The Compromise That Isn’t; and, Where Do We Go, From Here?

Texas conservatives are so reasonable. After Judge Walker’s landmark holding in Perry v. Schwarzenegger, they’re willing to meet the pro-equality lobby halfway: civil unions! But no marriage, because that means churches would be forced to marry gay couples.

This editorial demonstrates two things: first, that Judge Walker’s detractors haven’t bothered to read the opinion. See:

  • “Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples.  Prior to Proposition 8, [despite the legality of gay marriage] no religious group was required to recognize marriage for same-sex couples.” (page 89)
  • “Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States. [. . . .] The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships. [. . .] The children of same-sex couples benefit when their parents can marry.” (pages 81-83)

Each finding is backed by extensive explanation. I wonder, as David Boies does, whether anyone bothering to read the opinion could point to a flaw in it, apart from abstracted distaste in its ultimate conclusion.

And second, that Proposition 8 truly did stand, as Judge Walker concluded, on a set of fallacies, and arguments premised on fear rather than logic (pages 105-109). Whether or not the opinion is permitted to stand on appeal, this could be a productive moment, where, prompted by the federal judiciary, we are finally forced to debate marriage on the merits, divorced from nasty stereotypes and misbegotten assumptions. The right’s vital interest, in the wake of the decision, is to avoid that debate, because they know they’ll lose it, and return us to the same divisive, fallacious cultural warfare that brought us to this point. So far so good.



  1. Just as a point of reference Ames – you’re on record as supporting covil unions. Seems silly to complain about them now.

  2. I supported it as a half measure, not a final answer. And never for the inane, counterfactual reasons set up as the predicate to that “compromise.”

    1. Please explain how a ‘half measure’ improves the plight of homosexuals. Also please explain how full gay mariage improves their life even more.

    2. Really?

      Civil unions trigger state benefits. That’s a start. Marriage triggers federal ones.

      1. Wouldn’t a federal civil union offer federal benefits?

      2. No. Statutory law uses the word “marriage.” Unless you want to obliterate the distinction and relegate everyone to “civil unions,” which acquire the word “marriage” only when solemnized by a willing religious institution. Which would be fine, as it would erase the inequality.

        1. So why not make it say, “Mariage and/or civil unions” ? Extend the exact same rights to gay marriages.

        2. If you want to draft that bill go ahead. The rhetorical distinction would still remain, though, as a lingering insult, which it should be the eventual goal to expiate.

          1. So again – there’s two separate issues:

            1) Legal rights associated with marriage

            2) Uncle Sam calling SS partnerships ‘marriages’.

            Europe seems to have not been troubled by #2. I’m surprised liberals aren’t following their lead.

  3. I do not feel bound by foreign solutions to American problems, except where they’re more in line with American values than our own solutions (cf. torture).

    To pose the flip question, let’s assume we agree that gay couples should enjoy the same legal rights, federal and state, and disagree only on the appellation. Then, what’s the problem with calling same-sex unions marriages, if it’s just a word, will compel no undesirable legal conclusion, and will just make gay couples happy?

    1. I’m not entirely sure what Mike means with the above, but Europe does not have a common policy or understanding of same-sex marriage and civil unions; in many ways we’re just as divided as the US. Some countries have full SS mariage: Spain, Portugal, Sweden, Benelux, and a couple others, and the UK seems likely to join them before the next elections.

      Most countries have some form of civil union or registered partnership, with rights that vary, but are often inferior to a full marriage, especially regarding pensions, adoption rights, acquisition of citizenship and such. Germany used to do this, but the Federal Constitutional Court found that practice unconstitutional last October, so it’ll change soon.

      And then there are a number of countries (mostly Baltic and East European, as well as Italy and I think Greece) which prohibit same-sex partnerships altogether, either statutorily or even constitutionally.

    2. Well, because it “oppresses” the most oppressed minority this country has: Christians.

    3. They are so oppressed by things that make them sad! We should all relinquish our rights whenever it might make fundamentalist sects shake their heads or disapprove even mildly. This is the import of religious freedom: unflinching respect for one religion to the exclusion of all other beliefs. Our forefathers fought and died so that nothing new would ever challenge their beliefs.

    4. I don’t think the Constitution provides for laws simply to make people feel beter about themselves.

    5. Well, Brown v. Board would seem to disagree about the importance of stigmatic harm, wouldn’t it?

      And the question, really, is can we avoid that in the first instance? What objection to you have to calling gay unions “marriages”? I’m fairly sure the Constitution doesn’t insulate majority decisions just because to do otherwise would make you queasy.

  4. I can’t see any point in civil unions because they would not rectify the First Amendment violation that currently exists, namely that present law forbids several denominations from practicing their beliefs, which include performing marriage ceremonies for same-sex couples, without any compelling state interest.

  5. […] Court is protecting Judge Walker: the lower court’s decision became a cause célèbre for its extensive factual findings, setting out the value of marriage to gay and straight couples alike, and the motivations behind […]

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