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How Doma, State Marriage Amendments, and Social Conservatives Undermine Traditional Marriage

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How Doma, State Marriage Amendments, and Social Conservatives Undermine Traditional Marriage TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM THE REACTIONARY ROAD TO FREE LOVE: HOW DOMA, STATE MARRIAGE AMENDMENTS, AND SOCIAL CONSERVATIVES UNDERMINE TRADITIONAL MARRIAGE Scott Titshaw* Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This Article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. After describing the flexibility of marriage as it has evolved over time, the Article focuses on recent state constitutional amendments attempting to stop further development. It categorizes and analyzes the amendments, showing that most allow marriage light experimentation. It also explains why ambiguous marriage amendments should be read narrowly. It contrasts these amendments with foreign constitutional provisions aimed at different-sex marriages, revealing that the American amendments reflect anti-gay animus. But they also reflect fear of change. This Article gives reasons to fear the failure to change. Comparing American and European marriage alternatives reveals that they all have distinct advantages over traditional marriage. The federal Defense of Marriage Act adds even more. Unlike same-sex marriage, these alternatives are attractive to different-sex couples. This may explain why marriage light * Associate Professor at Mercer University School of Law. I’d like to thank Professors Kerry Abrams, Tedd Blumoff, Johanna Bond, Beth Burkstrand-Reid, Patricia A. Cain, Jessica Feinberg, David Hricik, Linda Jellum, Joseph Landau, Joan MacLeod Hemmingway, David Oedel, Jack Sammons, Karen Sneddon, Mark Strasser, Kerri Stone, and Robin F. Wilson for their helpful comments. I also thank Melanie Bruchet, Tiffany Gardner, and Cora Tench for excellent research assistance. Ben Cooper, Chris Green, Dean Richard Gershon, and their colleagues provided useful comments when I presented an early version of this paper at the University of Mississippi School of Law. This paper also benefitted from audiences at the 2011 Southeastern Association of Law Schools New Scholars Workshop, and particularly Professor Barbara Cox, who mentored me and offered excellent suggestions. I thank Mercer University School of Law and Dean Gary Simson for their confidence and the summer stipend that enabled me to write this article. Dean Simson’s insights and suggestions were also invaluable. Finally, I’d like to thank Robert Bush and Greg Nevins for their useful comments on this article and for all of the extraordinary work they and their colleagues do at Georgia Legal Services and Lambda Legal. Of course, any mistakes and opinions expressed in this article are entirely my own. 205 TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM 206 WEST VIRGINIA LAW REVIEW [Vol. 115 regimes increasingly extend to all couples, and why these gender-neutral marriage alternatives—once established—tend to be permanent. In the end, all couples could be left with cafeteria options for legal relationship recognition. This may be a good solution, but it is certainly not a conservative one. I. INTRODUCTION ...................................................................................... 207 II. KULTURKAMPF USA: THE BATTLE OVER SAME-SEX CIVIL MARRIAGE ............................................................................................ 215 A. A Brief History of the Evolving Institution of Marriage ................ 217 B. The Movement for Covenant Marriage .......................................... 221 C. The Debate Over Same-Sex Marriage Equality ............................. 226 1. The Gay and Feminist Debate About Same-Sex Marriage ...... 228 2. The Conservative Debate About Same-Sex Marriage ............. 230 3. Same-Sex Marriage Recognition Is a Conservative Move ...... 239 D. The Movement for Same-Sex Marriage in the United States ......... 245 III. FOREVER FROZEN IN 2004: THE CONSTITUTIONAL AMENDMENT STRATEGY ............................................................................................. 249 A. Constitutional Amendments Protecting Marriage in Germany and Hungary .................................................................................. 250 B. Anti-Gay American Constitutional Amendments ........................... 255 1. Four Categories of Anti-Gay Marriage Amendments and the Likely Effects of Each ........................................................ 258 2. Three Reasons for Construing “Dead Hand” Marriage Amendments Narrowly ............................................................ 