Stu Taylor On California

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24 May 2008 02:07 pm

Enraged. Ben Wittes replies to me here:

Thanks for your thoughtful post in response to my column. Allow me to address the question you pose: "on what grounds should we call a same-sex marriage a civil union and not a civil marriage? What does it mean to have a different name?" Or, to be more precise, let me say that I think you have asked somewhat the wrong question. For as you've framed it, my answer is simple: We shouldn't call it anything different. That's why I support same-sex marriage, as opposed to civil unions or domestic partnerships. But the right question, for a court anyway, is not what voters should do. It is what voters in a democratic polity may do--in this case whether they may use a different name for the substantive contents of marriage or whether some constitutional principle forbids the polity that choice.

I can engage this question at the level of doctrine if you like, but I actually think the doctrinal discussion risks missing the forest for the trees. The forest here is the point that you acknowledge when you say in your first paragraph, "I see where he's coming from. I certainly don't want to alienate or insult those who want substantive state (but not federal) equality for gay couples in a separate and nearly-equal box." Now you would never say this about something that you truly regarded as a segregationist "separate but equal" institution.

When Texas tried to set up a parallel black law school instead of admitting blacks to UT, no Barack Obama of the time would have endorsed this as progress. No Ben Wittes of the time would have defended him. And no Andrew Sullivan of the time would have said, "I see where he's coming from. I certainly don't want to alienate or insult those who want separate but equal law school education for black people." Rather, all would have--as integrationists did--denounced it as an unacceptable guise for white supremacy.

The fact that we see progress and good intentions in steps short of marriage equality now strongly implies that a different vocabulary than conventional civil rights doctrine is appropriate for discussing them.

The reason is simple: We are talking here about the transformation and broadening of an institution, not--as in the civil rights cases--the question of whether this society was going to honor the promises it made to black people in ratifying the Civil War amendments. While I have no doubt of the desirability of that broadening and transformation, its pace and completeness seem to me wholly legitimate policy questions--and I respect the right of Californians to decide that the time is not yet ripe for the word "marriage" but is ripe for everything else.

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