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Confusion among legal, social, and conceptual elements of gay marriage has persisted for a long time. Discussions of gay marriage do not normally separate these three strands, even though they delineate distinct lines of thought about this subject. On the legal side, of course the state cannot issue a directive that stipulates, “You two people can marry, but you two people cannot.” As Texas district court judge Orlando Garcia wrote in a recent opinion: “State-imposed inequality can find no refuge in our U. S. Constitution.”
That does not mean, however, that a union between a man and a woman is the same thing as a union between two members of the same sex. Pairings between two women, two men, or between a man and a woman are plainly not the same thing. To keep our thinking straight, we should not misapply a concept merely because it seems advantageous for legal or social reasons.
Gay rights advocates who have fought this issue through the courts have common sense and civil rights behind them. Discriminatory laws do not belong on the books. We should remove them. To say that laws banning same-sex marriage discriminate unfairly, and therefore violate civil rights, does not mean that same-sex unions constitute marriage.
Same-sex unions do not constitute marriage, unless we change the way we conceive of marriage. Changing the meaning of the word means we change the way we think about the institution. It also means we have undertaken a larger project of redefinition, to reshape the social meaning and structure of marriage.
Gay rights advocates have attacked the weakest defense against these changes – discriminatory statutes. Their strategy implies the following sequence: if we end the legal prohibition of same-sex unions, the state must recognize these unions. When that happens, same-sex unions will become more common. When people see numerous same-sex unions around them, especially among people they know, they will come to accept the unions, and the people who form them, more than they have in the past. Social acceptance of same-sex unions gradually becomes a realistic outcome.
That’s not a bad strategy, or a bad result. Discriminatory social attitudes are no better than discriminatory statutes. Nevertheless, same-sex unions are not the same thing as marriage between a man and a woman. The only way to make them the same is to stipulate it, as if to say, “This airplane and this car are the same thing.” One would say, yes, both are used for transportation, both have wheels, both have engines, and both have steering controls. Another would say, of course, but one can fly and the other cannot. One can travel on interstate highways and the other cannot. One has wings and the other does not.
All comers would be right. For precision, we would still need one word for cars, and another word for airplanes. They are not similar enough to be called the same thing, but no good reason exists to discriminate against one or the other. You may prefer to travel in one or the other, but preferences do not underlie social or legal phenomena.
Nevertheless, people discriminated against cars and airplanes when they first appeared. Prejudice is ugly and unwise in every setting, whereas openness to changes and acceptance of new institutions brings benefits to people, if those changes come with good intentions and a good heart. Why should we not treat same-sex unions the same way? Why does acceptance of same-sex unions depend on calling them marriages? Acceptance of airplanes did not depend on calling them cars.
The Jeffersonian 