Posted by: N.S. Palmer | August 6, 2010

What Exactly is the Right to Marriage?

By N.S. Palmer

Our new Supreme Court justice Elena Kagan: gay or straight? Nobody cares.

The headline of today’s New York Times editorial about gay marriage trumpets the conclusion supposedly reached by all right-thinking people:

“Marriage is a Constitutional Right”

Okay, fine. As the Germans would say, schwamm drueber. It’s a done deal, unless the Roberts Supreme Court decides to equivocate so that Republicans can keep using gay marriage as a campaign issue.

But I have a simple question:

What right, exactly, does marriage provide that cannot be provided by civil unions?

It’s not tax preferences for married couples. Civil unions can do that. It’s not spousal rights or inheritance. Civil unions can do that. It’s not even national recognition of non-traditional unions, so that gays would have the same civil-union rights in every state. A national civil-union law, pre-empting state laws, could do that.

So what’s the right at issue?

Look, I know lots of gay people. My family includes at least one of them. They’re perfectly good people, and I wish them well. Some of them are up in arms about gay marriage, and others don’t care about it.

But in the absence of any information to the contrary, I’m forced to conclude that all the hoopla about gay “marriage” has nothing to do with equal legal rights for gays.

Instead, it has to do with deconstructing an institution that our civilization and others before it have had for thousands of years. It’s mainly so that the minority of gays who want to call their relationships “marriages” — a minority of a minority — will feel better about themselves. It’s also to put society’s imprimatur on the belief that gays should be treated exactly like straights. Finally, it’s to get revenge on the straight majority, which some gays blame (not completely without cause) for their unhappiness.

No reasonable person wants gays to feel bad, and all reasonable people want gays to be treated fairly. But it’s disingenuous to pretend that such a significant social change has no cost.

Concentrated Benefits and Dispersed Costs

The situation is not unique to the gay-marriage debate. It often happens in society that a tiny minority strongly supports an idea and raises holy hell about it. An equally tiny minority strongly opposes the idea but lacks the resources and media access of the idea’s supporters. And the vast majority of people mildly oppose the idea but have jobs, families, and other responsibilities that limit their time to do anything about it.

It’s also why corporations and the rich have so much influence over law and policy. The phenomenon is called “concentrated benefits and dispersed costs.”

A change in the law might bring billions of dollars in new profit for BP or Goldman Sachs but cost each American citizen only fifty cents. As a result, those corporations throw everything they’ve got into lobbying, pressuring, and bribing government officials to get that change in the law.

But how much time can you take off from work to travel to Washington and lobby against something that’s going to cost you fifty cents? Especially when it’s fifty cents for this law, fifty cents for that law, fifty cents for another law, on and on for hundreds of laws and regulations each year? It’s more than a full-time job just to keep track of all of them, let alone to do anything about them. Corporations and the rich have the money and the time. The majority of people — who will bear the cost — have neither of those things. That’s why they’re getting nickel-and-dimed to death.

In the case of gay marriage, the interests of the minority and of corporations are in sync. Gay-marriage activists want to feel better about themselves by appropriating the word “marriage,” and they don’t want to hear any backtalk about it from the straight majority. Corporations find traditional Western culture to be a nuisance, so they’re busy dis-assembling it.

The Most Important Issue

However, the most important issue in the debate is something that almost nobody talks about. Yes, there are good reasons to keep “marriage” as a heterosexual institution, and to guarantee equal rights through adequate civil-union laws. Yes, some of the arguments for gay marriage are bogus. Yes, some of the gay activists are motivated by hostility toward the straight majority rather than concern about equal rights.

But still, there’s something else at stake. Regardless of Constitutional issues, regardless of what’s legally required or not, there remains the question:

What kind of society do we want to have?

Do we want a society that, intentionally or not, consigns some citizens to second-class status? Or do we want a society that embraces everyone who wants to belong to it? Whether or not civil unions are legally equivalent to marriage, they are inevitably perceived as “separate but equal” by both gays and heterosexuals. That sends a message that gays are not full members of our society. It says that we do not grant them the acceptance and brotherhood that they deserve.

I know that there are costs. I know that a lot of the arguments for “gay marriage” are specious. But for me, inclusion is the bottom line. It trumps the other issues.

Gays work with us, live next door to us, and go to our churches. They’re our brothers and sisters and friends and, sometimes, even our parents. If we reject them, or if we tell them they’re not quite as good as heterosexuals, then we also reject what’s best in ourselves and our society.

I won’t reject those things. And I won’t reject or belittle the gay members of society. If they want to get married, and call it “marriage” instead of civil union, then they have my blessing.*

* This was not always my view. My niece, who attends college in Massachusetts, argued me to a standstill and convinced me to change my mind.

