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Debate Club

Should States Abolish Marriage?

Mary Lyndon Shanley and Linda McClain debate.

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Marriage comes with legal benefits, like the right to visit a partner in the hospital. Opening civil unions to same-sex partners would offer such legal benefits to homosexual couples, while reserving the word "marriage" for unions between heterosexuals. But some people suggest that, instead, the state should do away with marriage as a legal category altogether and adopt a universal system of civil unions open to all couples, while leaving marriage to churches, mosques, and synagogues.

Should states abolish marriage?

Mary Lyndon Shanley is professor of political science at Vassar College and author of Just Marriage. Linda McClain is Rivkin Radler Distinguished Professor of Law at Hofstra University School of Law and author of The Place of Families: Fostering Capacity, Equality, and Responsibility.

Shanley: 5/16/05, 09:27 AM
In this discussion about marriage, I'll argue that states should abolish marriage as a civil status and replace it by civil unions available to both heterosexual and same-sex couples. I'll begin by considering two questions. First, why should we want to change marriage in the first place; what, if anything, is wrong with marriage as it is? Second, what are the alternatives to marriage law at present? What we suggest doing about the current state of things will depend on what other possibilities are available.

Several aspects of marriage seem to me to need changing; some are amenable to legal reform, while others require broader shifts in social practices and cultural attitudes. The law needs to make marriage more inclusive by ending the legal prohibition of same-sex marriages. Social mores need to undermine the gender-based division of labor that marks so many marriages, even in the wake of women's vastly increased labor force participation. And public policies need to increase social supports for families with children (many, but not all, of which will involve a married couple).

Some people who share my goals think that there is no need to get rid of civil marriage in order to achieve them. But I think it will be easier to think afresh if we scrap the term "marriage" when referring to the civil relationship. I advocate keeping "marriage" as a status to be conferred by religious authorities (and perhaps also by non-religious communities that might witness marriage commitments). But I advocate a much clearer distinction between the civil and the religious dimensions of committed relationships. "Civil unions" would govern those aspects of relationships subject to state regulation; "marriage" would refer to spiritual dimensions of relationships, aspects not regulated by the state.

Some other people who share my criticisms of marriage would abolish state-defined marriage or civil unions altogether and replace a uniform civil status with individual contracts drawn up by each couple wishing to marry. A regime of individual contracts would allow partners to decide for themselves how to arrange their lives, enable people of the same sex (or possibly more than two persons) to marry, and reflect the values of individual freedom and equality so important to a liberal polity. I find the contractual model inadequate, however, because it misses the public dimension of these private choices. Relationships matter not only to the individuals involved, but also to the society. The state has a role to play in securing justice between partners and in creating the conditions under which family relationships can flourish.

I propose replacing civil marriage by civil unions as a way to help us start thinking "from scratch" (or as close to that as we can get) about the proper role of the state with regard to committed adult relationships. Even if this proposal is not immediately practicable, I think it is helpful to think about where we want to go even if we must take a long road (perhaps with many detours) to get there.

McClain: 5/16/05, 08:39 PM
Let me begin with some points on which I agree with you: Marriage should open up to include same-sex couples; fostering greater equality between men and women within marriage is a legitimate public goal; and government should give more robust economic and social supports to families, reflecting society's interest in helping children grow into capable, responsible members of society and good citizens. For example, as vividly captured in this week's New York Times series on class, wealth inequality in America shapes the advantages that parents can confer on their children and contributes to disadvantages that shape children's opportunities.

Let me now turn to where I disagree: I do not believe that states should abolish marriage as a civil status and turn, instead, to a system of civil unions open to opposite-sex and same-sex couples. You may be right that entertaining this idea is a productive way to think "from scratch" about the state's proper role relating to committed adult relationships. But I do not believe that acting upon that thought experiment would be equally valuable. To the contrary, I contend that a useful idea that has come out of the litigation over same-sex marriage is that marriage, rather than being timeless and static, is an "evolving" institution. It is possible to retain the institution of marriage and to move in the direction of greater equality within and among families.

