Gay Marriage: The Third Option

When the New Jersey Supreme Court ruled in October 2006 that gay and lesbian couples must be guaranteed the same rights and benefits as heterosexual couples, the legislature saw only two possibilities: establishing civil unions or legalizing same-sex marriages. They chose the first alternative without considering a possible third option: civil unions for all couples and no marriages performed by the state.

A formal definition of marriage clarifies the logic of this option. According to the American Heritage Dictionary, marriage is “the legal union of a man and a woman as husband and wife.” Ignoring for the moment the last part of the definition, this means that a marriage is a “legal union” when a man and a woman secure a license—that is, the state’s permission—to participate in a ceremony conducted by an agent of the state (typically an ordained member of the clergy, a judge, or simply any person so empowered) who pronounces them husband and wife. Legally speaking, then, marriage is a civil contract between a man and a woman sanctioned by the state, which thereby grants certain rights, privileges, and responsibilities to the couple.

A New York Times story reported that, under New Jersey’s civil-union law, homosexual couples are to be “treated like married couples” by employers and such entities as hospitals and insurance companies. “The legislation spells out the benefits, such as family leave and full adoption rights, the right to change a surname without a court petition, workers compensation benefits, and protection under the laws governing health benefits and pensions.” In short, from a purely legal perspective there is, with one exception, no difference between legal marriage and the civil union of a gay or lesbian couple. The exception is that the latter cannot claim to be “married.”

If only the state can create the “legal union” commonly called “marriage,” the third option becomes obvious: a law that requires all couples, homosexual and heterosexual, who wish to possess all the rights and privileges heretofore enjoyed only by heterosexual couples, to receive a license and then certification of a legal union from the state. That law, like New Jersey’s civil-union law, would, of course, include the rights and privileges the certification guarantees. Once the document certifying the legal union is issued, no further ceremony is needed for the couple to possess the same legal rights as today’s married couples.

If adopted, the option would have certain immediate advantages for politicians as well as for homosexual couples. It would allow legislatures to finesse the marriage issue; because the state is merely passing a law sanctioning a civil contract between two individuals, there would be no need to even raise the question of same-sex marriage. Gays and lesbians could not claim, as some do today, that they are being treated unequally because the...