The End of Marriage?
Jan 17, 2000, Vol. 5, No. 17 • By DAVID FRUM
Where are they when they're needed, all of our allegedly pro-family politicians? Two weeks ago, the Vermont supreme court handed down the incredible ruling that marriage violated the state's 1793 constitution. With that decision, the long-simmering theoretical argument over rights for homosexuals exploded into immediate practical urgency. Gary Bauer and Steve Forbes objected, but, so far as we can tell, all of the leading candidates for president promptly went silent.
The Vermont court ordered the state legislature to confer on cohabiting homosexuals all the rights and privileges it extends to married men and women. The court offered the legislature the option of avoiding the word "marriage" -- it proposed the euphemism "domestic partnership" instead -- but it insisted that whatever names were used, the thing itself had to be the same.
When Hawaii's supreme court attempted a similarly reckless adventure in 1996, the state's voters amended their constitution to slap the court down. But Vermont's constitution is extraordinarily difficult to alter (an amendment must originate in the state senate, requires four separate legislative votes spaced over four years, must be signed by the governor, and only then goes to the people for their approval) and so the court's decision is likely to remain law for some time. Which means, despite the "domestic partnership" alias, that gay marriage has for the first time been foisted on an American state.
For the first time, but not the last. Given the subtle interworkings of the American federal system -- and also given the not-at-all subtle bias of the American legal class against family and marriage -- the Vermont ruling is a clear and present danger to marriage everywhere in the country. Even very liberal courts have thus far hesitated to impose gay marriage on their own states. But Vermont has now offered such courts a means to smuggle gay marriage past their legislatures and voters, and in a way not easily corrected by a constitutional amendment.
New Jersey, for example, may be afflicted with the most liberal judiciary in the country. Its ability to do harm has been constrained by a state constitution with an effective amending formula. But what happens when a homosexual with a rich Vermont-domiciled partner defaults on a debt in New Jersey? Can the New Jersey courts be trusted to pass up such a glittering opportunity to import gay marriage into their state?
What happens when a Vermont homosexual is hit by a car in Massachusetts, and his partner demands to be recognized as the next-of-kin? Can the Massachusetts courts really be expected to deny this recognition?
Suppose a husband and wife divorce in New York and agree that the wife should have custody of their children. She now moves to Vermont, takes up with a woman, and enters into a partnership. Her husband sues, charging that the wife has created an unsuitable home environment for the children by entering into a non-marital cohabitation. The wife denies that the home is unsuitable: By Vermont standards, she has remarried. Will the New York courts deny it?
The 1996 federal Defense of Marriage Act will quickly prove to be flimsy protection against the potential for legal mischief created by the Vermont court. The Defense of Marriage Act permits the courts and legislatures of the other 49 states to ignore Vermont homosexual partnerships. But it does not prevent courts and legislatures from recognizing such partnerships as marriages if they so choose, and under the pressure of legal conundrums like those above, one or more of the 49 is bound to crack.
In other words, the long-anticipated legal crisis of the American family has arrived, and it has arrived as a nationwide crisis. And yet, the would-be leaders of the nation have shockingly little to say about it. Vice President A1 Gore issued a brief statement on the day of the ruling applauding the result while clumsily attempting to reassure traditionalists. "I am not for changing the institution of marriage as we have traditionally known it. But I am for legal protections for domestic partnerships." Bill Bradley also claims to oppose (or, as his campaign materials cautiously put it, "not support") gay marriage. But he has chosen to duck the Vermont issue altogether. Ditto for John McCain: The otherwise voluble candidate has apparently said not one word about the decision in Vermont. George W. Bush contented himself with a brief answer to a journalist's question about the case: "I believe marriage is between a man and a woman."
This won't do. Merely stating your support for the law as it existed yesterday does nothing to protect the country from the legal threat it faces today. When the Supreme Court of one of the sovereign states ruled that it could find no "reasonable and just basis" for upholding the constitutionality of the institution of marriage, it posed a legal challenge -- and a moral challenge -- to the whole nation. This is not the first time that the challenge has been posed: In the series of court cases that challenged Congress's authority to suppress polygamy in the Utah Territory, the federal courts recognized, as Justice Mathews ruled in the 1885 case of Murphy v. Ramsey, that "no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." The federal government cannot and should not exert the same authority over Vermont, a state, as it did over Utah, then still a territory. But if Vermont's revolution is to be contained and corrected, national lawmakers and leaders must articulate their reasons for rejecting it and their plans for mitigating the damage it will do.
Advocates of same-sex partnership like to point out that civilizations have experimented with many forms of sexual and family organization. That's true of course -- just as it's true that civilizations have experimented with many forms of political and economic organization. What Americans have understood until now, however, is that heterosexual monogamy is the only form of sexual organization consistent with republican self-government. Anything else, as the Supreme Court observed in 1890, tends to "destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man."
The first effects of that debasement are already becoming visible. How often have we heard in the past two weeks that the defense of marriage is the moral equivalent of the defense of segregation? Doesn't anybody stop to ponder the horrific trivialization of the evil of segregation implied by this analogy?
But there is plenty more debasement still to come. Same-sex partnerships are a large and decisive step toward the replacement of marriage with a new system of temporary, fluctuating unions that elevate the wishes of adults over the welfare of children. In order to treat same-sex and opposite-sex relationships equally, the new unions will have to be sex-blind: The law will no longer be permitted to take into account the distinctive connections between mothers and children and the special vulnerabilities of women in marriage. Again in order to treat same-sex and opposite-sex unions equally, the new partnerships will have to accept children as a marketable commodity, and to accommodate the alarming new trend toward the purchase and sale of sperm, eggs, and wombs. One of the very first arguments put forward against a federal ban on human cloning was that the ban would threaten the reproductive freedom of homosexuals.
The family is where we learn to be human and to be citizens. Discarding the family in favor of something new will change the meaning of both humanity and citizenship. This is about as large a political issue as there could be. Is it really possible that none of the leading contenders for the presidency is large enough to address it?
David Frum, for the Editors