196. Same-Sex Marriage: Are They Just Fighting Over a Word?

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Tuesday I heard a plaintiff in the Proposition 8 case, Jeff Zarillo, tell the nation (on CNN's Starting Point) how important the word "marriage" is to him: "It has global recognition. No one celebrates a domestic partnership-versary. They celebrate an anniversary of marriage."

Zarrillo wants what I once (in Post #27) called "flavor" in his word, and "domestic partnership" doesn't have it.  Nor, I suppose, does "civil union" or any of the other alternatives.  

Flavor satisfies the taste but it sometimes confuses the mind.  The word "rights" in "animal rights" has a flavor of legality, but it lacks legal foundation and leaves us groping for a referent.  But I was wrong to depreciate Zarillo's cause with a word like "flavor."  The word "marriage" is sought not out of a taste preference but out of a demand for equality.  The argument, put simply, is that "we who are essentially the same — in our ability to love, and remain faithful, and raise children, etc. — should have the same rights, privileges, and benefits others do.  The word 'marriage,' if not a right, is at least a benefit that should be allowed to us.  Otherwise we are not equal."

This throws us back into a verbal dispute, this time over the word "equal."  To call two things equal they have to be the same, not in all respects (nothing, outside of mathematics and logic, ever is) but in relevant respects..  Gay and lesbian candidates for marriage argue that they are the same as heterosexuals in everything but their ability to reproduce.  But, the key question, Is that ability relevant?

"No!' said Justice Elena Kagan on Tuesday.  We let old people marry.  And our best columnists and bloggers have nailed her counter-example down.  (See, for a very thorough example, http://www.slate.com/articles/health_and_science/human_nature/2013/03/homosexuality_as_infertility_how_to_end_the_gay_marriage_debate.html  )

The strongest argument for the relevance of fertility is, I think, one that fixes on human purpose and decisions that further it.  "Fertility is certainly relevant in a candidate for a place in my garden.  I don't want to plant a sterile flower where I need more of their kind.  No matter that they are as beautiful, as cherished, as welcome in the spring as the fertile flowers, they are not, in this important respect, the same.  So they can't, in my estimation, be equal.  I can discriminate among them when I go to the nursery."

That analogy will not, I think, be enough to satisfy Justice Kagan and those she speaks for, so we are left with the unshaken view that bonded gays and bonded straights are the same in all relevant respects. 

But does that mean that the words for them and their bond have to be the same?  Are words relevant?

On Tuesday Chief Justice Roberts made the radical suggestion that a word is the only thing that's relevant in the present case.  The plaintiffs have made it that way.  "It's just about the label....all you're interested in is the label and you insist on changing the definition of the label." 

That gives me a vision of peace.  It's probably just an unrealistic, academic vision but maybe you could share it.  What you do is take a thorough scientific survey.  You list every benefit the government gives the married, from survivor's benefits through income tax deductions (there are 59 of them) to special state protection for “intrafamily offenses” all the way to joint bankruptcy.  After you make sure you have all the legal rights (1049 here) you add all the privileges.  Everything society can give a partnership of gays or lesbians will be in one package.  Finally you put a name on it — "civil union," "domestic partnership," "sworn bond," anything but the name "marriage."  Then you ask whether or not your interviewee will accept the package.  If he (or she) says "No" you put him down as one fighting only for a word.  You follow a similar sequence with an interviewee of the opposing party.  If he says, "Granted," to each item on the list but won't grant "marriage" then he too is fighting only for a word.  At the end you add up what's in your columns and, if the numbers are significant, you publish them in a newspaper (not an academic journal) and write an editorial asking, "What in the world are you two groups so mad at each other about?  You're fighting over a very little thing."  They read it and say, "You're right.  Chief Justice Roberts was onto us.  One word isn't worth all this."

There can't be any objections to a vision, can there?  Later post, later post.