ettelbrick, Polikoff, Fineman, Ertman, Stacey, Chambers, and Minow are among the most prominent family law theorists in the country. They have plenty of followers and hold much of the power and initiative within their field. There may be other approaches to academic family law, but none exceed the radicals in influence. In the last couple of years, there have been a number of conferences on family law dominated by the views of this school. The conferences have names like “Marriage Law: Obsolete or Cutting Edge?” and “Assimilation & Resistance: Emerging Issues in Law & Sexuality.” The titles turn on the paradox of using marriage, seemingly a conservative path toward assimilation, as a tool of radical cultural “resistance.”

One of the most important recent family law meetings was the March 2003 Hofstra conference on “Marriage, Democracy, and Families.” The radicals were out in full force. On a panel entitled “Intimate Affiliation and Democracy: Beyond Marriage?” Fineman, Ertman, and Stacey held forth on polyamory, the legal abolition of marriage, and related issues. Although there were more moderate scholars present, there was barely a challenge to the radicals’ suggestion that it was time to move “beyond marriage.” The few traditionalists in family law are relatively isolated. Many, maybe most, of the prominent figures in family law count themselves as advocates for lesbian and gay rights. Yet family law today is as influenced by the hostility to marriage of seventies feminism as it is by advocacy for gay rights. It is this confluence of radical feminism and gay rights that now shapes the field.

Beyond conjugality

YOU MIGHT THINK the radicals who dominate the discipline of family law are just a bunch of eccentric and irrelevant academics. You would be wrong. For one thing, there is already a thriving non-profit organization, the Alternatives to Marriage Project, that advances the radicals’ goals. When controversies over the family hit the news, experts provided by the Alternatives to Marriage Project are often quoted in mainstream media outlets. While the Alternatives to Marriage Project endorses gay marriage, its longer-term goal is to replace marriage with a system that recognizes “the full range” of family types.

That includes polyamorous families. The Alternatives to Marriage Project’s statement of purpose--its “Affirmation of Family Diversity”--is signed not only by Ettelbrick, Polikoff, and Stacey but by several polyamorists as well. On a list of signatories that includes academic luminaries like Yale historian Nancy Cott, you can find Barry Northrup of Loving More magazine. The Alternatives to Marriage Project, along with Martha Ertman’s pioneering legal proposals, has given polyamory a foothold on respectability.

The first real public triumph of the family law radicals has come in Canada. In 1997, the Canadian Parliament established the Law Commission of Canada to serve Parliament and the Justice Ministry as a kind of advisory board on legal reform. In December 2001, the commission submitted a report to Parliament called “Beyond Conjugality,” which stops just short of recommending the abolition of marriage in Canada.

“Beyond Conjugality” contains three basic recommendations. First, judges are directed to concentrate on whether the individuals before them are “functionally interdependent,” regardless of their actual marital status. On that theory, a household consisting of an adult child still living with his mother might be treated as the functional equivalent of a married couple. In so disregarding marital status, “Beyond Conjugality” is clearly drawing on the work of Minow, whose writings are listed in the bibliography.

“Beyond Conjugality”‘s second key recommendation is that a legal structure be established allowing people to register their personal relationships with the government. Not only could heterosexual couples register as official partners, so could gay couples, adult children living with parents, and siblings or friends sharing a house. Although the authors of “Beyond Conjugality” are politic enough to relegate the point to footnotes, they state that they see no reason, in principle, to limit registered partnerships to two people.

The final recommendation of “Beyond Conjugality”--legalization of same-sex marriage--drew the most publicity when the report was released. Yet for the Law Commission of Canada, same-sex marriage is clearly just one part of the larger project of doing away with marriage itself. “Beyond Conjugality” stops short of recommending the abolition of legal marriage. The authors glumly note that, for the moment, the public is unlikely to accept such a step.

The text of “Beyond Conjugality,” its bibliography, and the Law Commission of Canada’s other publications unmistakably reveal the influence of the radical theorists who now dominate the discipline of family law. While Canada’s parliament has postponed action on “Beyond Conjugality,” the report has already begun to shape the culture. The decision by the Canadian government in June 2003 not to contest court rulings legalizing gay marriage is only the beginning of the changes that Canada’s judges and legal bureaucrats have in mind. The simultaneity of the many reforms is striking. Gay marriage is being pressed, but in tandem with a registration system that will sanction polyamorous unions, and eventually replace marriage itself. Empirically, the radicals’ hopes are being validated. Gay marriage is not strengthening marriage but has instead become part of a larger unraveling of traditional marriage laws.

Ah, but that’s Canada, you say. Yet America has its rough equivalent of the Law Commission of Canada--the American Law Institute (ALI), an organization of legal scholars whose recommendations commonly shape important legal reforms. In 2000, ALI promulgated a report called “Principles of the Law of Family Dissolution” recommending that judges effectively disregard the distinction between married couples and longtime cohabitors. While the ALI principles do not go so far as to set up a system of partnership registration to replace marriage, the report’s framework for recognizing a wide variety of cohabiting partnerships puts it on the same path as “Beyond Conjugality.”

Collapsing the distinction between cohabitation and marriage is a proposal especially damaging to children, who are decidedly better off when born to married parents. (This aspect of the ALI report has been persuasively criticized by Kay Hymowitz, in the March 2003 issue of Commentary.) But a more disturbing aspect of the ALI report is its evasion of the polygamy and polyamory issues.

Prior to publication of the ALI Principles, the report’s authors were pressed (at the 2000 annual meeting of the American Law Institute) about the question of polygamy. The authors put off the controversy by defining legal cohabitors as couples. Yet the ALI report offers no principled way of excluding polyamorous or polygamous cohabitors from recognition. The report’s reforms are said to be based on the need to recognize “statistically growing” patterns of relationship. By this standard, the growth of polyamorous cohabitation will soon require the legal recognition of polyamory.

Although America’s ALI Principles do not follow Canada’s “Beyond Conjugality” in proposing either state-sanctioned polyamory or the outright end of marriage, the University of Utah’s Martha Ertman has suggested (in the Spring/Summer 2001 Duke Journal of Gender Law and Policy) that the American Law Institute is intentionally holding back on more radical proposals for pragmatic political reasons. Certainly, the ALI Principles’ authors take Canadian law as the model for the report’s most radical provisions.

Further confirmation, if any were needed, of the mainstream influence of the family law radicals came with Al and Tipper Gore’s 2002 book “Joined at the Heart,” in which they define a family as those who are “joined at the heart” (rather than by blood or by law). The notion that a family is any group “joined at the heart” comes straight from Harvard’s Martha Minow, who worked with the Gores. In fact, the Minow article from which the Gores take their definition of family is also the article in which Minow tentatively floats the idea of substituting domestic partnership registries for traditional marriage. (“Redefining Families: Who’s In and Who’s Out?” University of Colorado Law Review, Volume 62, Number 2, 1991.) So one of the guiding spirits of Canada’s “Beyond Conjugality” report almost had a friend in the White House.

Triple parenting

POLYGAMY, POLYAMORY, and the abolition of marriage are bad ideas. But what has that got to do with gay marriage? The reason these ideas are connected is that gay marriage is increasingly being treated as a civil rights issue. Once we say that gay couples have a right to have their commitments recognized by the state, it becomes next to impossible to deny that same right to polygamists, polyamorists, or even cohabiting relatives and friends. And once everyone’s relationship is recognized, marriage is gone, and only a system of flexible relationship contracts is left. The only way to stop gay marriage from launching a slide down this slope is if there is a compelling state interest in blocking polygamy or polyamory that does not also apply to gay marriage. Many would agree that the state has a compelling interest in preventing polygamy and polyamory from undermining the ethos of monogamy at the core of marriage. The trouble is, gay marriage itself threatens the ethos of monogamy.

The “conservative” case for gay marriage holds that state-sanctioned marriage will reduce gay male promiscuity. But what if the effect works in reverse? What if, instead of marriage reducing gay promiscuity, sexually open gay couples help redefine marriage as a non-monogamous institution? There is evidence that this is exactly what will happen.

Consider sociologist Gretchen Stiers’s 1998 study “From this Day Forward” (Stiers favors gay marriage, and calls herself a lesbian “queer theorist”). “From this Day Forward” reports that while exceedingly few of even the most committed gay and lesbian couples surveyed believe that marriage will strengthen and stabilize their personal relationships, nearly half of the surveyed couples who actually disdain traditional marriage (and even gay commitment ceremonies) will nonetheless get married. Why? For the financial and legal benefits of marriage. And Stiers’s study suggests that many radical gays and lesbians who yearn to see marriage abolished (and multiple sexual unions legitimized) intend to marry, not only as a way of securing benefits but as part of a self-conscious attempt to subvert the institution of marriage. Stiers’s study suggests that the “subversive” intentions of the radical legal theorists are shared by a significant portion of the gay community itself.

Stiers’s study was focused on the most committed gay couples. Yet even in a sample with a disproportionate number of male couples who had gone through a commitment ceremony (and Stiers had to go out of her research protocol just to find enough male couples to balance the committed lesbian couples) nearly 20 percent of the men questioned did not practice monogamy. In a representative sample of gay male couples, that number would be vastly higher. More significantly, a mere 10 percent of even this skewed sample of gay men mentioned monogamy as an important aspect of commitment (meaning that even many of those men who had undergone “union ceremonies” failed to identify fidelity with commitment). And these, the very most committed gay male couples, are the ones who will be trailblazing marital norms for their peers, and exemplifying gay marriage for the nation. So concerns about the effects of gay marriage on the social ideal of marital monogamy seem justified.

A recent survey of gay couples in civil unions by University of Vermont psychologists Esther Rothblum and Sondra Solomon confirms what Stiers’s study suggests--that married gay male couples will be far less likely than married heterosexual couples to identify marriage with monogamy. Rothblum and Solomon contacted all 2,300 couples who entered civil unions in Vermont between June 1, 2000, and June 30, 2001. More than 300 civil union couples residing in and out of the state responded. Rothblum and Solomon then compared the gay couples in civil unions with heterosexual couples and gay couples outside of civil unions. Among married heterosexual men, 79 percent felt that marriage demanded monogamy, 50 percent of men in gay civil unions insisted on monogamy, while only 34 percent of gay men outside of civil unions affirmed monogamy.

While gay men in civil unions were more likely to affirm monogamy than gays outside of civil unions, gay men in civil unions were far less supportive of monogamy than heterosexual married men. That discrepancy may well be significantly greater under gay marriage than under civil unions. That’s because of the effect identified by Stiers--the likelihood that many gays who do not value the traditional monogamous ethos of marriage will marry anyway for the financial benefits that marriage can bring. (A full 86 percent of the civil unions couples who responded to the Rothblum-Solomon survey live outside Vermont, and therefore receive no financial benefits from their new legal status.) The Rothblum-Solomon study may also undercount heterosexual married male acceptance of monogamy, since one member of all the married heterosexual couples in the survey was the sibling of a gay man in a civil union, and thus more likely to be socially liberal than most heterosexuals.

Even moderate gay advocates of same-sex marriage grant that, at present, gay male relationships are far less monogamous than heterosexual relationships. And there is a persuasive literature on this subject: Gabriel Rotello’s “Sexual Ecology,” for example, offers a documented and powerful account of the behavioral and ideological barriers to monogamy among gay men. The moderate advocates say marriage will change this reality. But they ignore, or downplay, the possibility that gay marriage will change marriage more than it changes the men who marry. Married gay couples will begin to redefine the meaning of marriage for the culture as a whole, in part by removing monogamy as an essential component of marriage. No doubt, the process will be pushed along by cutting-edge movies and TV shows that tout the new “open” marriages being pioneered by gay spouses. In fact, author and gay marriage advocate Richard Mohr has long expressed the hope and expectation that legal gay marriage will succeed in defining monogamy out of marriage.

Lesbians, for their part, do value monogamy. Over 82 percent of the women in the Rothblum-Solomon study, for example, insisted on monogamy, regardless of sexual orientation or marital status. Yet lesbian marriage will undermine the connection between marriage and monogamy in a different way. Lesbians who bear children with sperm donors sometimes set up de facto three-parent families. Typically, these families include a sexually bound lesbian couple, and a male biological father who is close to the couple but not sexually involved. Once lesbian couples can marry, there will be a powerful legal case for extending parental recognition to triumvirates. It will be difficult to question the parental credentials of a sperm donor, or of a married, lesbian non-birth mother spouse who helps to raise a child from birth. And just as the argument for gay marriage has been built upon the right to gay adoption, legally recognized triple parenting will eventually usher in state-sanctioned triple (and therefore group) marriage.

This year, there was a triple parenting case in Canada involving a lesbian couple and a sperm donor. The judge made it clear that he wanted to assign parental status to all three adults but held back because he said he lacked jurisdiction. On this issue, the United States is already in “advance” of Canada. Martha Ertman is now pointing to a 2000 Minnesota case (La Chapelle v. Mitten) in which a court did grant parental rights to lesbian partners and a sperm donor. Ertman argues that this case creates a legal precedent for state-sanctioned polyamory.

Gay marriages of convenience

IRONICALLY, the form of gay matrimony that may pose the greatest threat to the institution of marriage involves heterosexuals. A Brigham Young University professor, Alan J. Hawkins, suggests an all-too-likely scenario in which two heterosexuals of the same sex might marry as a way of obtaining financial benefits. Consider the plight of an underemployed and uninsured single mother in her early 30s who sees little real prospect of marriage (to a man) in her future. Suppose she has a good friend, also female and heterosexual, who is single and childless but employed with good spousal benefits. Sooner or later, friends like this are going to start contracting same-sex marriages of convenience. The single mom will get medical and governmental benefits, will share her friend’s paycheck, and will gain an additional caretaker for the kids besides. Her friend will gain companionship and a family life. The marriage would obviously be sexually open. And if lightning struck and the right man came along for one of the women, they could always divorce and marry heterosexually.

In a narrow sense, the women and children in this arrangement would be better off. Yet the larger effects of such unions on the institution of marriage would be devastating. At a stroke, marriage would be severed not only from the complementarity of the sexes but also from its connection to romance and sexual exclusivity--and even from the hope of permanence. In Hawkins’s words, the proliferation of such arrangements “would turn marriage into the moral equivalent of a Social Security benefit.” The effect would be to further diminish the sense that a woman ought to be married to the father of her children. In the aggregate, what we now call out-of-wedlock births would increase. And the connection between marriage and sexual fidelity would be nonexistent.

Hawkins thinks gay marriages of convenience would be contracted in significant numbers--certainly enough to draw the attention of a media eager to tout such unions as the hip, postmodern marriages of the moment. Hawkins also believes that these unions of convenience could begin to undermine marriage’s institutional foundations fairly quickly. He may be right. The gay marriage movement took more than a decade to catch fire. A movement for state-sanctioned polygamy-polyamory could take as long. And the effects of sexually open gay marriages on the ethos of monogamy will similarly occur over time. But any degree of publicity for same-sex marriages of convenience could have dramatic effects. Without further legal ado, same-sex marriages of convenience will realize the radicals’ fondest hopes. Marriage will have been severed from monogamy, from sexuality, and even from the dream of permanence. Which would bring us virtually to the bottom of the slippery slope.

WE ARE FAR CLOSER to that day than anyone realizes. Does the Supreme Court’s defense of sexual liberty last month in the Lawrence v. Texas sodomy case mean that, short of a constitutional amendment, gay marriage is inevitable? Perhaps not. Justice Scalia was surely correct to warn in his dissent that Lawrence greatly weakens the legal barriers to gay marriage. Sodomy laws, although rarely enforced, did provide a public policy basis on which a state could refuse to recognize a gay marriage performed in another state. Now the grounds for that “public policy exception” have been eroded. And as Scalia warned, Lawrence’s sweeping guarantees of personal autonomy in matters of sex could easily be extended to the question of who a person might choose to marry.

So it is true that, given Lawrence, the legal barriers to gay marriage are now hanging by a thread. Nonetheless, in an important respect, Scalia underestimated the resources for a successful legal argument against gay marriage. True, Lawrence eliminates moral disapprobation as an acceptable, rational basis for public policy distinctions between homosexuality and heterosexuality. But that doesn’t mean there is no rational basis for blocking either same-sex marriage or polygamy.

There is a rational basis for blocking both gay marriage and polygamy, and it does not depend upon a vague or religiously based disapproval of homosexuality or polygamy. Children need the stable family environment provided by marriage. In our individualist Western society, marriage must be companionate--and therefore monogamous. Monogamy will be undermined by gay marriage itself, and by gay marriage’s ushering in of polygamy and polyamory.

This argument ought to be sufficient to pass the test of rational scrutiny set by the Supreme Court in Lawrence v. Texas. Certainly, the slippery slope argument was at the center of the legislative debate on the federal Defense of Marriage Act, and so should protect that act from being voided on the same grounds as Texas’s sodomy law. But of course, given the majority’s sweeping declarations in Lawrence, and the hostility of the legal elite to traditional marriage, it may well be foolish to rely on the Supreme Court to uphold either state or federal Defense of Marriage Acts.

This is the case, in a nutshell, for something like the proposed Federal Marriage Amendment to the Constitution, which would define marriage as the union of a man and a woman. At a stroke, such an amendment would block gay marriage, polygamy, polyamory, and the replacement of marriage by a contract system. Whatever the courts might make of the slippery slope argument, the broader public will take it seriously. Since Lawrence, we have already heard from Jon Carroll in the San Francisco Chronicle calling for legalized polygamy. Judith Levine in the Village Voice has made a plea for group marriage. And Michael Kinsley--no queer theorist but a completely mainstream journalist--has publicly called for the legal abolition of marriage. So the most radical proposal of all has now moved out of the law schools and legal commissions, and onto the front burner of public discussion.

Fair-minded people differ on the matter of homosexuality. I happen to think that sodomy laws should have been repealed (although legislatively). I also believe that our increased social tolerance for homosexuality is generally a good thing. But the core issue here is not homosexuality; it is marriage. Marriage is a critical social institution. Stable families depend on it. Society depends on stable families. Up to now, with all the changes in marriage, the one thing we’ve been sure of is that marriage means monogamy. Gay marriage will break that connection. It will do this by itself, and by leading to polygamy and polyamory. What lies beyond gay marriage is no marriage at all.

Stanley Kurtz is a research fellow at the Hoover Institution.

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Marriage Radicals: Slipping down the slope (NRO, 030731)

I recently published, “Beyond Gay Marriage,” a systematic statement of the “slippery-slope” argument against gay marriage. My core point was that same-sex marriage — by itself, and by leading to state-sanctioned polygamy and polyamory — will undermine monogamy. I also argued that same-sex marriage will initiate a process likely to terminate in the abolition of legal marriage. These outcomes are not distant and theoretical, but all-too-possible, even imminent. Andrew Sullivan has replied to my argument (quoted here), and this is my response.

KURTZ AGAIN: Given the breathless advance notice of Stanley Kurtz’s magnum opus on gay marriage (all the advance blurbs were penned by, er, Stanley Kurtz), I have to say that his cover-story in the Weekly Standard is notably thin. Kurtz wants to argue that advocates of gay marriage are really trying to destroy the institution, rather than join it, and that this is fueled by a far left agenda in the gay community. What Kurtz doesn’t acknowledge is that there has been a long debate among gays about marriage rights and those of us who took the conservative position, despite enormous pressure and vitriol from our peers, have largely won the argument. Bypassing our achievement in nudging the gay community toward the center and right, he then dredges up fringe activists on the left as representative of the same-sex marriage movement. Some of them, such as Ettelbrick and Polikoff, were the fiercest critics of gay marriage (and gay conservatives) in the past; now Kurtz enlists them as the meaning of our cause for marriage equality. This is like using Al Sharpton to criticize the agenda of the DLC. It’s guilt by absurd association.

MONOGAMY: Then he brings up again the polygamy argument. This is a slippery slope case, the only one you’ve got if the substantive case won’t hold up. Why would same-sex marriage lead to polygamy? Kurtz argues that both undermine monogamy as the marital norm. Huh? Surely polygamy - by allowing men lots of wives within marriage - makes fidelity a moot question. By removing the very structure of a two-person marriage, it makes the sacrifice of monogamy close to meaningless. Not so for two lesbians committed to each other for life. Nor - even more intensely - for two men. So polygamy defines monogamy down. But same-sex marriage brings a culture of monogamy to a previously marginalized population. Aren’t these two phenomena actually going in opposite directions? Kurtz’s answer is that gay men simply cannot be monogamous in marriage. The evidence? Well, we don’t have hard evidence for this because we don’t have gay marriages yet. I’d go further and say we won’t know the future impact of marriage on gay people until a full generation has grown up in the knowledge that such future relationships are possible. But can we make a guess? Kurtz locates a study by a “queer theorist” to make the case that gay men are beneath marriage. (Isn’t it strange how the far right and far left love to use each other?) What does the study find? That 82 percent of lesbians - indistinguishable from straight women and morethan straight men - believe in the monogamy-marriage link. (Remember that two-thirds of Vermont civil unions have been lesbian). What does the study say about men? It finds that “among married heterosexual men, 79 percent felt that marriage demanded monogamy, 50 percent of men in gay civil unions insisted on monogamy, while only 34 percent of gay men outside of civil unions affirmed monogamy.” (The missing category is what single straight men feel about monogamy. I bet it isn’t that different from single gay men.) But the inference here is obvious: getting into a civil union ratcheted up the monogamy quotient among gay men from 34 percent to 50 percent. Cause or effect? Hard to tell. But is it unreasonable to think that real marriage - with its far deeper social ramifications - would ratchet it up some more? Surely it would. Look, I think there’s a genuine worry about men and marriage, and I don’t think it’s crazy to believe that on average male-male marriages may have more adultery than straight marriages (and straight marriages may have more adultery than lesbian marriages). It’s fair to worry about that. But the shake-out of equal marriage rights would in all likelihood be a slight increase in monogamy in marriage as a whole (the impact of all those lesbians) and a strong trend toward fidelity among gay men, where none existed before. Why isn’t that a reasonable social gain for all of us? What Kurtz wants you to believe is that one percent of marriages will have more of an impact on the remaining 99 percent than the 99 percent will have on the one percent. Sorry, but it just doesn’t make sense.

In “Beyond Gay Marriage,” I have a lot to say about those in the gay community who see same-sex marriage as a step toward the abolition of marriage itself. I focus on a group of scholars and activists who now dominate the field of academic family law. Many of those scholars once bitterly opposed gay marriage. Today they formally support gay marriage, but only in so far as same-sex marriage can be turned to the purpose of unraveling marriage itself. According to Sullivan, I fail to acknowledge that these radicals have essentially lost the argument over same-sex marriage within the gay community, and have now been relegated to the fringes. According to Sullivan, making this radical fringe stand for the gay-marriage movement is a form of guilt by association — something like criticizing the agenda of the Democratic Leadership Council by attacking Al Sharpton.

Actually, in “Beyond Gay Marriage” I specifically note that the radicals were once opposed to same-sex marriage. The trouble is, these erstwhile gay opponents of same-sex marriage have not been relegated to the fringes. On the contrary they have gained control of the discipline of family law, and from that perch they are already steering major legal reforms specifically designed to destroy the institution of marriage. That cannot be done from the margins.

Sullivan would like to believe that the movement for same-sex marriage has pushed the gay community toward the center and right. That is wishful thinking. Proponents of same-sex marriage won the argument within the gay community because both sides realized that the right to marry would symbolize social approval of homosexuality. But that is very different than a genuine turning toward the ethos of marriage. Don’t take my word for it. Listen to Gabriel Rotello, a prominent gay activist and author who hopes that same-sex marriage might reduce gay male promiscuity, but who has been frustrated by the attitude toward marriage within the gay community:

The anti-marriage sentiment in the gay and lesbian political world has abated in recent years, and the legalization of same-sex marriage is now an accepted focus of gay liberation. Yet it is rarely posed as a major issue of AIDS prevention. Prevention activists don’t include marriage as a goal, because they generally don’t include monogamy as a goal....Meanwhile, most advocates of same-sex marriage generally fail to make the case for AIDS prevention because such advocates are generally careful not to make the case for marriage, but simply for the right to marriage....This is undoubtedly good practical politics, since many if not most of the major gay and lesbian organizations who have signed on to the fight for same-sex marriage would instantly sign off at any suggestion that they were actually encouraging gay men and lesbians to marry.

Sullivan’s Al Sharpton analogy isn’t fair, since Sharpton has never formally signed on to the agenda of the DLC, whereas anti-marriage gay activists have formally signed on to the gay-marriage movement. A better analogy might be Congressman Charles Rangel’s support for a draft, which is actually an attempt to scuttle the Bush administration’s foreign policy. But the best analogy is probably Bill Clinton’s first presidential campaign — run on the agenda of the DLC. Clinton did turn out to be a bit more moderate than many in his party on some issues, but most of Clinton’s moderation was for show. He brought Hillary Clinton into power, and salted the bureaucracy with leftists who turned federal policy on things like affirmative action and Title IX about as far away from DLC moderation as possible. Sullivan is campaigning for gay marriage on a Clintonesque platform of moderation. I don’t buy it.

