Marriage is the next thing on the gay agenda as homosexuals seek equality

Let's think outside the box, let's really get the government out of our bedrooms, says Michael Kinsley

Let's think outside the box, let's really get the government out of our bedrooms, says Michael Kinsley

Critics and enthusiasts of the recent decision of the US Supreme Court (Lawrence v Texas) to invalidate state anti-sodomy laws agree on one thing: the next argument is going to be about gay marriage.

As the court's most conservative member Justice Antonin Scalia noted in his tart dissent, it follows from the logic of Lawrence.

Mutually consenting sex with the person of your choice in the privacy of your own home is now a basic right of American citizenship under the constitution. This does not mean that the government must supply it or guarantee it, but the government cannot forbid it and the government should not discriminate against you for choosing to exercise a basic right of citizenship.

READ MORE

Offering an institution as important as marriage to male-female couples only is exactly this kind of discrimination or so the gay rights movement will now argue - persuasively, I think.

Opponents of gay rights will resist mightily, although they have been in retreat for a couple of decades. General anti-gay sentiments are now considered a serious breach of civic etiquette, even in anti-gay circles.

The current line of defence, which probably won't hold either, is between social toleration of homosexuals and social approval of homosexuality or between accepting the reality that people are gay, even accepting that gays are people and endorsing something called "the gay agenda".

Gay marriage, the opponents will argue, would cross this line. It would make homosexuality respectable and, worse, normal. Gays are welcome to exist all they want and to do their inexplicable thing if they must, but they shouldn't expect a government stamp of approval.

It's going to get ugly and then it's going to get boring. So we have two options here: we can add gay marriage to the shortlist of controversies - abortion, affirmative action, the death penalty - that are so frozen and ritualistic that debates about them are more like Kabuki performances than intellectual exercises or we can think outside the box. There is a solution that ought to satisfy both camps and may not be a bad idea even apart from the gay marriage controversy.

That solution is to end the institution of marriage - or rather (he hastens to clarify, dear) the solution is to end the institution of government-sanctioned marriage, or, framed to appeal to conservatives: end the government monopoly on marriage. Wait, I've got it: privatise marriage.

These slogans all mean the same thing. Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want. Let each organisation decide for itself what kinds of couples it wants to offer marriage to. Let couples celebrate their union in any way they choose and consider themselves married whenever they want.

Let others be free to consider them not married, under rules these others may prefer. And, yes, if three people want to get married or one person wants to marry herself and someone else wants to conduct a ceremony and declare them married, let 'em. If you and your government aren't implicated, what do you care?

In fact, there is nothing to stop any of this from happening now and a lot of it does happen. However, only certain marriages get certified by the government.

So, in the US we are about to find ourselves in a strange situation where the principal demand of a liberation movement is to be included in the red tape of a government bureaucracy. Having just gotten state governments out of their bedrooms, gays now want these governments back in.

Meanwhile, social-conservative anti-gays are calling on the government in Washington to trample state rights and nationalise the rules of marriage, if necessary, to prevent gays from getting what they want.

The Senate majority leader, Mr Bill Frist of Tennessee, responded to the Supreme Court's Lawrence decision by endorsing a constitutional amendment, no less, against gay marriage.

If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and are entitled to. And if the other side is sincere in saying that its concern is not what people do in private but government endorsement of a gay "lifestyle" or "agenda", that problem goes away too.

Yes, yes, marriage is about more than sleeping arrangements. There are children, there are finances, there are spousal job benefits such as health insurance and pensions.

In all of these areas, marriage is used as a substitute for other factors that are harder to measure, such as financial dependence or devotion to offspring. It would be possible to write rules that measure the real factors at stake and leave marriage out of the matter.

Regarding children and finances, people can set their own rules, as many already do. None of this would be easy. Marriage functions as what lawyers call a "bright line", which saves the trouble of trying to measure a lot of amorphous factors.

You're either married or you're not. Once marriage itself becomes amorphous, who-gets-the-kids and who-gets-health-care become trickier questions.

So, sure, there are some legitimate objections to the idea of privatising marriage but they don't add up to a fatal objection - especially when you consider that the alternative is arguing about gay marriage until death do us part.

Michael Kinsley is a Washington Post columnist