The Massachusetts Supreme Court got one thing right. They said, "In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State." The battle for same-sex marriage is a battle to obtain government approval of homosexual relationships.
I completely agree with the conservatives in Congress and in pro-family organizations that we must amend the Constitution if we want to save our culture. Proposals for nonconstitutional solutions simply will not work.
As much as I want to stop same-sex marriage, I actually believe we would be in worse shape if the currently proposed Musgrave Federal Marriage Amendment were ratified.
The Musgrave FMA bans same-sex marriage but allows state legislatures to create civil unions if they choose to do so. To understand this, we need to understand the legal definition of civil unions.
Only Vermont and California have created these relationships. Same-sex couples must get a license from the state to enter the relationship. The couples become "legal spouses" for all legal purposes. Civil unions are not merely about pension rights or insurance. Civil-union couples have 100 percent of the legal rights of marriage.
The Musgrave FMA would be like a constitutional ban on abortion that still allows the states to sanction "termination of pregnancy." We need to protect the substance of marriage, not merely the word marriage.
Conservative leaders both inside and outside of Congress have urged pro-family voters to tell Congress to pass the Musgrave FMA. It is simply not fair to grassroots activists to fail to explain that the FMA allows civil unions.
There is no principled basis for passing a constitutional amendment banning same-sex marriage while reserving civil unions to the states. Civil unions are nothing more than a definitional trick to allow politicians to be both pro-marriage and pro-gay at the same time. There is only one reason that any conservative supports Musgrave: Politicians say that Musgrave's version is all that can pass.
There is a place for political pragmatism. But, if we are going to be pragmatic, we need to see what the American public wants, not merely what is popular on Capitol Hill.
What does the public think about civil unions and the Musgrave approach?
The key to accurate polling is a proper definition of civil unions. A Washington Post poll defines civil unions as giving same-sex couples "the legal rights of married couples in areas such as health insurance, inheritance, and pension coverage." Asked this way, 51 percent of the public supports civil unions.
However, a Feb. 5, 2004, news story in the Post had a more accurate definition. Civil unions grant "all the protections, benefits, and obligations of civil marriage," the Post said, citing Vermont law.
An independent professional poll asked if voters favored civil unions with this definition: "A civil union shall have all the same benefits, protections, and responsibilities under Vermont law as are granted to spouses in a marriage." This is far closer to the Washington Post news story than the Post's own poll. And it is legally accurate.
Asked this way, the public splits 32 percent to 59 percent against civil unions.
Reading the two polls together, about 51 percent of the public appears ready to grant some benefits to homosexual couples. But almost 60 percent oppose civil unions when accurately described.
Voters split 29 percent to 67 percent against same-sex marriage. Voters are sensible. When they are given accurate definitions of civil unions, they see no real difference.
Voters apply the same common sense to the Musgrave FMA. When voters are asked if they would favor a constitutional amendment that would "ban same-sex marriages, and would prevent judges from granting same-sex couples the same rights that married couples have, but it would still allow state legislatures to establish civil unions if they want to," the public strongly rejects this approach. Voters split 37 percent to 56 percent against Musgrave. Born-again Christians reject Musgrave 31 percent to 62 percent. Republican voters split 44 percent to 51 percent against Musgrave. Blacks are 31 percent to 58 percent against Musgrave. Voters who support the idea of amending the Constitution to save marriage are 38 percent to 54 percent against Musgrave. There is not a single demographic group in the nation that gives Musgrave majority approval.
The only constitutional approach that will rally the public is a constitutional amendment that bans both same-sex marriage and civil unions. The general public is 49 percent to 45 percent in favor of this idea. However, in key constituency groups the spread is strongly favorable: born-again Christians (65 percent/30 percent), blacks (52 percent/41 percent), Republicans (69 percent/29 percent), and voters who support the concept of amending the Constitution (71 percent/24 percent).
The Musgrave FMA cannot possibly pass. As people are informed of its meaning, those most inclined to support an amendment will be the most alienated.
But let's assume that a miracle happens and Musgrave is ratified. What happens then?
States will face incredible pressure to enact civil unions. Same-sex couples will be made spouses in more and more states. They will have 100 percent of the legal rights of marriage. The grassroots that worked so hard to save marriage will ask, "Why did we do all of this work? We didn't save marriage."
If we urge citizens to save marriage, we need to be pushing a plan that saves marriage, not merely redefines it. No one will ever trust us again if we fail to get this one right.
-Mr. Farris is president of the Home School Legal Defense Association