Copyright 2010 by N.S. Palmer. May be reproduced as long as byline, copyright notice, and URL ( are included.


  1. I have come down similarly on this issue, but with a twist. I’m in favor of loving, committed relationships regardless of who’s in them. But I say let the governments sanction civil unions only — and let the churches sort out who’s married.

    I’d really like to see you explain this sentence: “Corporations find traditional Western culture to be a nuisance, so they’re busy dis-assembling it.”

    • Jim, thanks for the great idea. I would agree with that. The issue is treating everyone equally except where their differences clearly do require different treatment. Getting government entirely out of “the marriage business” and using civil unions exclusively to recognize committed relationships would solve the problem. Sadly, however, that’s not on the table — and I think at least partly because of the other issues I mentioned.

  2. I agree that the bottom line is inclusion. We’ve had enough of separate-but-equal, which is always the former but never the latter. So long as there remains a difference in status, people will assume it exists for a reason and there will be no end of attempts to exploit that difference in status. The notion of a marriage indisputably precludes the interference by surviving family with the estate of of a widow or widower; something as flaccid as “civil unions” will forever invite the vultures who will insist it wasn’t a “real” marriage, or it would have been called so. So let it be called so, because that’s what it is. The emotions are the same.

    What, after all, do white-only drinking fountains provide that cannot be provided by colored-only drinking fountains? The dignity of knowing that you are not intrinsically second class, that’s what. Untouchable. Unworthy of something others are free to take for granted.

    “let the churches sort out who’s married.”

    In truth, marriage is a state contract. It predates organized religion, and was initially simply a de facto arrangement (unquestionably, the institution of marriage predates the christianization of Europe, or Christianity itself, for that matter). And speaking of Western culture, in much of the world, one is not legally married if one undergoes only a church ceremony; only when one has a civil ceremony. In North America, religious matrimonial ceremonies are typically recognized by the state but in much of Europe, for instance, they’re not. I once worked with a German immigrant who married his wife in Toronto in a civil ceremony (which Germany legally recognizes) and then went to Germany with his bride for the church ceremony (which Germany doesn’t legally recognize) to please their families.

    So it might in truth be much fairer to say let the state decide who’s married, and let God sort ’em out later.

    • Hi, LP —

      We mostly agree. However, it’s not obvious to me how your proposed solution differs from Jim’s except in its use of the term “marriage.”

      I’m at work, so I really can’t take the time right now to do justice to all your points. But that’s the one that jumped out at me.

      • “We mostly agree. However, it’s not obvious to me how your proposed solution differs from Jim’s except in its use of the term “marriage.””

        Whenever someone tells me they’re setting up two things, and they go to great pains to assure me they’re absolutely the same and equal, but insist that this one’s just for them and certain other people aren’t allowed to use it, I smell a rat. There is no logical reason to do that unless you perceive some intrinsic advantage to yourself in doing so, in which case the very basis of the division is necessarily prejudicial. Again, it comes down to usurping a status considered more valuable, and denying it to others: “we’re really X, but you’re only Y”. Yeah, sure they’re equal.

        “Getting government entirely out of “the marriage business” and using civil unions exclusively to recognize committed relationships would solve the problem.”

        First of all, only governments are IN “the marriage business”. Marriage predates any organization religion; what you guys are getting hung up on is the SOLEMNIZATION OF THAT INSTITUTION BY A THEOCRATIC PROCESS. That’s not the same thing as marriage; it’s something larded onto it in various ways by different societies as they evolved. I don’t see why we should agree to see a human institution common to us all hijacked and converted into a merely religious one. Secondly, as far as marriage is a religious institution, they’re also generally mutually exclusive. I went through catechism as an adult and I know for a fact that there are religious institutions whose ceremonies the Catholic Church recognized, and those they did not. Scott, if your parents were Jewish and they were married in a synagogue, then they weren’t married. Did you know that? They should have checked with the Pope. And I don’t for a second believe Catholicism is unique in this outlook. Do you see where I’m going here?

        We don’t all share religions, or their ideas about human institutions. But we do all share secular government. Our status among them is fixed, legal, and unambiguous. If anything, we ought to do what countries with Napoleonic Law do: deny recognition to mere religious ceremonies and insist if you want to be married, you do it IN LAW. It’s merely a nicety extended to ministers of religion in Common Law jurisdictions that circumvents this. But have you ever noticed that people getting married in church sign two books? One’s with the parish, and the other is with the legal jurisdiction. That’s because, even here, you are legally married BY THE STATE, not the fan club of the particular deity to which you happen to belong. (And I’m sorry if that characterization offends anyone, but really, that’s what they are (whether gods exist or not)… at least to one another. You might respect what Muslims and Buddhists are doing, but deep down, they’re not really doing what you’re doing because they’ve got it wrong… right? And vice versa. We won’t know who’s right, if anyone, till the end of the game.)

