Massachusetts vs. Marriage
From the December 1, 2003 issue: How to save an institution.
Dec 1, 2003, Vol. 9, No. 12 • By MAGGIE GALLAGHER
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.