The Reactionary Road to Free Love: How Opponents of Same-Sex Marriage are Destroying the Institution They Seek to Defend

Abstract

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. In the process, it examines several aspects of the marriage debate in detail. 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 result largely from 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 (from covenant marriage to various forms of marriage light) reveals that they all have distinct advantages over traditional marriage. The federal Defense of Marriage Act (DOMA) adds even more. Unlike same-sex marriage, these advantageous alternatives are attractive to different-sex couples. This may explain why new marriage light regimes increasingly extend to all couples, and why these gender-neutral marriage alternatives – once established – tend to become 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.