263 IV. COMPARING MARRIAGE LIGHT ALTERNATIVES FOR BOTH SAME- AND DIFFERENT-SEX COUPLES ............................................................. 267 A. Marriage Light in Europe .............................................................. 269 B. U.S. State Experiments with Marriage Light ................................. 274 C. The Lightest Option—Cohabitation Without Registration ............. 280 V. THE LIKELY PROLIFERATION OF MARRIAGE LIGHT OPTIONS FOR ALL COUPLES ........................................................................................ 283 A. The Political Calculus in Favor of Marriage Light ....................... 283 B. Advantages of Marriage Alternatives for Couples with a Choice ............................................................................................ 286 C. How DOMA Makes Marriage Light Options More Attractive ...... 289 D. Different-Sex Couples Are Increasingly Likely to be Eligible for Marriage Light ......................................................................... 292 E. How Constitutional Marriage Amendments Lead to the Proliferation of Marriage Light Alternatives for Everyone ........... 294 F. Once Established, Gender-Neutral Marriage Light Is Likely to Last ................................................................................................ 298 VI. CONCLUSIONS ....................................................................................... 301 TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM 2012] THE REACTIONARY ROAD TO FREE LOVE 207 I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative. —David Cameron1 I. INTRODUCTION Opponents of same-sex marriage are destroying traditional marriage, not defending it as they claim.2 This may sound odd in terms of the current marriage debate. Yet, it becomes obvious if one takes a step back to view the struggle in context. Because there are at least as many proponents as opponents of same- sex marriage, the standoff tends to result in a compromise recognizing some form of marriage light.3 This trend toward legal alternatives to marriage is amplified by traditionalist support of covenant marriage options and—at least for now—by the federal Defense of Marriage Act (“DOMA”).4 It is virtually ensured by the strategy of amending state constitutions, which forestalls the marriage option for future generations and invites experimentation with marriage light alternatives. And once gender-neutral marriage light is established, it is resilient. In the end, all couples could be left with cafeteria options for legal relationship recognition. As British Prime Minister David Cameron has recognized, marriage is conservative, and its nature does not change when it is extended to same-sex couples.5 Some progressive activists agree. Since at least the 1950s, some supporters of gay and lesbian equality have rejected advocacy of same-sex marriage because it could shore up the conservative institution of marriage 1 Tim Ross, Archbishop Attacks Cameron’s “Gay Marriage” Plan, DAILY TELEGRAPH (U.K.) (Oct. 5, 2011), http://www.telegraph.co.uk/news/uknews/8809548/Archbishop-attacks- Camerons-gay-marriage-plan.html. 2 While there are good reasons to doubt this claimed motivation in many cases, see infra Part VI, this Article is concerned with those who sincerely care about defending marriage more than disapproving of lesbians and gay men. Hopefully, it will convince some that their opposition to same-sex marriage is shortsighted and counterproductive. In the process, it provides a new take on several broader legal questions in the marriage debate. 3 See infra Part V.A (describing this political calculation); see also infra pp. 209–209 (defining “marriage light”). 4 Defense of Marriage Act, Pub. L. No. 104-100, §3(a), 110 Stat. 2419 (2006) (codified at 1 U.S.C. § 7 (2006); 28 U.S.C. § 1738C (2006)). While the federal definition of marriage in DOMA may soon be struck down by the U.S. Supreme Court, see Massachusetts v. U.S. Dept. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) (holding that DOMA violated equal protection principles, and thus was unconstitutional), petition for cert. filed, 81 U.S.L.W. 3006 (July 20, 2012) (No. 12-97), DOMA remains in effect as of the publication of this article. 5 Ross, supra note 1. TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM 208 WEST VIRGINIA LAW REVIEW [Vol. 115 rather than liberate individuals to define their own families of choice.6 Conservatives like David Brooks and Jonathan Rauch support same-sex marriage for that very reason.7 But the point seems lost on conservative opponents of marriage equality.8 They focus instead on their fears about the possible effects of same-sex marriage on different-sex spouses. Meanwhile, they fail
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