Certainly, the debate over same-sex marriage—and the emergence of other forms of publicly-recognized adult unions, such as civil unions and domestic partnerships—usefully invites attention to why government has an interest in committed adult relationships and what is at stake for participants in those unions. There are many important public values at stake in marriage and many tangible benefits and obligations that now attach to marital status. To be sure, many of those could also attach to civil unions. But at least one dimension of marriage might be lost if we adopted your proposal: The symbolic significance of marriage. Whatever one's stance on same-sex marriage, for example, all appear to agree that marriage has public significance. It signals peoples' aspirations for commitment, love, mutual responsibility, interdependence, and family. And even though marriage has evolved over the centuries, its very durability as an institution allows those who marry to, as it were, tap into reservoirs of meaning. A striking example appeared in a Canadian judicial opinion in which the court redefined marriage to allow same-sex unions. To illustrate the similarity in reasons that same-sex couples and opposite-sex couples seek to marry, the court quoted the testimony of one same-sex couple: "We highly value the love and commitment to our relationship that marriage implies. Our parents were married for over 40 and 50 years respectively, and we value the tradition of marriage as seriously as did our parents." This striking appeal to tradition and to continuity of generations by a couple whose marriage would certainly depart from tradition illustrates the impulse to retain but adapt the basic framework of marriage. Why not take that route?

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Shanley: 5/17/05, 09:47 AM
The fact that we agree on many important aspects of marriage, Linda, should help us to clarify the grounds of our disagreement.

Like you, I regard marriage not as a timeless and static institution but as one that has evolved and changed over time. My students are often surprised to learn, for example, that prior to the mid-nineteenth century, the doctrine of "coverture" meant that when a woman married, her legal personality was subsumed in that of her husband, so that a wife could not hold property or enter into contracts in her own name. The legal subordination of women within marriage did change (although it is still found in many parts of U.S. society). Or to take another example, in Loving v. Virginia the Supreme Court ended the ability of states to ban interracial marriage. You are right that there is nothing to prevent legislatures or courts from enacting further changes. Nonetheless, I think it would be preferable to stop modifying marriage law and to replace civil marriage with civil unions.

One reason that I think it would make more sense to substitute civil unions for civil marriage is that use of the same term, "marriage," both for a religious commitment and for a civil status seems to obscure important distinctions between the civil and religious dimensions of marriage. When both a civil and a religious status go by the name "marriage," it becomes difficult for people to sort out what aspects of the relationship are appropriate concerns of the state. Wouldn't it be better to make it clear that the state is in the business of recognizing and regulating "civil unions," and to think about what is appropriately the state's concern with and interest in committed adult relationships?

Also like you, Linda, I think that marriage has an expressive value that goes beyond the concrete and tangible benefits and obligations that the government bestows. That value, however, is not bestowed by the state, but by religious communities or other ethical authorities. The symbolic aspects of marriage, in fact, are different for different people, and stem from what marriage means in various communities and traditions, not from what the state supplies to marriage. If I stay in a marriage "for better or for worse" and until "death do us part," it is not because of the state (which is after all quite willing to let me file for a no-fault divorce) but because of the ethical and religious meanings that marriage has had for members of my family and groups with which I feel a deep affiliation.

I am not proposing getting rid of marriage altogether; I am simply proposing that we stop using the term "marriage" to refer to the civil status that regulates these relationships.

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McClain: 5/18/05, 07:56 AM
It may be difficult, as you point out, Molly, for people to sort out the civil and religious dimensions of marriage. Some defenders of "traditional marriage" oppose same-sex marriage because it departs from an understanding of marriage as a divinely-ordained institution that involves (as in the Book of Genesis) one man and one woman becoming "one flesh." Some defenders of traditional marriage find the notion of marriage as a civil, that is secular, state-created institution, deeply offensive: It seems to deny the religious dimension of marriage. But does the fact that "marriage" has both a religious and civil dimension create such confusion that we should abandon marriage as a legal concept and turn to "civil unions"? I think not.

