Separate but Equal?
By THE EDITORS, The New Republic

We cannot put it better than the justices of the Supreme Court of Vermont: "The extension of the Common Benefits Clause [of the Vermont Constitution] to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity." The December 20 ruling in Baker v. State stands as a legal landmark in the controversy about equal marriage rights for homosexuals. It is more important than the Hawaii Supreme Court's recent meanderings, because it is unlikely to be overruled by the legislature or by popular referendum, and because it rests not on the tangential issue of whether a ban on same-sex marriage violates sexual equality (as the Hawaii court argued) but on the question of whether it violates civil equality itself.
We believe it does. As civil marriage is currently conceived and practiced in America, it contains no requirements and holds out no aspirations that homosexuals cannot achieve as easily as heterosexuals. The point of modern marriage is not merely to procreate - as many childless heterosexual married couples attest. Neither is it to entrench ancient gender roles, with women at home and men at work - as innumerable working families prove. It is to provide a secure, acknowledged nstitution in which the love of one person for another can find expression and support and in which children, if they are present, can find security and protection. If homosexual love is as deep and as worthy as heterosexual love and if the children of homosexuals are deserving of as much social support as the children of heterosexuals, then there is no principled reason to allow civil marriage for straights but not for gays. Legalizing gay marriage, then, is not a radical reformulation of an unchanging institution. It is the long-overdue correction of a moral anomaly that dehumanizes and excludes a significant portion of the human race.
Opponents of civil marriage for homosexuals (whose ranks include, shamefully, the two Democratic candidates for president and, of course, all the Republican candidates) argue that it will weaken heterosexual marriage. But it is hard to see how. No existing heterosexual marriage will be changed. Same-sex marriage only harms opposite-sex marriage if you believe that homosexuality is so immoral that legitimizing it would instantly undermine family life. We do not hold that belief. Homosexuals are already part of families across America, and they always have been. They deserve to be there under better conditions than strained condescension and fickle toleration. If anything, the equal inclusion of homosexuals in marriage will strengthen family life as it folds gay family members into the social warp and woof of their parents and siblings. Some argue that such a change should never be imposed by the courts, since homosexuality remains a source of widespread public unease. But surely such an argument also applied to the courts' assaults on anti-miscegenation laws in the 1950s and '60s. Should the courts not have struck down those laws for fear of invoking "judicial tyranny"? After all, public hostility toward interracial marriage was at least as great in 1967, when it was finally protected by Loving v. Virginia, as is hostility toward same-sex marriage today.
Post-Vermont, we have entered a different world. But it contains pitfalls as well as opportunities. One danger is that supporters of equal marriage rights will accept a semantic compromise that would grant homosexuals every benefit and responsibility of civil marriage but deny them the word. The Vermont legislature is under pressure to construct an elaborate parallel institution, a kind of super-domesticpartnership, that would be identical in all legal respects to marriage but not invoke the m-word. There is an old phrase for this kind of arrangement: separate but equal. To grant homosexuals all the substance of marriage while denying them the institution is, in some ways, a purer form of bigotry than denying them any rights at all. It is to devise a pseudo-institution to both erase inequality and at the same time perpetuate it. What if Virginia had struck down interracial-marriage bans only to erect a new distinction between same-race marriages and mixed-race "domestic partnerships"?
There is in fact no argument for a domestic-partnership compromise except that the maintenance of stigma is an important social value - that if homosexuals are finally allowed on the marriage bus, they should still be required to sit in the back. This "solution" smacks of the equally incoherent half-measure of "don't ask, don't tell," another unwieldy contraption that was designed to overcome discrimination but instead has ruthlessly reinforced it. Equality is equality. Marriage is marriage. There is no ultimate moral or political answer to this question but to grant both. And to keep marshaling the moral, religious, civic, and human reasons why it is an eminently important and noble thing to do.