Sullivan makes an important concession on the question of gay marriage and monogamy. He acknowledges that there may well be more adultery in male-male marriages than in straight marriages, and agrees that “it’s fair to worry about that.” Sullivan’s answer to this problem is what it has always been — that there will be a net gain in monogamy because gay male marriages will be more than balanced out by strongly monogamous lesbian marriages.

This misses the point — and in several ways. First, Sullivan wants to believe that the somewhat higher level of pro-monogamy views among civil-union couples is a sign that civil unions have changed gay attitudes. The far greater likelihood is that civil unions self-select for gay couples who are already slightly more monogamous. Even then, Sullivan doesn’t mention one of my central points, that full gay marriage will have even lower rates of belief in monogamy than civil unions because many non-monogamous gays will marry for the benefits, without buying into traditional views of marriage.

The deeper point is that the connection between marriage and monogamy only works because of our shared social consensus on the meaning of marriage. With all the changes in marriage since the 1960s we still generally take it for granted that marriage means monogamy. The danger to monogamy is not really from adultery in gay male marriages. The danger is that gay married men (and a significant number of radical lesbians as well) will publicly live by a sexually open conception of marriage. This new way of looking at marriage will be magnified by cutting-edge movies and television shows, and will not be counteracted by the fact that most lesbian marriages are sexually monogamous. It’s not adultery per se, but the open belief that adultery is not, in fact, a crime against marriage that’s the heart of the problem. As I show in the piece, even a relatively small number of practicing polygamists can effect a whole society’s way of looking at marriage. It’s not a question of balancing numbers of adulterous versus non-adulterous pairs. The problem is that if a culturally salient minority of married couples begin to tout a new conception of what marriage means, it will break apart our taken-for-granted cultural consensus about the connection between marriage and monogamy.

But the most striking thing about Sullivan’s response to “Beyond Gay Marriage” is his failure to address many of my key points. Sullivan tries to dismiss the slippery-slope argument by calling it a way of avoiding discussion of gay marriage itself. But I have plenty to say about gay marriage. It’s actually Sullivan who has avoided a whole series of questions — about gay marriage, and about the slippery slope.

Sullivan never really addresses the main point of the slippery-slope argument — that gay marriage, by redefining marriage on civil-rights grounds, will make it impossible to deny recognition to polygamists or polyamorists. Once homosexuals are given the right to marry on grounds of equal protection, how can that same right be denied to polyamorists? After all, polyamorists see themselves as having their own sexual orientation. So why don’t all orientations get the right to marry? It isn’t just a question of legality. In “Beyond Gay Marriage,” I show how the movement for gay marriage has already led to increased social approval for polygamy and polyamory. The connection between gay marriage and polyamory is psychological and cultural, not just legal.

Sullivan says nothing at all about what is probably the most important new point in my piece. Following professor Alan Hawkins, I argue that legalized same-sex marriage will bring about “gay marriages of convenience” between heterosexuals (women in particular), who will marry for the sake of financial and legal benefits. That may undermine the ethos of marriage more quickly and more profoundly than anything else. It is a crucial new point. I hope Sullivan will eventually address it.

Finally, Sullivan is silent on my point about lesbian triple parenting leading to legalized polyamory. I have written before on this point, and Sullivan has never responded. Now I’ve shown that the law-school radicals are seizing upon lesbian triple parenting as a tool to undermine marriage. Radicals have also noticed the failure of conservative gay pundits to acknowledge the existence of the path from gay marriage to no marriage via lesbian triple parenting. Consider this passage from a 2001 law-review article by radical family-law expert, Paula Ettelbrick:

...revisionist history has been promoted by conservative gay pundits who relegate domestic partnership and functional family advocacy to the status of being nothing but a stepping stone strategy toward the real prize of marriage. Nothing could be further from the truth....the family structures of lesbians and gay men who have children simply do not fit into the marital structure erected to envelope heterosexual, married couples and their children....every lesbian couple with a biological child has an automatic third person — the donor/father — who factors into the family....Significant changes to the legal rules of parenting would have to be made to accommodate these families. It’s not that it could not happen. It’s just that most same-sex marriage advocates...do not acknowledge or address broader kinds of family issues in their work.

Ettelbrick and her fellow radical law professors want to see changes in the legal rules of parenting for lesbian-couple/sperm-donor-triads lead to legalized polyamory. These radicals are not marginal figures, and have every chance of succeeding. In some respects, they have succeeded already. Take this piece by another family-law radical, Nancy Polikoff. In it, Polikoff notes that the Law Commission of Canada has already proposed a package of reforms that stop just short of abolishing marriage. And Polikoff points to similar legal steps being taken in the United States. So the radicals themselves know what I said in my piece is true: that they are not on the fringes, but are fast making progress toward turning the movement for gay marriage, not in a conservative direction, but toward the ultimate abolition of marriage itself.

— Stanley Kurtz is a research fellow at the Hoover Institution at Stanford University.

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What Marriage Is For: Children need mothers and fathers (Weekly Standard, 030804)

GAY MARRIAGE is no longer a theoretical issue. Canada has it. Massachusetts is expected to get it any day. The Goodridge decision there could set off a legal, political, and cultural battle in the courts of 50 states and in the U.S. Congress. Every politician, every judge, every citizen has to decide: Does same-sex marriage matter? If so, how and why?

The timing could not be worse. Marriage is in crisis, as everyone knows: High rates of divorce and illegitimacy have eroded marriage norms and created millions of fatherless children, whole neighborhoods where lifelong marriage is no longer customary, driving up poverty, crime, teen pregnancy, welfare dependency, drug abuse, and mental and physical health problems. And yet, amid the broader negative trends, recent signs point to a modest but significant recovery.

Divorce rates appear to have declined a little from historic highs; illegitimacy rates, after doubling every decade from 1960 to 1990, appear to have leveled off, albeit at a high level (33 percent of American births are to unmarried women); teen pregnancy and sexual activity are down; the proportion of homemaking mothers is up; marital fertility appears to be on the rise. Research suggests that married adults are more committed to marital permanence than they were twenty years ago. A new generation of children of divorce appears on the brink of making a commitment to lifelong marriage. In 1977, 55 percent of American teenagers thought a divorce should be harder to get; in 2001, 75 percent did.

A new marriage movement--a distinctively American phenomenon--has been born. The scholarly consensus on the importance of marriage has broadened and deepened; it is now the conventional wisdom among child welfare organizations. As a Child Trends research brief summed up: “Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes. . . . There is thus value for children in promoting strong, stable marriages between biological parents.”

What will court-imposed gay marriage do to this incipient recovery of marriage? For, even as support for marriage in general has been rising, the gay marriage debate has proceeded on a separate track. Now the time has come to decide: Will unisex marriage help or hurt marriage as a social institution?

Why should it do either, some may ask? How can Bill and Bob’s marriage hurt Mary and Joe? In an exchange with me in the just-released book “Marriage and Same Sex Unions: A Debate,” Evan Wolfson, chief legal strategist for same-sex marriage in the Hawaii case, Baer v. Lewin, argues there is “enough marriage to share.” What counts, he says, “is not family structure, but the quality of dedication, commitment, self-sacrifice, and love in the household.”

Family structure does not count. Then what is marriage for? Why have laws about it? Why care whether people get married or stay married? Do children need mothers and fathers, or will any sort of family do? When the sexual desires of adults clash with the interests of children, which carries more weight, socially and legally?

These are the questions that same-sex marriage raises. Our answers will affect not only gay and lesbian families, but marriage as a whole.

IN ORDERING GAY MARRIAGE on June 10, 2003, the highest court in Ontario, Canada, explicitly endorsed a brand new vision of marriage along the lines Wolfson suggests: “Marriage is, without dispute, one of the most significant forms of personal relationships. . . . Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple.”

The Ontario court views marriage as a kind of Good Housekeeping Seal of Approval that government stamps on certain registered intimacies because, well, for no particular reason the court can articulate except that society likes to recognize expressions of love and commitment. In this view, endorsement of gay marriage is a no-brainer, for nothing really important rides on whether anyone gets married or stays married. Marriage is merely individual expressive conduct, and there is no obvious reason why some individuals’ expression of gay love should hurt other individuals’ expressions of non-gay love.

There is, however, a different view--indeed, a view that is radically opposed to this: Marriage is the fundamental, cross-cultural institution for bridging the male-female divide so that children have loving, committed mothers and fathers. Marriage is inherently normative: It is about holding out a certain kind of relationship as a social ideal, especially when there are children involved. Marriage is not simply an artifact of law; neither is it a mere delivery mechanism for a set of legal benefits that might as well be shared more broadly. The laws of marriage do not create marriage, but in societies ruled by law they help trace the boundaries and sustain the public meanings of marriage.

In other words, while individuals freely choose to enter marriage, society upholds the marriage option, formalizes its definition, and surrounds it with norms and reinforcements, so we can raise boys and girls who aspire to become the kind of men and women who can make successful marriages. Without this shared, public aspect, perpetuated generation after generation, marriage becomes what its critics say it is: a mere contract, a vessel with no particular content, one of a menu of sexual lifestyles, of no fundamental importance to anyone outside a given relationship.

The marriage idea is that children need mothers and fathers, that societies need babies, and that adults have an obligation to shape their sexual behavior so as to give their children stable families in which to grow up.

Which view of marriage is true? We have seen what has happened in our communities where marriage norms have failed. What has happened is not a flowering of libertarian freedom, but a breakdown of social and civic order that can reach frightening proportions. When law and culture retreat from sustaining the marriage idea, individuals cannot create marriage on their own.

In a complex society governed by positive law, social institutions require both social and legal support. To use an analogy, the government does not create private property. But to make a market system a reality requires the assistance of law as well as culture. People have to be raised to respect the property of others, and to value the traits of entrepreneurship, and to be law-abiding generally. The law cannot allow individuals to define for themselves what private property (or law-abiding conduct) means. The boundaries of certain institutions (such as the corporation) also need to be defined legally, and the definitions become socially shared knowledge. We need a shared system of meaning, publicly enforced, if market-based economies are to do their magic and individuals are to maximize their opportunities.

Successful social institutions generally function without people’s having to think very much about how they work. But when a social institution is contested--as marriage is today--it becomes critically important to think and speak clearly about its public meanings.

AGAIN, what is marriage for? Marriage is a virtually universal human institution. In all the wildly rich and various cultures flung throughout the ecosphere, in society after society, whether tribal or complex, and however bizarre, human beings have created systems of publicly approved sexual union between men and women that entail well-defined responsibilities of mothers and fathers. Not all these marriage systems look like our own, which is rooted in a fusion of Greek, Roman, Jewish, and Christian culture. Yet everywhere, in isolated mountain valleys, parched deserts, jungle thickets, and broad plains, people have come up with some version of this thing called marriage. Why?

Because sex between men and women makes babies, that’s why. Even today, in our technologically advanced contraceptive culture, half of all pregnancies are unintended: Sex between men and women still makes babies. Most men and women are powerfully drawn to perform a sexual act that can and does generate life. Marriage is our attempt to reconcile and harmonize the erotic, social, sexual, and financial needs of men and women with the needs of their partner and their children.

How to reconcile the needs of children with the sexual desires of adults? Every society has to face that question, and some resolve it in ways that inflict horrendous cruelty on children born outside marriage. Some cultures decide these children don’t matter: Men can have all the sex they want, and any children they create outside of marriage will be throwaway kids; marriage is for citizens--slaves and peasants need not apply. You can see a version of this elitist vision of marriage emerging in America under cover of acceptance of family diversity. Marriage will continue to exist as the social advantage of elite communities. The poor and the working class? Who cares whether their kids have dads? We can always import people from abroad to fill our need for disciplined, educated workers.

Our better tradition, and the only one consistent with democratic principles, is to hold up a single ideal for all parents, which is ultimately based on our deep cultural commitment to the equal dignity and social worth of all children. All kids need and deserve a married mom and dad. All parents are supposed to at least try to behave in ways that will give their own children this important protection. Privately, religiously, emotionally, individually, marriage may have many meanings. But this is the core of its public, shared meaning: Marriage is the place where having children is not only tolerated but welcomed and encouraged, because it gives children mothers and fathers.

Of course, many couples fail to live up to this ideal. Many of the things men and women have to do to sustain their own marriages, and a culture of marriage, are hard. Few people will do them consistently if the larger culture does not affirm the critical importance of marriage as a social institution. Why stick out a frustrating relationship, turn down a tempting new love, abstain from sex outside marriage, or even take pains not to conceive children out of wedlock if family structure does not matter? If marriage is not a shared norm, and if successful marriage is not socially valued, do not expect it to survive as the generally accepted context for raising children. If marriage is just a way of publicly celebrating private love, then there is no need to encourage couples to stick it out for the sake of the children. If family structure does not matter, why have marriage laws at all? Do adults, or do they not, have a basic obligation to control their desires so that children can have mothers and fathers?

THE PROBLEM with endorsing gay marriage is not that it would allow a handful of people to choose alternative family forms, but that it would require society at large to gut marriage of its central presumptions about family in order to accommodate a few adults’ desires.

The debate over same-sex marriage, then, is not some sideline discussion. It is the marriage debate. Either we win--or we lose the central meaning of marriage. The great threat unisex marriage poses to marriage as a social institution is not some distant or nearby slippery slope, it is an abyss at our feet. If we cannot explain why unisex marriage is, in itself, a disaster, we have already lost the marriage ideal.

Same-sex marriage would enshrine in law a public judgment that the desire of adults for families of choice outweighs the need of children for mothers and fathers. It would give sanction and approval to the creation of a motherless or fatherless family as a deliberately chosen “good.” It would mean the law was neutral as to whether children had mothers and fathers. Motherless and fatherless families would be deemed just fine.

Same-sex marriage advocates are startlingly clear on this point. Marriage law, they repeatedly claim, has nothing to do with babies or procreation or getting mothers and fathers for children. In forcing the state legislature to create civil unions for gay couples, the high court of Vermont explicitly ruled that marriage in the state of Vermont has nothing to do with procreation. Evan Wolfson made the same point in “Marriage and Same Sex Unions”: “[I]sn’t having the law pretend that there is only one family model that works (let alone exists) a lie?” He goes on to say that in law, “marriage is not just about procreation--indeedis not necessarily about procreation at all.”

Wolfson is right that in the course of the sexual revolution the Supreme Court struck down many legal features designed to reinforce the connection of marriage to babies. The animus of elites (including legal elites) against the marriage idea is not brand new. It stretches back at least thirty years. That is part of the problem we face, part of the reason 40 percent of our children are growing up without their fathers.

It is also true, as gay-marriage advocates note, that we impose no fertility tests for marriage: Infertile and older couples marry, and not every fertile couple chooses procreation. But every marriage between a man and a woman is capable of giving any child they create or adopt a mother and a father. Every marriage between a man and a woman discourages either from creating fatherless children outside the marriage vow. In this sense, neither older married couples nor childless husbands and wives publicly challenge or dilute the core meaning of marriage. Even when a man marries an older woman and they do not adopt, his marriage helps protect children. How? His marriage means, if he keeps his vows, that he will not produce out-of-wedlock children.

Does marriage discriminate against gays and lesbians? Formally speaking, no. There are no sexual-orientation tests for marriage; many gays and lesbians do choose to marry members of the opposite sex, and some of these unions succeed. Our laws do not require a person to marry the individual to whom he or she is most erotically attracted, so long as he or she is willing to promise sexual fidelity, mutual caretaking, and shared parenting of any children of the marriage.

But marriage is unsuited to the wants and desires of many gays and lesbians, precisely because it is designed to bridge the male-female divide and sustain the idea that children need mothers and fathers. To make a marriage, what you need is a husband and a wife. Redefining marriage so that it suits gays and lesbians would require fundamentally changing our legal, public, and social conception of what marriage is in ways that threaten its core public purposes.

Some who criticize the refusal to embrace gay marriage liken it to the outlawing of interracial marriage, but the analogy is woefully false. The Supreme Court overturned anti-miscegenation laws because they frustrated the core purpose of marriage in order to sustain a racist legal order. Marriage laws, by contrast, were not invented to express animus toward homosexuals or anyone else. Their purpose is not negative, but positive: They uphold an institution that developed, over thousands of years, in thousands of cultures, to help direct the erotic desires of men and women into a relatively narrow but indispensably fruitful channel. We need men and women to marry and make babies for our society to survive. We have no similar public stake in any other family form--in the union of same-sex couples or the singleness of single moms.

Meanwhile, cui bono? To meet the desires of whom would we put our most basic social institution at risk? No good research on the marriage intentions of homosexual people exists. For what it’s worth, the Census Bureau reports that 0.5 percent of households now consist of same-sex partners. To get a proxy for how many gay couples would avail themselves of the health insurance benefits marriage can provide, I asked the top 10 companies listed on the Human Rights Campaign’s website as providing same-sex insurance benefits how many of their employees use this option. Only one company, General Motors, released its data. Out of 1.3 million employees, 166 claimed benefits for a same-sex partner, one one-hundredth of one percent.

People who argue for creating gay marriage do so in the name of high ideals: justice, compassion, fairness. Their sincerity is not in question. Nevertheless, to take the already troubled institution most responsible for the protection of children and throw out its most basic presumption in order to further adult interests in sexual freedom would not be high-minded. It would be morally callous and socially irresponsible.

If we cannot stand and defend this ground, then face it: The marriage debate is over. Dan Quayle was wrong. We lost.

Maggie Gallagher is the editor of MarriageDebate.com and the co-author of “The Case for Marriage.”

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Massachusetts vs. Marriage: How to save an institution (Weekly Standard, 031201)

LAST WEEK, the long-awaited Massachusetts Goodridge gay-marriage decision came down--hard. In a 4-3 ruling, the Massachusetts high court held that the millennia-old, cross-cultural definition of marriage as the union of a man and a woman is utterly irrational. Using the lowest level of scrutiny (the “rational basis” test, which almost always results in deference to the legislature), four well-educated judges could not think up any reason other than “animus” why the people of Massachusetts and their elected representatives might not want same-sex marriage. Only a fool or a madman (or a bigot), they implied, could possibly disagree. The judges gave the state legislature 180 days to respond, presumably by revising marriage laws to include same-sex couples. At this writing, it is 179 days and counting until gay marriage comes to America.

Massachusetts governor Mitt Romney responded by endorsing an amendment to the state constitution, but given the complicated amendment process, the soonest Massachusetts citizens could vote to overturn gay marriage is November 2006.

In Washington, the decision has propelled same-sex marriage to near the top of the nation’s domestic political agenda. The president immediately called for an as yet unspecified legal remedy to protect the “sanctity of marriage.” There is a growing legal and political consensus in Republican circles that only an amendment to the U.S. Constitution will do. But what kind of amendment? At a Catholic University conference, a White House official pointed out there is not yet a firm consensus about what amendment to promote. Should a federal marriage amendment ban

all civil recognition of gay unions, or is it enough to affirm that marriage unites a man and a woman, leaving the question of benefits for same-sex couples to state legislatures?

There are political considerations of course: What language is most likely to win the support of two-thirds of both houses of Congress, then to secure ratification by three-quarters of the state legislatures? What language is most likely to unite (and excite) the party’s base? What language will rally a majority of the people?

But behind the political debate there is a significant moral and intellectual debate. This debate is being driven in part by California’s experience. Just a year after a successful drive to pass a state constitutional amendment defining marriage as a union of a man and a woman, the California legislature adopted a comprehensive civil unions package that apes marriage statutes, right down to calling the relationship between the partners “spousal.” Many who fought hard to defend the age-old definition of marriage in California feel cheated and betrayed.

Are civil unions, then, no different from gay marriage itself? Is granting the legal benefits of marriage to same-sex couples the same thing as giving away marriage? And--the most pressing question of all--what is the point of defending marriage “in name only”? It is a serious question. It deserves an answer.

THE PLACE TO START is with the phrase the “benefits of marriage.” When marriage advocates and same-sex marriage advocates use these words, they mean two different things, reflecting two different conceptions of what marriage is and how the law helps sustain it.

When family scholars and marriage advocates speak of the benefits of marriage for men and women, for children, and for society, we are talking about the good things that happen when husbands and wives are joined in permanent, public, sexual, emotional, financial, and parenting unions. Most notably, there is now a consensus across ideological lines, based on 20 years’ worth of social science research, that children do better when their mother and father are married and stay married. Here, for example, is how Child Trends, a mainstream child welfare organization, summed up the scholarly consensus recently: “Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes. . . . There is thus value for children in promoting strong, stable marriages between biological parents.”

By contrast, when gay-marriage advocates talk about the benefits of marriage, they are usually referring to a set of legal goodies--which they often argue account for the material advantages married families display. This focus on the “legal benefits” of marriage allows them to make one of their strongest arguments: Withholding legal benefits is a form of immoral discrimination.

“Writing discrimination into the U.S. Constitution is about as un-American as you can get,” David Smith, spokesman for the Human Rights Campaign, told the San Francisco Chronicle in September. “The senators who are supporting this amendment are in fact denying children raised in gay and lesbian households the security and the safety net that civil marriage provides. . . . That’s just evil.”

In the same vein, Josh Friedes, advocacy director for the Freedom to Marry Coalition of Massachusetts, told USA Today, “Marriage is a gateway to over 1,000 federal protections, [such as] Social Security survivor’s benefits, health care, and pension benefits.” Most such rhetoric relies on a 1997 GAO report that described 1,049 consequences of marriage in federal law.

Plaintively summing up the case for legal benefits, a full-page New York Times ad by the Human Rights Campaign on October 17 asserted: “Because the government won’t give them legal protections, Jo and Teresa’s children don’t qualify for full Social Security survivor benefits if one of them dies, even after a lifetime of paying into the system. And if one of the kids gets sick, in some states they could even be denied the right to visit them in the hospital because they aren’t ‘family.’ And Jo and Teresa aren’t eligible for COBRA health coverage for each other or for family medical leave to care for a sick loved one.”

For many same-sex-marriage advocates, marriage is basically a legal ceremony that confers legal benefits, a rite that gives rise to rights. In this spirit, the majority in Goodridge describes marriage as if it were a creature of the state: “Simply put, the government creates civil marriage,” which is a “wholly secular institution.” This reductionist vision of marriage also drives other advocates of family diversity, like the authors of the American Law Institute’s “Principles of Family Dissolution,” who call marriage merely “the sum of its legal incidents.” “From the point of view of family law,” they say, “the distinction between a full-blown domestic partnership, like Vermont’s domestic unions, and a lawful marriage is merely symbolic.” Similarly, two scholars from the University of California at Los Angeles argued in the New York Times on November 20 that states offering civil unions “have already begun the experiment of gay marriage.”

Surprisingly, many supporters of marriage seem to agree with this framing of the matter, constructed by opponents of marriage: Marriage is a legal arrangement giving rise to legal “benefits.” Therefore, giving same-sex couples the “benefits” is giving them marriage itself.

WHAT IS WRONG with this analysis? First, there is “the myth of benefits.” The idea that the law sustains marriage primarily by dispensing legal bonuses to reward or even “incentivize” wedlock is just not true. Most of the legal “benefits” of marriage are indeed more properly described as “incidents”--ways in which the law treats you differently if you are married. Relatively few of these are unalloyed advantages. Some are benefits to one spouse and burdens to the other. Some are benefits in some circumstances but penalties in others. Moreover, some of the longstanding legal benefits of marriage are under serious legal attack. And those mentioned most often by gay-marriage proponents could probably be secured by other means.

Take hospital decision-making. Gay-rights advocates say that unless they are married, gay partners can’t visit each other in the hospital or make end-of-life decisions about each other’s care. Under ordinary circumstances, pretty much anyone can go into a hospital room, and patients can see whoever they choose. In life-and-death situations where there is dissent among key family members, many hospitals apparently enforce medical power of attorney poorly. Will gay marriage solve this problem? The Terry Schiavo case (her husband has spent five years trying to disconnect her feeding and hydration tubes against her parents’ wishes) suggests that when families disagree, marriage is no panacea. Liability, not moral scruples, probably explains any lack of responsiveness among hospital staff. Most Americans think it a scandal if sick people can’t designate whoever they want to make end-of-life decisions. Surely there are ways to strengthen medical power of attorney without recasting our most basic social institution.

Or consider the issue of creating stability for the children of unisex couples. The overwhelming majority of these children are children of divorce. Their adoption--not the remarriage of their mother (whether to a male or a female)--is necessary to create any new parental rights. As for the much smaller number of “gayby boom” families--lesbian moms having babies by artificial insemination, or gay couples acquiring children by adoption--it is unclear whether marriage would provide any parental benefit. In most states there is no preference for married couples in adoption law. Some even forbid social workers to “discriminate” based on marital status. The key way that marriage protects parental rights is the legal presumption of paternity: The husband is the father of his wife’s baby. Traditionally, only the husband has had legal standing to challenge that presumption. For same-sex couples, the presumption of paternity does not apply. Moreover, the trend in family law nowadays is to ignore the presumption of paternity and allow biological fathers to pierce the marriage veil and assert paternity rights. Second-parent adoptions are much more important than marriage in securing parental status for gay and lesbian partners.

