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MARRIAGE OR BUST?
Professor Anthony C. Infanti
University of Pittsburgh School of Law
JURIST Guest Columnist

When I first read about it, I was enraged (although not surprised) by George Bush痴 curt statement supporting a constitutional ban on same-sex marriage. I, along with the rest of gay America, had just been offered up as a sacrifice to Mr. Bush痴 conservative base in the ultimate act of political pandering during an election year. But, as events have unfolded since then, I致e reconsidered my reaction to this stunt. I知 beginning to see a salutary change in the same-sex marriage debate as ministers in New Paltz, New York are willing to solemnize same-sex marriages despite the prospect of facing criminal charges (the Mayor of New Paltz already faces 19 misdemeanor counts of solemnizing marriages without a license), as Multnomah County, Oregon adds itself to a growing list of local governments issuing marriage licenses to gay and lesbian couples, and as gay rights groups rally around this issue (I致e received a flurry of e-mails from the Human Rights Campaign soliciting help in the fight against the ban).

By backing a constitutional amendment, Mr. Bush has precipitated a radical shift in the terms of the same-sex marriage debate. He has assured that, for the time being, we will not be debating whether to afford gay and lesbian couples the same benefits and protections that heterosexual married couples enjoy, but rather, what label gay and lesbian couples will be entitled to attach to their unions. In other words, Mr. Bush has helped us to see what was true all along: form is substance in the debate over extending the right to marry to gay and lesbian couples.

Before this shift, I was rather troubled by the idea that civil unions and domestic partnerships were coming to be seen as a pragmatic, middle-of-the-road political compromise that could defuse this issue. Vermont, Hawaii, and New Jersey have each enacted some form of civil union or domestic partnership law either as the result of a challenge to its marriage laws or while such a challenge was pending. And in the wake of the Massachusetts Supreme Judicial Court痴 decisions on same-sex marriage, civil unions were offered as a possible compromise there between the proponents and opponents of extending the right to marry to gay and lesbian couples.

What troubled me about this trend was that the pragmatists (who count among their number both my domestic partner and the editorial board of the Washington Post) seemed to exalt substance over form in reaching an accommodation. They seemed to justify the compromise with a cost/benefit analysis: obtaining the important benefits and protections that are associated with marriage would represent an advance for gay rights that would outweigh the cost of foregoing the ability to use the label 杜arriage to describe same-sex unions.

Although well-meaning, the pragmatists have accorded far too much weight in their analysis to the benefits and protections to be obtained in the compromise and far too little weight to the label attached to those benefits and protections. They have overlooked the fact that a label can have as much importance as the store of benefits and protections to which it is attached. When properly chosen, a label will be evocative in nature it will conjure a desired set of impressions, feelings, and emotions in the mind of the listener when spoken or in the mind of the reader when read. The choice of label can, therefore, make a real difference in how we think about same-sex unions and how we perceive those who enter into them enough of a difference to render the pragmatists cost/benefit analysis far from cut-and-dried.

And we need not look far to find evidence of the importance of the label attached to same-sex unions; it can readily be found in the terms of the same-sex marriage debate. Just consider how proponents, opponents, and middle-of-the-roaders use labels to conjure different impressions, feelings, and emotions about same-sex unions:

Proponents of extending the right to marry to gay and lesbian couples normally write about same-sex or gay marriage without enclosing any of the words in quotation marks. They convey the feeling that 都ame-sex or 堵ay is an adjective like any other that might come before the word 杜arriage gay marriage, heterosexual marriage, happy marriage, broken marriage. In each case, the meaning of the word 杜arriage remains the same. Alternatively, proponents write about 杜arriage rights for same-sex couples or 杜arriage equality, which likewise keep the meaning of the word 杜arriage static and simply bring same-sex unions under its umbrella. Thus, through their choice of label, proponents implicitly place same-sex marriage on equal footing with heterosexual marriage.

Opponents of extending the right to marry to same-sex couples often write about same-sex or gay 杜arriage, as Congress did when it enacted the Defense of Marriage Act in 1996. By enclosing the word 杜arriage in quotation marks, they convey the feeling that same-sex unions are a counterfeit form of marriage. These unions could in no way be a real marriage, as would occur between a man and a woman. By consistently placing the word 杜arriage in quotation marks whenever it follows 堵ay or 都ame-sex, opponents intentionally denigrate same-sex relationships. For example, Congress so effectively used this rhetorical move in the committee reports for the Defense of Marriage Act that, after reading them, I felt like the victim of a hate crime who had been repeatedly kicked in the stomach.

