ORIENTATION-NEUTRAL CIVIL UNIONS AND PROTECTION OF TRADITIONAL MARRIAGE PROPOSAL
David Liao
DRAFT 2008 November 6 14h24 EST
Princeton, NJ
PURPOSE: To write a legal construction that addresses priorities from different sides of the same-sex marriage debate.
PROBLEM: Traditional marriage proponents and same-sex marriage proponents hold conflicting priorities. The fight for highly incompatible laws favoring either side consumes a lot of time, money, and energy that should probably be spent somewhere else, like solving our massive shortfall in entitlements, preventing nuclear proliferation, supporting education, maybe even mitigating genocide if that can be done realistically. To enumerate these views from both sides with accuracy, I must include moral statements from both sides, but for the purpose of this document I'm not discussing whether these judgments are "true." We can do that in university research on psychology, psychiatry, and philosophy. I'm asking whether we can write a proposal for law that satisfies enough of these priorities so that both sides of the debate can agree to a political solution. Two sides can disagree morally, and they can each view a proposed law as a compromise of their consciences and beliefs, but those sides can nevertheless agree to sign such proposals into law as a matter of political business. Traditional marriage proponents frequently hold
T1. Marriage is defined between a man and a woman.
T2. The orientation of the partners distinguishes fundamentally relationships from each other. The distinction is so fundamental that it should be enshrined in civil law. The legal instruments that afford civil protections to same-sex relationships should be distinguished in name from civil protections for heterosexual relationships.
T3. Heterosexual relationships are the best relationships for social functions including raising children. Therefore, same-sex relationships should not be afforded legal recognition that looks anything like marriage. These beliefs are often inspired by Evangelical Christian readings of the Bible or by research that is biased severely by such religious beliefs, i.e. Family Research Council.
Same-sex marriage (personally I prefer to refer to myself as an orientation-neutral civil marriage proponent) often hold the following priorities regarding civil law
S1. Government should afford same-sex relationships the same substantive legal protections and obligations currently afforded to heterosexual marriage by enumeration in marriage law.
S2. Government should offer these protections and obligations by way of a legal instrument that treats different-sex and same-sex couples in the same way, same even in the name given to the instrument. To offer parallel institutions of civil unions for same-sex couples, but not for most heterosexual couples alongside civil marriages for heterosexual couples, but not for same-sex couples, is demeaning to both civil unions and civil marriages. The mere observation that a same-sex couple is not a heterosexual couple is by itself inocuous and factual: we can obviously distinguish between gay and straight couples. However, to emphasize this distinction in the name of legal instruments trivializes other important aspects relationships, i.e. that loving relationships constitute family units that should be enjoy civil protections and responsibilities.
S3. Same-sex relationships are fundamentally identical to heterosexual relationships, and the legal instrument of civil marriage already exists fully coded in precedent and in writing, so the legal instrument protecting same-sex relationships should be none other than civil marriage.
I don't see a way to satisfy each priority; taken together they appear incompatible. However, I have also ranked the priorities according to the importance that typical proponents might assign to them, and I propose a legal instrument that satisfies priorities T1 and S1 while satisfying in compromised sense both T2 and S2.
SOLUTION: ORIENTATION-NEUTRAL CIVIL UNIONS I propose that we enact civil unions at the State and federal level that bring all the State and federal rights and responsibilities of civil marriage with the eligibility requirements of civil marriage, except that the genders of the partners need not be different.
SATISFIES T1 TRADITIONAL MARRIAGE PRIORITY: MAN-WOMAN DEFINITION This construction does not modify in text the heterosexual-only civil marriage laws in States and federal code. This construction would be compatible with State and federal laws and Constitutional amendments defining marriage as a union between a man and a woman, thus priority T1 is satisfied.
SATISFIES S1 SAME-SEX MARRIAGE PRIORITY: EQUAL ENUMERATED PROTECTIONS The construction by definition affords to same-sex unions all rights and responsibilities afforded to heterosexual marriages as those rights and responsibilities are _enumerated_ _under_ civil marriage law.
COMPROMISED SATISFACTION OF T2 TRADITIONAL MARRIAGE PRIORITY: SAME-SEX PROTECTIONS AND HETEROSEXUAL PROTECTIONS MUST BE DISTINCT IN NAME The construction of orientation-neutral civil unions leaves intact some distinction between same-sex unions and heterosexual civil marriages. Same-sex couples must use a legal instrument that is open to same-sex and different-sex couples alike, but different-sex couples can use marriage, which is not available to same-sex couples. Thus the instruments available to same-sex and different-sex couples are distinct in name.
COMPROMISED SATISFACTION OF S2 SAME-SEX MARRIAGE PRIORITY: SAME-SEX PROTECTIONS AND HETEROSEXUAL PROTECTIONS MUST BE INDISTINCT IN NAME The construction of orientation-neutral civil unions gives to same-sex couples and different-sex couples an instrument for recognizing legal rights and responsibilities that does not change its name according to the relative sexes of the partners. By virtue of the that T2 and S2 can both be satisfied, in spirit the satisfaction is compromised in both cases. The remaining priorities are not satisfied. Same-sex relationships are not outright denied legal protections, so T3 is not satisfied. Same-sex relationships are not called marriages in legal code, so S3 is not satisfied.
RESULTS AND ADVANTAGES COMPARED WITH EXISTING PROPOSALS POLITICAL VIABILITY -- No politician GOP or Democrat can viably deny legal protections to same-sex couples, but at the same time it is politically impossible (at this time) to offer orientation-neutral civil marriage in most States and certainly at the federal level. An orientation-neutral civil union separate from a heterosexual civil marriage law is more palatable. It can also be constructed in pieces. States with domestic partnerships/civil unions sometimes start by constructing small unions with a handful of basic protections, i.e. hospital visitation. As the public becomes comfortable, additional protections are added until civil unions enumerate all the same rights that civil marriages enumerate. Related unions do get passed into law: France has a Pacte de Solidarite which is an orientation-neutral domestic partnership enumerating a subset of rights enumerated by marriage laws.