Lately the focus has shifted to Social Security rights. The New York Times highlighted the plight of a young New Jersey mother, Eva Kadrey, whose female partner died. Because they were not married, it is implied, their young son is being deprived of Social Security survivor’s benefits her partner had earned. But Social Security benefits for children are not dependent on the marital status of their parents. Children of divorced or never-married parents who die are entitled to benefits. What prevents young Nicolaj from collecting benefits is that the woman who died was not his mother: In the five years or more since Eva Kadrey became pregnant, her girlfriend never applied to establish legal responsibility for “their” child, even though second-parent adoption is available in New Jersey. What reason is there to believe that a partner who failed to become a legal parent would have married if she had been able to? What is the evidence she even thought of herself as a parent, rather than a stepparent, aunty, or friend?

Gays and lesbians expecting a bonanza from Social Security once they get access to the legal benefits of marriage will be sorely disappointed. The only certain “marital benefit” from Social Security is a onetime spousal death benefit of $255.

It is true that a wife can access her husband’s Social Security, both during his life and afterwards (and vice versa). But in most cases, unless a spouse has been a full-time homemaker (or close to it), his or her own Social Security benefit is higher than the pitifully small surviving spouse’s benefit. When a spouse dies, the widow or widower can switch to a dead spouse’s benefit if it is higher than their personal benefit. Again, unless the income of the two partners is widely divergent, the economic value of this benefit is very likely small. Certainly, it has little to do with why people marry or stay married.

According to a forthcoming analysis of federal marriage benefits by Joshua Baker of the Institute for Marriage and Public Policy, 99 percent of men and two-thirds of women who receive Social Security benefits do so on the basis of their own work history (this in a pool of retirees that includes vastly higher proportions of full-time homemakers than is usual nowadays). Because the income on which Social Security benefits are calculated maxes out at $87,000 a year, a spouse who earns as little as $25,000 a year (in 2003 dollars) will not qualify for a direct spousal benefit at all because his or her personal work benefit will be higher. Same-sex couples are more egalitarian in their relationships than opposite-sex couples, and thus are especially unlikely to reap any spousal benefit from Social Security.

What about health insurance? Yes, in the abstract, the ability to extend health insurance to a partner can be a benefit. But when both adults are working (as in egalitarian relationships), both partners tend to sustain their own health insurance. And the ability to walk away from a partner’s medical debts (or qualify for Medicaid regardless of the partner’s income) is a legal benefit of non-marriage, unavailable to spouses. Income caps in federal law also penalize married couples over unmarried couples.

How many gays and lesbians want or need spousal insurance benefits? I tried to find out. I asked the top ten gay-friendly companies on the Human Rights Campaign website how many employees choose to extend their health insurance to a same-sex partner. General Motors is the only one that would say. The answer was 166 employees, or one-one hundredth of one percent of all GM workers.

The couples most likely to secure legal benefits from marriage are those in prototypically traditional marriages. That is because most of what can be described as the legal benefits of marriage, though now formally gender-neutral, were designed to protect women from the risks and costs that childbearing imposes. Most research suggests that gay and lesbian relationships are most stable when the partners earn similar incomes and play similar household roles. So when gays and lesbians scrutinize the basket of legal benefits of marriage for them, they are especially likely to come up empty. The general rule in federal marriage law: The more egalitarian the couple, the more likely they are to face marriage penalties rather than benefits.

Which may be one reason why, when gay and lesbian couples are at long last offered the much-heralded legal “benefits” of marriage, relatively few are interested.

Judging by behavior, the actual demand for gay marriage or unisex civil unions appears to be low. In the Netherlands, which has offered marriage since September 2000 and full-benefit civil unions since 1998, fewer than one out of seven cohabiting same-sex couples have chosen to make the relationship official. If you compared the number of Vermont residents who entered civil unions in 2001 (when they became available) with Census 2000 data on the number of same-sex partners and gay and lesbian people, it looks like no more than a quarter of Vermont same-sex couples sought civil unions, which translates into 6 percent of gay and lesbian individuals (and the common complaint that the Census undercounts gays and lesbians would suggest the proportions are actually even lower). In Canada, where the courts have opened marriage to same-sex unions, gay and lesbian leaders report a surprising ambivalence about the opportunity.

When California created marriage-equivalent civil unions this year, gay and lesbian leaders expressed concern about the consequences for same-sex partners. A November 3 story in the Contra Costa Times reports: “But some partners looking at the financial obligations are likely to say no thanks to California’s domestic-partner version of ‘I do.’ . . . Partners with incomes higher than their mates may balk at the risk of having to pay ‘alimony’ if they split up. Those who want to protect and pass on separate property, or who don’t want to be liable for their partner’s hefty debts, may also think twice.” Meanwhile, federal “tax breaks, Social Security benefits and pensions” won’t be triggered by state-level civil unions. From September 2000 through December 31, 2001, only about 10 percent of all same-sex couples registered as domestic partners. And news accounts suggest some of these, faced with marital responsibilities where they’d been promised benefits, are having second thoughts. According to the Contra Costa Times, “some of the 23,300 registered couples are so concerned about the new law they are likely to ‘unregister’ before the law takes effect Jan. 1, 2005.”

In sum, the practical and financial benefits of legal marriage are largely a myth. Which brings us to the question: How then does the law help sustain marriage?

FIRST AND ABOVE ALL, the law helps sustain marriage by setting boundaries. Marriage, of course, is not something government dreamed up. It is a social institution older than the nation-state, older than modern property rights or contract law, older than any known institution. Law does not create marriage. But in a complex and mobile society, law plays a role in regulating it. The law helps sustain the institution of marriage by (a) defining who is married and (b) maintaining the basic norms of what marriage means, including sexual fidelity, mutual responsibility for children, and permanence.

By creating barriers to entry (marriage ceremonies and licenses) and barriers to exit (divorce laws), marriage law allows men and women to signal their intentions to each other. More important, by sustaining a public way of determining who is married and who is not, marriage law helps other more important players--families, communities, schools, churches--to sustain a marriage culture. Because we know who is married, we know who is committing adultery, and who is having a child out of wedlock. Because marriage is a public rather than a private act, we have a basic, common understanding of what it means to raise children in a family, to be good husbands and good wives. Without this common public vocabulary, marriage would become a private act upheld by no shared norm.

What some dismiss as protecting “merely” the word marriage is actually 90 percent of the loaf. If a married couple no longer consists of a husband and wife, we lose the shared meaning of the word; we lose the ability to speak the idea in public and be understood. Such ideas are what culture is made of. Marriage is a word, yes, but so are property, freedom, democracy, morality, and love. The Ten Commandments are made of words. The opponents of marriage understand what many of its friends do not: Capturing the word is the key to deconstructing the institution.

Many ways of doing this have been tried. For example, the law can treat cohabiting partners as married. Do this, and you can no longer tell who is married, or whether marriage matters. If the word marriage includes same-sex couples, we proponents of the marriage culture will be silenced in the public square because we will no longer have a word for the idea of marriage as we and our forebears have always understood it. Marriage is about getting the people who make the baby to stay around and love each other and the baby too. Marriage is about securing for children the mothers and fathers they need to flourish and society the babies it needs to survive.

But (some object), if we keep marriage intact while also allowing civil unions, won’t the New York Times and People magazine start treating civil union ceremonies just the same as weddings? Of course they will, but they do that already, regardless of the law. And so long as the law of marriage remains clear, it is they who, in doing so, are speaking a private language and trying to impose it on the public, not we. If the courts transform marriage into a unisex institution, on the other hand, the New York Times and People magazine will be the ones speaking the public, normative language of the land, and it is we who will be privatized and marginalized. If the 15 words “Marriage in the United States is exclusively a union of one man and one woman” are placed in our Constitution, we can point to those who claim civil unions are marriages and say with confidence, “Not in the United States.”

Even now, I can go to Vermont or California--both of which have enacted civil unions--and organize churches and communities and parents to discourage divorce, or to strengthen marriage, or to urge postponing childbearing until marriage, and I will not be promoting same-sex unions or unisex parenting. Even in Vermont and California, I can say, “Marriage is important because children need mothers and fathers,” and the laws of those states do not directly contradict me. I can promote abstinence-until-marriage education in schools without endorsing alternative family forms.

Do not mistake me: In the long run, I believe that creating legal alternatives to marriage is counterproductive and wrong. But civil unions are one unwise step down a path away from a marriage culture. Gay marriage is the end of the road.

Which is why I cannot join any coalition willing to fight only for the whole loaf but certain to go down to “noble” defeat. I cannot back a coalition threatening to hold politicians hostage unless they support a constitutional amendment that would permanently ban civil unions. To win any constitutional amendment at all will require far more than mobilizing the conservative base. It will require actually changing the minds of a substantial fraction of Americans, pushing opposition to same-sex marriage from 60 percent of the public to 70 percent or more. It is possible to change minds; I’ve seen it done. Support for same-sex marriage is weak. Among the 30 percent or so of Americans who say they support gay marriage, only 10 percent consider it a voting issue.

But the people whose minds must be changed are not natural allies of the Christian Right. They are moderately liberal and centrist Democrats and independents. Most can be persuaded to move from supporting gay marriage to opposing gay marriage and supporting civil unions. Do we want to push these Americans away from our coalition or bring them in? To anyone who sees marriage as an absolutely essential social institution, this is not a hard choice. To protect marriage, we need to build a national consensus about the public purposes of marriage that crosses ideological and party lines.

To lose the word “marriage” is to lose the core idea any civilization needs to perpetuate itself and to protect its children. It means exposing our children to a state-endorsed and state-promoted new vision of unisex marriage. It means losing the culture of marriage. And there would be nothing noble about that at all.

Maggie Gallagher is the president of the Institute for Marriage and Public Policy in Washington, D.C.

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Keep Marriage Heterosexual (EFC, 031000)

The EFC’s president explains why the redefinition of marriage must be challenged in the public square

The most common questions I have been asked by the media are, “How will redefining marriage to include same-sex couples harm marriage? Won’t it strengthen marriage by making it more inclusive?” After all, only one-half of one percent of households in Canada are same-sex households, and not all gays and lesbians would want to marry. What is the harm?

This is the curious thing about the current debate. No one is questioning the value or importance of marriage, nor that it is a fundamental social institution. It is because marriage is valued and bears social legitimacy that some gays and lesbians want to be considered as married.

Everyone agrees that marriage is properly characterized by love and commitment. As the Ontario Court of Appeal stated:

Marriage is, without dispute, one of the most significant forms of personal relationships. For centuries, marriage has been a basic element of social organization in societies around the world. Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflect society’s approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships.

Why then, some ask, is it necessary that it be between a woman and a man? And if your answer involves the unique procreative capacity of the union of a man and woman, you will be reminded that gays and lesbians also have children, be it through previous relationships, adoption or reproductive technologies. As the Ontario Court of Appeal concluded,

Heterosexual married couples will not stop having or raising children because same-sex couples are permitted to marry. Moreover, an increasing percentage of children are being born to and raised by same-sex couples…. A law that aims to encourage only “natural” procreation ignores the fact that same-sex couples are capable of having children.

Of course, if marriage is viewed only from a legal perspective then it will be reduced to a legal relationship between spouses, just as when a church is seen as strictly a legal entity no different than any other voluntary association, such as a golf club. Reducing a social or religious institution to its legal dimension results in a thin and consequently distorted understanding of what the institution is. There is room in a legal analysis to consider the multidimensional nature of marriage, and the Evangelical Fellowship of Canada continues to engage in both the legal and public debate on this aspect of the nature of marriage. In partnership with others we are currently seeking to challenge the court rulings that have interpreted marriage far too narrowly.

Yet several court rulings thus far have adopted a reduced view of marriage, and the questions of reporters still bring us back to the most basic of questions: why must marriage be opposite sex?

The Court’s assertion is that marriage is only about love and commitment and is simply a contractual relationship between two people. While that is an element of marriage, is that really all there is to marriage? There are a variety of domestic relationships that are characterized by love and commitment, but we don’t call them all marriage. Single persons and other domestic relationships, whether sexually intimate or not, may have children from previous relationships, adoption or reproductive technologies. This reality is not an argument to redefine marriage. Nor is it evidence that marriage is irrelevant to raising children.

The reason marriage has societal significance, the reason it has endured and has been recognized by all religions and cultures, is that it is a unique and distinctive relationship that is rooted in creation and manifest and sustained in community.

Marriage is founded upon the biological reality of our dimorphic nature; we exist in two sexes and marriage is inclusive of both sexes, being the sexual union of one male and one female. It expresses the complementarity of the sexes. Marriage was established for the purposes of companionship, sexual fidelity between husband and wife and the procreation and raising of children.

As Christians, our understanding of the structure and nature of marriage is founded on the biblical account of the creation of man and woman. Genesis 1 and 2 state that God created man and woman to fulfill their need of intimate partnership and to carry out the mandate given by God in Genesis 1:28: “Be fruitful and increase in number; fill the earth and subdue it.” Jesus reiterated this understanding when He said, “Have you not read that the one who made them at the beginning ‘made them male and female,’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So they are no longer two but one. Therefore what God has joined together, let no one separate” (Matthew 19:4-5 NRSV).

Properly understood, marriage is covenantal, not merely contractual. Marriage has the unique power to promote the exclusive and permanent sexual, psychological and emotional bonding of a man and a woman. That is why marriage is called a covenant, not merely a contract that can be formed and broken like a business transaction.

The structure and covenantal nature of marriage provides a stable and caring environment for the expression of the physical and psychological bond between male and female, fosters a stable relationship between husband and wife, recognizes the unique procreative capacity of a heterosexual union to procreate children, and provides the benefit of the raising of children by a parent of each sex. The uniting of man and woman is distinguished from other types of social interaction and is described in Scripture as becoming “one flesh.”

The notion of covenant also expresses the social dimension of marriage. It is not a private contract or a mere domestic partnership. Marriages are formed and sustained in community: a covenant entered into in the presence of God, with the consent of the parents, before witnesses who represent the supporting community, and recognized by the state. Marriage is not simply an act between two people, something two individuals decide to do. Marriage is a social and religious institution into which couples enter. Their marriage reflects, either positively or negatively, the institution within which they participate. Marriage is the social, cultural and religious context for the conjugal relationship which is exclusive to male and female. It is the expression of heterosexual identity.

At its core, this debate is about preserving the social, cultural, religious and legal means of facilitating the long-term exclusive sexual bonding of male and female. It is also society’s commitment to children where the term marriage captures the practical ideal of a stable and committed context within which children can intimately know and experience their biological and social heritage. By redefining marriage, what commitment is society making to children? Marriage is the preferred means of heterosexual bonding and the preferred context for the procreation and raising of children, and this is another reason why it is so valued.

Consider the social consequences when stable marriages are not sustained—for the spouses, for their children and for society. Reducing marriage to an expression of companionship between two people strips marriage of its meaning, distinctiveness and symbolism. It means marriage has nothing to do with procreating children or providing children with mothers and fathers. It presumes that the enduring and exclusive sexual bonding of male and female is no different than any other domestic relationship.

We live in a pluralistic society in which there are a variety of relationships, whether sexually intimate or not, that are characterized by emotional and economic dependency. The meaning of words are captured in definitions which allow us to express difference. The definition of marriage enables us to distinguish marriage from a plurality of relationships that exist in our diverse society. The word marriage enables us to converse about the uniqueness and subtlety of the meaning of marriage and to examine and promote its benefits to the spouses, to children and to society.

In redefining marriage, our public understanding of marriage will cease to be what marriage has always been understood to be. It ceases to be a social institution that facilitates heterosexual bonding and the begetting of children and becomes another word for a domestic partnership. It is because of the high value and importance of marriage as a fundamental social institution for spouses and their children that we need to continue to vigorously engage in the public debate about marriage.

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The Strength of Marriage (EFC, 031000)

Monogamous, heterosexual marriage is still the best and most stable environment for families and raising children

“Confusion,” “disappointment,” “dismay” at shifting moral perspectives. Those were some of the words that church groups used to describe what is now almost a fait accompli: Canada’s legalization of same-sex marriages.

We have become a world leader, just behind Belgium and the Netherlands, in rejecting an institution older than all religions and cultures and recognized by all of them as the union of a male and a female.

Over the past year, courts in British Columbia and Quebec declared laws restricting marriage to a man and woman unconstitutional, but had allowed the government a year to act.

Then Ontario’s Court of Appeal opened that province’s flood gates on June 10. It ruled that the historic understanding of marriage “offends” the dignity of same-sex couples and deprives them of the equal treatment guaranteed by the Charter of Rights and Freedoms.

In all societies and at all times, marriage has always meant the permanent union of a man and a woman. But the appeal court redefined marriage as the union of two persons and freed gays and lesbians to start lining up for marriage licences, civil ceremonies, and weddings in supportive United, Unitarian and Metropolitan Community churches.

A week later, Prime Minister Jean Chretien announced his government would accept Ontario’s definition of marriage. Now the only possible obstacle to the legalization of gay marriages throughout Canada is the small chance that a majority of Parliamentarians will say no in an upcoming free vote.

Just four years ago, in 1999, the House of Commons pledged that it would take all necessary steps to preserve the historic definition of marriage as “the union of one man and one woman to the exclusion of all others.” And last year, one of the Supreme Court of Canada justices, Charles Gonthier, acknowledged that marriage pre-dates both legislatures and the courts.

He ruled that “marriage and family are not inventions of the legislature; but rather, the legislature is merely recognizing their social importance.” Yet now a tiny band of his judicial colleagues have re-invented marriage, without public debate or Parliamentary approval.

The gay and lesbian community was far better prepared for this legal debate when it finally came, and the change happened so fast that churches and other defenders of traditional marriage are still struggling to convince others that marriages are the essential building blocks of society. The importance of marriage, its roots in our very nature and its role in bringing the sexes together are so self-evident that we never thought it necessary to explain.

Marriage brings man and woman together on the basis what of divides them: their sexual differences. They truly become one when they pour out their love for their children.

Whatever adoptions or reproductive magic and third persons that same-sex couples may employ to build their own families, their children will still miss out on what should be the right of all: to be raised by their natural parents.

Opposite-sex marriage is essential to continuing humanity; only half of one percent of all Canadian couples are homosexual and will never be able to do that job.

For centuries, marriage has provided the richest and most stable environment for raising good citizens, and it still does. Today’s common-law unions of opposite-sex partners are twice as likely to end in separation, with serious social and economic consequences for the children of such partnerships. We have no way yet of knowing the effects of same-sex unions, but they will almost certainly create unintended consequences, as most change does.

Same-sex unions can be loving, but will never be fertile. Canada’s courts obviously believe procreation is not a necessary part of marriage, but as one of the great philosophers, Immanuel Kant, put it: marriage without procreation is little more than “a life-long contract for the mutual exercise of the genitalia.” He was talking about the marriage of a man and a woman.

Bob Harvey is the religion editor of the Ottawa Citizen.

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Slipping Toward Scandinavia: Contra Andrew Sullivan (NRO, 040202)

Stanley Kurtz

In “The End of Marriage in Scandinavia,” I show that gay marriage has helped hasten the decline of marriage. Andrew Sullivan dismisses my argument, claiming I fail to show causality, and draw impermissible inferences about gay marriage from Scandinavian registered partnerships. Trouble is, when Sullivan thought he could prove that marriage is not undermined by registered partnerships, he was happy to argue causality, and eager to equate registered partnerships with gay marriage. Now that we see that Scandinavian marriage is in a state of collapse, Sullivan pretends that Scandinavia has no relevance to the gay-marriage debate. In the meantime, Sullivan ignores one of the key points of my piece — that Scandinavian gays themselves have rejected the “conservative case” for gay marriage. To see why Sullivan is wrong, let’s take a look at marriage in Norway.

Consider “Church flies gay flag,” a story from the English-language edition of Aftenposten, Norway’s premiere newspaper. Two parish councils in northern Norway recently voted to fly rainbow flags on their churches. The flags signal that no one in these churches — priests included — may speak or preach against homosexual behavior. The flags also welcome gay clergy, including those who live in “registered partnerships” (i.e. de facto gay marriage).

Obviously, in the county of Nordland, where these two parishes are located, gay marriage has achieved a high degree of acceptance. After all, the Lutheran church has long led the opposition to gay marriage in Norway. One of the few things distinguishing same-sex registered partnerships from marriage is that they cannot be celebrated in the Norwegian state church. And the ordination of clergy in registered gay partnerships is the most divisive question in the church. So when two parishes in the same county fly the rainbow flag to welcome partnered gay clergy, gay marriage has obviously achieved an extraordinary degree of popular acceptance.

That acceptance isn’t total. Many are unhappy with the flags — and the silencing of conservative congregants and priests that the flags symbolize. And as the original news accounts make clear, these parish councils are acting in defiance of their bishop. Clearly, though, Nordland is a socially liberal county in which gay marriage has achieved a high degree of acceptance. So what’s the state of marriage in Nordland?

Marriage in Nordland is in severe decline. In 2002, an extraordinary 82.27 percent of first-born children in Nordland were born out-of-wedlock. A “mere” 67.29 percent of all children born in Nordland in 2002 were born out-of-wedlock. As I explained in “The End of Marriage in Scandinavia,” many of these births are to unmarried, but cohabiting, couples. Yet cohabiting couples in Scandinavia break up at two to three times the rate of married couples. Since the Norwegian tendency to marry after the second child is gradually giving way, it is likely that the 67-percent figure for all out-of-wedlock births will someday catch up to the 82-percent figure for first-born out-of-wedlock births. At that point, marriage in Nordland will be effectively dead.

Now consider the county of Nord-Troendelag, which is bordered by NTNU (Norwegian University of Science and Technology). NTNU is where Kari Moxnes and Kari Melby teach — two radical pro-gay marriage social scientists. Nord-Troendelag is like Massachusetts — a socially liberal state influenced by left-leaning institutions of higher learning. In Nord-Troendelag in 2002, the out-of-wedlock birthrate for first-born children was 83.27 percent. The out-of-wedlock birthrate for all children was 66.85 percent. These rates are far higher than the rates for Norway as a whole.

When we look at Nordland and Nord-Troendelag — the Vermont and Massachusetts of Norway — we are peering as far as we can into the future of marriage in a world where gay marriage is almost totally accepted. What we see is a place where marriage itself has almost totally disappeared.

The story of the rainbow flag in Nordland embodies one of the causal mechanisms I outlined in “The End of Marriage in Scandinavia.” There I showed that gay marriage had split the Norwegian church and weakened the position of those clergy most likely to speak out against the trend toward unmarried parenthood among heterosexuals. In Norway, the clergy most accepting of gay marriage are the clergy least likely to criticize unmarried parenthood. With priests who see homosexuality as sinful effectively banned from churches, their criticisms of out-of-wedlock parenthood will be lost as well. Since traditional religion is one of the strongest barriers to out-of-wedlock births (conservative religious districts in Norway have by far the lowest rates), it’s obvious that the flag movement will help remove a key counterforce to the decline of marriage. And it is very unlikely that conservative priests would have been so thoroughly and effectively banned if the issue were only unmarried heterosexual parenthood. It took the question of homosexuality to produce what amounts to a near total purge of conservative clergy from Nordland’s churches.

The deeper point is that, contrary to the “conservative case,” those who favor gay marriage tend to favor or condone unmarried parenthood. The connection between gay marriage and unmarried parenthood extends to all sectors of Scandinavian society — religious or not. So when professors from NTNU use the example of gay marriage to argue that marriage is unnecessary for parenthood — they have just as much effect on their secular “congregations” as Lutheran clergy have on theirs.

Although Andrew Sullivan has challenged my causal analysis, the causal mechanisms I’ve described here are of the same type social scientists use to explain trends in marriage. Scholars agree that, when it comes to the out-of-wedlock birthrate, ideas and values are key variables. They establish causal links by noting broad correlations (like the low rate of out-of-wedlock births in religiously conservative districts of Norway), and then connecting those correlations to a cultural analysis. If religious districts have low out-of-wedlock birthrates, and if clergy preach against unmarried parenthood, it’s reasonable to conclude that religion contributes to low out-of-wedlock birthrates.

The causal mechanisms I’ve outlined are of just this sort. One district bans clergy who oppose gay marriage (and these same clergy are the ones who criticize unmarried parenthood). Another district lionizes leftist professors who cite gay unions to prove that marriage has no intrinsic connection to parenthood. If both districts have high out-of-wedlock birthrates, it’s reasonable to conclude that gay marriage contributes to those rates. Andrew Sullivan can reject that sort of analysis if he likes, but why does he accept the idea that secularism has an influence on marriage? The causal mechanism in the case of secularism is no different in kind than the mechanism I use in my own analysis. The truth is, Sullivan doesn’t object to the causal analysis. He objects to what I’ve found.

Sullivan says there are too many independent variables to separate out gay marriage as a cause of marital decline. I’ve just explained how gay marriage can be separated out as a cause. But think about what Sullivan is saying. Sullivan is really saying he’ll never accept any claim that gay marriage harms marriage. If the mere existence of prior causes of marital decline makes it impossible to isolate new factors, then the offer of state-by-state “experiments” in gay marriage is bogus. No matter how bad things get — and no matter how clearly we show a cultural connection between attitudes toward gay marriage and marital decline — Sullivan will deny that gay marriage makes any contribution to the problem.