First, I think you may overstate how difficult it is for citizens and public officials to reflect on states' interests in civil marriage and on the appropriate scope of governmental regulation of adult relationships. Consider Goodridge v. Department of Public Health, in which Massachusetts's highest court concluded that its state constitution required that same-sex couples be allowed to marry. The court granted that there are rich religious and cultural traditions about marriage, but directed its attention to the civil consequences of marriage and why government has an interest in marriage. Its answers are informative for this debate: Marriage fosters the "welfare of the community" and "anchors an ordered society" by "encouraging stable relationships over transient ones" and ensuring sources of care for adults and children. Marriage "fulfills yearnings for security, safe haven and connection that express our common humanity." The reference to "common humanity" is especially striking: certainly, it could encompass specifically religious meanings of marriage, but it is also suggests that marriage carries a common public—that is, civil—meaning as a tangible signal of commitment. For all of these reasons, the court concludes, the state properly links marriage to an array of economic and legal benefits, obligations, and protections.

Second, even when states do not extend marriage to same-sex couples, but instead adopt domestic partnership laws, this incremental step toward equality may offer clues about the "civil" interests at stake in marriage. Lawmakers often reason by analogy from marriage. For example, New Jersey's recently adopted Domestic Partnership Act recognizes that there are "important personal, emotional, and economic committed partnerships" other than marriage and explains that government has an interest in supporting such relationships. Such "familial" relationships assist the state by providing support for the "financial, physical and emotional health of their participants" and also help family members cope with adversity. The Act also appeals to "basic human dignity" to explain why persons in domestic partnerships should have certain of the rights and benefits accorded to married couples.

Finally, far from clarifying "what is appropriately the state's concern with and interest in committed adult relationships," I worry that a dual system of religious marriage and civil unions might lead to a troubling dual system of family relationships in which claims about religious freedom and religious conceptions of family life surface as reasons to oppose government's regulation of families. Sex equality, we both agree, is a constitutional value relevant to family life. But if religious marriage becomes unanchored by any conception of civil marriage, would claims arise that those who have religious marriages should be exempt from any state laws fostering sex equality in civil unions?

Shanley: 5/18/05, 12:27 PM
Linda, like you I think the question of the public purposes served by state recognition of adult relationships is crucial to our discussion. Two clusters of interests suggest themselves for starters. One concerns the material dimension of civil unions, things like whether one partner has a claim on the income or property of the other. Another concerns recognition of rights and obligations that arise out of the relationship itself, like having the right to visit one's partner in a hospital or prison or to take time away from work under the Family and Medical Leave Act. Since we agree about the value of such "tangible signals of commitment," whether for marriages or civil unions, some readers may think that our disagreement is just about whether "marriage" or "civil union" is the preferable word to refer to the same thing. But I think the choice of words has further implications.

Your reference to Goodridge may help clarify our differences. In explaining its ruling that denying marriage licenses to same-sex couples was unconstitutional, the Goodridge court assumed broad societal agreement about the public purposes marriage serves: among other things marriage ensures "the optimal setting for childrearing," and preserves "scarce State and private financial resources." Rather than inviting further thinking about the structures of marriage and the state's relationship to marriage, the majority opinion suggested that the only thing needed to render marriage a just institution was to allow same-sex couples to marry. Do not misunderstand me—I regard Goodridge as an important civil rights victory, and like you applaud its recognition of "common humanity" regardless of sexual orientation. But although a court can only address the constitutional question before it, Goodridge's ringing endorsement of marriage seemed to shut the door on the very questions I want to open up.

