May 26, 2005,
EDITOR'S NOTE: This piece appears in the June 6th, 2005, issue of National Review.
The debate over marriage does not seem to be amenable to compromise. It is one of those debates in which the contending parties disagree not only about what answer we should reach, but also about what the question is in the first place. As in the debate over abortion, the very terminology of this debate is contested. Advocates of "gay marriage" use that phrase to suggest that what they want is an end to the exclusion of a class of people from an institution. Opponents of "same-sex marriage" use that phrase to suggest that what is at stake is a redefinition of the institution: The law they defend does not examine the sexual preferences of the parties to a marriage, but merely requires that they be of opposite sexes.
But perhaps a limited compromise can be reached, if we can separate the two fundamental issues in the debate: recognition and benefits.
Whenever the debate has been at its most abstract and ideological, it has concerned the politics of recognition. Proponents of gay marriage want the government to recognize long-term homosexual relationships as morally equivalent, at least for public purposes, to marriage. Many proponents undoubtedly want more than this kind of formal legal equality: They hope that insisting on governmental evenhandedness between homosexual and heterosexual couples will change people's attitudes so that society, and not just the government, will see them as equally worthy and morally indistinguishable. Opponents warn that if the demand for same-sex marriages is granted, it will be followed by demands for state penalties on people and churches that refuse to recognize them. But for now, what is being debated is the legal recognition of committed homosexual relationships as on a par with marriage.
When proponents of gay marriage say that existing law is "discriminatory," and a violation of the Fourteenth Amendment, their underlying claim is that the state has no legitimate reason for distinguishing between long-term gay relationships and conventional marriages. If there is no reason to distinguish between them, the distinction observed by existing law can be attributed only to prejudice. Opponents of same-sex marriage, on the other hand, have argued that there are legitimate distinctions to be drawn. If according legal standing to the marriage of a man and a woman can yield some public good that according legal standing to same-sex couples cannot, then existing law does not involve any invidious discrimination. Whether any such public good exists has been a major point of contention in the debate. Almost all the high-flown commentary on the marriage debate has turned on this question of recognition, although the issue is sometimes disguised.
The energy brought to this part of the debate has sometimes obscured the extent to which the debate is also about various governmental benefits. Supporters of same-sex marriage have asked again and again why gays should be denied hospital-visitation rights when their partner falls ill or bereavement leave when their partner dies. Obviously, this concern is connected to the argument about equality: If committed same-sex couples are morally equivalent to married couples, then why should they not have the same legal protections? But the issue of benefits can, to a large extent, be separated from the issue of the legal recognition of relationships . . . .