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.
