Marriage is a privilege, not a right

It seems to me, a large part of the confusion over same-sex marriage (SSM) rests on the belief that marriage is a right. It isn't. As I've mentioned elsewhere, marriage confers a great deal of power and privilege on the married couple -- power and privilege not available to unmarried couples.

But as long as marriage is characterized as a "right", it's very easy to argue that it should be extended to more and more of the population, even if they don't meet the traditional standards.

Eugene Volokh offers an essay on the slippery slope leading from hate crime, anti-discrimination, and civil union laws to SSM.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:

Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."

Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."

Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."

Yet consider how the California Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage:

There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state's understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state's current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.

Similar arguments were made by

the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts) and same-sex domestic partnership benefits (Vermont).

It seems to me, in light of this, any states that want to avoid having SSM enacted into law by their supreme courts might do well to avoid enacting any provision for domestic partnerships, and to repeal any such provisions that are already on the books. (A marital equivalent of "shoot, shovel, and shut up" as a way of dealing with the Endangered Species Act.) Decisions such as the ones that have mandated recognition of SSM may have the ironic effect of scuttling any domestic partnership laws that might be in the pipeline.