So far, recognition of same-sex marriages in the United States has come through the courts or the legislatures. In Maine, lawmakers granted full recognition to gay and lesbian couples, only to be thwarted by a margin of roughly 53% to 47% when state residents turned the matter into a referendum. Perhaps that shouldn't have been surprising, following as it did just one year after California voters overturned a state Supreme Court decision recognizing same-sex marriages. If even Maine and California voters, known for generally socially tolerant views, balk at expanding the definition of marriage, what hope is there in the rest of the country?
Washington state voters sort-of bucked the trend, approving a domestic-partnership measure designed to "expand the rights, responsibilities, and obligations accorded state-registered same-sex and senior domestic partners to be equivalent to those of married spouses." But the measure included a little zinger, specifying that "a domestic partnership is not a marriage."
The domestic-partnership measure squeaked by with less than 52% approval, and that courtesy of overwhelming support in ten counties clustered in the liberal northwest -- it lost in the state's other 29 counties.
Across the country, even in the most tolerant states, people seem willing to grudgingly grant legal rights to same-sex relationships -- but only so long as you don't call them marriages.
So, if you insist on marriage equality, how do you get there from here?
The practical answer may well be the one that has long been deemed the most radical: privatize marriage and let individuals, churches and familes decide for themselves what "marriage" means.
Right now, with "marriage" a privilege licensed and defined by the government, we all have to live with the same definition of marriage, and that definition has become an emotionally charged political football. In fact, though, marriage has only been a licensed, state-defined institution for a short period of time. As Stephanie Coontz, a professor of history at Evergreen State College, wrote in The New York Times two years ago:
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.Licenses were largely introduced so the government could prevent people from marrying across racial lines, and later to implement now-discredited eugenics theories about who should be allowed to marry whom in order to optimize genetic outcomes. That is, they were imposed to prevent people from defining marriage in ways that satisfied their own needs. The recent resignation of Keith Bardwell, a Louisiana justice of the peace who refused to perform mixed-race weddings "because he was concerned for the children that might be born of the relationship," was a blast from that unsavory past.
Which is to say, the government's role in defining and licensing marriage has been remarkably unhealthy.
So why not return to the days when people wholoved each other called themselves "married" and were done with it? If we were to return the institution to the private status it held for so long, conservative-minded people could continue to view marriage in a conventional way, attending churches that perform ceremonies only for heterosexual couples. Gays and lesbians would obviously define marriage in ways that better suit them.
And the legal accretia that has become tied up in marriage -- property, inheritance, benefits and the like -- could be ... well ... divorced from marriage and treated as contractual matters available through domestic partnerships or by filing a few documents purchased at an office-supply store. That would have the added benefit of simplifying matters for those many people who want to streamline their legal affairs but have no need of the full institution of marriage.
So keep marriage conventional and expand its definition by privatizing the institution. Why fight over how the government defines marriage when we can write politicians out of the whole matter and define it to suit our own tastes?