In their op-ed in the New York Times this past Sunday, Jonathan Rauch and David Blankenhorn suggest a compromise for our national marriage debate. Written by men with two very different perspectives on the issue, their proposal represents a praiseworthy effort to advance a difficult national discussion. As supporters of the traditional conception of marriage, we are part of their intended audience. But the compromise that they propose is not one that we could endorse. Sharing their goal of finding a workable modus vivendi for a divided country, we would like to suggest an alternative way forward. It will no doubt require concessions from both sides, but it should not present insurmountable difficulties for either.
Rauch and Blankenhorn’s proposal is straightforward: The federal government would offer civil unions (including most, if not all, marital benefits) to same-sex couples that have entered a civil union under their state’s law. That is what the supporters of same-sex ‘marriage’ (“revisionists”) get out of the bargain. At the same time, the federal government would enact legislation to protect religious organizations from being forced to acknowledge same-sex unions. And it would recognize only those civil unions that are licensed in states that also offer religious-conscience exemptions. That is what the supporters of traditional marriage (“traditionalists”) get. (We must note that Rauch and Blankenhorn do not specify the scope of the religious liberty protections that would be put in place and how religious liberty rights would be preserved in the face of assaults in the name of anti-discrimination principles.)
But as we see it, this proposal grants too much to revisionists and too little to traditionalists. Revisionists get the substantive (if not linguistic) treatment of homosexual unions as marriages; traditionalists get conscience protection (of unspecified scope). But traditionalists’ primary concern is not simply to secure an enclave of personal liberty to regard marriage as they see fit. Rather, it is to promote a healthy culture of marriage understood as a public good that also fulfills spouses and the larger communities of which they are members.
As a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child, marriage not only fulfills human beings as embodied, sexually complementary persons; it is also oriented to the bearing and rearing of children. Because those children are society’s youngest and most dependent citizens, the public has an interest in healthy marriages. So legally and socially enforcing marital norms makes sense. By attaching a father to his children—and to his children’s mother—exclusively and for life, marriage serves society’s interests by securing for children the love and care of both mother and father. A well-ordered society thus supports marriage as an institution that fulfills the adults who choose to enter it and serves the children who may come as its fruit.
The Rauch-Blankenhorn compromise, though, does little to promote traditional marriage, even as it establishes a parallel institution. It treats same-sex unions (in fact, if not in name) as if they were marriages by making their legal recognition depend on the presumption that these relationships are or may be sexual. It thus enshrines a substantive, controversial principle that traditionalists could not endorse: namely, that there is no moral difference between the sexual communion of husband and wife and homosexual activity—or, therefore, between the relationships built on them.
But even people who hold differing views on marriage could agree that there is no special reason to extend recognition only to romantic same-sex unions. If hospital visitation rights and Social Security survivor benefits are appropriate for two cohabiting men who have demonstrated long-term commitment and care, does it matter whether they are sexually involved with each other? Wouldn’t those benefits just as well serve, say, two elderly, codependent brothers?
That brings us to our alternative proposal: The revisionists would agree to oppose the repeal of the Defense of Marriage Act (DOMA), thus ensuring that federal law retains the traditional definition of marriage as the union of husband and wife, and states retain the right to preserve that definition in their law. In return, traditionalists would agree to support federal civil unions offering most or all marital benefits. But, as Princeton’s Robert P. George once proposed for New Jersey civil unions, unions recognized by the federal government would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual. Available only to people otherwise ineligible to marry each other (say, because of consanguinity), these unions would neither introduce a rival “marriage-lite” option nor treat same-sex unions as marriages. Their purpose would be to protect adult domestic partners who have pledged themselves to a mutually binding relationship of care. What (if anything) goes on in the bedroom would have nothing to do with these unions’ goals or, thus, eligibility requirements.
This proposal will, no doubt, meet with resistance on both sides of the marriage divide. Traditionalists will regret any move that appears to capitulate on the distinctiveness of marital relationships by granting same-sex couplings similar status, even if we would make recognition available to presumptively non-sexual relationships to avoid equating gay unions with marriage. (We ourselves do not favor civil-union schemes of any type, but we are prepared to accept them as part of an honorable compromise among reasonable people of goodwill.) At the same time, revisionists will have to compromise by supporting DOMA, the current Clinton-era federal law that retains a traditional definition of marriage for federal purposes while leaving each state free to define marriage as it sees fit, regardless of what other states do.
But we believe that for both sides, the benefits could outweigh the drawbacks. First, this approach would avoid the hornet’s nest of church-state issues engaged by the Rauch-Blankenhorn proposal. Since neither the presumption nor the legal possibility of sex would be a condition for recognition, homosexual activity would not be incentivized or institutionally normalized. Thus, traditional religious communities would not have to rule out support for our proposal as an implicit endorsement of homosexual activity. And with renewed support for DOMA, they would be free not to promote or treat same-sex unions as marriages. As a result, no special religious-conscience protections would be necessary.
For traditionalists, though, there is another worry. Two state courts have already used existing state civil-union laws as part of their rationale for insisting that the legislature enact same-sex ‘marriage,’ on the ground that “separate but equal” institutions are unjust. If, under the Rauch-Blankenhorn proposal, we enacted same-sex civil unions identical in their structure and purposes to marriage, courts could again use these as a steppingstone to same-sex ‘marriage.’ The benefit of our proposal is that it avoids this possible breach of the compromise by reaffirming DOMA and establishing civil unions that differ in substance, not only in name, from marriages.
Our proposal would still meet the needs of same-sex partners—based not on sex (which is irrelevant to their relationship’s social value), but on shared domestic responsibilities, which really can ground mutual obligations. It would provide a practical compromise that need not offend either side’s nonnegotiable principles. And it would lower the emotional temperature without chilling debate, which would continue at the state level, perhaps now more fruitfully.
Ryan T. Anderson is editor of Public Discourse. Sherif Girgis is a 2008 Rhodes Scholar studying moral, legal and political philosophy at Oxford University.