How Lingle Was Right

First published at 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.