Of course, when Sullivan thought he had statistical proof that heterosexual marriage was doing well in post-gay marriage Scandinavia, he was eager to play social scientist. Take a look at “Unveiled,” the piece where Sullivan relies on an unpublished study by a kid barely out of college to prove his “conservative case” for gay marriage. When Sullivan thought he had proof that heterosexual marriage was not undermined by gay marriage, he was more than happy to tout the Scandinavian example. If it’s really impossible to disentangle the gay-marriage variable, why did Sullivan introduce data in the first place?

But now, after I’ve exploded his use of the Spedale study, Sullivan claims that Scandinavian registered partnerships “have no relevance” to the gay marriage debate. Sullivan sure thought registered partnerships had relevance to gay marriage in 2001. But after having seen the collapse of marriage in Scandinavia, Sullivan says registered partnerships “have no relevance” to marriage.

As for Sullivan’s complaint about my use of the terms “de facto gay marriage” or “gay marriage” for Scandinavian registered partnerships, I’ve simply adopted Sullivan’s own language. In “Unveiled,” Sullivan himself calls registered partnerships “de facto gay marriage” and “gay marriage.” And by the way, in “Unveiled,” Sullivan used data on Vermont’s civil unions to draw conclusions about “gay marriage.” Yet now Sullivan is attacking me for doing exactly what he did three years ago.

Sullivan is wrong to say that Scandinavian registered partnerships are open to heterosexuals. They’re not. Sullivan wants to claim that registered partnerships are a “marriage lite” that attracts large numbers of heterosexuals and thus weaken conventional marriage. This is how Sullivan wants to explain the decline of Scandinavian marriage. But Scandinavian heterosexuals do not enter into registered partnerships, so Sullivan’s way of explaining the decline of marriage in Scandinavia is wrong. (I see Sullivan has now corrected his error. But he’s avoided acknowledging that his mistake sinks his explanation for the link between gay marriage and the decline of marriage in Scandinavia.)

While we’re at it, where is Sullivan’s causal warrant for the “conservative case” for gay marriage? How can Sullivan proclaim with such confidence that gay marriage will strengthen marriage when (according to his new position, anyway) formal gay marriage has existed only for a couple of years in the Netherlands, and no other evidence has any bearing on the question? If Sullivan is such an empiricist, why doesn’t he express more uncertainty about the effects of gay marriage? Given the fact that marriage is fast disappearing in the very places most hospitable to gay marriage, you’d think Sullivan might at least consider the possibility that his totally ungrounded predictions about the future are wrong.

And note that “The End of Marriage in Scandinavia” refutes the “conservative case” for gay marriage on several matters that have nothing to do with the causal question. Scandinavian gays have not taken to monogamous marriage, and they openly reject the “conservative case” for gay marriage. Sullivan says nothing in response to these points.

The mechanism by which gay marriage undermines marriage is easy to grasp. We see it at work in Sullivan’s own writings — including his reply to me. Sullivan claims that “coupling — not procreation — is what civil marriage now is.” That is false. Just because we can find cases in which infertile couples marry, Sullivan thinks he’s proven that marriage has nothing to do with parenthood. But marriage and parenthood are still deeply linked. That is why Scandinavia’s practice of unmarried parenthood shocks us.

Scholars treat the connection between marriage and parenthood as something that erodes gradually. That is why Sullivan is mistaken to say that American marriage is about coupling, not procreation. The connection between American marriage and parenting may have diminished, but it is far from gone — as is quickly revealed by the European comparison.

But every time Andrew Sullivan claims that marriage is about coupling, not procreation, he helps weaken the connection between marriage and parenting in America. The gay-marriage debate is eroding the cultural connection between marriage and parenthood. Despite all the changes in marriage since the Sixties, Americans have a long way to go before marriage and parenthood are decoupled to the degree that they are now in Nordland and Nord-Troendelag. There is more than enough scope for a new factor to intervene and heighten that separation. This is exactly what gay marriage has done in Scandinavia — and is doing right now in America, especially through the work of Andrew Sullivan.

I don’t mean to deny Sullivan the right to advocate for gay marriage. He has every right. But the fact is, Andrew Sullivan himself is the causal mechanism by which gay marriage undermines marriage. His persistent belittling of the connection between marriage and parenthood and his attempts to elevate infertile exceptions into the rule for a transformed understanding of marriage are laying the cultural groundwork for a Scandinavian-style disappearance of marriage in the United States.

I end with three questions for Andrew Sullivan. 1) Is it mere coincidence that in districts of Norway where de facto gay marriage (your phrase) is most accepted, marriage itself is virtually dead? 2) If this is not pure coincidence, how would you explain the connection? (Remember, your marriage-lite theory doesn’t work.) 3) Would it be possible for gay marriage to be an effect of the decline of marriage, without also becoming a contributing cause?

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More revolution (David Warren, 040208)

While the latest front of the “gay revolution” consolidates its victories in Canada, it is also making significant progress in the United States -- with Canadian help.

Here in Canada, Bill C-250, designed in my view to stifle public discussion of the moral issue of homosexuality, has been reintroduced after lapsing with the last parliamentary session. ... Bill Graham, a Minister of the Crown, phoned the Toronto Star to assure it that the new Martin government would put an act to fully legalize gay marriage to a vote in Parliament before the next election. ... Larry Spencer was formally excluded from the Conservative Party caucus for having spoken controversially on the subject. ... And we have had the spectacle of Belinda Stronach, an attractive blonde airhead who is now a front-running candidate for the leadership of that party, declaring that, “Same-sex marriage is a human right,” while the alternative candidate maintains his discreet silences.

Looking south: In November, the Massachusetts Supreme Judicial Court instructed the state’s freely-elected legislature to rewrite its laws within six months, in order to grant same-sex couples their “constitutional right” to marry. On Wednesday, in response to a query from the state Senate, it clarified that a Vermont-style “civil union” provision would not be acceptable -- only full marriage would do. And the Massachusetts court buttressed its case by citing the Ontario Superior Court decision, which legalized same-sex marriages in this province last summer. (I predict our Supreme Court will cite the Massachusetts decision in return.)

Well, I agree with the majority (4-3) in one respect: that this is an all-or-nothing proposition. Marriage is a substance as well as a word, and granting the substance without the word is rank hypocrisy. “Civil unions” confer on the same-sex couple, and will confer on any future multiple-spouse combinations, exactly the privileges previously enjoyed by the legitimately married -- including tax advantages, joint access to welfare and pension coverage, and full adoption “rights”. (The quotes are necessary, for the idea that the adoption of a living child can be a human right is a moral obscenity, on a level with slavery.)

As a rearguard action, Massachusetts legislators have convened a constitutional convention, for next week, in which an amendment to the state’s constitution will be proposed to define marriage explicitly as the union of one man and one woman. But such an amendment, which requires two votes in the legislature on either side of an election, followed by a state-wide referendum, would take about three years.

By confirming its original six-month deadline, the Massachusetts high court subverted this recourse to “the people”. Indeed, in a condescending dismissal of their right to an opinion, Chief Justice Margaret Marshall wrote, “That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups. That such prejudice exists in not a reason to insist on less than the constitution requires.”

When the opinion of what is likely the majority of the electorate is described as a “personal residual prejudice”, we are dealing with something more than mere personal arrogance. And when a moral disorder is intentionally confused with a cultural or racial identity, we are dealing with a view of reality that is deeply twisted.

The degree of the condescension may be gauged by the fact that the constitutional right to same-sex marriage on which Madame Chief Justice based her decision, does not exist. Her invocation of it was a bare-faced lie. The idea that any such “right” existed, or anything resembling such a right, in the founding documents of Massachusetts or any other polity in North America, is a howling absurdity.

While there are many opinions about the present state of public opinion on same-sex marriage, the fact that the majority on the Massachusetts court acted to subvert any political response reveals their own assumptions. The justices themselves clearly don’t believe they have public support, even in America’s most liberal jurisdiction.

The possibility that a Supreme Court decision in Washington could extend this revolution across the United States became very real last November, when its justices struck down a Texas law against sodomy -- reversing the Court’s own decision recognizing a state’s right to make such law, 17 years ago. In the opinion of the dissenting justice, Antonin Scalia, the court’s majority used reasoning that would also make a challenge on same-sex marriage irresistible. Justice Scalia’s opinion was mocked, but was not rebutted.

We are living in a dark time, in which we see the laws that bind our civilization together arbitrarily overthrown by judicial fiat, with no comprehension and verily, no interest in what the destructive consequences will be for our families and society at large. I am more and more convinced that we must drop the pretence that these judges are fulfilling a legitimate mandate. They are the deadly enemies of all we hold dear.

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Not Loving It: “Full Faith and Credit” is not the only constitutional issue in the gay-marriage debate (NRO, 040316)

The March 9 Wall Street Journal carried an op-ed by Professor Lea Brilmayer of Yale Law School, titled “Full Faith and Credit,” which urged readers to pooh-pooh the necessity of a Federal Marriage Amendment to the Constitution on grounds that there is no reason to worry about courts nationalizing the establishment of gay marriage in the United States. But Professor Brilmayer’s argument was actually a clever piece of misdirection, a bit of legerdemain in which we were invited to fix our attention on the left hand while the right hand picks our pockets.

Billing herself as an expert on the “full faith and credit” clause of Article IV of the Constitution, with “dozens of technical publications on interstate jurisdiction” to her credit, Brilmayer mocked the Senate Judiciary subcommittee that had invited her to speak at a March 3 hearing on FMA. “Nobody,” she sneered, had “bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state’s marriages. It hasn’t.” The hearing where she appeared, therefore, “was entirely unnecessary.” There will be no “full faith and credit chain reaction,” she asserted — no sudden run of every state’s courts feeling obliged to honor the marriage licenses that might be granted to gay couples “married” in some other state. The full-faith-and-credit clause, she noted, has always been interpreted according to the “public policy doctrine,” by which state courts may hold that marriages contracted in other states will not be honored if they violate the strong statutory (or common-law) public policy of the state to which a “married” couple moves. Thus marriages contracted elsewhere that deviate from a state’s laws concerning consanguinity, for instance, or the age of consent, will not necessarily be honored by that state’s courts. At least no Article IV principle imposes such an obligation, Brilmayer argues.

In this age of the hyperpoliticized judiciary, I would not be as confident as she is that neither federal nor state judges will invent a new full-faith-and-credit doctrine to force the interstate honoring of gay marriages. But even if such fears are unfounded, the same result of nationalized gay marriage is more likely to be reached by another path entirely. For it does not follow at all from Brilmayer’s argument, as she asserted, that “the assumption that there must be a single national definition of marriage...is mistaken and pernicious.” The ticking bomb — not a “chain reaction” but a single explosion that could easily come on a single day — lies not in the recesses of Article IV but in the equal-protection and due-process clauses of the Fourteenth Amendment.

The precedent to examine is the aptly named Loving v. Virginia, the 1967 Supreme Court ruling that outlawed anti-miscegenation statutes, or laws against interracial marriage. Richard Loving, a white man, and Mildred Loving (née Jeter), a black woman, had married in the District of Columbia. Upon moving to Virginia, they were indicted on, and pleaded guilty to, a charge of violating the state’s anti-miscegenation law, which carried a criminal penalty of one to five years in prison. The state judge imposed a one-year sentence, then suspended it for 25 years on condition that the Lovings leave the state and not return during that period. Moving back to D.C., the Lovings moved that their sentence be vacated in state court, and shortly thereafter instituted a class action suit in federal court on Fourteenth Amendment grounds. The federal court stood aside to let their case proceed in the Virginia courts, and when the state’s highest court held against them, they appealed to the U.S. Supreme Court.

Chief Justice Warren, in a ruling for a unanimous Court, made short work of the state’s anti-miscegenation law — and those on the books at the time in fifteen other states besides. To the state’s argument that the law was one of “equal application” because its penalties fell equally on both races, he replied that that fact had no effect on the “very heavy burden of justification” that was required of the state when its statutes were “drawn according to race.” This much of Warren’s opinion is accepted by all of us today who admire the famous “colorblind” dissent of Justice Harlan in Plessy v. Ferguson (1896). But Warren went on in language that is ripe for the picking under more recent precedents. He noted that “the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.” Sound familiar? Gay-marriage advocates scoff at the notion that traditional marriage laws apply equally to heterosexual and homosexual persons by forbidding anyone, regardless of “sexuality,” to marry someone of the same sex. All that need be done is to convince the Supreme Court that laws “drawn according to sexuality” are as “arbitrarily and invidiously discriminatory” as those that classify by race. That may not be hard at all, as we’ll see.

Turning to the claim by Virginia that its law was not so “irrational” in purpose as to merit no deference from the Court, Warren said that “[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” All that the law furthered was an ideology of “White Supremacy.” And so it did. But this too should sound familiar. In Romer v. Evans (1996), the Court held that there was no rational justification for a Colorado state constitutional amendment, adopted by referendum, that barred the passage of any statutes or local ordinances recognizing discrimination against gays as any kind of offense. Justice Kennedy, for the Court in Romer, held that there was no way to view that amendment except to say that “the disadvantage imposed is born of animosity toward the class of persons affected.” No argument of “rational basis” was given any credence in Romer, any more than it had been in Loving. It’s fair to say that Justice Kennedy condemned an ideology of “Heterosexual Supremacy” in terms strikingly similar to those used by Chief Justice Warren.

For good measure, Warren threw in the due process clause as well in the Loving case. Marriage, he said, is one of the “basic civil rights of man.” (Never mind that his precedents for a due-process limitation on state regulation of marriage were of dubious application to the case at hand: One was a 1923 case involving the right of parents to contract with a private teacher to instruct their son in the German language, and the other was a 1942 case involving Oklahoma’s policy of sterilizing certain prison inmates.) Why not of man and man, and not just of man and woman?

All the ammunition the Court needs is contained in just three cases: Loving, Romer, and last year’s Lawrence v. Texas, a due process case in which Justice Kennedy wrote of the Court’s heightened solicitude for “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” The Massachusetts high court, in its recent Goodridge decision, took the Court’s hint (as Justice Scalia virtually predicted), and held that the state constitution’s equality clause condemned heterosexual-only marriage as “irrational,” and necessitated, after Lawrence, the full recognition of gay marriage.

Now do a quick head count. Surely Justices Stevens, Souter, Ginsburg, and Breyer would all see the analogy of a gay-marriage case to Loving. They cannot be trusted to notice that “sexuality” and race are hardly in comparable categories of human attributes, and that only one of them has any connection to the historic purposes of the Fourteenth Amendment. American society’s legal abandonment of marriage as we have always known it depends on the vote of Justice Kennedy and/or Justice O’Connor. I wouldn’t bet against either of them joining the four just mentioned. After all, they were in the majorities in Romer and Lawrence, and Kennedy wrote the incompetent, overreaching opinions in both cases. Don’t listen to the “expert” law professors who babble on about full faith and credit as though that were the only constitutional issue in the gay-marriage debate. Watch out for Loving II.

— Matthew J. Franck is a professor and chairman of political science at Radford University.

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“Marriage” Mayhem: It’s all or nothing (National Review Online, 040520)

Defiance of the law is rapidly becoming the leitmotif of the gay-marriage movement. It’s not that gay-marriage supporters are generally less law-abiding than others. The root of the problem is that proponents of gay marriage see their cause as parallel to the civil-rights movement of the early 1960s. That analogy is badly flawed. But if you buy it, then it’s perfectly alright to disobey the law in order to nationalize gay marriage.

This is why it’s foolish to put faith in laws that supposedly prevent gay marriage in Massachusetts from spilling over into other states. When it comes to same-sex marriage, it barely matters how the law is written. Again and again, gay-marriage advocates have shown themselves eager to disobey any law that would prevent the spread of gay marriage from state to state. If you believe this process can be ended by anything short of a federal constitutional amendment, you are dreaming.

It took only a single day of legal gay marriage to reveal the worthlessness of assurances about this experiment’s confinement to Massachusetts. Let’s review the curious history of Chapter 207: Section 11, the provision of Massachusetts law that supposedly prevents the marriage of out-of-state residents whose marriages would not be legal in their home state.

When the Goodridge decision was handed down last November, Justice Greaney, who was in the majority, issued a concurring opinion containing the following claim:

The argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other States as a tool to obtain recognition of a marriage in their State that is otherwise unlawful, is precluded by the provision of G.L. c. 207, 11, 12, and 13.

That law states that if your marriage would not be valid in your home state (but would be valid in Massachusetts), you can’t get married in Massachusetts without actually moving to Massachusetts. Justice Greaney is clearly assuming that this law is valid, and that it should and will be enforced by state officials.

That was in November of 2003. Three months later, journalist and gay-marriage advocate Andrew Sullivan touted the same law cited by Justice Greaney as proof that “federalism works.” According to Sullivan, true conservatives — those who believe in states’ rights — can see that there is no need for a Federal Marriage Amendment. The residency law will prevent same-sex marriages contracted in Massachusetts from being exported to other states.

Of course, with or without the specific approval of Justice Greaney or Andrew Sullivan, the law in question is valid in Massachusetts. So Attorney General Thomas F. Reilly announced on March 30 that the residency requirement would be enforced. At this point, however, the first bit of waffling emerged. Even though same-sex marriage is legal in no other state, Reilly would only definitively rule out marriages to same-sex couples from the 39 states with explicit laws defining marriage as the union of a man and a woman. Reilly was vague about whether marriages would be denied to residents of other states.

Governor Mitt Romney quickly filled in that gap. A spokesman for Romney explained that, since gay marriage is illegal in every other state, only Massachusetts residents would be eligible for same-sex weddings. Even so, the gray area that emerged in Reilly’s statement raised the prospect that, contrary to Justice Greaney’s assurances, Massachusetts marriages might indeed be “used as a tool” to obtain recognition for same-sex marriages in eleven states where such marriages were “otherwise unlawful.”

THE CIVIL DISOBEDIENCE BEGINS

No sooner had the attorney general and the governor confirmed their intention to enforce the residency law than a torrent of criticism from gay-marriage proponents began. Boston Globe columnist Derrick Jackson slammed Reilly for “buckling.” The law in question had been used to prevent the export of interracial marriages to states that had once forbidden such unions. (Jackson didn’t mention that the original law was also meant to cover interstate differences on things like age of minority and parental consent.) Since the residency law was a relic of the odious days of segregation, said Jackson, it was obviously discriminatory and should not be enforced.

A few weeks later, a group of Massachusetts state legislators announced an effort to repeal the residency law. That, at least, was an attempt to work through democratic and legal channels. But one of the reasons given by Representative Robert Spellane for repealing the residency requirement is telling. Spellane claimed that the law ought to go because it is discriminatory — and because it violates the Goodridge decision. So in just four months time, the residency requirement had morphed from something actually relied on in Goodridge to an outrageous piece of discrimination supposedly voided by Goodridge.

Next came the plans for civil disobedience. Why wait for liberal legislators to repeal the residency law when you can simply defy it? Town clerks in Provincetown, Worcester, and several other Massachusetts cities announced that they would issue marriage licenses to out-of-state couples. Then district attorneys in several localities said they would not prosecute clerks who violated the law. Norfolk County District Attorney William R. Keating said that because the original law was enacted in part to enforce prohibitions on interracial marriage, it was now effectively void. Keating made this claim, despite the fact that the original law was not about interracial marriage alone, and despite the fact that Goodridge itself actually relied upon the validity of the residency law.

And on the very first day that gay marriage was legal in Massachusetts, the residency law was in fact violated. In at least four communities, marriage licenses were issued to couples even if they said they had no intention of moving to Massachusetts. The mayor of Sommerville explicitly welcomed out-of-state couples. More than a third of applications in Provincetown were from out-of-state couples. Some made it clear on their applications that they had no intention of moving to Massachusetts. Others admitted later to the New York Times that they’d lied about their intentions.

Now let’s shift from law-breaking in Massachusetts to law bending in New York. As of now, same-sex marriages cannot be legally performed in New York State. So says New York Attorney General Eliot Spitzer. Yet Spitzer has suggested to Governor Romney of Massachusetts that New York would recognize same-sex marriages of New York residents performed in Massachusetts. New York Governor Pataki disagrees. The stage is set for conflict.

Attorney General Spitzer’s position is devious and contradictory. Spitzer acknowledges that same-sex marriages cannot be legally performed in New York. So under the Massachusetts residency law, the marriage of a same-sex couple from New York must be illegal in Massachusetts as well. But Spitzer suggested that Romney should marry same-sex couples from New York in Massachusetts (so that Spitzer can then recognize their marriages in New York). In effect, Spitzer is using Massachusetts marriages to make an end-run around his own state’s laws. So with the connivance of New York State’s own attorney general, same-sex marriage is in fact being “used as a tool” to obtain recognition of a marriage that would “otherwise be unlawful.” (For more on Spitzer’s strategy, see my “Courts vs. the People.”)

RESPECT FOR THE LAW?

In other words, the very thing that Justice Greaney assured us would not happen is in fact happening. Civil disobedience by public officials in Massachusetts is opening up marriage to out-of-state couples. And legal manipulation by officials in New York is being used to obtain recognition for same-sex marriages when no legislative or even judicial action legalizing such unions has been taken in New York.

As I write, new developments are playing out in Massachusetts. Governor Romney has ordered copies of the marriage applications filed in the four localities that publicly announced their determination to defy the residency law. But as a May 18 news report indicates, whether Romney will succeed in voiding the out-of-state marriages is an open question.

I have argued on NRO that the fundamental definition of marriage has never been a matter for the states. The question of Utah’s admission to the union proves that. But those who believe this country can operate with basic differences in the definition of marriage must show that the law will be respected.

Again and again, however, the law is being violated. In San Francisco, in Sandoval County (New Mexico), in New Paltz (New York), and in Asbury Park (New Jersey), local officials have systematically defied the law. The mayor of New Paltz has lately been in court facing criminal charges for solemnizing marriages without licenses. And even as he called on conservatives to uphold federalism, Andrew Sullivan touted San Francisco’s flagrant defiance of California law.

When it comes to same-sex marriage, federalism can’t work — because the advocates of same-sex marriage won’t let it work. Andrew Sullivan can’t credibly ask conservatives not to worry about the export of Massachusetts marriages when he himself supported open defiance of California law by the mayor of San Francisco. Massachusetts’s Justice Greaney cannot credibly ask opponents of same-sex marriage not to worry about the export of Massachusetts marriages when officials of his own state systematically violate the very law that he points to.

EVERYWHERE OR NOWHERE

We’re told the law doesn’t matter here, because it’s a question of fundamental civil rights. But that’s the problem. The reason activist judges have usurped the legislative role on this issue is that they, too, see the question as one of fundamental civil rights. Any judge can void any state marriage law on grounds of equal protection or due process. Equal-protection and due-process claims have the potential to void Defense of Marriage Act statutes, and an equal-protection or due-process finding by the United States Supreme Court could overturn even marriage amendments to all 50 state constitutions.

So the civil-rights analogy makes the issue of same-sex marriage impossible to resolve by federalist principles. If gay marriage is really an issue of fundamental civil rights, you can’t let some states prohibit it while others allow it. And gay-marriage advocates — be they private individuals, municipal officials, or judges — do see the issue as a question of fundamental civil rights. For that reason, they will defy or overturn any law that gets in their way.

Events have already made it clear that on the question of same-sex marriage, it’s going to be all or nothing. Either we are going to have same-sex marriage everywhere, or we are going to have a Federal Marriage Amendment. After only a single day, assurances that federalism can work on this issue have proved hollow.

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The Liberal Case Against Gay Marriage (Public Interest, 040600)

The issue of gay marriage brings to a head, like few other issues of our time, a central conflict between two moral positions that interact like seismic plates beneath the surface of contemporary American political life. It is commonly thought that the issue of gay marriage pits secular liberals against religious conservatives. While this understanding is accurate up to a point, it is also seriously misleading. The most stubborn and intransigent opponents in the conflict are both in their way sectarian.

The first position is more or less a traditional Christian one. That is, it accepts the idea of an authority higher than human choice that must remain within limits set by that authority. New understandings of these limits have arisen in recent years, allowing the individual pursuit of happiness more leeway and removing much of the shame and guilt that once kept traditional sexual norms in place. Nevertheless, its basic familial ideal remains intact: a monogamous, heterosexual, and devotional relationship directed toward the rearing of children. For most proponents of this view, gay marriage represents a direct assault on the grounding authority by which life at its most serious and intimate is lived.

The second position, which takes human freedom as its central and highest good, could be classified as “liberationist” or postmodern. Distrustful of traditional rules as intrinsically oppressive, it seeks the individual’s emancipation from all norms that might hamper the quest for spiritual and material autonomy. For the most radical liberationists, all universal norms are suspect, with the sole exception of something like a duty to “accept difference.” Among the more moderate proponents, this suspicion is replaced by an uneasiness with respect to “moral judgment” that approaches or imitates humility of a more traditional Christian sort, at least when applied to others. Thus, for the liberationist camp, gay marriage is either a celebration of the individual’s heroic struggle to find love and validation in a hostile world, or at the very least, it is no one else’s business.