The middle-of-the-road position is associated with what might be referred to as same-sex 殿nything but marriage. Middle-of-the-roaders are not opposed to granting same-sex couples most or all of the benefits and protections enjoyed by heterosexual married couples; they simply oppose using the words 都ame-sex and 杜arriage together. They prefer terms like 田ivil union or 電omestic partnership. (And their similar choice of label notwithstanding, middle-of-the-roaders should not be confused with the pragmatists who embrace this position only as a matter of political expediency.)

But by choosing a different label for the same (or a similar) store of benefits and protections, middle-of-the-roaders do no more than visibly (and probably more permanently) relegate gays and lesbians to the second-class status that they already inhabit. Domestic partnerships and civil unions reify this second-class status. And once reified, gays and lesbians will have a difficult time extricating themselves from it. For if same-sex couples are afforded the same (or similar) benefits and protections as heterosexual married couples, where is the need or the incentive for straight society later to afford them the 杜arriage label (i.e., equal status) as well? At bottom, this is just another way to denigrate same-sex relationships the only difference is that the middle-of-the-roader acts as if he痴 doing same-sex couples a favor by demeaning them. Frankly, I知 not sure which is worse, getting kicked in the stomach or stabbed in the back.

So, how same-sex unions are labeled sends a signal about how they should be viewed whether as being on equal footing, in no way comparable, or simply inferior to heterosexual unions and about how gays and lesbians should be treated more generally whether accepted as equals or branded as outcasts or inferiors. Simply put, it is a choice between promoting equality or perpetuating invidious discrimination.

From this perspective, the difference between opponents and middle-of-the-roaders is not one of kind, but of degree. These two groups do not disagree on whether to discriminate against gays and lesbians, just on how blatantly to advocate and implement the discrimination. When the importance of labels is acknowledged, the middle-of-the-roaders no longer seem quite so middle-of-the-road, and a political compromise that embraces their position no longer seems quite so attractive. After all, offering equality with one hand while plunging a rhetorical knife into the backs of gays and lesbians with the other doesn稚 advance gay rights it痴 just assault and battery with a friendly face. And going along with assault and battery doesn稚 make you a hero in the struggle for gay rights, it just makes you an accomplice in crime.

By shifting the terms of the same-sex marriage debate, Mr. Bush has helped to remind us of the prejudice and discrimination that lie at the root of that debate. This shift casts a new light on the bedfellows chosen by the pragmatists in their effort to reach a compromise that will defuse an issue that has divided the country. The pragmatists should take this opportunity to reassess their cost/benefit analysis because, in this new light, the price of compromise may prove too high to pay. Once they realize the importance of labels, pragmatists may decide that it痴 marriage or bust.


Anthony C. Infanti is an assistant professor at the University of Pittsburgh School of Law.

March 23, 2004

GUEST COLUMNIST

JURIST Forum Guest Columnist Anthony C. Infanti is an assistant professor at the University of Pittsburgh School of Law. He holds a JD from the University of California, Berkeley, and an LLM (Taxation) from New York University.

Professor Infanti's current research interests include two ostensibly quite different, but, in reality, quite related areas: (i) the intersection of tax and comparative legal theory and (ii) critical tax theory (i.e., the impact of the tax system on traditionally subordinated groups, including gays and lesbians). He is also interested in issues of social justice and gay and lesbian rights more generally.

Professor Infanti has authored articles on U.S. international tax matters that have appeared in publications such as the University of Pittsburgh Law Review, the Florida Tax Review. the Vanderbilt Journal of Transnational Law, Tax Notes International, the Tax Management International Journal, and Taxes magazine. An article on same-sex marriage that appeared in the Tulane University journal Law and Sexuality has been reprinted in a book of collected essays on this topic.

Professor Infanti was the 2002 recipient of the Student Bar Association's Excellence in Teaching Award. He maintains his own faculty website with links to his papers and class webpages here.