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Friday, May 18, 2007

Marriage, Yet Again

GayPatriotWest has a thoughtful post on same-sex marriage. While his arguments make some sense, I think they're founded on some wrong assumptions and he misreads some crucial parts of the dialogue.

Too often, I have said, gay marriage advocates focus on marriage as a right whereas most people see marriage as a social institution with certain benefits as well as certain responsibilities. It seems that all too many of these advocates don’t understand (as do Rauch and Carpenter — and a number of others) what this institution entails. Witness, for example, the comments of Bennett Klein arguing before the Connecticut Supreme Court that that state violates the constitutional rights of eight gay couples by refusing to grant them marriage licenses. He claimed that “the fundamental principles of marriage are not based on gender.“

I see some confusion here between several different faces of "marriage" as a concept. (I should note that I don't think this confusion is specific to GPW; I think it's part of the general discourse, and I think the confusion has been aided and abetted, when not created, by those who oppose same-sex marriage.) I don't think anyone's denying the role of marriage as a foundational element of Western society. The very first sentence of the opinion in Goodridge says "Marriage is a vital social institution," and the opinion goes on to state later, "a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions." This is something that permeates the opinion (and is notably lacking in the opinions from New York [Hernandez v. Robles] and Washington [Andersen v. King County], which are somewhat tortured to begin with).

In terms of the "equal rights" aspect of this whole question, the Goodridge opinion again offers a solid insight:

In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31 (2002) ("Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise"); Smith v. Smith, 171 Mass. 404, 409 (1898) (on marriage, the parties "assume[ ] new relations to each other and to the State"). See also French v. McAnarney, 290 Mass. 544, 546 (1935). While only the parties can mutually assent to marriage, the terms of the marriage--who may marry and what obligations, benefits, and liabilities attach to civil marriage--are set by the Commonwealth. Conversely, while only the parties can agree to end the marriage (absent the death of one of them or a marriage void ab initio), the Commonwealth defines the exit terms. See G.L. c. 208.

It appears to me that the confusion arises from the conflation of marriage as a social institution and marriage as a legal status. I've remarked before that the whole question of rights and responsibilities, although it may seem a truncation of the issue, is necessary because at law, that's what we've got to work with. If we are going to press for changes that bring wider social equity, we have to focus on the particulars, which means simply that the debate becomes centered on the "rights" that have accreted to the legal status of "married." In other words, marriage as a social institution is not quantifiable, and if you're going to court, you need discrete, quantifiable arguments -- rights and obligations, in this case.

Goodridge once again proves illuminating on this question:

Without question, civil marriage enhances the "welfare of the community." It is a "social institution of the highest importance." French v. McAnarney, supra. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data.

Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. "It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition.

Tangible as well as intangible benefits flow from marriage. The marriage license grants valuable property rights to those who meet the entry requirements, and who agree to what might otherwise be a burdensome degree of government regulation of their activities. [FN13] See Leduc v. Commonwealth, 421 Mass. 433, 435 (1995), cert. denied, 519 U.S. 827 (1996) ( "The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications"). The Legislature has conferred on "each party [in a civil marriage] substantial rights concerning the assets of the other which unmarried cohabitants do not have." Wilcox v. Trautz, 427 Mass. 326, 334 (1998). See Collins v. Guggenheim, 417 Mass. 615, 618 (1994) (rejecting claim for equitable distribution of property where plaintiff cohabited with but did not marry defendant); Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142 (1987) (government interest in promoting marriage would be "subverted" by recognition of "a right to recover for loss of consortium by a person who has not accepted the correlative responsibilities of marriage"); Davis v. Misiano, 373 Mass. 261, 263 (1977) (unmarried partners not entitled to rights of separate support or alimony). See generally Attorney Gen. v. Desilets, 418 Mass. 316, 327-328 & nn. 10, 11 (1994).

The Massachusetts court recognized and stated quite clearly the dual nature of this question. The focus on "rights," particularly the thousand-plus perks that heterosexual couples get from the federal government when they marry, has served as a basis on which to argue cases at law (it's that old combination of "harm" and "remedy" again), but in the wider discourse it has only obscured the real issue. If you're going to go to court, you have to have something tangible to hang a case on; that's basic. The court, if it is willing, may go on from there to address the intangibles, as the Massachusetts court did.

