The Volokh Conspiracy

The traditionalist reformer must not simply be satisfied that the reform is headed in the right direction, but must also be satisfied with the pace of that reform and with how the reform is brought about. The process considerations demand that any reform be based not simply on reasoned judgment, but on reasoned judgment informed by actual lived experience. Moreover, the reform must proceed slowly and incrementally to allow a consensus to develop in favor of the reform and to gauge what effects the effort is actually having.

This Burkean process of “a slow but well-sustained progress” is already very much in motion toward the ultimate destination of gay marriage.

1. The incremental path to gay marriage: the steps taken

Over the past 50 years or so a remarkable development has occurred in America: the increasing normalization and acceptance of gay life. This process has advanced incrementally and its vector has been toward the formation and growth of gay families. It is what makes gay marriage for the first time thinkable.

You can see this phenomenon in numerous legal and social changes. First, laws criminalizing gay sex were gradually either legislatively or judicially wiped away in almost every state until the Supreme Court invalidated the few remaining such laws in Lawrence v. Texas. At the same time gay communities were forming in neighborhoods in the large cities with a burgeoning culture of bars, organizations, and newspapers. Professional organizations like the APA removed homosexuality from the list of mental disorders and declared that efforts to “cure” or convert gays were unethical. Homosexuals began emerging from the closet in large numbers, helping to dispel myths about gays, moving out of urban centers and into the suburbs. And they began looking for more in life than fleeting and furtive sexual encounters. This was all a predicate for the flourishing of gay families.

Gay families, first just couples, began to spring up in the new climate. Adoption was available to gays in 49 states, foster parenting in all 50. Advances in reproductive science made it possible for gays to procreate their own biological children (outside of prior heterosexual marriages). So gays began raising children in increasing numbers, fueling what is today sometimes called a “gayby boom.” A quasi-marriage culture was sprouting.

It was inevitable that law would take notice of these changes, and of new learning about sexual orientation, and adjust to accommodate the realities of family life. Changes in family law allowed gays to obtain custody of their children after divorce without having their sexual orientation considered an automatic disqualification. Many jurisdictions began recognizing second-parent adoptions that provided some measure of legal protection to the parents and children in gay families.

All of this bottom-up momentum toward the formation of families led to some recognition of the relationships of gay couples. It started primarily in the private sector, where companies began offering health and other benefits to the same-sex “domestic partners” of their employees. This practice spread until today most major companies in the country offer these benefits.

Then cities and counties began recognizing the domestic partnerships of their employees. Then states began to recognize gay relationships, first domestic partnerships offering only some benefits to certain gay couples. Now states are beginning to recognize civil unions, which give gay families all of the benefits of marriage yet save the word “marriage” for opposite-sex couples. The big barrier was broken in 2004, when one state began recognizing full-fledged gay marriages. Some of these state-level changes have been pushed judicially (civil unions in Vermont and gay marriages in Massachusetts). But, much more remarkable, they are now happening legislatively (civil unions in Connecticut and very broad domestic partnerships in California).

Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been dramatic. There’s full gay marriage now in Belgium, the Netherlands, Spain, and most importantly for our purposes, in Canada. Within ten years, I am confident that all or nearly all of the European Union will recognize gay marriages. The dissonance will be increasingly difficult to maintain.

There has been a counter-trend, of course, represented by the recent passage of state constitutional amendments banning the recognition of gay marriages (and often much else). But these have passed mostly in states (like Mississippi) that were not headed toward recognition anyway. There is nothing inevitable about gay marriage. But the overall trend toward the formation of gay families and toward some recognition and protection of those families has been unmistakable.

Moreover the trend has been largely a Burkean one: incremental and based on real-world experience with gay people and families. This incrementalist experimentation has allowed us to begin to judge whether any of the harmful effects predicted by opponents of these reforms have materialized.

Consider, for example, the comments of Massachusetts state senator Brian P. Lees, a Republican who is the state senate minority leader and was a co-sponsor of a state constitutional amendment that would have banned gay marriage. After more than a year of gay marriage in his state he changed his mind and opposed the amendment he had previously sponsored. “Gay marriage has begun and life has not changed for the citizens of the commonwealth,” he said, “with the exception of those who can now marry who could not before.” “Massachusetts Rejects Bill to Eliminate Gay Marriage,” New York Times A12 (Sept. 15, 2005). It’s too early to draw any definitive conclusions about the Massachusetts example, but the preliminary returns are in and they offer no support to doomsday scenarios about gay marriage.

