Ok, so I've been discussing gay marriage a lot lately with a lot of people, (most of whom are vehement supporters), and I just want to put out a suggestion which I think makes a lot of sense, and which I'd like to hear some feedback on, if people are willing.
The primary argument for gay marriage is that the 14th Amendment guarantees equal protection of the law, and if there are legal rights and responsibilities attached to marriage then they should be available to anyone who wants them. Basically, homosexuals should have all of the same legal opportunities that heterosexuals have. While this in itself could be debated, I will for now assume it (because I essentially agree with it (particularly when we use the phrase 'legal opportunities', which I feel is much more accurate than 'rights')). When pressed on the specific legal opportunities that attach to marriage most people respond with a relatively short list - tax and insurance benefits, adoption, and visitation (This list could surely be expanded, but it is illustrative for purposes of this little essay, and so we'll leave it nice and concise). Everything on this list is the sort of legal creation which we could easily find a way to present to anyone. In fact, the ease of contracting these rights is exactly why they adhere so cleanly to the institution of marriage - the government says "you're getting married? Ok, sign this contract and you'll get these things." It's simple.
So I say, let's keep it simple. We don't need homosexual marriage in order to ensure that homosexuals can receive the same legal opportunities. All we have to do is allow them to contract for the same rights.
To illustrate, let's look at insurance benefits: This is the perfect example because many employers and insurance companies allow the simple naming of beneficiaries. The typical scenario is that a husband or wife gets insurance through work and it covers the other. The argument is that it is unfair that equally committed homosexuals cannot get the same coverage for their partners. The remedy is simple - a law which grants that insurance companies shall not discriminate in the application of their partner benefits. Of course, insurance companies will be dissatisfied with this, because then any set of individuals could just say they were partners and receive benefits. So you provide a contract solution - allow any individuals to contract to be insurance partners (I'm sure there would have to be a minimum term, and perhaps some other requirements which would provide assurances to the insurances (!) that they weren't being ripped off, but those would be easy enough to figure out). After all, when two people marry, in the government's eyes it is a contract to be partners, and because there is a legal commitment insurance companies recognize partners as such.
We could do this for each of those legal opportunities. I realize that some would be more difficult (tax, with all of its minutiae might be tedious, but certainly it would be doable), but ultimately we could contract out each of the legal opportunities that attach to marriage, and thus homosexuals would not be denied any of them.
I think one important thing about this approach is that it avoids institutionalizing homosexual partnerships. I am convinced that the danger of homosexual marriage is the damage it would do to the institution of marriage (I liken it to no-fault divorce). Notice though, that by contracting out these legal opportunities (and the obligations which would attach) individually we are not creating either a marriage or a civil union.
I'd like to address what I see as some potential criticisms. Some might say this is ridiculous, this means homosexuals will have to jump through extra hoops which is discrimination in itself, or that it is simply absurd to make them contract for each right individually when the normal course will be to want all of them. The response for both of these objections is essentially the same: the path of least resistance. I am confident that, like with most things, after only a short time the process would become extremely simple and painless - there will be no extra hoops, simply a form, no more demanding than a marriage license. Moreover, there could also be a simple form which put all of those legal opportunities and obligations together in a single package. I'm not suggesting that they cannot contract all of the rights at once, simply that there should be no institution; most contracts contain more than one provision, and so would this one.
I would expect that another common objection would be that this is all simply a legal fiction, and that these contracts are really no different from simply granting homosexual marriage, or at very least civil unions. I think the response to this is fairly simple - we simply do not perceive contracts as institutions. I do not have an institution with my operating software. Perhaps it would be observed that contracts sometimes create and delineate relationships. The response, of course, is that these are not relationships in the same sense that a marriage or civil union is a relationship. I doubt anyone feels the same way about their partner as they do about their apartment manager. Quite simply, if the government recognizes the contracts but does not accept homosexual marriage as an institution then there is a very real distinction.
The final argument that I perceive is that this distinction is still objectionable. That if heterosexual people can be married, then why can't homosexuals? If this is the objection, however, it is clear that we have passed beyond the 14th Amendment, for if every legal right has been extended equally then there isn't a Constitutional argument. Instead this is a cultural/moral argument, which says quite clearly that "homosexual marriage is acceptable." To those who would carry this banner, I point to a common argument now used in favor of homosexual marriage - who are you to push your beliefs on others? (I would probably also point to several other arguments against homosexual marriage, which I am specifically avoiding in this article because I want to keep the focus on the contract idea). The point here is simply that beyond the 14th Amendment arguments there is nothing more than a culture clash, and one way or another, we are legislating morality.
I believe that there are probably many out there who would move into this last argument that I described, and that these folks will simply be closed to my proposal. Those who honestly pursue the 14th Amendment argument for its own sake will be more open; I imagine that ultimately most of these would reject my idea for some reason or another, but hopefully it will at least get a fair hearing. I would also imagine that those who agree that homosexual marriage should not be permitted will be split into a couple of camps. There will be those who think homosexuals should have no rights, and will reject this as too liberal and expansive. There will probably also be those who think the system is fine as it is - why fix it when it isn't broken after all? And who knows, perhaps this will find a small foothold in some people - both those opposed to homosexual marriage and those in favor of it. It seems to me the best of both worlds - the institution of marriage is saved from further damage and homosexuals receive all of the same legal opportunities available to everyone else.