Questions and Answers About the Marriage Protection Amendment

By William N. Eskridge, Jr. and Darren R. Spedale

Last week, the Senate debated the Marriage Protection Amendment (MPA), which failed to achieve the two-thirds vote needed to amend the U.S. Constitution. If ratified, the MPA would have added language to the Constitution defining marriage as “the union of a man and a woman” and providing that neither federal nor state constitutions can “be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

The President and most Republican Senators supported the MPA. Our book, Gay Marriage: For Better or for Worse? What We’ve Learned from the Evidence (www.gaymarriagebook.com), sheds light on the history of the same-sex marriage debate and some of the arguments raised by opponents of gay marriage. Here, we apply the materials from our book to the MPA debate.

Has “Marriage” Always Been One Man, One Woman?

No.

The President seems to think so, but he’s wrong. As one of us demonstrated ten years ago, many cultures in the world have recognized same-sex relationships as unions or marriages. (Eskridge, The Case for Same-Sex Marriage chapter 2 [Free Press, 1996].) These include ancient Greece and Rome, dozens of African cultures (what anthropologists call “female husbands”), and Native American cultures. Same-sex marriages involving “berdaches” (men or women with cross-gender identification) were common in dozens of tribes.

As our new book documents, in detail, modern societies are also recognizing same-sex unions. Denmark (1989) was the first, in its registered partnership law. Dozens of other countries and provinces have followed Denmark, with laws providing same-sex couples with most or all of the legal benefits and duties of marriage. Hawaii (1997), Vermont (2000), California (1999, 2003), and Connecticut (2005) have followed Denmark’s lead in this country; other states provide a shorter list of legal benefits.

The Netherlands (2001) is the first modern nation to recognize same-sex unions as “marriages.” Similar same-sex marriage laws have been adopted in Belgium (2002), Canada (2004), and Spain (2005). South Africa’s Constitutional Court has directed that country to follow in the next year.

No longer can it be said that “marriage” can never be between persons of the same-sex. Opponents of same-sex marriage need to present arguments for why the state should not recognize such unions. Their main arguments are that gay marriage will undermine traditional marriage, which is in peril, and will lead the nation down a slippery slope to polygamy and animal marriages. They also complain that “activist judges” are taking marriage away from the people. None of these arguments provides any cogent support for the MPA, which is a political stunt to rescue the Republicans from five years of unfortunate and now unpopular foreign and domestic policies.

Is Traditional Marriage in Peril?

Yes.

Not long ago, almost everyone married, and the marriages were usually for life. No more. The law has contributed to the decline of marriage through such recent modifications as no-fault divorce (which makes marriage easy to exit), the common recognition of prenuptial agreements, and recognition of legal rights and benefits for cohabitating (straight) couples. Rather than scapegoating gays and lesbians as the threat to traditional marriage, society might rethink these modifications.

If Republicans really want to protect “traditional” marriage, they should roll back no-fault divorce or cohabitation, which can be done by ordinary legislation. The MPA is carefully worded to protect and therefore entrench the constitutional rights of unmarried heterosexual couples. Indeed, in the hands of federal judges, the MPA might be interpreted to provide new federal constitutional rights for cohabiting unmarried couples, so long as they’re straight.

Will Gay Marriage Undermine Marriage?

No.

As proof, we look at the long history with same-sex marriage (as registered partnerships) in Scandinavia. Denmark has been registering same-sex partners since 1989, Norway since 1993, and Sweden since 1995. Most straight as well as gay Scandinavians consider partnerships to be similar to or the same as marriages. MPA supporters (most prominently, Senator Sam Brownback in this year’s debate) claim that marriage has eroded in these countries as a result of their experiment with same-sex marriage. Our book reports the actual evidence from these countries.

Before Denmark recognized same-sex couples in 1989, the Danish marriage rate was falling, and the divorce and non-marital childbirth rates soared. If the President were right that gay marriage harms the institution, one would expect these trends to accelerate after that country recognized lesbian and gay partnerships. Yet the opposite occurred: after 1989, the marriage rate increased, the divorce rate fell, and the rate of childbirths outside of marriage declined for the first time in decades. Similar but less dramatic trends occurred in the other Scandinavian countries. State recognition of lesbian and gay unions does not harm the institution of marriage.

Moreover, allowing same-sex couples to marry has a number of positive benefits. We interviewed a wide variety of Danish couples who had registered as partners. They told us how their legal unions deepened their commitment to one another and helped legally protect the children they were raising, enriched their relationships with family members and coworkers, and helped educate the community. One couple even reported that their enthusiasm for marriage inspired their heterosexual friends to formalize their own union in marriage.