State recognition of adult relationships should serve the goals of stability of expectations, support of the vulnerable, and responsibility for children. Do relationships that serve these ends necessarily involve such things as a sexual relationship, economic interdependence, emotional intimacy, or shared child rearing? Would some non-conjugal relationships (for example a niece and an aunt, or unmarried siblings, or life-long friends) meet the criteria for civil unions? Imagine asking in a public opinion poll "Should three people not engaged in sexual relationships with each other be permitted to marry?" Most people would unreflectively and resoundingly say "No." The imagined configuration stretches the meaning of 'marriage' almost beyond recognition. But if we were to ask the same question with respect to a civil union, more people would be willing to engage in the thought experiment and explain their answers. "No" might still be the response—or it might be yes—but either answer would come accompanied by reasons. Similarly, we could ask whether we want more (or fewer) than two persons to be able to assume parental obligations for a child (in blended families? in families created with third-party genetic material?). And we could ask what kind and level of social or public supports for the caregiving that occurs in families is appropriate.

The change in terminology from civil "marriage" to "civil union" is more than window dressing; it allows us to think anew about the public purposes of state-sanctioned adult relationships without doing violence to people's deeply held beliefs about "marriage."

And people's deeply held beliefs about marriage brings me to your very interesting question, Linda, about how a dual system of religious marriage and civil unions might work, and whether people might claim that their religious beliefs exempted them from state laws. I hope we can talk about that in our next exchange.

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McClain: 5/19/05, 07:59 AM
Should states continue to favor marriage by providing married persons and their children (in the word of Massachusetts's highest court in Goodridge) "a cornucopia of substantial benefits"? Or, as you suggest, Molly, does according marriage this privileged position reflect an uncritical acceptance of the status quo? And, worse, does the continuing use of the term "marriage," instead of "civil union," divert attention from—and stall progress on—a host of challenging questions about whether a broader range of adult relationships also deserve governmental support and recognition?

To address these concerns, let me take what may seem to be a contradictory stance: We should retain the concept of "civil marriage" but also, as it were, move "beyond marriage." Civil marriage, I have contended in earlier exchanges in this debate, serves important public purposes. But government should not use marriage as the sole proxy for family relationships that deserve governmental recognition and support. You are correct, Molly, that the Goodridge court did not have before it the question of whether marriage deserved its privileged place. However, it did note an important move beyond marriage: Massachusetts, it observed, had "responded supportively to the changing realities of the American family" and "moved vigorously to strengthen the modern family in its many variations." In particular, courts and lawmakers had taken steps to permit grandparent visitation, co-parent adoption by same-sex partners, and to allow a non-marital legal relationship between a child and a parent or adult caretaker. One might characterize this as a "marriage plus" approach: The state supports marriage but also recognizes that the category of "family" deserving of state support goes beyond marriage.

Passionate debate takes place over whether any steps "beyond marriage," of the sort mentioned by the Goodridge court, will strengthen or destroy marriage and families. Let's focus here on one possible step beyond marriage: I propose to retain civil marriage but also to develop a registration system that would allow adults in committed relationships to register that relationship and become eligible for various sets of relational rights and responsibilities. Molly, I take it that your concept of "civil unions" is similar. That is, these relationships need not be conjugal: Two adult siblings who have shared their lives together for many years, an aunt and nephew, or two friends who seek to help each other as they both enter into old age might become registered partners. As such, they would qualify for a host of legal and economic benefits and protections. Indeed, these types of relationships are the very sort identified by the Law Commission of Canada, in its proposal to establish a registration system. The Commission concluded that marriage, although a helpful legal framework for certain adult relationships, simply is "no longer a sufficient model to respond to the variety of relationships" in today's society.

No doubt, many questions would arise about the precise details of a registration system. But I contend that retaining civil marriage and developing a registration system is a fruitful path to follow if the goal is to develop a system of family that is better attuned to fostering relational rights and responsibilities in a diverse society. Like civil marriage, registration, too, could contribute to the security and stability of adult relationships. So let me put two questions to you, Molly: Why not adopt this "marriage plus" approach, rather than abolishing marriage? And might not this "marriage plus" approach avoid some of the problems that may arise in a dual system of religious marriage and civil unions, not the least of which would be the appropriate reach of public values relevant to families?

