“Raised here is the perplexing question -- ‘What’s in a name?’” New Jersey Supreme Court Justice Barry Albin got that one right, as he wrote this week’s majority opinion denying same-sex couples the right to marry. The majority says that the Garden State’s constitution guarantees gays and lesbians all the same rights as married couples, whether the people like it or not -- except the right to call themselves “married.” Partnered gays and lesbians can use that word only if the people of the Garden State, or at least their state legislators, like it. Until then, same-sex couples can act in every way as if they are married. They just can’t use the word. Go figure.
It doesn’t figure at all to three of the seven justices, including Chief Justice Deborah Poritz. She agrees with the majority that names matter a great deal. That’s why, she writes, if gays and lesbians can’t use the word “marriage,” “ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.
The majority opinion never confronts their Chief’s argument. But it does get to the heart of the issue, which has nothing to do with equality or logic. The word “marriage” is denied to gays and lesbians because it is simply too much change for most people to handle. Here’s Justice Albin again, writing for the majority: “The shared societal meaning of marriage -- passed down through the common law into our statutory law -- has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin.”
Why not make a profound change in public consciousness, if the constitutional principle of equal rights demands it? Abraham Lincoln did it when he signed the Emancipation Proclamation. The U.S. Supreme Court did it by mandating school integration and a woman’s right to choose. The finest moments in American history were all profound changes in public consciousness.
But in New Jersey, the majority decision never even considers the pros and cons of making a change. It finds only one impediment to same-sex marriage: It is not “objectively and deeply rooted in the traditions, history, and conscience of the people of this State.” And that one consideration, the majority says, overrules everything else.
That may be poor legal reasoning, as nearly half the New Jersey justices say. But it is pretty sharp political sociology. If you scratch deep enough into any of the social issues that are contested in our political arena, eventually you come to the same basic issue: the fear of change and the uncertainty change brings with it.
Abortion, women’s rights, affirmative action, drug laws, and all the other social issues are ultimately symbolic stand-ins for the truly great question of our time: Can we live happy, productive lives in a society that is constantly changing and unpredictable? Social conservatives answer with a resounding, frightened “NO.” They yearn desperately for a society that is perfectly stable and predictable. Every few years, they come up with a new way to symbolize that yearning. Now their favorite symbol is the campaign to ban same sex marriage.
This is much on my mind because next week, here in my own state of Colorado, the people will get to decide about both equality for same-sex couples and the meaning of “marriage.” They’ll vote on Referendum I (as in the letter I), which would give gays and lesbians the right to have the legal status of “domestic partners.” And they’ll vote on Amendment 43, which defines marriage as solely between one man and one woman. No one is sure how either vote will turn out.
This year, most GLBT advocates in Colorado have given up the drive to get the right to “marry.” They ask only for the right of “domestic partnership.” The advertising for Referendum I fairly screams: “It’s NOT marriage. It’s just basic equal rights.” And the fact that it’s “not marriage” is actually written into the legal language of Ref I.
But that’s still too much change for Colorado’s right-wingers to tolerate. Take a look at www.cofamily.org, the website of “Colorado Family Action” (CFA) which calls itself “part of a nationwide network of family policy councils associated with Focus on the Family and James C. Dobson, Ph.D.” In other words, it’s the lobbying arm of Focus on the Family, the 800-pound gorilla of the Colorado right. And its site is devoted solely to opposing domestic partnership as well as gay marriage.
You won’t find much in the way of accurate facts or compelling logic on that site. But you will find plenty of fear of change. As it says, CFA “seeks to restore and defend traditional moral principles in the culture.” What principles? You guessed it. “Marriage between one man and one woman sustains society.” “Marriage of opposite-sex couples is a stabilizing institution in society.” They don’t have to say how or why. The words “sustain” and “stabilizing” are enough to make the point. According to CFA, “opposite-sex marriage has been upheld in all societies as the most optimal arrangement for nurturing the next generation of children.” In other words, marriage in the future should always play the same role that it’s played in the past.
CFA also claims that domestic partnership “harms children by sending confusing messages about gender and family,” and it’s confusing messages that conservatives want to avoid at all costs. That’s why they worry about confusing language. Legalizing domestic partnerships, their website tells us, “will necessarily lead to the radical redefinition of terms such as marriage, family and gender.”
But the issue goes beyond language. CFA declares flatly that “legalized same-sex unions necessarily mean that gender no longer matters.” If one old familiar dividing line is blurred, other lines may soon be blurred too. And if the lines that separate the parts of our world into clear distinct categories are blurred, how can we be certain exactly where we fit, or where we are headed? So let’s keep those dividing lines firm: “A Christian husband leads well and a Christian wife actively and creatively supports his lead.” And, of course, husband and wife must be of different genders.
The CFA campaign against domestic partnerships gets to the most basic point when its site warns, in bold letters, “Domestic Partnerships are a Great Leap into the Unknown. … We can’t afford to take another leap into the great unknown.”
What pains social conservatives most, the truth they try hardest to hide from, is that, like it or not, every day is a leap into the unknown. To avoid that truth, they are spending millions to prevent same-sex couples in Colorado from gaining equal rights. No doubt they’ll soon being spending even more millions in New Jersey to prevent same-sex couples from gaining the right to marry.
Ultimately, it’s not the substance of the issue that really matters to conservatives. It’s the fact that a symbolic line must be drawn somewhere -- anywhere -- to symbolize their ability to resist social change.
Of course liberals can worry about excessive and excessively rapid change, too. Indeed, the nation’s most liberal state, the only state that marries same-sex couples, gave them that right out of concern for personal and social stability. New Jersey Chief Justice Poritz, in explaining her dissent, quoted the decision of the Massachusetts Supreme Court that legalized same-sex marriage:
“Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. … Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution.”
So it turns out that you can support equal marriage rights for everyone on grounds that any conservative could champion. Maybe that’s a place to begin building some bridges.
Ira Chernus is Professor of Religious Studies at the University of Colorado at Boulder and author of Monsters To Destroy: The Neoconservative War on Terror and Sin. firstname.lastname@example.org