ACSBlog: The Blog of the American Constitution Society

by Geoffrey R. Stone, the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago is the author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W. W. Norton 2004) and a member of the ACS Board of Directors.

On Wednesday, March 21, the Human Services Committee of the Illinois House of Representatives will hold hearings on proposed Illinois House Bill 1826, which would legalize civil unions in Illinois. I strongly support this bill.

A central theme of American history has been our willingness to reexamine our preconceptions. As Justice Oliver Wendell Holmes once observed, “time has upset many fighting faiths.” Our tradition of reevaluating and reconsidering our conventions and beliefs, particularly when they may cut against individual dignity and freedom, is at the very core of the American character. It is through this process of open-minded, self-critical, and rigorous questioning that we have discerned our most fundamental truths.

A Justice of the Supreme Court once described the attitude of the founding generation toward African-Americans. Americans of the 18th century, he said, regarded African-Americans “as beings of an inferior order, and altogether unfit to associate with the white race.” The generation that drafted the Declaration of Independence generally accepted “that the negro might justly and lawfully be reduced to slavery for his benefit,” and this “opinion was at that time” almost “universal in the civilized portion of the white race.”

On another occasion, another Justice of the Supreme Court described the prevailing 19th-century attitude toward women: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. . . . This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things.”

Over the years, we have come deeply to regret and to reject such beliefs. We fought a terrible Civil War; bore witness to lynching, Jim Crow and racial segregation; reflected on the words and deeds of Susan B. Anthony, Rosa Parks, and Martin Luther King; and gradually worked our way through to a truer understanding of the American spirit. It took insight and no small amount of courage us to see beyond our most deeply-rooted cultural assumptions to forge new visions of freedom, equality, and justice without regard to race, religion, ethnic origin, gender, or disability.

We now stand on the verge of a similar transformation with regard to sexual orientation. All social transformations are challenging. We are currently in the process of reconceptualizing our individual, social, and political attitudes about matters that once seemed as self-evident to us as the racial inferiority of blacks seemed to 18th century Americans and the divine “functions of womanhood” seemed to Americans in the 19th century.

As the columnist George Will recently observed, most young Americans now see an individual’s sexual orientation as no more legally or morally relevant than whether one is left- or right-handed. Moreover, every national poll now shows that a substantial majority of Americans support civil unions. House Bill 1826 is the right proposal at the right time. It strikes a sensible balance between our national commitment to individual dignity, liberty, and equality, on the one hand, and our traditional respect for religious belief, on the other.

House Bill 1826 will not please everyone. Some people will object that the bill goes too far because it legitimates “immoral” relationships that are condemned by Scripture. Others will object that it does not go far enough because it fails to allow same-sex couples to marry and thus perpetuates “immoral” discrimination against individuals for no reason other than their sexual orientation.

House Bill 1826 is sound legislation precisely because it does not let the perfect be the enemy of the good. In a well-functioning democracy, individuals must strive to see the world through the eyes of others. We must seek common ground with those who see the world differently. We must find ways to preserve our own sense of fairness and justice while respecting the divergent views of others. House Bill 1826 exemplifies the spirit of principled compromise.

On the one hand, the bill fully respects the views of those who sincerely believe that “marriage” must be a relationship between a man and a woman and makes clear that religious denominations that oppose civil unions are not in any way required to recognize or solemnize such relationships. On the other hand, the bill grants same-sex couples who want to commit to long-term, stable relationships the same basic legal rights and responsibilities that Illinois law now grants to opposite-sex couples. This includes such fundamental matters as medical decision making, joint ownership of property, pension rights, worker’s compensation, health insurance, inheritance, domestic violence, and the care and protection of children.

The extension of such rights and responsibilities to committed same-sex couples is not only right as a matter of simple justice and human decency, it is also sound public policy. Ending racial segregation, granting women the right to vote, and prohibiting discrimination on the basis of race, religion, gender, ethnic origin, and disability were not only morally right, but also created a stronger, more efficient, more productive, and more stable nation. The same is true of House Bill 1826. Strengthening the stability of families is, quite simply, good public policy.

The more difficult issue is that House Bill 1826 leaves same-sex couples in a position of second-class citizenship. Civil unions are not recognized as the legal equivalent of marriage for purposes of federal law and most states do not recognize the validity of civil unions even when they are lawful in the state in which they were created. This creates many complex uncertainties, but it is not within the power of Illinois to address those injustices. What Illinois can do is to treat its own citizens with respect.

The other objection to House Bill 1826 is, of course, that it denies same-sex couples the dignity of the word “marriage.” It is easy to dismiss this as merely symbolic. But symbols matter. If African-American or Jewish couples were relegated to “civil unions” and could not legally call their unions “marriage,” we would readily see the insult and injustice. “A rose by any other name” has its limits. Nonetheless, this is a period of transition, and transition demands compromise. What matters most at the moment is that Illinois extend to same-sex couples the basic legal rights and responsibilities it grants opposite-sex couples. And this House Bill 1826 achieves.

It is time for us, in Lincoln’s words, to reach for “the better angels of our nature.” As with our predecessors who wrestled with the issues of racial and gender injustice, our response to the issue of sexual orientation will be judged by later generations. Let us make them proud.