Many moons ago I posted a blog suggesting that we contract out all of the legal privileges which adhere in marriage, and that we contract them out to anyone who meets a certain level of guaranteed commitment, whether they be a married couple, a same-sex couple, non-romantically involved siblings, etc. You can read it here. This post is in some ways a follow up.
I want to take a minute to discuss the methodology behind my proposal, and why I feel it avoids falling into the classification of "separate but equal", as some have claimed.
The starting point for my proposal is to ask the question, "Legally, what could a same-sex couple be entitled to?" It seems to me that the answer, at the absolute most, is that they could demand that they be given the same legal privileges as a married couple, and that these privileges be conditioned on the same satisfaction of requirements which married couples must meet. In short, the most any couple could ask is that they be given the same legal privileges as any other couple.
The second question then is to consider what those privileges and requirements are. This is a list, extending in limited fashion, which encompasses the various legal elements of our inquiry. Privileges such as tax benefits, visitation rights, and inheritance defaults. Requirements such as willingness to work through difficulties, stability, and co-ordination of resources.
Once we reach this level we need to take a step back and observe that we have said nothing of marriage thus far, but have only considered the benefits that all couples are to receive and what the requirements are for obtaining those privileges. It seems to me that legally these are the "entitlements" which any couple could claim, so long as they meet the same necessary criteria which every couple must meet.
Thus, if every couple gets the same privileges based on the same requirements, there is nothing more to be said of "separate but equal."
"Separate but equal", it should be observed, was a legal formulation which said that people would be treated equally, but through separate means (i.e. African-Americans went to one school, whites to another). This contrasts distinctly with the present case where all couples get treated equally (the same privileges) through the same means (they all must satisfy the same requirements, based on the same forms - they'd all have to go sign the same papers, the same courthouse, etc.).
At this point some would say I have simply abolished the protection of the institution of marriage. However, nothing in the above forbids the establishment of an institution of marriage. It does, of course, forbid the direct attachment of legal privileges to the institution, but it does not forbid the government from recognizing heterosexual marriages as marriages, in institutional form. This separates the institutional question from the question of legal privileges.
Now, there are still those who would disagree with my strategy. They would argue that recognizing an institution for straight couples but not for same-sex couples, qualifies as "separate but equal" on its own. A few points need to be made in response.
First, simply separating out the two questions - the privilege question and the institution question - is in itself a worthwhile effort. The fact of the matter is that these are separate issues which each need to be investigated on its own. We can grant all of the legal privileges without institutionalizing the relationships. This was the essential point of my method - I wanted to push that the "institutional nature" of marriage was separate from the privileges of marriage.
Secondly, I believe we need to further explore the question of "institutional nature". By this I mean that we need to decide what society should recognize as an institution. The fact of the matter is that we can debate whether there is a societal value to heterosexual marriage that same-sex marriage would not obtain. Before we can know whether to recognize, as an institution, same-sex marriage, we need to decide whether it is essentially the same thing as heterosexual marriage.
For those who are convinced the two are different, it makes sense for government to institutionalize one form and not the other. For those who are convinced the two are the same, it makes sense to say that the government cannot make any distinction.
This is key. Setting aside the legal privileges question (which has been resolved in favor of equality), we turn to the question of the institution. If the government recognizes an institution of marriage for hetero-sexuals only, does this qualify as "separate but equal"? In order to answer this question you must first answer the question of whether hetero and homo-sexual relationships are the same. If you believe they are the same, then perhaps denying institutional form to one would seem like "separate but equal." If you believe they are different, then clearly there is a reasonable basis for a distinction, and therefore institutionalizing one and not the other poses no problem. The point is, there is an open question. Before we can say anything meaningful regarding the "separate but equal" claim, we must investigate our underlying conclusions. And that's another post, for another time.