        Now suppose we did what I just suggested, and made marriage exclusively a secular institution. What if I said to you “From now on, churches are out of the marriage business. Marriage is for secular observation only. However, we’ve created a status for you other people that’s just as good; we’re going to call it, ohhh… ‘blessed mergers’. If you join with the person you love in church, you’re no longer married. You’re ‘blessedly merged’. Stop frowning, it’s just as good! You’re just nit-picking!”

        Yes, you’re “officially” equal. But in every practical sense, your society is telling you:

        You are not married to the person you love… not really.

        Your children, if any, are not the children of a marriage… not really.

        Your property is not the commonly-held estate of a marriage… not really.

        You are not a married person in the eyes of your society… not really.

        All because you believe certain things, or love a certain person. Do you see now why this exclusivity is objectionable? People are not coming up with frivolous arguments just for the sake of upsetting the “squares”. They’re fighting for their right to be fully human, with no exceptions. Like you.

      • Hi, LP —

        I don’t think that Jim is trying to set up two things. He’s proposing one thing for everyone in a committed relationship: civil union. And if some couples in civil unions chose to participate in additional religious rituals that were meaningful to them, it wouldn’t take anything away from anyone else.

        As for who is in the marriage business, let’s step back from government vs. church and look at the fundamentals. By the nature of their lives, almost all human beings go through certain events and rites of passage: birth, the transition from childhood to adulthood, mating, parenting, and death. Because humans are intelligent and self-aware, they invest these events with meaning and want to tell stories about them: by the way, that doesn’t preclude the possibility that the stories are in some measure true. So to invest the events with meaning and give them social recognition, they give names to the events and devise rituals to celebrate or cope with them. Whether those rituals are carried out by the government or by religion is almost immaterial: people still need to have those rituals, so they’re going to have them.

        What we’re really arguing about — it’s kind of a nitpick, because we agree on the substantial issue of giving full recognition to non-traditional relationships. We’re really just arguing about what name to give committed relationships and who should give it. And if that’s all we’re arguing about, I think that we’re 99 percent in agreement and should douse the other one percent in beer. 🙂

    • Hi, LP —

      Thanks for the great comment. We’re pretty much in agreement, both about the need for equal treatment and about the history of marriage. That being said, most religions do have marriage rites that they believe are ordained by God (in whatever form they worship Him), so if we were going to give “marriage” to anyone, I’d suggest making it the churches. Let governments handle civil unions, because the legal rights of couples are mainly what’s at issue there anyway; the issue of social status is important but secondary.

  3. I think that the primary reasons government registers who marries (is united) is because some unions produce children and it’s important to establish parenthood, and because many unions dissolve and there need to be laws governing division of property and care of the children when they exist. I think that if governments sanctioned nothing but civil unions for all, with the same laws binding them as exist for marriages today, there would *not* be vultures claiming these are any less than marriage.

    But I have to expose my bias here. Calling a union that involves other than a man and a woman a marriage is like calling blue red or up down. It is simply redefining a term because we want to.

    Again, I’m enthusiastically in favor of loving, committed relationships no matter who is involved. We should be able to call “family” anybody we want! Society and government should support them. But let’s not redefine terms.

    • “I think that if governments sanctioned nothing but civil unions for all, with the same laws binding them as exist for marriages today, there would *not* be vultures claiming these are any less than marriage.”

      But why should the word, the institution, and the claim of “marriage” be the exclusive property of people who happen to believe in some god (or gods) or other, and atheists like myself should have to bow down and be content to be “civilly united”? Why would we, why should we, surrender our rights to equality of condition and willingly assume the mantle of a second class status? Would you, if I proposed the reverse?

      “Calling a union that involves other than a man and a woman a marriage is like calling blue red or up down. It is simply redefining a term because we want to.”

      There is nothing intrinsic about the word “marriage” that necessarily implies “one man and one woman”. Even in the Bible itself, it not infrequently meant some Jewish patriarch and everybody he could get his hands on. Modern Christians don’t really have a leg to stand on with regard to “redefining” what marriage is since with regard to their own scriptures, they already have.

      But I don’t agree that recognizing same-sex relationships as marriages is a redefinition in any case. It’s a fuller recognition of what the word really entails. Traditionally, it’s excluded them, but traditionally, “all men are created equal” excluded non-whites and women. Including them was not “redefining” those words. It was living up to the promise and full meaning inherent in them.