The debate over gay marriage is currently polarized by these two sectarian forces. It would be politically beneficial to define a genuinely liberal approach that is fair to both. Such an approach would include them in the ongoing and generally fruitful compromise between revealed religion and the principles of individual rights and freedoms from which the United States has historically drawn strength. The point is not to abandon the position formulated by Locke and other liberal thinkers, but to reaffirm and enhance it in the face of new conditions and challenges. Such thinkers have generally viewed marriage as a contractual arrangement between two individuals for the sake of mutual advantage and the generation and rearing of children to the point where they can be self-reliant (in Locke’s thinking) and/or capable of exercising their individual rights in a responsible civic manner (according to Kant). How might such older liberal views be usefully adapted to the present?

The question is complicated by a common, relatively recent view that there is no one way to be a family — that all forms of family life are to celebrated equally as products of individual choice, at least so long as they make people happy. Conversely, it is said, intolerance and lack of respect for “difference” breed unhappiness. Liberals typically uphold the right of individuals to pursue their own understandings of happiness, so long as they do not encroach upon the rights of others. What, then, can weaken an apparently liberal presumption in favor of allowing people to define marriage however they choose, other than an illiberal deference toward a particular religious norm that has no right to political establishment? The answer lies in marriage itself, as it has been understood and practiced almost universally.

The essence of marriage, liberally construed

Though it is often assumed that no principled liberal case exists against gay marriage, this is incorrect. In a liberal democracy, private groups may hold their own views on the desirability or reprehensibility of homosexual relations. But it is not the business of the state either to endorse or forbid such practices publicly. Neither is it the business of the liberal democratic state to define marriage in a way that speaks to the special needs of a single sect. Liberalism proceeds by taking its fundamental bearings from certain basic human experiences about which sectarians can reasonably be expected to agree — for example, the general human aversion to violent death and the claims to which that aversion naturally gives rise. Thus the first step in defining a liberal approach to marriage is to find a way of understanding marriage that is similarly true to the human situation and at the same time relatively impartial with respect to present-day sectarian conflicts.

A suitable account of marriage might begin as follows: Most human societies have honored the notion that special responsibility for children lies with the biological parents. This has also been the view of almost all influential thinkers on the subject — including “liberal” ones. No known society treats the question of who may properly call a child his or her own as simply “up for grabs” or as a matter to be decided entirely politically as one might distribute land or wealth.

No known government, however brutal or tyrannical, has ever denied, in fact or principle, the fundamental claim of parents to their children. Denial of this claim always demands an excuse, such as parental incapacity, criminality, or “illegitimacy.” (Even the infamous slaughter of the innocents, or the Pharoanic decree that landed Moses in the bulrushes, rested on fear of a future crime.) No known state or society treats the act of bearing a child — as distinguished from clearing a field or sacrificing a goat — as an entirely indifferent one for purposes of establishing a moral, legal, or familial claim. A state can override this responsibility by a variety of economic, legal, and cultural factors, but it cannot altogether cease to recognize them. This is so not only because children would likely suffer if they did, but also because most parents, among others, would not stand for it.

Families are not infinitely malleable, as even champions of diversity must concede. This does not simply owe to considerations of size: A government that distributed children randomly, for example, could not be other than tyrannical. Even if it had the best interests of society in mind — say, the principle of equal opportunity, radically understood — a government that paid no regard to the claims of biological parenthood would be unacceptable to all but the most fanatical of egalitarian or communitarian zealots. Beyond its other functions—limiting female fertility, transmitting property, or providing companionship, for example—marriage is a way of honoring this central fact, which limits one’s ability to regard practices of marriage as either wholly dependent on belief in a particular divine revelation or as wholly “socially constructed.”

But marriage is not merely a matter of biology. That children can be “illegitimate” suggests that the biological facts of parenthood are not enough for social purposes. Disputes over fatherhood, for example, or variations in parental attachment to their children, make it reasonable for societies to supplement and sometimes override the natural bonds established by and through the processes of human generation. Marriage is, before all else, the practice by which human societies mark, modify, and occasionally mask these bonds. Like death, and the funereal rites that universally accompany it in one form or another, human generation has a significance that is more than arbitrary, if less than obvious. Marriage is the primary way societies interpret that significance, and it is doubtful whether any other custom could substitute for it adequately.

Whatever else it may accomplish, marriage acknowledges and secures the relation between a child and a particular set of parents. Whether monogamous or polygamous, permanent or temporary, marriage never fails to address this relation — at least potentially. It establishes a legal or quasi-legal relation of parenthood that draws on, even as it enhances and modifies, the primary human experience of generation and the claims and responsibilities to which it naturally gives rise. A husband is, until otherwise proven, the acknowledged father of his wife’s offspring, with recognized rights and duties that may vary from society to society but always exist in some form. And a wife is a woman who can expect a certain specified sort of help from her husband in the raising of her offspring. All other functions of marriage borrow from or build upon this one. Even marriage among those past child-rearing age or otherwise infertile draws on notions of partnership and mutual aid that has its primary roots in the experience of shared biological parenthood.

An inevitable question follows from this understanding of marriage: Can those who are not even potentially partners in reproduction, and who could never under any circumstances have been so, actually “marry”? It might seem that the answer is yes, especially given new reproductive technologies that allow some heterosexual couples to choose to be both sexually active and childless, and allow others to have children whose biological relation to themselves takes new and unfamiliar forms.

This presumption is strengthened by notions, mainly Protestant in origin, that marriage is less about generation than about companionship. It is also buttressed by a new openness to adoption by some, such as single adults and gay couples, whose fitness as parents would in the not-too-distant past have been strongly questioned. What is more, the increase in divorce, extramarital cohabitation, and “blended” siblings have widely contributed to the revision of customary definitions of the family. It is now argued by many that all forms of family life are to be celebrated as products of individual choice, at least so long as they make people happy. Encouraged by these new technological possibilities, such critics of traditional marriage believe their case is so self-evidently justified that the only possible objection could arise from a baseless, and ultimately unconstitutional, endorsement of a particular religious norm that has no rightful claim to political establishment.

New technologies, however, can bend traditional notions of the family only so far. The right to one’s own children, barring the circumstances discussed above, is perhaps the most basic individual right — so basic we hardly think of it. New reproductive technologies have not erased this fundamental claim, though in some cases they may have muddied it. The question of who inseminates or gives birth continues to be a pertinent matter. In any case in which it is overridden — a birth mother giving up parental rights or a man donating sperm, for example — it must be done by explicit contract. Perhaps, one day, corporations will come to “own” the DNA from which children are produced, entitling them to “licensing fees” (so that a child might “owe” its health or beauty to General Motors). Perhaps, in the not-too-distant future, faces will be patented, and particularly desirable genes will either be distributed universally or awarded to the highest parental bidder. What seems less likely is that the status of parenthood as such will simply disappear.

Generation and death

When considering the institution of marriage, a useful comparison exists between how society addresses the beginning and end of human life. Like death, our relation to which is shaped and challenged but not effaced by modern technologies, generation defines our human nature, both in obvious ways and in ways difficult to fathom fully. As long as this is so, there is a special place for marriage understood as it has always been understood. That is to say, there is a need for society to recognize that human generation and its claims are an irreducible feature of the human experience.

Like the rites and practices surrounding death, marriage invests a powerful, universally shared experience with the norms and purposes of a given society. Even when couples do not “marry,” as is increasingly becoming the case in parts of western Europe, they still form socially recognized partnerships that constitute a kind of marriage. If marriage in a formal sense is abolished, it will not disappear, but it will no longer perform this task so well.

A similar constraint applies to death. A society could abolish “funerals” as heretofore understood and simply call them “parties,” or allow individuals to define them as they wish. Were the “liberationist” exaltation of individual choice pushed to its logical conclusion, would not a public definition of “funeral” as a rite in honor of the dead appear just as invidious as a public definition of “marriage” as an enduring sexual partnership between a man and woman? If it is discriminatory to deny gay couples the right to “marry,” is it not equally unfair to deny living individuals the right to attend their own “funerals”? If it makes individuals happy, some would reply, what is the harm? Only that a society without the means of formally acknowledging, through marriage, the fact of generation, like one without the means of formally acknowledging, through funeral rites, the fact of death, seems impoverished in the most basic of human terms.

Like generation, death has a “public face” so obvious that we hardly think of it. The state issues death certificates and otherwise defines death legally. It recognizes funeral attendance as a legal excuse in certain contexts, such as jury duty. It also regulates the treatment of corpses, which may not merely be disposed of like any ordinary animal waste. Many states afford funeral corteges special privileges not enjoyed by ordinary motorists. Funeral parlors are strictly regulated, and there are limits on the purchase and destruction of cemeteries that do not apply to ordinary real estate. In short, there are a number of ways in which a liberal democratic government, as a matter of course, both acknowledges “death” and limits the funereal rites and practices of particular sects and individuals. I cannot call a party in my honor my “funeral” and expect the same public respect and deference afforded genuine rites for the dead. And it would be a grim society indeed that allowed people to treat the dead any old which way — as human lampshades, for example.

Once one grants that the link between marriage and generation may approach, in its universality and solemn significance, the link between funereal practices and death, the question of gay marriage appears in a new light. It is not that marriages are necessarily devoted to the having and rearing of children, nor that infertility need be an impediment to marriage (as is still the case for some religious groups). This country has never legally insisted that the existence of marriage depends upon “consummation” in a potentially procreative act. It is, rather, that marriage, in all the diversity of its forms, draws on a model of partnership rooted in human generation. But for that fact, marriages would be indistinguishable from partnerships of a variety of kinds. The peculiar intimacy, reciprocity, and relative permanence of marriage reflect a genealogy that is more than merely historical.

Seen in this light, the issue of gay marriage can be reduced to the following question: Is the desired union between homosexuals more like a marriage between infertile heterosexuals, unions that draw ultimate psychological and moral sustenance (at least symbolically) from the experience of human generation; or is it more like insistence on attending one’s own funeral — a funeral, one might say, existing in name only? This question is not easily answered. Progress can be made, however, by attending to the stated goals of most gay marriage advocates.

Beyond sectarian advocacy

Many proponents of gay marriage generally seek a combination of legal, economic, and medical privileges ordinarily associated with marriage, as well as recognition of a certain civil dignity that current arrangements are thought to deny gays. Some advocates also specifically seek an easier road when it comes to adopting children. Few if any supporters of gay marriage, however, demand as a matter of central concern that each gay partner be automatically recognized as the parent of any child generated by the other. More simply, proponents of gay marriage do not seek the “essence” of marriage, as described above, in its most general and basic sense.

For example, Jonathan Rauch, in his recent book Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, defines marriage as essentially a legally enforced, long-term relation of mutual aid and support between two sexual partners. Marriage, he says, “is putting one person ahead of all others.” According to Rauch, “if marriage means anything at all,” it is knowing “that there is someone out there for whom you are always first in line.” We can here leave aside how odd this definition will sound to any married couple with young children, partners whose first responsibility is not obviously spousal. The more crucial point to note is Rauch’s telling claim that marriage is primarily directed toward relieving adult anxiety — an “elemental fear,” as he calls it, that should catastrophe strike, “no one will be there for me” (original emphasis). This belief may well express Rauch’s personal needs and longings, but it has little to do with parenthood. Rauch views marriage as a response to the fears of adults that they might one day be abandoned, rather than to the fears of parents for their children, let alone the fears of children that they might actually be abandoned here and now. Not every proponent of gay marriage makes the same arguments as Rauch. Still, few centrally insist upon the automatic parental rights and duties intrinsic to marriage as it is almost universally experienced.

Keeping the goals that advocates emphasize in mind, one can reach a principled and liberal public policy toward gay marriage. Most, if not all, of the goals of the gay marriage movement could be satisfied in the absence of gay marriage. Many sorts of individuals, and not just gay couples, might be allowed to form “civil partnerships” dedicated to securing mutual support and other social advantages. If two unmarried, elderly sisters wished to form such a partnership, or two or more friends (regardless of sexual intimacy) wanted to provide mutually for one another “in sickness and in health,” society might furnish them a variety of ways of doing so — from enhanced civil contracts to expanded “defined benefit” insurance plans, to new ways of dealing with inheritance. (Though tempting, this is not the place to tackle the issue of polygamy — except to say that this practice might well be disallowed on policy and even more basic constitutional grounds without prejudice to other forms of civil union.) In short, gay couples and those who are not sexually intimate should be permitted to take legally supported vows of mutual loyalty and support. Such partnerships would differ from marriage in that only marriage automatically entails joint parental responsibility for any children generated by the woman, until and unless the paternity of another man is positively established.

As for the having and raising of children — this, too, can be provided for and supported short of marriage. If two siblings need not “marry” in order to adopt a child together, neither need two friends, whether or not they are sexually intimate. Civil unions might be formed in ways that especially address the needs of such children. The cases of gay men who inseminate a willing surrogate mother, or lesbians who naturally conceive and wish to designate their partner as the child’s other parent, can also be legally accommodated short of marriage, strictly understood, on the analogy of adoption by step-parents and/or other relatives. As in all cases of adoption (as opposed to natural parenthood, where the fitness of the parent is assumed until proven otherwise), the primary question is the welfare of the child, not the psychic needs and wants of its would-be parents.

What gays have a right to expect when seeking to adopt children is that their homosexual relationship as such not be held against them when the state weighs their claim to parental fitness. A liberal approach takes moral condemnation of homosexuality out of the public sphere. Individuals remain free, according to the dictates of their religion or conscience, to abhor gay relations. But they may not publicly impose that view on others. The civic dignity that gays may properly claim includes the right not to be held publicly hostage to sectarian views they do not share.

That liberal sword cuts both ways, however: American citizens should not have the sectarian beliefs of gay-marriage advocates imposed on them unwillingly. If proponents of gay marriage seek certain privileges of marriage, such as legal support for mutual aid and childbearing, there may well be no liberal reason to deny it to them. But if they also seek positive public celebration of homosexuality as such, then that desire must be disappointed. The requirement that homosexual attachments be publicly recognized as no different from, and equally necessary to society as, heterosexual attachments is a fundamentally illiberal demand. Gays cannot be guaranteed all of the experiences open to heterosexuals any more than tall people can be guaranteed all of the experiences open to short people. Least of all can gays be guaranteed all of the experiences that stem from the facts of human sexual reproduction and its accompanying penumbra of pleasures and cares. To insist otherwise is not only psychologically and culturally implausible; it imposes a sectarian moral view on fellow citizens who disagree and who may hold moral beliefs that are diametrically opposed to it.

The deeper phenomenal differences between heterosexual and homosexual relations are hard to specify precisely. Still, these differences seem sufficiently clear to prohibit gay marriage without denying gays equal protection under the laws. Gay relations bear a less direct relation to the generative act in its full psychological and cultural complexity than relations between heterosexual partners, even when age, individual preference, or medical anomaly impede fertility. Gay relations have a plasticity of form, an independence from natural generation, for which they are sometimes praised, but which, in any case, also differentiates them from their heterosexual counterparts. No heterosexual couples have such freedom from the facts of generation, which they can limit and control in a variety of ways but can never altogether ignore. Intimate heterosexual partners realize that they might generate a child together, or might once have done so. This colors and shapes the nature of their union in ways that homosexual love can imitate, and possibly even transcend, but cannot share in fully.

A truly liberal solution

Such considerations, and others like them, suffice to sustain the “reasonableness” of a legal distinction between heterosexual marriage and forms of gay civil union that might perform many of marriage’s tasks. It is neither irrational nor necessarily offensive to deem gay unions significantly less like a generative heterosexual union than is a marriage between infertile heterosexual partners. Demanding otherwise would require one to abandon the principles of liberalism in favor of a sectarian, “liberationist” understanding of marriage. Conversely, an unwillingness to compromise on the issue of civil unions would require one to insist that liberalism take a backseat to a particular understanding of morality that society at large may not fully endorse. In both cases, liberalism must remain the primary concern, and sectarian wishes must conform to it, not the other way around.

Thus a liberal resolution to the issue of gay marriage, one that transcends sectarian advocacy with an eye to the broader public interest, would encompass at least four primary elements. First, a legally expanded definition of civil union (or partnership for mutual support and aid) should be advanced that includes, but is not limited to, gay couples. Such unions might provide some of the benefits now afforded married couples while withholding others. Second, gay individuals and couples should be allowed to adopt children without prejudice and with primary regard, as is generally the case, for the interests of the child. Third, marriage as such should be limited to heterosexual couples, given that a central role of marriage lies in the public recognition of certain responsibilities and claims arising from human generation. Finally, marriage is to be defined in terms of mutual parental responsibilities and claims that civil union does not similarly take for granted.

Such a liberal civic compromise is not without significant potential costs and complications. More important than the redrafting of tax laws or the calibration of some social policies, this resolution will undoubtedly leave many on both sides dissatisfied. On the one hand, many religious traditionalists will see in the absence of public strictures against homosexuality a threat to the very meaning of the family. This worry does not seem to be well founded. The natural mutual attraction of the sexes and the related desire to conceive and rear children has expressed itself over countless generations, and in all known societies, and it will continue to do so. If that desire is weakened in contemporary society, it is an exaggerated individualism, not gay relations as such, that should be blamed for it.

On the other hand, many who support gay marriage will deplore any solution they believe discriminates between homosexuals and heterosexuals. Such intransigence is neither politically reasonable nor just. Some who endorse gay marriage, including the Chief Justice of the Supreme Judicial Court of Massachusetts, equate its prohibition with earlier strictures against interracial marriage. This analogy is entirely unfounded. Antimiscegenation laws acted in the face of, and against the facts of, human generation and the bonds they establish; laws instituting gay marriage seek to defy them. Private groups may hold their own views as to the desirability or reprehensibility of marriage between people of different races, ethnicities, and/or religions. But it is not the business of the state in a liberal democracy such as ours either to promote or forbid such practices publicly. (Given the historical experience of slavery, though, even private discrimination based on race may raise thorny public issues.) It is also inappropriate for a liberal democratic government to define marriage in a way that favors a single sect. Those who endorse the view that homosexual unions require public celebration of a sort expressed in rites of marriage represent a kind of sect whose views should be tolerated but not politically established. In a liberal society such as ours, some proposals should be off the table. Liberal rights must trump even the majority’s will.

Restriction of marriage to heterosexual couples gives reasonable recognition to the peculiar importance and solemnity of generation and a related complex of human experiences. It does not, in itself, constitute unjust discrimination on the basis of sexual orientation. The liberal case against gay marriage becomes even stronger if the category of civil union is expanded to permit gay couples and others to enjoy certain privileges from which they may in the past have been needlessly excluded. Unlike some more radical proposals, however, it would do so without doing needless violence to the peculiar character of marriage as it has heretofore been understood and practiced with good reason. That such privileges can be provided for outside of marriage is both a potential boon to gay couples and a sign that marriage in a strict sense is not in most cases what is essentially being sought.

There is a more serious objection that one might expect to hear: namely, that such a compromise on gay marriage, by giving expanded support to a variety of unconventional relationships, would weaken the status of marriage as a unique and rightly privileged domestic bond. While there may be some truth to this conservative charge, it is countered by the renewed emphasis to be brought about by articulating what sets marriage apart, irrespective of any particular religious understanding. Catholics, Protestants, Jews, and Muslims, more and less observant, differ in their understanding of marriage in sometimes crucial ways. An emphasis on what unites all Americans with regard to marriage might help stem the slide toward thinking that marriage can be anything we choose. It might help remind us that liberalism is not only about choice; it is also about acknowledging reasonable political and moral limits.

Susan Shell is professor of political science at Boston College and author of The Embodiment of Reason (University of Chicago Press, 1995).

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An Activist Jurist Strikes Again--Gay Marriage in California (Christian Post, 050318)

Well, it’s happened again. On Monday, San Francisco County Superior Court Judge Richard Kramer ruled that withholding marriage licenses from same-sex couples violates California’s constitution. His decision, which is on stay pending appeal, threatens to put the nation’s most populous state next in line for court-mandated same-sex marriage.

Homosexual advocates quickly jumped on the decision, characterizing it as a landmark achievement on the way to mandating same-sex marriage nationwide. The Advocate, the nation’s leading homosexual newsmagazine, referred to the decision as “a legal milestone that, if upheld on appeal, would pave the way for the nation’s most populous state to follow Massachusetts in allowing same-sex couples to wed.”

Judge Kramer’s decision shocked few observers. After all, the court considering the case is located in San Francisco County, where San Francisco mayor Gavin Newsome has emerged as one of the nation’s most ardent cheerleaders for same-sex marriage. The liberal context of northern California offered homosexual advocates a friendly court located in a friendly region.

For the most part, Kramer’s written decision followed the now familiar lines of argument already established by activist courts in other parts of the country. Nevertheless, his decision also reframed the issue in interesting, if not bizarre ways.

The judge’s decision actually combined six coordinated cases on the issue of same-sex marriage, all of which were combined into one decision and will be appealed together.

The cases revolved around the constitutionality of two sections of the California Family Code. Section 300 states that “a marriage in this state is a union between a man and a woman.” Section 308.5 provides “that only a marriage between a man and a woman is valid or recognized in California.”

Kramer ruled that “both sections are unconstitutional under the California Constitution.” In so doing, this judge effectively overruled the clear will of the people of California, who just four years ago passed “Proposition 22,” a measure banning same-sex marriage, by a margin of 61-39 percent.

In setting forth his argument, Judge Kramer accepted the arguments offered by proponents of same-sex marriage, who asserted that the equal protection and privacy provisions of the California Constitution actually allowed same-sex unions. The judge used two different standards in order to structure his argument. He first considered the sections of the California Family Code in terms of a “rational basis test.” As he explained, “The legislative classifications are presumptively valid and must be upheld so long as there exists a rational relationship between the disparity of treatment and some legitimate governmental purpose.” His second standard was a “strict scrutiny test” whereby the sections would be evaluated in order to determine whether a compelling state interest justified the laws.

In terms of the rational basis test, the judge simply rejected any claim that the state had a rational purpose behind its rejection of same-sex marriage. He found that “no rational purpose exists for limiting marriage in this State to opposite-sex partners.” Since this single judge presumed to determine just what might constitute a “rational” basis, he was able to dismiss the arguments against same-sex marriage out of hand. He rejected any claim that heterosexual marriage, though “deeply rooted in our state’s history, culture and tradition,” deserves protection.

Kramer cited the 2003 U.S. Supreme Court decision, Lawrence v. Texas, to the effect that, “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding the law prohibiting the practice.” Kramer decided “that California’s traditional limit of marriage to a union between a man and a woman is not a sufficient rational basis to justify Family Code sections 303 and 308.5.”

California has already adopted domestic partnership legislation, effectively granting same-sex couples all the rights and privileges of marriage, but without recognizing the unions as marriages. In other words, California’s current distinction is more terminological than substantive. Nevertheless, this was not acceptable to Judge Kramer, who denied any “legitimate governmental purpose for denying same-sex couples the last step in the equation: the right to marriage itself.” He asserted that “marriage-like benefits” are not fully equal to marriage and instead constituted a “separate but equal” status that is constitutionally invalid.

Kramer then turned to the “strict scrutiny test” and considered arguments that procreation is central to marriage. He found that the state’s prohibition of same-sex marriage created a “suspect” class and “impinges on a fundamental human right.”

Defenders of the California statute had argued before Judge Kramer that the Family Code sections do not discriminate against persons on the basis of gender, since all persons are afforded equal access to the heterosexual union itself.

Kramer rejected this argument with a twist of judicial imagination. “The idea that California’s marriage law does not discriminate upon gender is incorrect. If a person, male or female, wishes to marry, then he or she may do so as long as the intended spouse is of a different gender. It is the gender of the intended spouse that is the sole determining factor. To say that all men and all women are treated the same and that each may not marry someone of the same gender misses the point. The marriage laws establish classifications (same gender vs. opposite gender) and discriminate based on those gender-based classifications. As such, for the purpose of an equal protection analysis, the legislative scheme creates a gender-based classification.” Are we to imagine that the framers of the California Constitution could even follow that argument?

Identifying marriage as “a fundamental human right,” Kramer simply extended that right to same-sex couples. The fact that he simultaneously redefined what he claimed as the institutional form of this “fundamental human right” escaped the judge’s attention and acknowledgement.

On the issue of procreation, Kramer rejected any claim that the ability to conceive and bear children is central to the marital bond. “Under our present opposite-sex only law, marriage is available to heterosexual couples regardless of whether they can or want to procreate. As long as they choose an opposite-sex mate, persons beyond the child-bearing age, infertile persons, and those who choose not to have children may marry in California. Persons in each category are allowed to marry even though they do not satisfy any perceived legitimate compelling governmental interest in procreation. Another classification of persons, same-sex couples, also do not satisfy any such perceived interest, yet unlike the other similarly situated classifications of non-child bearers, same-sex couples are singled out to be denied marriage.”

This bizarre paragraph completely ignores the structural reality of marriage as the union of a man and a woman--the only context in which procreation can naturally take place. Those who argue that procreation is central to marriage do not argue that every legitimately married heterosexual couple is able to achieve procreation. Nevertheless, it is the heterosexual union that alone provides the context for natural procreation.

