Marriage equality may have turned the corner over the last year or so. After losing thirty-one times in state referenda, same-sex marriage was endorsed by voters in Maryland, Maine and Washington last November. This year, Rhode Island, Delaware, Minnesota, California, New Jersey, Illinois and Hawaii have joined the growing list of states where same-sex couples can marry. In July, the U.S. Supreme Court struck down the anti-gay federal definition of marriage, which had long prevented federal recognition of state same-sex marriages. This all pleases those of us who support equality for same-sex couples and their children, but wise conservative defenders of traditional marriage should be celebrating as well. These may be important victories for them too -- if it's not too late.
Marriage is a conservative institution, which promotes social stability, private care-taking and security, child welfare and -- according to some scholars -- male "domestication." Conservative thinkers ranging from David Cameron to Ted Olson and David Brooks, support marriage equality, since they realize that the nature of marriage does not change, merely because the spouses are two women or two men. But, most social conservatives do not.
Many queer theorists, feminists and libertarians also agree that marriage is a conservative institution. That is why some on the left have long opposed the liberal focus on same-sex marriage. They would prefer state recognition of non-marital alternatives, which liberate individuals to define their own families and the rules that govern them.
Although their ideas have not caught on with the general public, these voices on the left have powerful political allies who may have turned the tide in favor of a radical new world where civil unions, domestic partnerships, reciprocal beneficiaries and other options compete with civil marriage for all couples. Those unlikely, and apparently unwitting, allies are the socially conservative opponents of marriage equality. Let me explain.
While activists have been arguing, popular opinion on gay relationships has shifted. Increasingly, people see legal discrimination against same-sex couples and their children as unjust. Recent polls show a slight majority of Americans favor marriage equality. A larger majority favors some legal recognition of same-sex couples.
These dynamics lead to political compromise on experimental new alternatives to marriage, ranging from Hawaiian reciprocal beneficiaries -- which provide only a few rights -- to Colorado civil unions, providing virtually all the legal rights and responsibilities of marriage under state law.
Such experimental alternatives to marriage are likely wherever there is no majority in favor either of full marriage equality, or a ban on recognizing same-sex couples and their children, for any purpose. But the scorched-earth, constitutional amendment strategies of social conservatives, have greatly increased this likelihood. Their amendments have removed the marriage question from the normal lawmaking process in many states at a time when public opinion increasingly favors recognition of gay couples. And most of the amendments banning same-sex marriage still allow for some forms of marriage alternative. This leads states to experiment with domestic partnership and other new institutions. Eight states with marriage amendments have already done so.
At first glance, conservatives may prefer this experimentation to full marriage equality for gay couples. But they are missing an important point: Unlike same-sex marriage, the new marriage alternatives can actually appeal to the heterosexual majority. They entail material advantages in areas ranging from taxation to social security. This is why New Jersey and California domestic partnerships are open to different-sex couples old enough to receive social security benefits.
Given a choice, some different-sex couples prefer these alternatives over traditional marriage. In France, for example, heterosexuals now choose a marriage alternative known as PACS almost as often as traditional marriage. And many American different-sex couples apply for domestic partnership employment benefits, even though the benefits are taxable as additional income to unmarried employees.
Once the marriage monopoly is broken up so that different-sex couples have a choice, the competition is likely to last. Where they are available to all couples, experimental new alternatives to marriage have been resilient to change, even after marriage equality is achieved. This has proven true from Belgium and the Netherlands, to Washington, D.C., Hawaii and Illinois, which all recognize gender-neutral marriage alternatives as well as marriage. Apparently, political majorities are hesitant to surrender their existing choices.
In the end, all couples could be left to pick-and-choose among a menu of civil unions, domestic partnerships and reciprocal beneficiary relationships, as well as marriage for both same and different-sex couples. Whether this is a good thing or a bad thing, it certainly cannot appeal to conservatives if they care more about preserving traditional marriage than about showing disapproval of LGBT families. By refusing marriage to same-sex couples, social conservatives are undermining traditional marriage more than lesbian brides and gay grooms ever could.