      • Hi, LP —

        I find your concern about religion monopolizing marriage a little puzzling. If it’s strictly a religious institution, and you’re not religious, then why would you even care about it? Judaism and Christianity regard marriage as ordained by God, but from your perspective, all you want is social and legal recognition of your relationship and its legitimacy. All marriage adds to that is the Divine sanction in which you don’t believe. So why should that matter, as long as you get the legal and social recognition that a civil union confers?

        As for whether or not gay marriage amounts to redefining the institution, we’ll have to agree to disagree. For thousands of years (see, where I give some of the history), in societies of all religions and cultures, some of which were gay-friendly such as Athens and Sparta, marriage has been a heterosexual institution for producing and raising children. That’s the fact. Now, we’re going to extend the concept to include other types of committed relationships, and I’ve agreed to that. But I still recognize it as an extension of the concept. As for your comment about “living up to the promise and full meaning,” that’s a beautiful thought and could easily have been written by Thomas Jefferson. But it’s still a beautiful thought rather than a substantive argument.

    • Hi, Jim —

      As I mentioned earlier, I like your suggestion of government certifying “civil unions” for legal purposes and staying completely away from the question of who is “married.” The one drawback is that if it were still practical, I’d like government policy to encourage the formation and stability of traditional families. But that’s a moot wish these days, since feminism has turned so many American women into misanthropic termagants who don’t want to have children and probably shouldn’t.

      As for your “bias” about the traditional meaning of marriage, that’s exactly the same argument as I made here ( and here ( We’re both aware that “gay marriage” amounts to a redefinition of the institution. But I no longer regard that as the most important issue. It now seems more important to avoid labeling some groups as “second-class citizens,” whether deliberately or not. I don’t like redefining marriage, but if that’s what it takes for us to have a just and compassionate society, then I’ll support it.

      • “Misanthropic termagants” — I must remember that phrase!

  4. LP, you have raised some interesting challenges that are causing me to revisit my civil-union idea. Certainly, it has the potential of still creating a two-tiered system, where marriage is popularly viewed as somehow better. And certainly, it would have the tendency of blocking people who don’t believe in God or aren’t somehow religious from becoming married; unless they fibbed to some preacher about their faith, they would be limited to civil union, though they could just call themselves married and nobody would be the wiser.

    And there this comes full circle to the definition of marriage, and now the word has become more pliable to me than it was originally. Hence the need for more consideration on my part.

  5. “I find your concern about religion monopolizing marriage a little puzzling. If it’s strictly a religious institution, and you’re not religious, then why would you even care about it? Judaism and Christianity regard marriage as ordained by God, but from your perspective, all you want is social and legal recognition of your relationship and its legitimacy. All marriage adds to that is the Divine sanction in which you don’t believe.”

    I debated with myself whether or not to respond; my inclination is to drop it because at a certain point, continuing to take issue on someone else’s blog is going to come across as really rude and disrespectful. But there are just a couple of points I’ve decided I’d like to address and then I pledge the last word to you. 🙂

    I don’t consider marriage in and of itself a religious institution, and I said something to that effect earlier. Marriage is simply a personal and societal acknowledgment that two (or in some societies, more than two) people have entered into a formal relationship that has certain exclusivities relative to the rest of society (these vary from place to place and epoch to epoch but usually include exclusivity of sexual partnership). There’s nothing intrinsically religious about it; with regard to Western society, it’s been going on since long before either Jesus or Abraham walked the Earth. Organized religions were given rise to by societies given the sort of abundance and surplus that enables a dedicated priestly class; obviously people’s feelings of love, exclusivity, common property, and the hopes of certitudes of kinship predate the orthodox ceremonial solemnizations of them. Marriage is a human institution often, but not always, furnished with religious observance. That’s why I object to the notion it’s exclusively, or even primarily, a religious institution. Saying so is akin to insisting “transportation” is exclusively about automobiles (or even a particularly manufacturer), and that going by foot, or horse, or boat are something else, something other, something lesser, or that “transportation” didn’t exist until automobile manufacturers, licensing boards, and insurance companies furnished us with it the institution. We would agree, I hope, that those are in fact modern accouterments added on to an original institution that predates them and isn’t strictly dependent upon them.

    So what I mean is, marriage may or may not have a divine sanction, but that sanction itself is an option postdating the institution of marriage itself. To say otherwise is, it seems to me, to put the car(t) before the horse.

    • Okay, I see your point. I’ll have to mull it over a bit.

      But for Heaven’s sake (if you’ll pardon the expression 🙂 ), don’t worry about “rude and disrespectful.” If I didn’t want to know what you think, I wouldn’t ask. 🙂

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