Strangely, Judge Kramer appears to have a very different understanding of procreation. Consider this footnote appended to his argument: “To be precise, same-sex couples can cause procreation. A female capable of producing children can be married to another female and become pregnant through various methods, then produce and raise the child in her same-sex union. Similarly, a same-sex male couple could cause a female to become pregnant, directly or otherwise, and later adopt and raise the child.” Is this to be taken seriously? How are we to understand what Judge Kramer means when he suggests that same-sex couples can cause procreation? They certainly cannot cause procreation on their own. One symptom of this judge’s overweening ambition to legitimate same-sex marriage is evident in the very language found in this footnote. When a judge is reduced to speaking of an ability to “cause procreation” rather than to use the simple term, procreate, we are in big trouble.

Kramer’s decision was cause for celebration among homosexual advocates. “California has always been a harbinger,” said Kate Kendell, Executive Director of the National Center for Lesbian Rights. She told The Los Angeles Times, “This decision--for states committed to fairness and justice--is a perfect roadmap for how to achieve that for gays and lesbians.” Sadly, she may be right.

U.S. Representative Nancy Pelosi of San Francisco, the House Democratic leader, congratulated those pushing for same-sex marriage. “I commend the city attorney, the mayor and other plaintiffs for continuing their fight against discrimination,” she told The San Francisco Chronicle. “Today’s decision is likely to lead to a consideration by the California Supreme Court on the extent of the equal protection clause in California’s constitution. The state constitution clearly prohibits discrimination of any kind, and I believe that the anti-discrimination provision should apply to all Californians.” Anyone wondering where the national Democrats stand on the issue of same-sex marriage should look closely at Pelosi’s comments.

On the other side, some national observers quickly pointed to this decision as evidence of why a Federal Marriage Amendment is urgently needed. “Although this was just a lower court ruling, it’s a vivid reminder that opponents of traditional marriage have not given up their effort to overturn the will of the people,” said Senator John Cornyn of Texas. Senator Rick Santorum of Pennsylvania responded with similar analysis. “Today’s lower court ruling in California, and other court rulings, further support the need for a constitutional amendment to protect marriage from activist judges for the good of families, children and society,” he commented.

California governor Arnold Schwarzenegger was much less clear in his response, appearing to attempt a balancing act of sorts. Appearing on MSNBC’s “Hardball” program on Monday night, the Governor said that he personally supports domestic partnerships and opposes gay marriage, but would not be in favor of amending California’s constitution if the State Supreme Court should eventually rule a prohibition against same-sex marriage to be unconstitutional. “Whatever the Supreme Court decides, that’s exactly what I will stay with,” he said. With that comment, Schwarzenegger effectively shirked responsibility for the issue and ducked into the high grass of political correctness.

Observers on both sides of this issue will watch closely as this case is appealed. In the meantime, we have yet another court precedent, handed down by an activist jurist, that threatens both marriage and social sanity. Stay tuned.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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Same-Sex Marriage and the Integrity of Language (Christian Post, 050604)

The cultural momentum towards the legalization of same-sex marriage is being driven by more than may at first appear. Advocates of same-sex marriage insist that their purpose is to see homosexual couples receive the same rights and privileges as married couples, and to experience the same set of satisfactions and responsibilities. Without debating their argument, at least for now, we can already see that their stated purpose does not represent the real energy behind their demand for same-sex marriage.

After all, the majority of same-sex couples have indicated no fundamental desire for marriage--only for the right to marry. Even in Massachusetts, where an activist court has declared same-sex marriage to be legal, the majority of homosexual couples remain unmarried. We can add to this fact the reality that the vast majority of homosexual couples seeking marriage in Massachusetts are lesbians, not gay men.

So, what is driving the demand for same-sex marriage? In the end, it has to be a desire to dethrone marriage as the one paramount obstacle to the full normalization and acceptance of same-sex relationships. As an institution, marriage defines itself as a reality, even as society invests marriage with certain recognized rights and responsibilities. More than anything else, the insistent drive for same-sex marriage must in actuality be an effort to relativize marriage by redefinition. As homosexual activist Michael Sigiorile has argued, marriage is an oppressive institution that must be destroyed in order to liberate human sexuality and establish true human freedom.

In attacking marriage as an objective institution, language constitutes a significant barrier. For the very word “marriage” has, at least until lately, always referred to a male-female bond. If same-sex marriage advocates have their way, marriage will be destroyed through the process of redefinition.

Bradley C. S. Watson understands this clearly. Holder of the Philip M. McKenna Chair in American and Western Political Thought at Saint Vincent College, Watson argues that same-sex marriage advocates and activist courts are undermining the very integrity of language.

In “Love’s Language Lost,” published in the Spring 2005 edition of the Claremont Review of Books, Watson quotes the philologist from George Orwell’s distopian novel, 1984. “It’s a beautiful thing, the destruction of words . . . . In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it . . . . In fact there will be no thought, as we understand it now.” Watson’s reference to 1984 is apt and accurate. Orwell was a distinguished man of letters, and he understood the political and ideological ambition to control minds by controlling words.

“The advocates of same-sex marriage have a similar political and linguistic purpose,” Watson explains. “They have pushed their agenda with stunning rapidity. Laws that confer unique legal status and benefits on the union of a man and a woman have come under attack only recently.”

Indeed, gay marriage advocates struck their first success in the courts only in 1999, when the Vermont Supreme Court instructed the state legislature to provide homosexual couples in “committed relationships” with benefits identical to heterosexual marriage. Last year’s Goodridge decision handed down by the Supreme Judicial Court of Massachusetts went even further, declaring that homosexual couples have a right to be married. As Watson observes, “In so doing, they forced the entire camel into the tent, and effectively wrested control of the English language from popular usage and from the dictionaries in which that usage was enshrined (we await with bated breath the revisions that will now be required).” In requiring that Massachusetts recognize the right of homosexual couples to be called “married,” the court asserted a bizarre legal judgment. As Watson describes the convoluted decision, the court declared that homosexual couples have “the right to a noun.”

He is certainly right in this observation, for the Massachusetts Court accepted the arguments proffered by same-sex marriage advocates, who demanded the word “marriage” and would not settle for civil unions that would confer the same benefits. “This is something unknown to the common law or American constitutional law,” Watson observes. “We have entered a brave new world in which major legal arguments are not so much about the statutes, the constitutions of the various states, or the federal Constitution, but about the contents of Webster’s Dictionary.”

The Massachusetts Court’s foray into linguistics may be without precedent, but it is certainly not without effect. What word will be next to find itself on the scaffold? As Watson laments, “This is truly a revolutionary development that will breed unprecedented mischief.”

All honest persons must admit that if marriage can be more than one thing, it can be anything. Marriage has always referred to a heterosexual bond, and in almost all cultures this has eventually come down to the union of one man and one woman. The word “marriage” functions as a linguistic symbol of an ontological reality. To destroy the word is to deny the reality to which the word referred--the reality of marriage as a heterosexual union.

Watson notes that same-sex marriage advocates quickly ran through a list of surrogate terms that were quickly abandoned. The terms “same-sex partnerships,” “domestic partnerships,” and “civil unions,” have entered our political discourse only recently. Watson observes that these terms were redundant almost before they came into usage. “The result is that it becomes increasingly difficult for us to view same-sex relationships as essentially, and therefore morally, distinguishable from heterosexual relationships.” This is precisely the ambition of same-sex marriage proponents.

Viewed in this light, marriage has become a target of linguistic deconstruction even as it has become the arena of political conflict. This is a precedent for disaster. “As judicial review becomes literary deconstructionism, our lament must be for the loss of the possibility of a natural basis for human laws,” Watson reflects. “The argument for same-sex ‘marriage’ (and even much of the argument against it) elides the question of whether the noun ‘marriage’ refers to anything in nature. Is the thing that marriage signifies a particular concept with an essence outside the mind and control of the observer--or is it a whim subject to infinite reinterpretation by lawyers and judges?”

The Massachusetts Court launched a revolution that will transform law, public policy, private relationships, and the society at large. Extended to other issues of political debate, the logic of the Massachusetts decision spells doom for any understanding that moral principles are fixed and absolute. The courts now substitute an ethic of personal autonomy for reasoned moral argument. As Watson observes, “The language of the court is significant, for it reduces essence to action, or the right to choose certain actions or commitments over others--thereby denying essence.”

In his brilliant essay, Watson suggests that our current cultural debate over same-sex marriage is something of a farcical sequel to the medieval debate between the realists and the nominalists. The realists, who believed that words pointed to objective realities that could be commonly understood by individual minds, were confronted by the nominalists who believed that words are incapable of expressing the actual reality of things.

Today’s nominalists are truly Orwell’s children, determined to make words do and mean whatever they intend, according to their political and ideological purposes.

Watson rejects their argument out of hand. He insists that marriage “across all religions and cultures is at a similar, thought not identical, meaning. It is a rite of passage signifying and reminding us of the divine or natural order’s purposes with respect to procreation.” It is not what the Massachusetts Court referred to as an “evolving paradigm.”

Most significantly, Watson understands that Christians have an even deeper understanding of what is at stake. “For Christians, in particular, marriage has meant the union of a man and a woman. This is because it refers, among other things, to the unique, God-given capacity of man and woman to enter a covenantal relationship parallel to that between Christ and His church. It is a point of encounter between God and man. The rites of marriage are performed in the hope--with full knowledge that the reality sometimes does not live up to the hope--that each and every example of the sacramental relationship realizes its potential and purpose and therefore reflects the divine intention. The divine mind has an idea of human nature, and therefore human relationships, that does not and cannot change. Marriage, in short, is a word that describes something particular in the divinely created natural order, something that simply cannot be replicated in a same-sex relationship.”

Watson is onto something of profound importance here. As he asserts, “The nominally neutral courts that have already substituted in the public square secular religiosity for actual religion now undermine the sacramental character of marriage with their competing, profane version of that institution.”

In other words, the demand for same-sex marriage is, inevitably, an attack upon Christianity. The divinely revealed metaphor for the relationship between Christ and His church will now be subverted by an activist judiciary and a spirit of sexual rebellion.

“We are at a precipice, not only for constitutional law but also for thought itself,” Watson understands. “If developments continue apace, we will soon have no word to express the union of a man and a woman, as it was in the beginning.” Well, we will still have a word for it, but we may be the last people on earth to know what the word means.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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What’s the Battle Over Gay Marriage Really About? (Christian Post, 050627)

America’s dominant media culture can lay claim on a universe of influential media, but The New York Times Magazine is one of the most strategic venues in elite publishing. A cover story in The New York Times Magazine sends a powerful cultural signal.

Thus, Russell Shorto’s June 19, 2005 cover story in the magazine, “What’s the Movement to Outlaw Gay Marriage Really About?,” deserves significant attention. Interest in the article is likely to be sparked by a line printed on the cover just under the article’s title. That line suggests that the battle to outlaw gay marriage is “not just about marriage.” Of course, that statement is profoundly true--and that’s what makes Shorto’s article interesting.

Shorto’s specific focus is on the state of Maryland, and he profiles advocates and opponents of gay marriage operating within that state. Nevertheless, Shorto’s first stop on his journey to understand the controversy over gay marriage is a “small but grandiose building at the corner of Eighth and G Streets Northwest in Washington,” the headquarters of the Family Research Council [FRC]. Shorto begins his article there, describing the majestic traditionalism of the FRC headquarters in terms of “architectural signals of tradition and power.” He takes his readers immediately to a large window case in the FRC headquarters focused on the meaning of marriage. The case features a statement reciting verses from Genesis 2, where God creates woman and the institution of marriage. Accompanying the biblical text is a collection of wedding artifacts collected from FRC staff members. Old photographs, a wedding dress, and other wedding paraphernalia communicate a vision of heterosexual marriage as an institution of enduring strength. Of course, the background to Shorto’s article is a sense of more recent vulnerability.

As Shorto explains, “This shrine to marriage as a heterosexual, Judeo-Christian institution is a totem of conservative Christianity’s mighty political wing and a flag marking its territorial gains in what its leaders see as a decisive battle in the culture war.” He goes on to explain the development of the “Arlington Group,” a coalition of over 20 conservative organizations, committed to the protection of marriage as a heterosexual institution and the defeat of all efforts to normalize same-sex “marriage.”

Shorto argues that, even as the Arlington Group was formed in May 2003, a “one-two punch” of historical developments was in the making. First came the U.S. Supreme Court’s decision in the case, Lawrence v. Texas, striking down all laws against homosexual behavior. Within months the Massachusetts Supreme Judicial Court would mandate same-sex marriage in that state, and San Francisco mayor Gavin Newsome would begin handing out same-sex marriage licenses from City Hall. Shorto sees this as the defining moment in America’s culture war: “The nebulous culture war instantly focused into a single issue.” From there, Shorto’s article is, in turns, interesting and infuriating. For one thing, Shorto doesn’t seem to be able to convince himself that Americans are decisively opposed to homosexual marriage. In one statement, he will concede that “the country is fairly decisively opposed to it.” Yet, looking back to the wedding display at the FRC headquarters, Shorto described the exhibit as “a cultural litmus test.” As he explained, “Perhaps half the population would see the disembodied wedding outfits preserved in glass cases and guarded by a wooden eagle as bizarre, even lurid, while for the other half the display would trip different signifiers: sanctity, defiance, determination. On so many fronts that is where we are as a nation these days: divided, clearly and seemingly unbridgeably, in sensibility, value, foundations, even a sense of humor.”

Are we really to believe that “perhaps half the population” would find a display of traditional wedding paraphernalia to be bizarre or “even lurid?”

Shorto is a gifted writer, and his recent history of Dutch New York, The Island at the Center of the World, is a fascinating and informative work of popular history. Nevertheless, he seems genuinely perplexed about conservative opposition to homosexual marriage. To give him credit, he appears to be working hard to understand.

As Shorto explains, cultural conservatives “have their own reasons” for opposing same-sex marriage. These reasons “are based on their reading of the Bible, their views about both homosexuality and the institution of marriage and the political force behind the issue.” He cites FRC founder Gary Bauer, now president of a group called “American Values,” to the effect that same-sex marriage is “the new abortion.” As Shorto explains, Bauer means that, as with abortion, conservatives see gay marriage as a culture-altering change being implemented by judicial fiat.” Without doubt, this is certainly true.

America is in a season of transition and uncertainty on issues of homosexuality, Shorto seems to imply. While he sees much of America looking toward homosexuality in a more positive light, conservative Christians seem to be unwilling to go along. Shorto seems to be particularly interested in the fact that, for Christians, homosexuality seems to be the crucial issue.

As he explains, “for the anti-gay-marriage activist, homosexuality is something to be fought, not tolerated or respected. I found no one among the people on the ground who are leading the anti-gay-marriage cause who said in essence: ‘I have nothing against homosexuality. I just don’t believe gays should be allowed to marry.’ Rather, their passion comes from their conviction that homosexuality is a sin, is immoral, harms children and spreads disease. Not only that, but they see homosexuality itself as a kind of disease, one that afflicts not only individuals but also society at large and that shares one of the prominent features of a disease: it seeks to spread itself.”

In order to understand how persons could come to such a conclusion, Shorto traveled to Catonsville, Maryland, a suburb of Baltimore. He introduces us to Dave and Laura Clark, who live in that suburb with their four children in a home that “is tucked cozily into the back of a cul-de-sac in a 1970s housing development.” Dave Clark works for the federal government while Laura home-schools their seven-year-old twins and takes care of their two younger children. As Shorto explains, a conversation in the Clark home is “decidedly kid-centric.” Even as a wedding album is displayed prominently in the Clark home, the issue of marriage has come to be front-and-center in the family’s consciousness. The Massachusetts court decision mandating same-sex marriage became something of a catalyst in the Clark household, and Laura Clark now spends a considerable amount of her time as an activist on the issue.

“The gay activists are trying to redefine what marriage has been basically since the beginning of time and on every continent,” Laura Clark explained. “My concern is for the children--for the future.”

Shorto argues that Laura Clark “could be considered a power center for the opposition to gay marriage because the energy, zeal and legwork on that side come from people like her.” Even as opponents of same-sex marriage push for an amendment to the U.S. Constitution, Shorto argues that the real action is at the state level, which he explains as “actually a series of games, each with its own dynamic.”

Beyond the politics, Shorto sees something else as the motivating factor. “Those at the center of the opposition are, almost to a person, motivated by their brand of Christian beliefs. That was apparent in conversations I had with activists around Maryland and in several other states, and it was much in evidence at a dinner that Laura Clark arranged for my benefit, to which she had invited six friends who were active in the cause, all of whom were eager to explain what drives them,” Shorto relates.

The reporter also introduces us to Brian Racer, the Clark family’s pastor, who preaches a clear message that homosexuality is a sin and that marriage is an unchangeably heterosexual institution. Shorto traces opposition to same-sex marriage--and opposition to homosexuality itself--to churches and to pastors like Brian Racer, who opposed a “value-neutral” approach to homosexuality. As Shorto puts it: “To the conservative Christian activist, homosexuality is anything but value-neutral.”

On the other side of the divide, Shorto introduces us to Lisa Polyak and Jita Deane, a lesbian couple who have lived together for more than 20 years and now have two daughters. As Shorto explains, “Polyak and Deane each became pregnant by artificial insemination, with sperm from a cryolab.” In the article, we discover that Deane “works part time as a learning specialist at Goucher College,” while Polyak “is an environmental engineer for the U.S. Army.” Shorto reports that, as with the Clark family, “church is important” in the Polyak-Deane household. Beyond this, Shorto makes his evaluation clear: “If the Clarks are a picture-perfect suburban family, this one is, in many ways, the urban equivalent.” As he concedes, “The difference, of course, is that Polyak and Deane are both women.”

Even as Laura Clark did not set out to be an activist on the issue, Shorto explains that Polyak and Deane found themselves in a similar quandary, and only recently have been activated as advocates for same-sex marriage.

Clearly, Shorto believes that, as more Americans become familiar with households like the Polyak-Deane home, opposition to same-sex marriage will fall away. “If you are one of the many millions of people who are vaguely opposed to gay marriage--who perhaps have no problem with homosexuality but also think marriage is simply a uniquely a male-female enterprise--sitting in Polyak and Deane’s living room might put that notion to the test,” he asserts.

Why won’t conservative Christians go along? As Shorto tries to explain, “For them, the issue isn’t one of civil rights, because the term implies something inherent in the individual--being black, say, or a woman--and they deny that homosexuality is inherent. It can’t be, because that would mean God had created some people who are damned from birth, morally blackened. This issue really is the inescapable root of the whole issue, the key to understanding those working against gay marriage as well as the engine driving their vehicle in the larger culture war: the commitment, on the part of a growing number of people, to a variety of religious belief that is so thoroughgoing it permeates every facet of life and thought, that rejects the secular, pluralistic grounding of society and that answers all questions internally.”

There we face an inescapable observation. Mr. Shorto is obviously surprised to find a large number of Christians who hold “to a variety of religious belief that is so thoroughgoing it permeates every facet of life and thought.” As he sees it, such a thoroughgoing faith “rejects the secular, pluralistic grounding of society.”

Sadly enough, this is what we should now expect from the secular press. Those writing for elite publications such as The New York Times Magazine must, we can only assume, be far more familiar with the accomodationist postures of liberal Protestantism. To this group of secular journalists, evangelical Christianity seems both bizarre and threatening.

Shorto should be credited with an article that is, in the main, both informative and insightful. Nevertheless, his crude attempt to discredit conservative Christians by sending unambiguous cultural signals is inexcusable. When he describes the home of Laura and Dave Clark, he not only describes the house as “tucked cozily into the back of a cul-de-sac in a 1970’s housing development,” he also describes it as basically tacky, featuring wall-to-wall carpeting “and hand-me-down furnishings.” The Polyak-Deane home, by contrast, is described as a “quaint house” with “white-painted brick” and a picket fence. Furthermore, the home’s “hardwood floors are covered with Oriental rugs.” Mr. Shorto could just as easily have featured a conservative activist from the same neighborhood or, more to the point, he could have resisted the urge to signal his elite readership that the conservative activist can be dismissed as culturally out of touch.

Russell Shorto was certainly right about one thing--the battle over gay marriage is not just about marriage. We are witnessing the clash of two diametrically opposed worldviews--two absolutely different ways of understanding the world. Mr. Shorto’s article will inform his readers by helping them to understand how conservative Christians think. To an equal and unintentional extent, his article also tells us a great deal about how he and his colleagues think. Hint--it’s not just about marriage.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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A Christian Case for Gay Marriage? (Christian Post, 050826)

The mainline Protestant denominations continue to debate the question of homosexuality in extended and excruciatingly inconclusive controversy. In one sense, these liberal denominations are caught in a bind. Their members at the grassroots level, along with those pastors and church leaders who hold to orthodox doctrine and biblical concepts of sexuality, will not accept an embrace of same-sex marriage or the ordination of practicing homosexuals. A residue of biblical commitment prevents these denominations from an open embrace of what scripture so clearly condemns. On the other hand, the liberal elites in control of the seminaries, institutions, and bureaucracies of these denominations are generally committed to revisionist understandings of theology, sexuality, and church doctrine.

Unwilling to risk the financial and membership losses that would surely result from an open embrace of homosexuality, these denominations inch their way towards a progressive, if inevitable, embrace of homosexual practice. This progressive embrace of the homosexual agenda is propelled by activists who offer various rationales and arguments for the normalization of homosexual relationships and behaviors. Over time, these arguments are intended to have a cumulative effect, wearing down conservative resistance and convincing fence-straddlers of the inevitability of homosexual advance.

Evidence of this approach continues to build, and the emergence of a new book, What God Has Joined Together?: A Christian Case for Gay Marriage, offers a summary of the arguments now common among the proponents of same-sex marriage.

Written by David G. Myers and Letha Dawson Scanzoni, What God Has Joined Together? is likely to incite considerable controversy. After all, Myers serves as the John Dirk Werkman Professor of Psychology at Hope College in Michigan--a school long associated with the Reformed Church in America. Scanzoni is one of the leaders within the Evangelical Ecumenical Women’s Caucus and edits their newsletter. She is well known for writing one of the first books advocating the acceptance of homosexuality to a Christian audience.

The authors begin by asserting: “We believe in marriage. We want to see it strengthened. Knowing that strong, healthy, loving relationships are beneficial to the individuals involved and to any children they might have, we want to see couples flourish. We also believe that society, by supporting marriage, benefits as well.”

So good, so far. Nevertheless, the authors reveal the lines of their argument very quickly. In what is identified as “A Personal Letter to Our Readers,” the authors lament that “some who have yearned for such a public commitment have been denied it.” They link historical opposition to marriage “for reasons of social class, race, or ethnicity” to the current debate over same-sex marriage. Note carefully how they pose today’s most pressing issue: “The burning question in our day is whether persons of the same sex should be prevented from sealing their love commitment in socially recognized marriage.” Before going further, consider that Myers and Scanzoni have already normalized a “love commitment” between same-sex couples and posed the question as if the burden is on orthodox Christians to argue that same-sex couples should not be able to “seal” their commitment in “socially recognized marriage.”

“Voices have been raised to suggest that permitting persons of the same sex to marry will destroy the institution,” the authors acknowledge. “We think not. We believe that opening marriage for gay and lesbian people could actually strengthen the institution for all people.”

Accepting the feminist argument that the personal is the political, the authors reveal their own marital experience. Myers and his wife have been married for forty-one years and are the parents of three adult children. Scanzoni “experienced a painful midlife divorce after twenty-seven years of marriage and is the mother of two adult sons and the grandmother of three boys and two girls.” What binds these two together as authors? Myers and Scanzoni inform readers that “the two of us are kindred spirits as active Christians who care about compassion, love, and justice in the lives of all persons, regardless of sexual orientation.”

The basic worldview that now undergirds the argument for normalizing homosexuality is based in the assumption that homosexual behavior, in itself, is not sinful. Accepting the bizarre claims of revisionist Bible scholars, proponents claim that the crucial biblical texts condemning homosexuality actually condemn something other than “committed” same-sex relationships. The fact that a plain and direct reading of the scriptures would leave no room for same-sex marriage is dismissed as rooted in nothing more than the limited understanding of the biblical authors and the presumed “homophobia” of ancient cultures.

Myers and Scanzoni base their argument in psychology. They argue that human beings are characterized by a “longing for belonging” that has usually taken the shape of heterosexual marriage. “Mountains of data confirm that most people are happier attached,” the authors report. “The institution of marriage has traditionally offered the possibility of forming one of life’s deepest attachments. Social science research has shown that, compared with those who have never married, and especially those who have separated or divorced, married people report greater happiness and life satisfaction.” Thus, Myers and Scanzoni again appear to be advocates for the institution of marriage and the strengthening of marriage within the larger culture.

But they quickly shift to the issue of homosexual marriage. After recognizing the benefits that are common to heterosexual marriage, the authors argue: “Studies done before the advent of twenty-first century gay marriage reveal ‘striking similarities’ in the love and satisfaction experienced by same-sex couples and heterosexual couples.” Thus, Myers and Scanzoni base their argument in their psychological assumption that human beings need to form life-long commitments and in sociological analysis purported to establish parity between homosexual and heterosexual couplings.

And what exactly is marriage? The authors cite anthropologist George Murdoch to the effect that marriage is separated from other human relationships by two factors--economic interdependence and sexual interdependence. To this is added a “socially recognized contract” that is respected by the larger culture. Why, they ask, should same-sex relationships be excluded when such relationships can fulfill the first two purposes?

