Gay Marriage: A Way Out, Part 1

This is the first in a series. Read part two here, and part three here.

This post and the four that will follow argue for a conclusion that will strike many readers as preposterous: The goals of those who favor marriage equality, I believe, are not inconsistent with the goals of those who defend traditional marriage. Not only do the two camps not have to compromise, they should actually join forces. The Republican Party -- which arguably needs a new strategy on the marriage issue in any case -- can lead the way.

First, we need to unbundle the concept of marriage. As most who follow the marriage debate realize -- even if they often stumble over the point -- marriage is not an indivisible essence but a complex of many different features. It is, first, a contract between two parties. The contractual features of marriage I call "private marriage." Second, marriage is a legal status with implications for taxes, government entitlements and dozens of other bodies of law. The legal but non-contractual consequences of marriage I call "government marriage." Finally, marriage is a system of norms and expectations beyond the direct control of either the government or the couple. The norms of marriage I call "social marriage."

Let's unpack these three further, beginning with private marriage. By entering into a marriage, husband and wife ordinarily acquire rights to each other's property and income. In some states, property acquired during marriage generally becomes "community property" in which each spouse has a half-share. In other states, divorce courts have discretion to divide marital property in a way that seems fair. During life, each spouse typically has a duty to support the other, while at death the surviving spouse may have a right to a portion of the deceased spouse's estate. The rules vary from state to state, but all states recognize some basic form of marriage covenant.

In addition to being a contract, marriage is also a legal status. For various reasons, courts and legislatures have found it convenient to treat married persons differently from unmarried persons. To take one example from the tax law, Congress in 1984 decided that an exchange of property between married persons should not ordinarily trigger gain or loss. (Instead, gains and losses are deferred until property is exchanged with a third party.) The policy behind this rule is thought to be that the tax code should not intrude on inter-spousal transfers. Congress could always take away this privilege or extend it to non-married persons. The same goes for the myriad other government policies implicating marriage: they can be revoked, altered or extended as lawmakers see fit.

Finally, marriage is a set of norms, customs and expectations. Despite all the cultural upheavals of the past three generations, some recognizable marriage ethos has survived. A married couple, for example, may have sex, live and have children together entirely without stigma. (They may even feel pressured to do these things.) On the other hand, they cannot break up without risk of shame and are expected to wear a visible signal of their married status (i.e., a ring). For most people, it is these and other norms that make getting married such a momentous event.

Distinguishing these various features of marriage make it possible to resolve the gay marriage debate. I will leave the reasoning for later posts. For now, consider only what each side really wants. Do marriage traditionalists really want to deny same sex couples the right to enter into enforceable agreements for the sharing of property and income? Do advocates of marriage equality really want the government telling people what marriage norms they should adopt? My answer to both questions is no. In my next post, I will explain why.