Shanley: 5/19/05, 12:04 PM
You raise two fine questions, Linda. As for the first—why not adopt the "marriage plus" approach rather than abolishing civil marriage?—while you and I agree about the need to move "beyond marriage" we differ in our assessment of the costs and benefits of keeping civil marriage as part of that larger agenda. Since I've already said a fair amount about why I think civil unions are preferable to marriage in spurring fresh thought about the public purposes of committed relationships, I'll turn to your second question about the relationship between civil unions and religious marriage.

Here again the Goodridge decision and its aftermath have influenced my thinking. On the day after the Massachusetts Court handed down its decision, President Bush said that he would bend every effort to defend "the sacred institution of marriage." His statement conflated marriage as a civil status and marriage as a religious or "sacred" institution. Civil marriage, as the Goodridge decision insisted, is a creation of the state, and while government may indeed act to protect the free exercise of religion, civil marriage is not a religious institution. The President was not alone in confusing civil and religious marriage. The fact that current law lets religious figures like ministers act as representatives for the state so that a wedding in a church or temple "counts" for purposes of civil registration feeds the confusion. It would make a lot more sense, in my view, to have people register as partners in a civil union before a county clerk or other civil authority, and then proceed to a religious or other ceremony to express other dimensions of the partners' commitment both to one another and to the ethical community gathered to witness their promises.

We already distinguish between the obligations marriage partners take on vis-a-vis the state and those they assume because of their religious beliefs or membership in a religious community. Many people do not consider themselves truly "married" until their union has been solemnized by a religious minister. Hillel Levin, an Orthodox Jew, recounts how he and his wife went through a civil marriage two weeks prior to their Jewish wedding because the rabbi was not registered to perform marriages in their state: "no Orthodox shul would have accepted us as a married couple; and had our relationship fractured before our religious ceremony, we would not have required a get, the Jewish divorce document, to end our marriage. From the state's perspective, though, we were married." Similarly, a Catholic might obtain a civil divorce that would govern future legal and financial obligations, but not consider herself free to remarry unless she obtained an annulment from church authorities.

Some people worry that distinguishing the civil and religious aspects of marriage would undercut people's sense of the seriousness of the marital commitment; I think the opposite is more likely. Marriage is a source of social validation for people who choose to commit themselves to a shared life, and it infuses personal choice with more than idiosyncratic meaning. Rather than diminish the significance of commitment, if we more clearly distinguish civil and religious or ethical dimensions of partnerships those people who choose a commitment or religious ceremony in addition to registering their civil union will do so as a carefully considered and deeply meaningful act.

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McClain: 5/20/05, 07:53 AM
Molly, I think we disagree on whether the idea of civil marriage has any real weight. Your distinction between civil and religious marriage seems to robs civil marriage of almost any meaningful content. And when you propose to distinguish the "civil" from "religious or ethical" dimensions of adult partnerships, civil marriage becomes an even emptier category. No doubt, religious beliefs shape people's aspirations for their marriages. But I still maintain that civil marriage—even independent of such religious beliefs—conjures up a set of associations about personal commitment, intimacy, family, emotional and economic interdependency, and (when children are part of the household) parenthood. Family law and judicial opinions discussing marriage bear out these dimensions. At least some of these dimensions of civil marriage—commitment, love, mutual responsibility—are "ethical," whether or not they are mirrored in and reinforced by religious understandings of marriage.

Even if people marry in a religious ceremony, this does not mean that religious beliefs motived their marriage. And it does not necessarily follow that the meaning of marriage, for them, derives solely or even primarily from religion. Granted, as your examples suggest, the religious dimensions of marriage may well by crucial for some people. But we all probably know of couples who chose a religious ceremony—rather than a civil ceremony—to satisfy their parents or extended family, or simply because the ritual and drama of a religious service felt more momentous and celebratory than a trip to city hall.