Our book documents the numerous social and community benefits from Scandinavian recognition of lesbian and gay partnerships. Because marriage and partnership serve private social welfare functions, legal recognition stands to save the state money. Recognition helps integrate lesbian and gay families into the larger society and helps attract productive workers to the country. We also found that partnership recognition contributed to the success of Scandinavian AIDS and STD-prevention programs.

The Nordic nations have had marriage-like partnerships for 17 years now, and the sky did not fall on marriage. This suggests that the defense-of-marriage argument for the MPA is a lavender herring.

Will Gay Marriage Lead to Polygamy? Animal Marriage?

You’ve got to be kidding.

A perennial argument against gay marriage is that it will call into question all lines separating the married from the unmarried – making rules against polygamy and animal marriage indefensible. Denmark has had gay “marriage” since 1989, and there is no movement toward recognizing polygamy or marriage to your cat. If you ask Danes about this, they think you’re joking. (There is a polygamy movement in the United States: it’s in Utah, which is the most anti-same-sex marriage state in the union.)

What is the point of civil (as opposed to religious) marriage? According to the statutes in New York and most other states, the point of civil marriage is mutual commitment of two life partners. The commitment has to be the result of a mature understanding of its consequences; hence adolescents generally cannot get married, nor can animals (much as you might love them). And our society has made the correct judgment that the commitment must be between two persons, each of whom treats the other as an equal and valuable partner; the history of polygamy suggests that plural wives receive a bad deal.

The primary legal consequence of marriage is the activation of dozens of decision making rules. If you are unconscious, your partner makes medical decisions for you. If you die, she is your executrix and also inherits your property (unless a will says otherwise). She makes decisions about organ donation and so forth. You can alter these rules by legal documents, but their genius is that they provide us with security and they provide institutions like hospitals with easy-to-follow decision rules. Recall the Terry Schiavo case. We do not, and should not, expect children, animals, and plural spouses to make these decisions for us.

Have “Activist Judges” Taken the Marriage Issue Away from the People?

No.

The President says the MPA is needed to prevent “activist judges” from imposing gay marriage upon unwilling populations. Where? The Massachusetts Supreme Court required same-sex marriage recognition in 2004, but the people can amend the state constitution through a referendum process. Such an attempt is already under way. Massachusetts will probably not amend its constitution, because its citizens haven’t seen any negative effects from gay marriage; in fact, 55% of the voters say gay marriage is okay.

Nineteen states have amended their constitutions through such a popular process. While the President says that federal trial judges have struck down constitutional amendments in Nebraska and Georgia, those amendments barred not only same-sex marriage but also judicial enforcement of domestic partnership and, possibly, ordinary contract rights previously available to lesbian and gay couples.

If you are worried about activist judges, worry about the MPA. Unelected, life-tenured federal judges would have unfettered discretion to interpret the new constitutional language broadly, conceivably to take away civil unions and domestic partnerships granted by state legislatures. State judges, most of whom are elected, will better reflect local sentiments than life-tenured federal judges.

Was the MPA Debate a Waste of Congress’s Valuable Time?

Substantially, yes.

As Senator Harry Reid of Nevada pointed out on the first day the MPA debate, the United States faces tremendous challenges that Congress must address: our disproportionate contribution to global warming, immigration reform, the ongoing American involvement in Iraq’s civil war, huge budgetary deficits, and so forth. For the Senate to spend three days debating a proposed constitutional amendment that had zero chance to achieve the needed two-thirds is a lavish expenditure of public time.

To what end? The speeches on both sides praised marriage as a good thing, most MPA opponents as well as supporters were impelled to distance themselves from gay marriage, and there was much talk about federalism. This was not an educational moment for Americans. It was a waste of hot air.

On the other hand, the MPA debate may have contributed something to American public discourse. It has drawn media attention to the thousands of lesbian and gay couples who are living in wedded bliss in Denmark, the Netherlands, Canada, Massachusetts, and elsewhere. In our view, the debate has revealed the emptiness of the opponents’ arguments. Read the President’s radio address last weekend and his televised press conference last Monday. If this is the best case that could be made for the MPA, it is a sad day for traditionalist philosophy in America.

Another possibly productive effect of the debate was to cement “civil unions” (the American analogue of Scandinavian registered partnerships) as a middle ground most Americans can support. Although gay activists regret that the term marriage is withheld and traditionalists regret that people will consider civil unions similar to marriage, state recognition of civil unions, with all the legal duties and rights of marriage, would be a good thing for committed lesbian and gay couples and a good thing for those states that choose such an option – MPA permitting.

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Eskridge and Spedale are authors of Gay Marriage: For Better or For Worse? What We’ve Learned from the Evidence. To learn more, visit their website, www.gaymarriagebook.com.