Thursday, June 30, 2011

A Rose By Any Other Name . . .

Yesterday’s post about the New York same-sex marriage law turns on distinction between the substantive rights we think same-sex spouses should enjoy and the separate question of what, as society, we should call that bundle of rights. It provoked these questions from reader Ben Currie:
“I used to see a relevant distinction between the bundle and its name. But, suppose the [Supreme] Court in Loving v. Virginia suggested that as an alternative to Virginia's anti-miscegenation statute, it would be okay for Virginia's Legislature to enact an amendment to its marriage statute called "Racially Non-Discriminatory Unions?" Would it seem sufficient that Blacks and Whites who united under the designation "Racially Non-Discriminatory Union" got the very same bundle of rights as did whites under the retained whites-only section of the marriage statute? Sometimes, that which we call a rose, by any other name, does not smell as sweet.”
There’s no doubting that, as far as social liberals are concerned, “same-sex marriage” smells a lot sweeter than “domestic partnership” or “civil union.” So it’s perfectly understandable that liberals are celebrating the democratic decision in New York not only to give same-sex spouses the same substantive rights as opposite-sex spouses under state law, but to call that bundle of rights “marriage.” But that doesn’t explain the widespread sense that, as a matter of morality and law, a state’s calling legally recognized same-sex relationships “domestic partnerships” or "civil unions" rather than "marriages" injures same-sex spouses.

Here’s a thought experiment designed to speak to that issue that’s the mirror-image of Ben’s:

The 1965 Voting Rights Act is probably the most important piece of civil rights legislation ever enacted in this country inasmuch as it secured an effective electoral franchise that African-Americans needed to uphold their civil rights through the political process. Suppose when that legislation was enacted, Congress had officially entitled it “The X Enfranchisement Act” where “X” is the most revolting racial epithet you can think of.

That wouldn’t make the legislation’s content any less of a remedy for state-sponsored discrimination. But I don’t think there’s any question that it would still make the bill morally objectionable inasmuch as its title would have amounted to an official expression of racial contempt. And it might make the law unconstitutional as well on the ground that, coming from an organ of the state, the insult in its title deprives African-Americans of equal protection under the law. That, at any rate, is the general idea behind the California District Court decision holding that it’s an unconstitutional expression of contempt for gays and lesbians for California to call legally recognized same-sex relationships “domestic partnerships” rather than “civil marriages.”

Yet the analogy between the “X Enfranchisement Act” and “Domestic Partnership” or “Civil Union” laws illuminates as much by where it breaks down as where it holds. “X” necessarily is, and could only have been intended by Congress to be, an expression of racial contempt. It’s hard to say the same thing about terms like “domestic partnership” or “civil union.” How could they be expressions of contempt for gays and lesbians when they’re an artifact of the attempt of various state legislatures to fashion remedies for state-sponsored discrimination against them?

These terms were coined not by homophobes, but by well-intentioned liberals for the express purpose of conferring rights on gays and lesbians without prejudging the politically charged issue of whether their relationships are morally equivalent to traditional marriages. So, any way you slice it, “domestic partnership” and “civil union” function a lot differently in public discourse than “X.” There’s a big difference between not proclaiming the moral equivalence of same-sex and opposite-sex relationships and expressly asserting the moral inferiority of same-sex relationships.

If you ask me, another virtue of leaving the issue of same-sex marriage to the political process rather than to the courts is that it doesn't oblige same-sex marriage supporters to pretend that this difference doesn't exist.

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