Accepting many of the arguments offered by those who propose a biological or environmental cause for sexual orientation, Myers and Scanzoni argue that “evidence points to brain differences and prenatal hormonal influences helping to explain sexual orientation.” They claim that “the consistency of the genetic, neural, and biochemical findings have swung the pendulum towards a greater appreciation of biological influences” in determining sexual orientation. They criticize ministries that attempt to change an individual’s sexual orientation by means of reparative therapy. They dismiss many of these ministries, and reject the testimonials of individuals who claim to have had their sexual orientation changed back to heterosexuality as “false, self-deceptive, or from people who never were genuinely homosexual.”

Noting that the word “homosexuality” is never used in scripture, Myers and Scanzoni argue: “Nothing is said about homosexual orientation as understood through modern science, nor is anything said about the loving relationship of two same-sex persons who have covenanted to be life partners.” Their conclusion: “It’s important to keep those distinctions in mind when examining the small number of biblical passages commonly used in discussions of homosexuality.” Referring to the key New Testament passages that condemn homosexuality, they claim that “many biblical scholars are convinced that these passages have nothing to do with homosexual orientation and committed homosexual relationships as we know them today.”

The authors then go on to make several claims about the biblical texts concerning homosexual behavior. First, they argue that the Bible “has very little to say about same-sex sexual expression.” Rather than condemning homosexual behavior per se, they insist that these biblical passages actually condemn “idolatry, lust, promiscuity, and exploitation.” The bottom line: “Scripture does not speak to naturally disposed same-sex orientation, nor does it speak to loving, committed homosexual relationships.”

The full shape of the argument offered by Myers and Scanzoni appears in the final chapters of their book. They argue that the acceptance of same-sex marriage would reduce risky sexual behaviors among homosexuals and that acceptance of same-sex marriage is mandated by the Christian concern for justice. Arguing that marriage has been transformed over previous centuries, Myers and Scanzoni simply assert that the acceptance and normalization of same-sex relationships is the next stage in the evolution of marriage as an institution.

In the end, psychology trumps theology. In the epilogue that concludes the book, Myers and Scanzoni cite the authority of the American Psychological Association in asserting that the denial of marriage to same-sex couples “reinforces and perpetuates the stigma historically associated with homosexuality.” Thus, the psychological argument now common to our therapeutic culture takes precedence over the biblical condemnations of homosexual behavior. The biblical authors are corrected by the ideological constructs of modern psychology and the institution of marriage is transformed from its objective basis in creation to an evolutionary model rooted in social development.

“Today’s marriage war is a clash of those rightly concerned about marriage and the well-being of children, versus those eager to encourage committed bonds and associated rights for gays and lesbians. Might it be possible to say that both are right, and thus for conservatives to get their juice and liberals their peel?,” the authors ask. The answer to that question is a certain “no.” What Myers and Scanzoni propose is nothing less than full legal recognition of same-sex relationships as equal to heterosexual marriage. Those committed to a biblical concept of sexuality cannot accept same-sex marriage as a way of supposedly saving and preserving the institution for the future.

We owe Myers and Scanzoni this much--their book offers positive proof that what drives proponents of same-sex marriage is a psychological worldview that is directly at odds with the worldview of the Bible. For that reason alone, this book should be taken seriously.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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No Nordic Bliss: There’s no refuting the claim that same-sex partnerships harm marriage. (National Review Online, 060228)

Now that we’ve learned about the Swedish drive to abolish marriage and recognize polyamory (see “Fanatical Swedish Feminists”), and about the demise of marriage in the Netherlands (see “Standing Out”), let’s take a look at an important attempt to refute my arguments on Scandinavian marriage. In 2004, Yale Law Professor William Eskridge, Attorney Darren Spedale, and Sweden’s Ombudsman for Sexual Orientation Discrimination, Hans Ytterberg, published “Nordic Bliss? Scandinavian Registered Partnerships and the Same-Sex Marriage Debate.” (For brevity, I’ll refer only to first-author Eskridge.) Understanding Eskridge’s criticisms will tell us much about the meaning of same-sex marriage.

Against Marriage

The most revealing thing about Eskridge’s paper is that it goes beyond a mere defense of registered partnerships to offer a full-throated endorsement of Swedish parental cohabitation. Having a Swedish government official as a coauthor emphasizes the point.

But Eskridge goes further and criticizes me for treating Sweden’s 56-percent out-of-wedlock birthrate as a problem. “[Kurtz] uses the term ‘out-of-wedlock births’ in a consistently disparaging manner,” complains Eskridge. This, says Eskridge, means “fetishizing one institution” (i.e. marriage), at the expense of the perfectly legitimate Swedish practice of parental cohabitation. Is there anything wrong with the fact that so many Swedish children are raised by unmarried couples? “Of course not,” says Eskridge.

Eskridge defends Swedish parental cohabitation by pointing to a study that found Swedish children suffering when raised by a lone parent, but doing better when raised by either married or cohabiting parents. Eskridge neglects to mention that this equivalence between married and cohabiting parents applies only as long as the couples stay together. But cohabiting parents break up at two to three times the rate of married parents, which in the long run means more kids raised by lone parents. This problem of family instability is my main complaint about parental cohabitation. Yet Eskridge doesn’t refute the point; he ignores it.

So while Eskridge offers a passing good word for marriage, he is actually deeply hostile to the idea of marriage as the preferred setting for parenthood. Eskridge endorses a Swedish system that has effaced virtually every legal distinction between marriage and cohabitation. Sweden is actually the model for America’s most radical anti-marriage activists. So the “conservative case” for gay marriage is looking awfully dead right now.

Misrepresentations

Having ignored my critique of parental cohabitation, Eskridge goes on to egregiously misrepresent my causal framework. Eskridge claims that I consider Sweden the best and clearest example of the negative effect of same-sex marriage. False. Norway is the clearest Scandinavian example of the negative effects of same-sex partnerships (as I’ve repeatedly noted), and the Netherlands is the most important European example.

Eskridge goes into high dudgeon over my supposed inability to acknowledge that many factors contributed to martial decline in Sweden, well before registered partnerships were introduced in 1994. Yet I’ve repeatedly noted the importance of multiple causal factors and pre-existing marital decline. That’s exactly why I concentrate on Norway and the Netherlands rather than Sweden and Denmark. Gay marriage had more effect on Norway and the Netherlands because there was “more marriage” left to undermine when gay marriage came around than in either Sweden or Denmark. There’s no way Eskridge can even claim to refute me without looking at Norway and the Netherlands. Yet he spends all his time on the two countries where marriage had declined the furthest even before gay marriage was introduced (while pretending I don’t understand that point).

Does this mean same-sex partnerships did nothing to contribute to Swedish marital decline? Not on your life. In “The Marriage Mentality” I showed how same-sex partnerships are pushing Sweden toward recognition of triple and quadruple parenting. And in “Fanatical Swedish Feminists,” I showed how Sweden’s same-sex partnerships have opened the way for a drive to abolish marriage and recognize polyamory. Eskridge talks about “nordic bliss.” Read “Fanatical Swedish Feminists” and you’ll see a nordic nightmare. When it comes to “slippery slope” issues, the impact of same-sex partnerships on Sweden is quite strong.

But that’s not all. The Swedish out-of-wedlock birthrate continued to rise after passage of registered partnerships in 1994, and there’s good reason to view registered partnerships as a contributing factor in that rise. As we saw in “Fanatical Swedish Feminists,” Swedish legislation removing the final remaining differences between registered partnerships and marriage (e.g., the right to state-funded artificial insemination), made a point of treating marriage, registered partnerships, and mere cohabitation alike. So instead of highlighting marriage’s privileged status as a site for parenthood, partnership legislation is communicating the message that marriage is no different from cohabitation.

The Very Beginning

That message is not new. On the contrary, it goes back to 1987, when Sweden adopted the world’s first same-sex partnership legislation. And this points to perhaps the greatest weakness in Eskridge’s argument. If we take into consideration only the time after the 1994 passage of Swedish registered partnerships, then the negative effect on marriage is real but limited. That’s why it makes sense to turn to Norway and the Netherlands for a clearer shot at isolating the causal effect. Yet there’s also a very strong case for counting from 1987, when Sweden passed its first same-sex partnership legislation. And if we count from 1987, Eskridge’s already misleading statistical argument collapses completely, since Swedish marriage has weakened substantially since 1987.

This may be why Eskridge has so little to say about the Homosexual Cohabitation Act of 1987. Remarkably, nowhere in the body of his extensive account of Swedish same-sex partnership legislation does Eskridge devote more than a passing line or two to the historic 1987 law that actually kicked off the world-wide drive for same-sex marriage. Instead, he shuffles the issue off into a footnote. There Eskridge argues that Sweden’s historic 1987 same-sex partnership legislation was too unlike marriage to have any significant effect on the cultural meaning of marriage itself.

This is wrong. Eskridge lightly glosses over the fact that the Homosexual Cohabitation Act of 1987 was directly tied to a major legislative equalization of heterosexual cohabitation and marriage. In 1987, Sweden extended most of the protections of marriage to cohabiting heterosexual couples, going much further in equalizing marriage and cohabitation than ever before. And the historic Homosexual Cohabitation Act of 1987 was essentially an extension to same-sex couples of the newly liberalized law for heterosexuals.

So the most radical equalization of marriage and cohabitation in Swedish history was directly connected to the first same-sex partnership legislation in world history. The cultural message is clear: Marriage is little different from either heterosexual or homosexual cohabitation. So, contrary to Eskridge, the Homosexual Cohabitation Act of 1987 was a major expression of Sweden’s cultural separation of marriage and parenthood. In both a literal-legal and a metaphorical sense, the first gay partnership law was tied to a radically skeptical attitude toward marriage as the preferred site for parenthood.

Eskridge readily admits that Sweden’s liberalized heterosexual cohabitation laws helped bring about same-sex partnership legislation. But how could that causal connection be real without also working in reverse? If same-sex partnerships flow from the idea that heterosexual marriage and cohabitation are essentially the same, then same-sex partnerships themselves must lock-in and reinforce that very way of thinking. That it why it is perfectly fair to see same-sex partnerships as one of several factors contributing to Swedish marital decline from 1987 on.

First Cause

Historically, that first 1987 law was deeply connected to the registered partnership legislation that followed. A minority on the Swedish commission that recommended that first same-sex partnership law wanted to adopt full-fledged gay marriage. The ultimate goal was clear from the start. It was only political prudence that limited that first move. But when the first Swedish same-sex partnership law took effect in January of 1988, it created political momentum in nearby Denmark. So in that very same month, January 1988, Denmark put a proposal for registered partnerships before Parliament, which passed in 1989. After Norway followed suit in 1993, Sweden came on board with full-fledge registered partnerships in 1994. Obviously, the whole process was a tightly connected chain of events set off by Sweden’s initial partnership plan in 1987. This continuous history, and the powerful symbolic impact of Sweden’s world’s-first innovation in 1987, strongly suggests that we can legitimately begin “counting” the effect of same-sex partnerships on Swedish marriage from 1987.

And if we count from 1987, rather than 1994, the negative effect on marriage is obviously substantial. That would put paid to nearly every one of Eskridge’s statistical arguments, which may be why he buried his discussion of the 1987 law in a brief, unconvincing footnote. Yes, Swedish marriage began weakening well before 1987, as I myself have noted repeatedly. And gay marriage is simply one of a series of mutually reinforcing causes that tend to weaken marriage. But same-sex partnerships are part of the causal mix. And there’s no doubt that Sweden’s out-of-wedlock birthrate has increased substantially since 1987. Sweden’s marriage rate has also declined significantly since then, and its divorce rate has substantially increased.

Actually, Swedish marriage is markedly weaker than current marriage or divorce rates indicate. Since my first piece on Scandinavia, I’ve explained how misleading Scandinavian marriage statistics now are. Slight decreases in Scandinavian divorce rates do not indicate greater family stability. Instead they reflect the fact that the pool of married people has been shrinking for years. With fewer married couples, there is a smaller pool of potential divorcees. And now, instead of formal divorce alone, we get the unrecorded de facto divorces that come when the growing number of Scandinavia’s cohabiting parents break up (at two to three times the rate of married parents). Eskridge continues to ignore these arguments. But even without them, the decline in Swedish marriage since 1987 is obvious.

Catching Up

Eskridge makes much of a slight recent uptick in marriage rates across Scandinavia. For example, the Swedish marriage rate rose from 425 (per 100,000) in 2002 to 435 in 2003. But both rates were well below 1987’s 490 or 1988’s 523. How does Kurtz explain this recent marriage “resurgence?” Eskridge urgently demands. Eskridge knows perfectly well what my explanation is (since I’ve offered it repeatedly). He just doesn’t want to comment on it.

Scandinavian demographers agree that the slight recent uptick in marriage rates across Scandinavia does not contradict the general picture of martial decline. Instead it reflects “catching up” by older Scandinavians who’d postponed marriage and childbearing for years, as well as remarriage among the large pool of divorced. This slight uptick in marriage and childbearing among over-30’s disguises rising parental cohabitation and out-of-wedlock birth rates among younger Scandinavians. In Sweden, and especially Norway, growing out-of-wedlock birthrates make the overall trend toward marital decline clear.

Only in Denmark has “catching up” by older couples been enough to largely offset and disguise growing parental cohabitation among the young. This reflects two recent public policy changes. Denmark massively expanded its day care system in the 1990s, and rates of day care use therefore rose more sharply in Denmark during the 1990s than in Sweden or Norway. Historically, Denmark (where nearly all women work, and “housewives” are virtually unknown) has had much more limited parental-leave policies than other Scandinavian countries. That, too, changed in the 1990s, when for the first time Danes were granted up to 52 weeks of parental leave for each child.

The combination of this increase in both day care and parental leave unleashed pent-up demand for parenting among Denmark’s older working women. That pushed fertility up (likely, only temporarily), which in turn meant more marriages among Danes over 30. (Although even many of these older Danes become parents without marrying.) In 2003, the average Danish woman giving birth for the first time was 30.1 years old.

Causes

Although I’m focusing on the causal issue, it’s worth noting that Eskridge egregiously caricatures my views on cohabitation and divorce, claiming that I favor any and all family liberalizations, except same-sex marriage. Eskridge’s caricature is easily refuted by my NRO essay, “Strange Bedfellows.”

By connecting the world’s first same-sex partnerships with a radical equalization of heterosexual marriage and cohabitation in 1987, Sweden introduced same-sex unions as a new factor reinforcing an already existing pattern of marital decline. But if you want to see the causal force of same-sex partnerships disentangled from other factors, look to the Netherlands. In Holland, unlike Scandinavia, there was little or no pre-existing practice of parental cohabitation when same-sex partnerships were introduced. So the Dutch out-of-wedlock birthrate accelerated at double-speed under the impact of the change. The Dutch case is like a natural laboratory that allows us to isolate the causal effect that began in Sweden in 1987. (For details, see “No Explanation,” “Dutch Debate” and “Standing Out”.)

So Scandinavia leads the world in parental cohabitation and the legal equalization of cohabitation and marriage. Amazingly, even as he claims to defend marriage, Eskridge actually endorses this system. Meanwhile, Sweden has seen the birth of a political drive to abolish marriage and recognize polyamory. That doesn’t look like “nordic bliss” to me. Also, Eskridge has absolutely nothing to say about the continued decline of marriage in Norway, the actual center of my Scandinavian case. And today we’ve learned that the effect of introducing same-sex partnerships to Sweden in 1987 unravels Eskridge’s already weak statistical case there. Combine these Scandinavian examples with the Dutch experience, and it’s clear that gay marriage weakens marriage itself.

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The Confession: Have same-sex-marriage advocates said too much? (National Review Online, 061031)

By Stanley Kurtz

Suppose a large group of same-sex-marriage activists came together and made the following confession to a group of same-sex-marriage skeptics:

“Look, we’re going to level with you in a way that we haven’t up to now. We all support same-sex marriage, but for many — even most — of us, gay marriage isn’t an end in itself. It’s a way-station on the path to a post-marriage society. We want a wide range of diverse families — even ‘polyamorous’ groupings of three or more partners — to have the same recognition, rights, and benefits as heterosexual married couples. In short, your worst fears are justified. The radical redefinition of marriage you’ve been worried about for so long is exactly what we want.

“Oh sure, some of us are more radical than others. But even the most committed and prominent mainstream advocates of same-sex marriage largely support a radical family agenda. A few advocates who back a ‘conservative’ interpretation of same-sex marriage may regularly engage you in debate, yet their views carry relatively little weight within the gay community. Some of these ‘conservative’ supporters of same-sex marriage have claimed that there is no significant political constituency for polygamy-polyamory, or for a general legal deconstruction of marriage. That’s just wrong. As gay marriage gains acceptance, we’re going to have a polygamy-polyamory debate in this country. And among those sponsoring that debate will be many of the very same people and groups who’ve already pushed for same-sex marriage.

“So why haven’t we told you all this before? Simple. We’ve been censoring ourselves for fear of scaring away public support for same-sex marriage. You see, it’s all about timing. Our plan is to establish same-sex marriage first, and then, as our next step, to demand that the rights and benefits of marriage be accorded to all types of families. After all, when the call for yet another radical redefinition of marriage comes from married same-sex couples, it’s going to be that much more persuasive. Up to now, truth to tell, if any same-sex marriage backers pushed this radical agenda in public, we pressured them to keep silent. But now we’re telling you the truth.

“You see, despite what you’ve heard about the ‘conservative case’ for same-sex marriage, the more radical argument that ‘love makes a family’ has played a huge role in the success of the drive for same-sex marriage. And the ‘love makes a family’ idea requires recognition, not only for gay couples, but also for polygamous and polyamorous families.

“And consider the complex families created when three or even four gay men and lesbians combine through, say, artificial insemination, to bear and raise children. We want recognition for these sorts of unconventional families too, even — or especially — if such recognition leads to legalized polyamory. Pretending that certain aspects of the gay community don’t exist only weakens our diverse families. The way we live is the way we live. Up to now, we’ve tried to hide it. But at last we’re ready to own up to reality, and to push for legal recognition for all types of families, even if that expands the definition of marriage until the very idea of marriage itself is stripped of meaning.”

Beyond Same-Sex Marriage

For all practical purposes, this confession has already been offered. A good part of the substance of the above message was conveyed this past July, when hundreds of self-described lesbian, gay, bisexual, and transgender (LGBT) and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers released a manifesto entitled, “Beyond Same-Sex Marriage.” Among other things, that statement called for recognition of “committed, loving households in which there is more than one conjugal partner.”

That hundreds of gay-marriage supporters, including big names like Gloria Steinem, Cornel West, Rabbi Michael Lerner (of Tikkun Magazine), and Barbara Ehrenreich have signed onto a statement openly demanding recognition for polyamorous families is important enough. But the really big news is what’s been happening in the months since the release of the Beyond Same-Sex Marriage statement. The ongoing discussion of that manifesto on popular blogs, and particularly in the gay community’s own press, confirms that even many prominent mainstream advocates of same-sex marriage support a radical family agenda — and plan to push it when the time is right. In other words, a careful look at the Beyond Same-Sex Marriage statement — and especially at its public reception — indicates that the above “confession” does in fact represent the plans and convictions of the greater part of the movement for same-sex marriage.

The Beyond Same-Sex Marriage statement is nothing if not radical. It calls for extending government recognition beyond traditional married couples to groups of senior citizens living together, extended immigrant households, single parent households, “queer couples who decide to jointly create and raise a child with another queer person or couple in two households,” unmarried domestic partners, polygamous/polyamorous households, and many other diverse family forms.

And although the statement advocates moving “beyond” same-sex marriage, it also clearly endorses gay marriage itself. The argument on offer is that same-sex marriage is, and ought to be, only one part of a larger effort to redefine our idea of the family. So in contrast to the “conservative” argument, which holds that gay marriage will strengthen the unique appeal of marriage itself, the Beyond Same-Sex Marriage statement claims that gay marriage is a critical step in a larger evolution away from the preference for any specific family form. In other words, the sponsors of Beyond Same-Sex Marriage hope to dissolve marriage, not through formal abolition, but by gradually extending the hitherto unique notion of marriage to every conceivable family type.

The Beyond Same-Sex Marriage statement has attracted hundreds of signatures from a wide array of prominent figures. In addition to national liberals like Steinem, West, Lerner, and Ehrenreich, over 90 professors have signed on, a great many from top schools like Harvard, Yale, Princeton, the University of Chicago, Columbia, Georgetown, Brown, Cornell, Williams, Smith, Bryn Mawr, Barnard, the University of Pennsylvania, NYU, Dartmouth, and U.C. Berkeley. Quite a few of these schools had more than one faculty member sign on. Popular writers like Terrence McNally, Armistead Maupin, and Susie Bright joined big-name academics like Judith Stacey and Judith Butler on the Beyond Same-Sex Marriage lists. Quite a few professors from top law schools (e.g., Yale, Columbia, Georgetown) also endorsed the statement. So we are not talking about fringe figures here. The Beyond Same-Sex Marriage manifesto was put forward by a large and prestigious slice of activists, artists, and intellectuals on the cultural Left.

Radical History

The Beyond Same-Sex Marriage statement evoked swift and diametrically opposed responses from opponents and supporters of same-sex marriage. Princeton philosopher and social conservative Robert P. George said the statement had “let the cat out of the bag” by revealing that “what lies ‘beyond gay marriage’ are multiple sex partners.” The same day, Jonathan Rauch, the leading exponent of the “conservative case” for same-sex marriage, answered George: “...there’s nothing new here. Left-wing family radicals have been saying all this stuff for years.” So which is it? Is this public endorsement of multiple-partner marriage by hundreds of prominent same-sex marriage supporters an important new revelation, or just irrelevant old hat?

It’s true, as Rauch claims, that left-wing family radicals have been calling for both polyamory and a broader deconstruction of marriage for years. Yet Rauch’s dismissal neatly glosses over some key historical shifts. When the same-sex-marriage issue became a topic of public debate, in the first half of the 1990s, the gay community was deeply split. Despite support for same-sex marriage from a few prominent gay conservatives, the gay community’s powerful phalanx of cultural radicals disdained same-sex marriage as a misguided attempt to ape an oppressive and outdated heterosexual institution. By the time the Defense of Marriage Act was debated by Congress in 1996, however, the mood in the gay community had shifted. Although many gays continued to view marriage itself as outmoded and patriarchal, same-sex marriage came to be seen as a pathway to public acceptance, and as the opening item on a much larger and more radical menu of family changes to come.

So from the mid-Nineties on, the gay community suppressed its divisions and united behind the public battle for same-sex marriage. Radicals in the academy laid their plans for both polyamory and a more general deconstruction of marriage, yet for the most part the radicals avoided floating such controversial proposals before the public. The mainstream media (itself part of the broader movement for same-sex marriage) cooperated by largely ignoring the many legal and academic advocates of polyamory and family radicalism. Instead, the media focused on gay couples who were as close to traditional heterosexual families as possible.

Having passed through a period of skeptical division on the marriage issue, followed by a period of unity, the gay community may now be moving into a third phase, the groundwork for which was laid by the 2004 election. With President Bush endorsing the Federal Marriage Amendment, and with local marriage amendments drawing out voters in battleground states like Ohio, the public handed Republicans a victory in 2004, while dealing the gay marriage movement a significant setback. Liberals who’d once lauded the Massachusetts supreme court for its courage now excoriated it’s justices for handing the election to the Republicans. Over the following two years, judges who had once felt free to impose same-sex marriage on an unwilling public grew hesitant. Surprise decisions against same-sex marriage by liberal state supreme courts in New York and the state of Washington in 2006 seemed to confirm that the movement for gay marriage had been stymied. (For a take on this history by a signer of Beyond Same-Sex Marriage, go here.)

Frankly Speaking

In this new atmosphere, the radicals had far less reason to hide their long-term plans behind a facade of unity. Politically, there was little left to lose. A good decade after the beginning of the movement for same-sex marriage, it was increasingly obvious that the fight could continue for yet another ten years. Rebelling against the thought of 20 years of self-censorship, the radicals began to speak up. The March, 2006, debut of HBO’s polygamy television serial, Big Love (created by a two pro-same-sex marriage radicals), was merely a sign of things to come. Meeting in April of 2006 to draw up their manifesto, just as Big Love was sparking a public debate about polygamy, the authors of the Beyond Same-Sex Marriage had reason to believe that their ship had finally come in.

So then, is the Beyond Same-Sex Marriage statement, as Rauch would have it, just irrelevant old hat? Not at all. Calls for polyamory and other forms of family radicalism may be nothing new to those already familiar with the history of the gay community’s internal debates, or with the quiet plans of legal academics. Yet a collective and very public declaration of the family-radical platform, endorsed by scores of prominent scholars and other nationally known figures, signals a new phase in the struggle. Once again, as in the early 1990s, the radicals are out in the open, unwilling to silence themselves for the sake of a united front.