ADMINISTRATIVE COMPLEXITY AND COMPATIBILITY WITH LEGACY LAWS -- Orientation-neutral civil unions can be added to the law books of many States and the federal government even when Constitutions strictly define marriage as a union between a man and a woman. This could not be done for orientation-neutral civil marriage. Unfortunately, states with laws that withhold the legal rights and responsibilities enumerated by marriage for unmarried couples are incompatible with my proposal. However, those states also have domestic violence problems because by passing those amendments they have unwittingly removed vital protections for heterosexual couples living out of wedlock. This is just one reason to repeat State amendments withholding the protections enumerated by marriage laws from unwed couples, and if States repeal these amendments, orientation-neutral civil unions become legally possible.
FINE-GRAIN DEMOCRACY -- We agree to a sets of laws governing millions of Americans at the federal level and often millions of Americans at State levels. It is expensive to administer votes and changes to laws, so we go years between ballot measures attempting to make large changes to law. If we can't quite agree to a proposal in a given election, even if we are talking about 52%-48% margins, and even if those views change in a matter of months following the election, we have to wait years before we bring the issue to vote again.
While enacting orientation-neutral civil unions would provide immediate written guarantees of protections, responsibilities, and nomenclature for same-sex and different-sex couples, the social respect afforded to a civil union as opposed to a marriage would remain a matter of personal belief and collective social attitude. The orientation-neutral civil union is a vehicle by which straight and gay couples can gradually move society toward a non-discriminating culture.
Everytime a straight or gay couple elects to enter into an orientation-neutral civil union, that's a public written statement and cultural vote in favor of equal respect for same-sex and different-sex unions. The orientation-neutral civil union can also be a vehicle by which conservatives can maintain society's traditional values. A conservative couple can choose to decline an orientation-neutral civil union and instead choose a heterosexual civil marriage as a written statement and cultural vote that this special institution retains contemporary relevance, moral importance, and social consequence. The proportion of straight couples who choose one option is a way for conservative and progressive straight couples to communicate back to society a collective opinion of the relative importance of heterosexual civil marriage vs. orientation-neutral civil unions.
The aspect of the same-sex marriage debate that has fundamental importance for the traditional marriage proponents is whether government and society should respect and recognize same-sex unions. I understand that generally the traditional marriage position is that same-sex unions deserve basically no respect or recognition because gay people deserve to go to hell. If the traditional marriage proponents cannot let their government give the full respect and recognition of civil marriage to same-sex unions, can they at least agree to institute orientation-neutral civil unions for the purpose of allowing straight couples to choose the kind of union they wish to enter? I know that just bringing the issue to a vote is insulting for both sides of the debate, but these issues keep coming up, so can we at least agree to make changes to make the vote occur in a more real-time way? I'm asking that we provide the option for straight couples to enter either heterosexual civil marriages or orientation-neutral civil unions so that straight couples can voice their respect for traditional marriage or orientation-neutral civil unions in an organic process that is smooth and on-going in contrast to the brief punctuations that we get every couple of years under the current system of ballot measures and polls. I'm asking that we introduce the legal currency of orientation-neutral civil unions alongside the legal currency of heterosexual civil marriages that already exists. Straight couples will then have the democratic power to endow those currencies with value that varies according to the frequency of couples who enter each kind of union. Gay couples will have the opportunity to influence currency values by choosing to accept or decline orientation-neutral civil unions.
POLITICAL PHILOSOPHY I hope this proposal offers something for people from various persuasions.
LIBERTARIAN AND CONSTITUTIONAL EQUILIBRIUM -- Eventually I hope that heterosexual civil marriage because unused legacy law. That society would probably find it easy by legislation or lawsuit to strike the law from the books, leaving only a secular civil union. I hope that this goal can attract from Libertarians who believe in minimizing government. I'm not proposing to abolish marriage rights altogether, but I'm proposing a structure that might one day eliminate from our laws language that is maintained for the mere purpose of paying special respect to certain religious faiths.
PARTIAL ELIMINATION OF DISCRIMINATION AGAINST SECULAR STRAIGHT COUPLES -- Orientation-neutral civil unions give straight couples the option of entering into unions whose name does not hold religious overtones. In States with same-sex-only civil unions, straight couples do not have this option yet.
PROGRESSIVE PRAGMATISM -- I believe the hallmark of the Democratic party is becoming the ability to deal with a ground situation and temper the pursuit of ideology and ideological strong-arming in order to achieve practical goals. Democrats are willing to drill for oil in order to pass energy legislation. I personally would be willing to leave civil marriage between a man and a woman _for now_ if I could sooner and over a broader section of American States secure orientation-neutral civil unions.
GRANDFATHERING RELIGIOUS CONSERVATISM -- Leaving intact contemporary heterosexual civil marriage laws so that they might stand alongside the new orientation-neutral civil unions laws gives religious conservatives an institution all their own, for which they can show support by electing to enter civil marriages rather than the civil unions that would be open to same-sex and different-sex couples alike. They can have this option for now and for years as long as straight couples have the option to enter into civil unions.
METHODS I would prefer to enact these changes through legislation, but I guess we could also affect parts of it by having straight couples sue for the right to enter into civil unions rather than civil marriage. Lawsuit is probably not an ideal way to do this since religiously conservative Justices might judge in favor of separate but equal in order to avoid judgments that could easily be turned around to allow same-sex access to civil marriage.
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