Perhaps parenting offers a helpful analogy. Religions have important teachings about children as a gift from God, the religious significance of family life, and the home as a site for nurturing spiritual growth. But society also has vital public concerns about children's healthy development and future citizenship. Thus, government mandates compulsory education for children. And family law embodies expectations about parental rights and responsibilities, as well as the rights and interests of children.

In the end, perhaps our disagreement comes down to this: You believe replacing civil marriage with civil unions would give a valuable fresh start to thinking about government's interest in committed adult relationships. I believe that something important would be lost in this move. The concept of "civil union" simply does not carry the cultural resonance of marriage. Some people might think this is a strength of your proposal: Civil unions shed marriage's historical baggage of racial exclusion and sex inequality and might better fit the needs of people who are uncomfortable with marriage's religious dimension. On the other hand, I suspect that, if states abolish marriage and offer civil unions, many people will feel that civil unions are a denuded and dessicated institution as compared with marriage. People are just (if you will) too wedded to the concept of marriage to abolish it with hope of any success for this alternative concept.

It is better to work from the existing institution of civil marriage and to bring out, as Goodridge so aptly does, that marriage, from the state's perspective, is a civil institution. Rhetorical appeals to the "sacred" institution of marriage cannot justify the use of religious objections to limit people's access to civil marriage. Such appeals too often carry the day. But Goodridge suggests that it is possible to distinguish civil and religious marriage without abolishing the concept of civil marriage. States should retain marriage, but also move "beyond marriage" to explore forms of domestic partnership that would offer address the needs for stability and security of a wider range of committed adult relationships.

Shanley: 5/20/05, 01:01 PM
Linda, I cannot deny that the idea of civil marriage has real weight. Clearly it does. You hope the present understanding of the institution will evolve to include same-sex conjugal relationships, conferring on them all the weighty cultural resonances currently associated with the term "marriage," and then that marriage will continue to evolve. You find encouragement in the Goodridge decision that this evolution, while perhaps painful and hard-won, will be inevitable. And here is where we differ.

What I see in the wake of Goodridge is not greater openness to same-sex marriage, but a rush by legislators, chisels in hand, scrambling over one another to carve in stone a definition of "marriage" as something possible only between one man and one woman. Public opinion supports civil rights, but not "marriage," for gays and lesbians. Some "progressive" states will adopt civil unions as a parallel system of civil marriage, with civil unions available only to same-sex couples and marriage available only to heterosexual couples. I deplore this dual system. As you point out, when placed beside the richly layered cultural institution of marriage, civil union looks denuded and desiccated, a "second class" option. I agree with the Goodridge court that "The history of our nation has demonstrated that separate is seldom, if ever, equal."

I think that my proposal to replace civil marriage by a system of universal civil unions is the most likely reform to lead to a just result. Suppose we could establish the situation I propose. Any couple desiring state recognition of their union and the benefits accompanying that recognition (taxation, inheritance, parental rights, family support, and so forth), and willing to assume the concurrent responsibilities (such as child and partner support), would have to enter into the only institution available that confers those rights and responsibilities, a civil union. It would then be much more difficult to deny this status, stripped of cultural resonances (both good and bad), to any adult couple. Who can enter a civil union? The question is now clearly seen as one of justice and fundamental equality among citizens.

I see no reason to think that universal civil unions will sap committed adult relationships of their meaning. Let the state have its moment; let it enable people to assume and carry out obligations of mutual sustenance and support, and let it work out what consequences or obligations remain (to partners and to children) in the event the relationship ends. Beyond that, let people define and express the meaning of their commitment, as they do now, in a myriad expressions of commitment, intimacy, love and mutual responsibility that go beyond their legal duties to one another.

