Option four: a compromise on gay marriage

But what if our pollster added a fourth option (in addition to same-sex marriage, civil unions, and nothing)? I imagine that if the public were granted an option that allowed gay couples to receive benefits without according legal standing to their relationships, the option would draw support from each of the other three camps. It might well become the plurality option.

That plurality would, I imagine, include President Bush, if a pollster called him. Right before the elections, Charles Gibson of ABC asked Bush, "[H]ow can we deny [homosexuals] rights in any way to a civil union that would allow, give them the same economic rights or health rights or other things?" Bush responded, " don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do ..." Gibson interjected that the Republican-party platform "opposes it" (i.e., civil unions). Bush came back with, "Well, I don't. I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others."

The remarks generated a lot of controversy, with some social conservatives convinced that Bush had betrayed them and pundits of all political persuasions convinced that Bush had made a last-minute campaign U-turn. The weekend after the election, Karl Rove offered his own gloss on Bush's position for Fox News: "He believes that there are ways that states can deal with some of the issues that have been raised, for example, visitation rights in hospitals or the right to inherit or benefit rights, property rights. But these can all be dealt with at the state level without overturning the definition of marriage as being between a man and a woman."

Keep in mind, when reading Bush's words, that the phrase "civil unions" has no determinate legal meaning. A state could offer various benefits to homosexual couples, heterosexual couples, and roommates with no sexual relationship, all under the rubric of "civil unions." With that understanding in mind, Bush's and Rove's remarks are entirely consistent with support for the kind of approach I am advocating. (They may also be consistent with the Republican platform.)

This approach would leave several important issues unsettled. Many people will continue to believe strongly that the law ought to recognize same-sex relationships the same way it recognizes traditional ones, and many people will continue to object strongly. No reconfiguration of benefits is going to end that debate. Liberals will be exasperated with conservatives: If they are willing to grant gay couples benefits, they will ask, why are they so stubborn about the merely symbolic question of legal recognition? Conservatives will have the mirror-image exasperation: If gays have almost every tangible benefit they want, why should they seek legal recognition too?