Take Michael Bronski, a radical academic, popular New England columnist, and long-time proponent of same-sex marriage. Bronski favors same-sex marriage for its potential to destabilize the traditional organizing principles of Western culture. In a piece explaining why he’d signed the Beyond Gay Marriage manifesto, Bronski said that he and his fellow family radicals were tired of being treated like “skunks at a garden party” for honestly owning up to their radical reasons for supporting gay marriage. Bronski then told the story of a radio appearance in which his conservative opponent had claimed that gay marriage would “change society as we know it.” Instead of denying it, Bronski agreed with this family traditionalist that gay marriage would indeed provoke a broader cultural transformation, adding that this was a good thing. “That afternoon,” Bronski recalled, “I received a barrage of e-mails from marriage equality supporters complaining that I had committed a major faux pas and should not do media on the issue of marriage again unless I was willing to state the ‘official’ marriage equality line, which is that gay marriage is about nothing more than equal rights for couples who love one another.”

In the aftermath of the Beyond Same-Sex Marriage statement, it was easy to see that the “‘official’ marriage equality line” has served to disguise the views of many same-sex marriage supporters. Numerous reports in the mainstream media, and in the gay community’s own press, described the censorship and self-censorship that has kept the reality of marriage radicalism out of the public eye. The New York Times reported that gay family radicals “say they have muffled their own voice by censoring themselves.” Yet now, said the Times, these radicals “increasingly feel that they have nothing to lose [by speaking out] given ‘that there has been defeat after political defeat.’”

Meanwhile, Geoffrey Kors, a leading California gay-marriage activist, noted that the movement’s silence on polyamory is not necessarily a matter of actual opposition to the practice, but simply about “not allowing the right wing to steer the conversation.” Molly McKay, media director of Marriage Equality USA, spoke of the need to limit some conflicts and conversations to “internal dialogue.” Otherwise, said McKay, it could be “very confusing for non-gay allies” who support gay marriage on the assumption that the gay community wants marriage for its own sake. McKay was concerned that mainstream support for same-sex marriage could suffer if the broader public began to think that “your own community [i.e. the gay community] doesn’t support this issue.”

Muzzled Again?

Having broken the taboo against a public avowal of their radical goals, the sponsors of the Beyond Same-Sex Marriage statement were soundly chastised for their strategic error by Chris Crain, former executive editor of The Washington Blade. Crain blasted the manifesto’s signatories for “diverting attention” from the sort of fairness claims that resonate with the American public: “...[the signatories’] no doubt well-intentioned effort really is the radical redefinition of marriage and family that the conservatives have been braying about for so long. Realizing the Right’s worst fears is the last thing the movement needs to do at this critical juncture.” Then Crain added a twist: “Opening up marriage to gay couples is liberation enough for most of us, at least for now.” “At this critical juncture...At least for now” — we’ll come back to those lines in Part II of this piece. What’s notable now is that Crain’s strictly pragmatic and political objections to the idea of realizing “the Right’s worst fears” amounted to a demand for continued self-censorship on the part of family radicals.

With Crain and others blasting the radicals’ new-found honesty, Joseph De Filippis, of Queers for Economic Justice, chief spokesman for the Beyond Same-Sex Marriage manifesto, tried to put out the fire. De Filippis maintained that the statement had actually been meant to “promote discussion within the LGBT community not mainstream America.” Yet having recruited nationally known allies like Steinem, West, Lerner, and Ehrenreich, that claim was hardly credible. As long-time critic of same-sex marriage Maggie Gallagher remarked, “This is quite new and quite extraordinary....I’ve debated marriage a long time without ever seeing one visible public defender of polygamy. Now we have a major statement, signed by mainstream liberal thinkers, suggesting that this is now the Left’s consolidated position.” The cat was out of the bag, all right, thereby revealing an ongoing pattern of censorship and self-censorship.

So Robert P. George was right. The Beyond Same-Sex Marriage statement means that something important and new is going on. Marriage and family radicals have cast aside years of self-censorship and are broadcasting their agenda to the world (even as an angry, strategically-based response by prominent backers of same-sex marriage has begun to put the muzzle back on).

Marginal or Mainstream?

Yet it isn’t just a question of openness versus secrecy. “Conservative” same-sex marriage advocate Jonathan Rauch had a second point to make to Robert George. According to Rauch, the folks who signed on to the Beyond Same-Sex Marriage manifesto are a bunch of unrepresentative radicals, few of them actual leaders in the movement for same-sex marriage. The radical signatories of Beyond Same-Sex Marriage “favor marriage, not as an end in itself,” said Rauch, “but as a way-station toward a post-marriage society.” “There’s no denying that they speak for a prominent element of the gay rights movement...,” Rauch admitted, “but I don’t think they’ll prevail even within the gay universe, most of which is neither radical nor ‘queer.’”

But what if Rauch is wrong? What if the newfound openness and honesty of pro-same-sex marriage radicals is more than the revelation of a prominent faction’s existence? What if a radical view of family issues has already prevailed “within the gay universe”? What if quite a few mainstream leaders of the movement for same-sex marriage, even if they may not have personally signed onto the “Beyond Same-Sex Marriage manifesto, have already expressed public agreement with all or most of that statement’s radical goals? What if the bulk of the gay community is already on board with the lion’s share of the Beyond Same-Sex Marriage agenda? And what if even Jonathan Rauch himself has come surprising close to acknowledging this?

— Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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The Confession II: “Conservative” proponents of same-sex marriage are about to overtaken by radicals. (National Review Online, 061101)

By Stanley Kurtz

In his well-received 1997 book on the AIDS crisis, Sexual Ecology, journalist Gabriel Rotello said:

The anti-marriage sentiment in the gay and lesbian political world has abated in recent years, and the legalization of same-sex marriage is now an accepted focus of gay liberation. Yet it is rarely posed as a major issue of AIDS prevention. Prevention activists generally don’t include marriage as a goal because they generally don’t include monogamy as a goal....such advocates are generally careful not to make the case for marriage, but simply for the right to marriage....This is undoubtedly good practical politics, since many if not most of the major gay and lesbian organizations who have signed on to the fight for same-sex marriage would instantly sign off at any suggestion that they were actually encouraging gay men and lesbians to marry. (pp. 256-257)

According to Rotello, then, many or most gay-marriage activists have a decidedly un-conservative view of marriage itself. But if gay-marriage advocates actually reject monogamous marriage as a family ideal, what sort of families do they favor instead?

That question was answered this past July, when hundreds of activists, artists, and academics signed on to a manifesto entitled, “Beyond Same-Sex Marriage.” That statement called for government recognition and benefits to be expanded beyond traditional marriage to cover a wide variety of family forms, from extended immigrant households, to single-parent households, to “queer couples who decide to jointly create and raise a child with another queer person or couple in two households,” to unmarried domestic partners, to polygamous/polyamorous households with three or more partners, to many other family forms.

In Part I of “The Confession,” I showed that the united political front behind same-sex marriage is sustained by a pattern of censorship and self-censorship regarding the ultimate policy preferences of the movement. Here in Part II, I show that Rotello was right. Many, if not most, of the gay and lesbian organizations which have signed on to the battle for same-sex marriage do not take marriage itself as their goal. Instead, these advocacy groups are broadly supportive of the radical family agenda announced in the Beyond Same-Sex Marriage manifesto. By following the public response of gay-marriage activists to the Beyond Same-Sex Marriage manifesto, we can see that the policy goals of family radicals are largely shared, even by most mainstream supporters of same-sex marriage.

Domestic Partners

Around the time the Beyond Same-Sex Marriage statement was released, a controversy broke out over news that the Boston Globe had told its gay employees to marry their partners or face losing their domestic-partnership benefits. That decision by the Globe (a division of the New York Times Company) was touted by pro-gay-marriage “conservatives,” like Jonathan Rauch, as evidence that same-sex marriage would bolster the social significance of marriage, at the expense of other family forms.

Yet reaction to the Globe decision within the gay community told a different story. An investigation of the Globe controversy by journalist Zak Szymanski, published in the Bay Area Reporter, made it clear that many mainstream supporters of same-sex marriage actually condemned the Globe’s decision, and promised to fight such policy shifts in the future should they multiply beyond this one “isolated incident.”

According to Szymanski, “Many national LGBT [lesbian, gay, bisexual, and transgender] groups, despite their large investment in securing gay marriage, agree that there is a problem with a society that values marriage over all other family forms.” For example, Matt Foreman, executive director of the National Gay and Lesbian Task Force and a major spokesman in the battle for same-sex marriage, said, “We’re deeply disappointed by the Globe’s decision, and we do not feel that benefits should flow only from marriage, because a married couple does not reflect the reality of the American family, gay or straight.” Michelle Granda, of GLAD, which Szymanski calls “the group that is widely credited with winning same-sex marriage in Massachusetts,” said, “We have always believed families are configured in many ways and that marriage is not the answer for all families.”

Granda went on to point out that, “when other Massachusetts companies previously announced similar intentions to drop DP [domestic partnership] coverage, marriage activists expressed their concerns and were able to reverse such changes. One employer, the Dana-Farber Cancer Center, not only reversed its decision but expanded its DP system to cover opposite-sex partners.”

Let’s pause to consider what’s happened here. A spokesperson for GLAD, the organization credited with bringing gay marriage to Massachusetts, has just boasted about undermining marriage for gays and straights alike. According to Granda, same-sex “marriage activists” objected to Dana-Farber’s restriction of benefits to married couples, and instead prompted an expansion of benefits for unmarried domestic partners, gay and straight. Marriage activists undermining marriage. Here we have a clear indication of the family radicalism that hides beneath the only apparent conservatism of same-sex marriage advocacy groups.

Szymanski goes on to quote Shannon Minter, of San Francisco’s National Center for Lesbian Rights, which has strongly backed the movement for same-sex marriage: “I don’t think same-sex marriage means we aren’t also fighting for protections for other people.” Minter went on to celebrate the way in which the movement for same-sex marriage has actually promoted legal recognition for non-marital partnerships.

While Jonathan Rauch has claimed that the adoption of formal same-sex marriage would put a stop to the creation of various forms of “marriage lite,” Szymanski quotes Molly McKay, media director of Marriage Equality USA, making the opposite claim: “McKay believes, as do many marriage activists, that redefining the family through winning same-sex marriage is one of the best ways to earn protections for families outside of marriage...[Said McKay,] ‘By allowing us to be married it will allow us to enter into a conversation, as equals, about who is next.’”

Again, let’s pause to think about what McKay has just said. Here, a “marriage activist” has actually made an open promise to use gay marriage to pull society down the slippery slope. Once we can speak as married people, McKay promises, our calls for still more radical re-definitions of marriage will have that much more authority. Marriage activists undermining marriage.

Mainstream Radicals

After the Beyond Same-Sex Marriage manifesto’s release, Jonathan Rauch grudgingly conceded that several of the signatories (for example, Georgetown University law professor Chai Feldblum) were prominent figures in the movement for same-sex marriage. Yet Rauch dismissed the rest of the signatories as unrepresentative anti-marriage radicals.

As responses to the Beyond Same-Sex Marriage statement poured in, however, it quickly emerged that even many prominent figures in the movement for same-sex marriage who may not have personally signed the radical manifesto nonetheless broadly endorsed the statement’s goals. Whereas Rauch condemned the Beyond Same-Sex Marriage manifesto ( “they don’t want to put gays or polygamists on the marriage pedestal; they want to knock the pedestal over.”), mainstream leaders of the movement for same-sex marriage expressed approval of the substance, if not the timing, of the statement.

Take Shannon Minter, who just a week before, in the wake of the Globe controversy, had talked to the Bay Area Reporter about marriage as part of a broader and more radical family agenda. Faced with the Beyond Same-Sex Marriage manifesto’s premature announcement of that agenda, Minter told the San Francisco Chronicle that the manifesto was “‘very poorly timed’ because equality of marriage rights must come before other forms of relationship recognition. ‘Gay legal groups already agree with them and are doing the things they recommend for the most part.’”

Commenting on Minter’s remarks, same-sex marriage critic Maggie Gallagher said, “This lawyer pushing for [same-sex marriage] sees gay marriage as a step in this [radical “family diversity”] evolution, and says it’s not helpful to point that out at the current time.” Gallagher added, “[I]t is clear that many of the same people and forces that are pushing for gay marriage support family diversity as their key value and yes, often covertly precisely because they think arguments made by people who think like [Jonathan Rauch] and [Dale Carpenter] are more helpful at this point in history.” A look at the broader response to the Beyond Same-Sex Marriage manifesto yields still more evidence in support of Gallagher’s view.

Take Matt Foreman, another major figure in the battle for same-sex marriage whom we’ve already seen taking a radical line in the wake of the Globe controversy. Commenting on the Beyond Same-Sex Marriage Manifesto, Foreman said, “Of course we share its values, and I think its values and aspirations are something that gay and straight people can embrace because our nation needs to find ways to protect the reality of the American family, which is far beyond one man and one woman, or two men and two women.” Or take John Davidson, legal director of Lambda Legal, who said that “Lambda Legal did not disagree with the principles of the [Beyond Same-Sex Marriage] statement.” Or take Geoffrey Kors, executive director of Equality California, which sponsored the California gay-marriage bill recently vetoed by Governor Schwarzenegger. Responding to questions about the Beyond Same-Sex marriage statement, Kors said he could see his organization “supporting a hypothetical effort to expand statewide domestic partnerships for LGBT and straight families of all kinds.” Even Jay Smith Brown, communications strategies director for the Human Rights Campaign, a giant in the gay-marriage movement, noted that, while focused on marriage, HRC is “supportive of domestic partnership benefits in the workplace.”

One of the more interesting responses to the Beyond Same-Sex Marriage manifesto came from Evan Wolfson, surely one of the most important and influential figures in the movement for same-sex marriage. Wolfson is founder and executive director of Freedom to Marry, was co-counsel in the historic Hawaii same-sex marriage case, and is the author of Why Marriage Matters: America, Equality and Gay People’s Right to Marry. On the one hand, Wolfson clearly rejected the strategic utility of the radical, Beyond Same-Sex Marriage agenda. For example, the Beyond Same-Sex Marriage statement points to Canada as a model, since Canada has not only approved same-sex marriage, but has also eliminated most legal differences between marriage and cohabitation. “The United States is not Canada,” said Wolfson. “We have much more of an organized right-wing infrastructure,” he noted, arguing against the adoption of a radical strategy. (See previous link.)

Yet Wolfson also noted: “Ninety percent of what’s in that document could have been signed onto by virtually every person working in the gay movement today.” And like other gay-marriage advocates, Wolfson went on to credit the fight for same-sex marriage for doing more to bring about non-marital domestic partnerships and civil unions than any overtly radical strategy. So, despite Wolfson’s strategic qualms about an “alternatives to marriage agenda,” this prominent advocate of same-sex marriage seemed remarkably comfortable with the radicals’ policy preferences, even to the point of boasting that the battle for gay marriage was, in the end, the surest way to achieve more radical goals. In short, even a same-sex marriage champion like Evan Wolfson seems comfortable with the broader aspirations of a manifesto that is in fact a profound assault on the institution of marriage.

No Conservatives

Perhaps more significant than anything said in response to the Beyond Same-Sex Marriage manifesto is what was not said. After a reasonably thorough search for Internet-accessible news and opinion pieces about the Beyond Same-Sex Marriage manifesto, I was unable to find any gay-marriage supporters publicly criticizing the radicals on “conservative” grounds. To be sure, Rauch and a few like-minded “conservative” supporters of same-sex marriage strove mightily to allay the concerns of gay-marriage critics like Robert George and Maggie Gallagher, by downplaying the manifesto’s significance.

Yet these reassurances would have been vastly more credible had “conservative” proponents of same-sex marriage addressed themselves to the gay community itself, especially to figures like Minter, Foreman, Davidson, Kors, and Wolfson. Had Rauch or his supporters publicly criticized Minter, Foreman, or Wolfson for all-but-endorsing at least portions of the “alternatives to marriage” agenda, and had large numbers of grassroots gay-marriage supporters piped up on behalf of the “conservatives,” that would have been impressive. Instead, the “conservative” understanding of same-sex marriage played little or no role in the gay community’s response to the Beyond Same-Sex Marriage manifesto.

The closest thing I could find to a “conservative” criticism of the Beyond Same-Sex Marriage manifesto was a piece by two “marriage equality activists,” Rob and Clay Calhoun. The Calhouns actually broached an objection to legalized polygamy/polyamory (just about the only such objection I was able to find), noting that multi-partner marriage would create practical difficulties in end-of life-decisions and in the allocation of insurance benefits. Yet in the main, the Calhoun’s sent the radicals the usual message: “Most of your overall goals are commendable, and we agree with most of them, but we feel that this is an ill-timed attempt.” This is about the most “conservative” direct public critique of the Beyond Same-Sex Marriage manifesto I was able to find. Yet it is an ocean away from the “conservative case” for same-sex marriage.

A Striking Development

In late 2005, I published a piece entitled “Here Come the Brides,” about the role of bisexuality in the drive for legalized multiple-partner marriage. It’s notable that the Beyond Same-Sex Marriage manifesto justified its radical platform, in part, by lamenting the short shrift historically given to bisexuals by the broader LGBT movement. Among the signers of the Beyond Same-Sex Marriage manifesto were a number of bisexual activists. In “Here Come the Brides,” I also noted the role of Unitarian polyamory activists, and the potential role of arguments made by Yale law professor Kenji Yoshino in a pro-polyamory movement. Sure enough, the Beyond Same-Sex Marriage manifesto was signed by a number of Unitarian ministers and by professor Yoshino.

Shortly after “Here Come the Brides” appeared, Rob Anderson, a reporter-researcher at The New Republic, published a response. (I answered Anderson in “Triple Dutch Wrong.”) Like many who dismiss the “slippery slope” argument against same-sex marriage, Anderson claimed that there was no constituency for multi-partner unions: “There is no meaningful leadership, no agenda, no broad-based organizational structure, no PAC, no lobbyists, no fundraising.” Yet as is evident in the substance of and from the signatories of the Beyond Same-Sex Marriage manifesto, we now have the agenda and the leadership of an “alternatives to marriage movement.” Equally important, the overt or implicit pledges of assistance (when the time is right) from mainstream gay-marriage activists promise to supply the organizational structure, the PACs, the lobbyists, and the fundraising for yet another radical reform of marriage.

There are even indications that Rob Anderson himself might join up. This past September, Rob Anderson participated in a four-day debate with a radical supporter of the Beyond Same-Sex Marriage manifesto. It’s remarkable enough that, after pooh-poohing the very idea of taking pro-polyamory radicalism seriously, Anderson should find himself debating a full-fledged family radical. And despite his time with The New Republic (the journalistic home-base of the “conservative case” for gay marriage), Anderson took a remarkably un-conservative line in his debate, happily endorsing various forms of “marriage lite.”

Anderson ended his debate by offering a more sweeping pledge to his radical opponent: “My position boils down to this: I believe you should have the ability to lead your life as you choose, with whomever you choose. And I will fight for your right to do so. But, in return, I expect you to fight for mine.” My best reading of this is that Anderson has declared his support, in principle, not for the timing and tactics, but for the substance of the Beyond Same-Sex Marriage agenda, polyamory included. Perhaps I’m over-reading here, but it’s tough to avoid the impression that the fellow who said there was no constituency for polyamory has just promised to join that constituency himself. At a minimum, Anderson seems to have signaled a willingness to cooperate with at least a significant portion of the “alternatives to marriage agenda.”

A Political Future

Dale Carpenter, a law professor and an ally of Rauch, has acknowledged that the “love makes a family” argument for same-sex marriage “does indeed entail the recognition of many forms of relationships, including same-sex couples and polygamous/polyamorous groups.” Yet, like Anderson, Carpenter has steadfastly maintained that there is no radical constituency politically well-placed enough to cash in on the logical payoff of the “love makes a family” ideology.

Nonetheless, after extensive exchanges with Robert P. George and Maggie Gallagher on the significance of the Beyond Same-Sex Marriage manifesto, Jonathan Rauch offered some remarkably frank concessions: “I had originally hoped that the [same-sex marriage] debate would not be followed by a polygamy debate, but clearly it has been. Some [same-sex marriage] advocates maintained that there was no significant constituency for polygamy, but that’s proving to be wrong as well.” Then Rauch added: “polygamy advocates are going to try to hitch a ride with [same-sex marriage], and some or many [same-sex marriage] advocates (hardly all!) are disinclined to throw them out of the car.”

The key phrase there is “some or many,” which neatly finesses the fact that, as we’ve seen, many gay-marriage advocates are willing to give polygamy supporters a ride, while precious few are inclined to “throw them out of the car.”

This all means that in a post-gay-marriage world, the political organization of the gay community will shift. For now, “conservative” proponents of same-sex marriage are out in front, supported by a vast array of considerably less conservative activists and lobby groups. Meanwhile, the radicals are marginalized and/or intentionally keeping a low profile. In a post-gay-marriage world, this situation will flip. The radicals will step out in front, supported by largely the same coalition of activists and lobby groups who currently support same-sex marriage. At that point, the conservatives, no longer needed to run interference for the larger movement, will be quietly put out to pasture. By then we shall be well beyond same-sex marriage. Listen carefully to the words of same-sex marriage supporters, and they confess as much themselves.

— Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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Is a gay who opposes same-sex marriage a hyprocrite? (townhall.com, 061107)

By Dennis Prager

Why did a gay prostitute tell the media about the homosexual behavior of a leading Christian opponent of same-sex marriage on the weekend before an election, an election in which eight states vote on whether to maintain the definition of marriage as between a man and a woman?

Because he knew, first of all, that the media love to publicize the sexual lives of public figures. How else to explain the extensive reporting by the mainstream news media of the private sexual acts of a prominent sportscaster a decade ago — a basketball announcer, not a politician, not a religious leader?

But the main reason was that our gay prostitute knew the media are almost unanimously supportive of redefining marriage and therefore against all the states’ propositions to defend marriage’s definition. He and the news media hoped that publicizing that a major Christian opponent of same-sex marriage was secretly involved in gay sex could potentially undermine the movement to maintain the historical definition of marriage.

Now, of course, the sexual orientation of a person has no relevance to the merits of his pro- or anti-same-sex marriage argument. But the homosexual prostitute was certain that because the Rev. Ted Haggard was (allegedly) gay — or bisexual — this proved that:

— the reverend is a hypocrite; and therefore

— the movement to keep marriage defined as man-woman is a phony movement.

That both arguments are false is irrelevant to many, perhaps most, supporters of same-sex marriage. Apparently, they feel that since they cannot radically change society’s most important social institution through intellectual argument, or through the democratic process, or even via sympathetic judges, they might succeed by exposing any opponent who has homosexual tendencies.

So the first argument goes as follows: Show as many of the religious opponents of same-sex marriage to be hypocrites and you undermine the moral credibility of their efforts to keep marriage defined as man-woman. As Michael Jones, the gay prostitute, said (quoted in the Rocky Mountain News), “I felt obligated to get the information out about the hypocrisy of people who make these laws and those who support them.”

This is intellectual nonsense. Even if every opponent of same-sex marriage were a closet homosexual, it would say nothing about the merits of their arguments. Moreover, being an opponent of same-sex marriage and a closet homosexual (if that is what Haggard is) has nothing to do with hypocrisy.

As defined by every dictionary I consulted, Haggard is not a hypocrite. For example, the American Heritage Dictionary of the English Language (Fourth Edition) defines hypocrisy as “The practice of professing beliefs, feelings or virtues that one does not hold or possess.”

But we know that the Rev. Haggard never professed a belief that he did not hold. He believed at the time of his homosexual activities, and he believes now, that homosexual sex is a sin. He readily concedes that, in his view, he was sinning when he engaged in homosexual sex. He may therefore be considered a sinner, a person who acted inconsistent with his own admonitions and a poor model for a clergyman, but he is no more a hypocrite than a reverend who teaches the Ten Commandments and dishonors his mother or father, or bears false witness or even commits adultery. Hypocrisy requires a person to believe that he is the exception to the rule that he espouses for everyone else; that behavior that is wrong for others is not wrong for him.

If everyone who violates a standard he advocates is a hypocrite, the word is meaningless. And worse, it makes it impossible for just about anyone to advocate moral behavior.

The arguments against redefining marriage, the central institution of society, are profound and decent, no matter what the sexual orientation of those who offer those arguments. The sexual confusion we will bequeath to future generations, especially among children, if the same sex is regarded from childhood as equally desirable as marriage partners, endangers society immeasurably more than global warming.

But while not a hypocrite, the reverend was extremely irresponsible. By not resigning from his position (for “family reasons,” “personal reasons” or myriad other believable excuses) the moment he began his homosexual liaison, he endangered the entire defense of marriage movement, something infinitely more important than his staying in power, and, in my opinion, more sinful than his sexual sin.

That said, anyone who changes his mind and decides to vote against a proposition defining marriage as man-woman because a prominent Christian leader was exposed as privately engaged in homosexual behavior is not thinking clearly. Worse, he is rewarding the loathsome tactic of weekend-before-elections humiliations of public figures. One hopes that even proponents of same-sex marriage can agree that is no way to win elections.

In the meantime, however, those who argue for redefining marriage have their bases covered with ad hominem attacks. According to same-sex marriage activists, if you’re a heterosexual who opposes same-sex marriage, you’re a homophobe, and if you’re a homosexual who opposes same-sex marriage, you’re a phony and a hypocrite. Defenders of marriage should not lend credibility to these characterizations.

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