2. The incremental path to gay marriage: the steps ahead

Where do we go from here? I think a Burkean approach dictates two things. First, there should not be an immediate, nation-wide resolution of this issue either in favor of gay marriage or against it. That counsels strongly against either a decision from the Supreme Court forcing gay marriage on the country or the passage of a federal constitutional amendment banning gay marriage throughout the country. Either resolution of the issue would be profoundly un-Burkean because either, at this point, would necessarily be based on a priori reasoning rather than practical knowledge and experience. Fortunately, neither of these national, top-down resolutions of the issue seems likely to occur. Federalism, the historic design of American government, will be allowed to work its magic on this issue.

Second, the reform toward gay marriage should continue incrementally and with a strong preference that it move legislatively. That is, state legislatures should generally begin by taking moderate steps toward recognition that fall short of marriage. This could mean setting up a same-sex domestic partnership registry, and extending to registered partners some of the rights and obligations typical of marriage. Things like the right to visit a sick or dying partner in the hospital and the right to make important decisions for an incapacitated partner come immediately to mind. Perhaps allowing partners to transfer property to one another free of gift taxation. Second-parent adoptions, which even Maggie said she might support, should be allowed for registered partners. If things go well, the state could over time attach new rights and responsibilities to domestic partners.

It may be that in a few states, citizens who already have much experience with gay families can move more quickly. They could grant gay families all (or nearly all) of the rights and responsibilities of marriage and call the relationships “civil unions” or something else, but not marriage. Connecticut is an example of this. California is pretty close. New York and a few other states seem ripe to be next. I see no reason why such states could not move with dispatch toward full gay marriage, especially as the evidence from Massachusetts becomes clearer. There is already a consensus, a "general conciliation," in these states pretty close to gay marriage.

Once more evidence of the effects of protecting gay families is in, states can of course draw on the lessons learned in other states and move more confidently and quickly.

3. The incremental path to gay marriage: disadvantages

There are two disadvantages to this generally go-slow, state-by-state approach. One is that incrementalism necessarily means that states will be creating relationship statuses apart from marriage. Jon Rauch, who supports gay marriage, has argued forcefully that creating a menu of statuses may have the effect of knocking marriage off its perch as the “gold standard” for relationships. It’s a real concern, but I think its force can be blunted. In creating alternative statuses states should be careful to limit participation to same-sex couples. Domestic partnerships and civil unions should not be available to opposite-sex couples, who already have marriage available to them. This can be done constitutionally and, I think, it’s politically viable. Connecticut is a good example. That state legislatively created civil unions for gay couples but not for straight couples. California has (with a limited exception for elderly couples who lose certain important legal benefits if they marry) also limited its domestic partnerships to same-sex couples.

Also, once a state moves to full gay marriage, it should say good-bye to any alternative status it created for gay couples. Once marriage is allowed, gay couples should not retain an option unavailable to straight couples. I think this, too, may be politically viable since there’s some evidence that private employers in Massachusetts have begun to eliminate their domestic partnership benefits. If the pre-marriage alternative status has been limited to gay couples, as I suggested above could be done, there’s not going to be any politically sustainable argument why the alternative status should be available to them (and only to them) once they’re eligible for marriage.

The second disadvantage of incrementalism is that, while we are waiting around, a lot of states will be cementing anti-gay-marriage policy into their state constitutions. Eighteen states have already done so and my home state of Texas is about to become the next (an especially pointless action, since there’s no chance that Texas’s extremely conservative and elected judiciary will force gay marriage on the state). It will be very hard to dislodge these amendments once they’re in place. Long after the evidence is in that recognizing gay families is a good thing for the families and for their communities, these places will be stuck with the frightened prejudgments of an earlier generation that did not have the knowledge or experience the later generation will by then have. That will be terrible for gay families in those states, who will suffer needlessly for decades. I don’t know what to say except that if the alternative to state-by-state incrementalism is a Supreme Court decision mandating gay marriage anytime in the near future, the price of that would be even higher. It would be a constitutional amendment banning gay marriage throughout the nation for the rest of our lives.

Finally, while I believe civil unions are a huge and often necessary step toward gay marriage, they should not be confused with the ultimate destination, which is marriage itself. I have asked many married couples I know whether they would, if given the option, trade in their marriages for a civil union. Every one of them said no, even though civil union would make no difference in their legal rights and relations — assuming federal recognition. (I am sure there are some couples who would have said yes, but I suspect they’re a small minority of married folks.) That’s because marriage is much more than the sum of its legal attributes. It has a cultural, social, and historical significance no other status can touch. Whatever it is that caused my married friends to say no, that’s exactly the thing that gay families with civil unions will be lacking.

Let me be clear: I favor full-fledged gay marriage. In a few states, very soon, it may be possible to recognize gay families in marriage. The traditionalist in me sees the strong arguments for it as the end result, and I have made those arguments this week. But the Burkean in me wants us to get there the right way, and that means doing it in many places slowly and by degree.

Next: last thoughts.