GayPatriotWest goes on to say:

Obviously this attorney has not spent much time the long history of marriage. Wherever there has been marriage, the institution has served to bring together individuals of differing genders. To be sure, some cultures have allowed same-sex unions, but they either called them something different than marriage or, as, when they were called marriage, as in the case of the so-called “berdache” tradition of Native American Indians, an individual had to live as a member of the opposite sex in order to marry someone of the same-sex. (In some cases, that individual didn’t have a choice in the matter.)

If Mr. Klein wants to understand those fundamental principles of marriage which he defined inaccurately before the highest court in the Nutmeg State, he should start studying the traditions of marriage from any number of cultures. As he begins his study, he will see how fundamental a role gender difference played in every culture’s understanding of the institution — even in the marriage ceremony itself. He could begin by reading the Chapter on “Betrothal and Marriage” in Arnold van Gennep’s classic work, The Rites of Passage.

Basing an argument on the history of marriage is a very dangerous thing to do. On the one hand, marriage has been redefined throughout its history. It has been a political alliance between nations, an economic arrangement between families, a way to insure inheritance of the father's (or, in some cultures, the mother's) property. (My standard response to those who rail on about "traditional marriage" has become simply: "Did your father-in-law accept sheep as the bride price, or did he insist on cattle?" Don't forget that until the mid-nineteenth century, wives and children were property.) The "fundamental princples" argument is also pretty hollow. At the present time, the argument that adding same-sex couples to the possible combinations of participants is going to "redefine" marriage misses quite seriously. Marriage has been redefined quite effectively in the past half-century as a contract between two willing participants who have made a commitment to mutual support, emotional, legal, economic and social. Economic dependence, for example, has become economic interdependence, which is quite a different thing. (I know too many couples in which the wife has made as much or more than the husband, which leaves some interesting issues in regard to who pays alimony in the event of a divorce.) Adding same-sex couples to that doesn't change anything. The game is the same, it's now a question of who gets to play. One overarching tradition in this country is to invite more people to participate. That's what the same-sex marriage debate is about.

(A loop here: GayPatriotWest says that Bennett Klein, who recently argued the Conncecticut marriage case for the plaintiffs, defined the "fundamental principles of marriage" inaccurately. Following the link he provides, Klein is quoted as saying, "What is denied to these families is something that goes to the heart of equal protection, which is the right to be part of the fabric of society when they are just the same as other couples and other families," which leads right back to the misperception that the debate has been about rights. Klein makes the point that exclusion of same-sex couples from marriage denies them full participation in society. Unless GPW is using sources he's not citing, first off, Klein didn't define the fundamental principles of marriage; second, his characterization of the issue is, as far as I can tell, right on the mark.)

This paragraph from GPW's post left me scratching my head:

Even I have my doubts, based largely on my studies of religion, mythology, psychology and cultural anthropology. There is a difference between the genders which extends beyond biological differences, a difference which cultures and religions recognize in their rituals and legends. If we are to change the definition of marriage to include same-sex couples, then, instead of sweeping the gender distinction aspect under the rug as Mr. Klein is attempting, we need to confront it directly. We need to explain how a union between two individuals of the same gender can effect the same kind of transformation effected by a marriage between individuals of different genders.

I don't see the point of this. I willingly grant that there are differences between the sexes that go far beyond mere plumbing. I suspect that many of those differences are much more influenced by culture than we realize, but I am open to the idea that many of them are innate. What I don't see is what that particular question has to do with civil marriage. We've already demonstrated that two people of the same sex can form long-term, stable, solid romantic relationships -- with children -- that in everything but name are marriages, in spite of the deck being stacked against them. At that point, differences between the sexes, at least in the discussion of marriage as a social institution, become irrelevant.

As I said, it's a good, thoughtful post. I think he's mistaken on a number of things, but there's certainly enough there to chew on.

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