I do have a practical concern with my proposal: Advocating universal civil unions in place of civil marriage may feed the conservative outcry that supporters of same-sex unions are out to destroy the institution of marriage, a patently absurd, but rhetorically powerful, charge. The question "Should we abolish marriage?" focuses attention on the wrong thing. Better to ask, "Do universal civil unions serve the ends of justice?" The answer is "yes." At the end of the day, I think what you and I most care about is how best to replace privilege with inclusiveness, denigration with respect, and—most crucially—inequality with equality under the law.

McClain: 5/20/05, 10:14 PM
Molly, both of our proposed paths to reform—universal civil unions or opening up marriage and developing a registered partnership system—seek to foster justice and equality. How politically feasible is either path? Opening up marriage, you correctly observe, faces resistance. Goodridge's historic decision to extend marriage to same-sex couples in Massachusetts launched an outcry among conservatives that featured in the 2004 presidential election and shows little sign of abating. States that already have "defense of marriage laws" barring same-sex marriage are passing amendments putting such restrictions right into their constitutions. Some of these laws even bar states from recognizing any form of domestic (or civil) union between same-sex or even opposite-sex couples.

Some commentators conclude that this furor would not have ensued if Massachusetts's court had followed the path of the Vermont Supreme Court, in Baker v. State, ordering that same-sex couples be entitled to all the benefits and protections of marriage but leaving the remedy to the legislature. But, as you point out, the Vermont solution—marriage for opposite-sex couples and civil unions for same-sex couples—smacks of separate but (un)equal. Nonetheless, the Vermont path may be followed by more states than the Massachusetts one. Perhaps because of political realities, even some prominent proponents of equal rights for gay men and lesbians view civil unions, even though not ideal, as a necessary interim step toward full marriage equality.

The puzzle of the strong resistance to same-sex marriage involves citizens wrestling with contradictory impulses: "protecting" marriage against a perceived threat but recognizing that gay men and lesbians need and deserve some measure of equal protection and respect for their intimate lives. Consider California. On the one hand, California has its own version of a "defense of marriage law." On the other hand, California's recent domestic partnership law now accords same-sex couples in California almost all the benefits and obligations of marriage. The path to this robust domestic partnership law was one of incremental steps over a number of years, each one gradually expanding the set of rights and responsibilities of domestic partners. At the same time, lawmakers who championed this expanded law recognize that it is not marriage, but may be as much protection as is possible at the current time.

Will Massachusetts continue to stand alone? A number of lawsuits challenging state marriage laws are working their way through state courts (for example, in New Jersey and New York). Perhaps in those litigations, courts—similar to those in Vermont and Massachusetts—will carefully and critically reflect on the state's interest in civil marriage in contemporary society. Only such reflection can move beyond empty incantations of protecting "traditional marriage." And perhaps, as recent news items report, living with same-sex marriage in Massachusetts will begin to persuade citizens that marriage will not be destroyed. Or perhaps when the U.S. Supreme Court eventually faces the question, it may—appealing to language in Lawrence v. Texas about respect for the dignity of the intimate lives of gay men and lesbians—conclude that the federal constitution will not support denying access to civil marriage to same-sex couples.

Are universal civil unions more feasible? As you note, "advocating universal civil unions in place of civil marriage may feed the conservative outcry that advocates of same-sex unions are out to destroy the institution of marriage." I certainly agree. Indeed, perhaps one reason for the otherwise puzzling fact that some conservative opponents of same-sex marriage, including some who champion a federal marriage amendment barring same-sex marriage, do support civil unions—or at least recognize a state's right to enact a civil union law—is that they do not perceive that this will destroy marriage. On my view, it is rhetorically more powerful to call for inclusion and extending to gay men and lesbians the status of equal citizenship than to call for a reform that will seem to take away marriage rights and, as it were, "lower" the much-vaunted status of marriage.

Molly, a final thought: Our debate has dwelled especially on how best to address one form of inequity: the denial of the right of marry to same-sex couples. But we have also agreed that there are other committed adult relationships that warrant governmental recognition and support—whether it be through the idea of "civil unions" or domestic partnerships. I hope that family law and policy will move in this direction.

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