July 2010

First published at 365gay.com on July 16, 2010

Last week a U.S. District Court judge in Boston ruled portions of the Defense of Marriage Act (DOMA) unconstitutional, prompting the usual cries of “judicial activism” from conservatives. Among the responses was a statement from Roman Catholic Archbishop Joseph E. Kurtz of Kentucky, chair of the U.S. Bishops’ Ad Hoc Committee for the Defense of Marriage.

“Marriage exists prior to the state and is not open to redefinition by the state,” Kurtz said. “The role of the state, instead, is to respect and reinforce marriage.”

Archbishop Kurtz is partly right—but he’s also wrong in interesting ways.

He’s right that marriage is not something the state invents out of thin air. There is a social institution of marriage pre-existing any particular legal incarnation, and part of what legal marriage does is to acknowledge and protect this prior social institution.

But it doesn’t follow, as the archbishop and other opponents insist, that marriage for gays is therefore impossible by definition. That conclusion is a non-sequitur for several reasons.

First, legal marriage doesn’t MERELY track the social institution, and it can thus have different boundaries. For an analogy, consider the notion of legal parenthood, which is based in a pre-legal reality of biological parenthood but can vary from it. (Indeed, “legal parenthood” is often most important in those cases where the legal parents are NOT the biological parents.)

Second, and related, the causal arrow between the legal institution and the social institution goes both ways. The legal reality reflects the social reality and vice-versa.

That’s one reason why marriage equality scares opponents: the change in legal meaning is bound to effect change in social understanding. Sure, marriage-equality opponents can still teach their children that marriage “really” means something narrower—just as, for example, they can teach their children that a “real” marriage must originate in a church—but the broader legal definition makes those lessons more challenging to impart.

Third, and perhaps most interesting, there is an emerging social institution of marriage that includes gays. It’s time for the law to catch up to that.

Last month I participated in a same-sex wedding for some dear friends. The Presbyterian church hosting the ceremony called it a “holy union,” but just about everyone else called it a wedding—including the grooms’ families. There were tuxedos and champagne and cake and presents and all the other usual markers, including teary-eyed families witnessing solemn vows.

The state where this event occurred (Michigan) forbids legal marriage for gays and lesbians. But each groom’s parents have begun referring to their son’s partner as their “son-in-law,” and everyone around them understands why they do so.

It’s not a legal reality. But it is a personal and social one.

A growing number of people know gay and lesbian couples who have been together five, ten, fifteen, twenty years or more. Legally these couples may not be married, but in virtually every other way they are.

When people vow themselves to each other in the presence of friends and family, set up a household, and build lives together, they create a marriage. That’s how it happened for straight people long before the state started getting involved. And that’s how it’s happening for gay and lesbian couples now.

So the argument that marriage has a culturally determined meaning, independent of words assigned by law, cuts both ways.

Archbishop Kurtz is right when he says that “Marriage exists prior to the state.” He’s just wrong to think that it’s solely heterosexual.

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First published at 365gay.com on July 9, 2010

In vetoing Hawaii’s civil unions bill, Gov. Linda Lingle noted that the bill was “essentially marriage by another name.”

She has a point.

Of course I don’t agree with her decision, and I don’t buy her excuse that the issue was too important to be decided by “one person sitting in her office.”

In fact, that’s exactly how Lingle decided the issue when she chose to veto a measure that not only had passed both houses of the Hawaii legislature, but also had broad polling support of Hawaii’s citizens. Hawaii voters gave the legislature the power to define marriage (let alone civil unions) in 1998, and the Governor’s attempt to deflect responsibility for her veto was as shameful as the veto itself.

When I say that she has a point, I’m talking about her claim that the bill was “essentially marriage by another name.” Indeed, the bill explicitly stated as much: “partners to a civil union … shall have all the same rights, benefits, protections, and responsibilities under law … as are granted to spouses in a marriage.”

Like most civil-unions legislation, this bill was an attempt to grant marital rights and responsibilities without using the “M word”—a compromise that, for whatever strange reason, satisfies many opponents of marriage equality. Polls across the country show substantially greater support for civil unions than for marriage equality, even when the statewide rights and responsibilities would be legally identical in theory.

(Note that I said “in theory.” In practice, the “separate but equal” status of civil unions tends to fall far short of equality—even at the state level.)

I have long tried to make logical sense of this disparity. It’s not even quite like giving us half a loaf. It’s more like trying to give us a (virtually) full loaf while not calling it bread. (Also, don’t even think about carrying that loaf across state lines.)

As best as I can tell, the insistence on different names stems from the Definitional Objection to marriage equality—the view that marriage is “by definition” between a man and woman. On this view, calling a same-sex couple “married” is as confused as calling a married man a “bachelor.”

Okay, but suppose we grant identical legal boundaries to the relationship. Wouldn’t it then be a marriage, legally speaking?

Here’s where marriage-equality opponents get pushed into a corner. If they answer “yes,” they have to give up the argument that legal same-sex marriage is impossible by definition. If they answer “no,” they find themselves saying that a legally identical relationship isn’t legally identical.

The only way out of this logical pretzel is to distinguish between two senses of “marriage”—a legal sense, the boundaries of which are drawn however the law says they’re drawn, and a religious or metaphysical sense, the boundaries of which exist independently of human intentions.

The religious/metaphysical sense is surely what people have in mind when they say that same-sex marriage is impossible by definition. But the law isn’t—or shouldn’t be—in the business of religion or metaphysics. It should be concerned with the legal boundaries, period.

The problem is that some marriage-equality opponents are so wedded (pardon the pun) to their own religious/metaphysical notion of marriage that they cannot abide a legal understanding that deviates from it.

Nevertheless, many of these opponents recognize that same-sex couples form loving households and families, that they exist in relationships of mutual care and support, and that the government’s failure to grant those relationships legal recognition has consequences ranging from the inconvenient to the inhumane.

For these folks, “civil unions” are the ticket. The “civil unions” status allows them to grant the legal recognition without challenging their religious/metaphysical understanding.

At least, it allows them to do so as long as they don’t think about it too carefully. Because once they do so, they end up precisely where Lingle did: realizing that civil unions are, from a statewide legal standpoint, “essentially marriage by another name.”

And if the state ought to grant gays and lesbians marriage by another name, wouldn’t it make as much (or more) sense to grant them marriage, period?

Yes, precisely.

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First published at 365gay.com on July 2, 2010

I’m at a wedding for a same-sex couple, in the chapel anteroom before the service, and the grooms are sweating profusely.

It’s not because they’re nervous. It’s because they’re wearing black wool tuxedos, it’s a humid 90-degree day, and like most old churches, this one isn’t air-conditioned.

Why would anyone schedule a large ceremony in a non-air-conditioned venue in late June? I’m not religious, but if I were, I’d either schedule my wedding in October or convert to a denomination with modern facilities.

This church was not the grooms’ first choice. Or their second or third, for that matter. But they wanted a traditional church wedding, and most local churches declined to do a same-sex ceremony.

The demurring pastors weren’t hostile (though my friends didn’t bother asking those from conservative denominations). Indeed, several were quite apologetic, explaining that they supported the idea but needed more time to acclimate their congregations. Perhaps they were just making excuses to cover their own discomfort, though they seemed sincere.

So this particular church gets points for courage and open-mindedness. Just not climate control.

The church is Presbyterian, and they’re calling this event a “holy union.” In the weeks preceding it, some friends have been calling it a “commitment ceremony.” But most of us keep calling it a wedding, because that’s what it feels like, and that’s what it is.

Indeed, it’s not just a wedding, it’s—by my lights—a big wedding, complete with rehearsal dinner, organ and violin music (the harpsichord couldn’t be tuned due to the heat) and a reception for 160 guests. The grooms registered at Williams-Sonoma, Crate & Barrel, and Macy’s; they sent out multi-part invitations with useless sheets of tissue paper inside.

“Why do you want such a huge production?” I asked them one day.

A few reasons, they told me. Partly it was because one groom’s siblings all had big weddings, and both grooms love big parties. But mainly it was a way for them to signal to family and friends, “This is real. We mean it. Take it seriously.”

Rarely in the marriage-equality debate, as we reflect on the question “Why marriage?” do we stop and ask the question “Why weddings?”

Weddings are, at one level, absurd affairs: the gaudy pageantry, the forced intimacy with distant relatives and acquaintances, the cheesy running commentary from the DJ. They’re expensive, sometimes outrageously so. One designer friend of mine has done a wedding with a $38,000 budget—for the flowers alone. (Not all the decorations, he assured me—just the flowers.)

We dress in clothes that we’d never wear otherwise (despite what they told you about the bridesmaid dress you just bought); we rent limousines and grand reception halls; we send out invitations requesting the “honour” of people’s presence and the “favour” of their reply, as if we’ve all suddenly become members of the British royal court. Why do we make such a fuss?

We do it because, like these grooms, we want to say “This is real. We mean it. Take it seriously.” Yes, we can do that with simple affairs, and we can certainly do it with American spelling. But fanfare has its uses. If friends and relatives are going to fly from all around the country and buy you expensive presents and sweat through a long service that’s all about you, you’d better be pretty damn sure about what you’re doing.

In that way, weddings are not just a way for the couple to tell the world “Take it seriously;” they’re also a way for us to tell them the same. They create a cooperative web of expectation and support. They’re a time-honored ritual for turning partners into spouses; a relationship into a marriage.

And that’s what we’re doing here today. Despite the fact there is no bride. Despite the fact that this relationship is not legally recognized. Despite the fact that the church has replaced all references to “marriage” in the traditional service with “holy union.”

It’s a wedding, and it’s a marriage, because the love is real, the commitment is real, the family support is real, the sweat and the tears (of joy) are real. They mean it, and we mean it.

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