Tuesday, June 24, 2008

Marriage, it's time to rethink the whole damn thing (updated)

I've been giving the same-sex marriage issue a lot of thought lately.

If it hasn't come up in your state yet, it will. Sooner or later, some group of do-gooders is going to take up the flag and start raising hell about it.

While I'm a big fan of states rights, and believe that in most cases less federal government is good - I don't think that this is an issue that can be left up to the states. I don't see how we can legalize same sex marriages in one state and not allow it in others. I think life, liberty, and the pursuit of happiness is the the birthright of all Americans, regardless of which state they live in and I can see a number of issues with the piecemeal application of citizens rights. For example, take a legally married gay couple living in California or Massachusetts. Say one or even both of them work for a large company with offices across the country. A promotion opportunity comes up that involves transfer to another state, one that doesn't recognize same-sex marriage. Do they take the opportunity? Would you? Why should any American's options for life, liberty, and happiness be limited simply because their potential neighbors don't approve of their choice of marriage partners? An American's rights shouldn't change simply because they change their state of residence, just as an American shouldn't be free in one state and a slave in another. This is a national issue, not a state issue.

As I said in yesterday's post, the only legitimate reason for limiting the rights of a specific group is a demonstrated danger to the nation as a whole or to individual citizens. For example, we do not allow the members of the North American Man/Boy Love Association to pursue their noxious fetish, because it can be conclusively demonstrated that in most cases they are pedophiles and a serious danger to children. We don't allow people to build atomic bombs in their back yard, or yell "Fire!" in a crowded theater, or carry explosives onto public transportation because those things can be conclusively demonstrated to be a danger to the public. We do not allow white supremacists to own people of color. We do not allow male chauvinists to prevent women from voting. All of these people are allowed to believe as they will, no matter how idiotic, but they are not allowed to act on their beliefs because those actions are a demonstrated danger to others.

However, I have yet to hear or have demonstrated how same-sex marriage between two consenting adults is in any way whatsoever a danger to the public at large, or even to any single individual.

Now, individuals and organizations are making the claim that same-sex marriage is somehow a threat to the traditional one man, one woman marriage. How? Specifically how? What data do they have? What long-term, verified, double-blind, validated science do they have? Note: I will not accept the Bible, the Koran, the Torah, or any other religious text as an argument. Period. Just as I will not accept any religious text as an argument of why it's OK for religious Americans to sell their daughters into slavery or stone adulterers to death in the church courtyard, or burn suspected witches in the public square. Show me solid evidence of how same-sex marriage harms America or denies heterosexual couples their rights, put it on the table and leave the religion out of it, and I'll listen.


OK. Now, here's the rest of it. Religious people have the absolute right to believe as they will. Their beliefs are protected under the Constitution. Churches have the right not to marry individuals they don't approve of, within the confines of their own sanctuaries. The Catholic Church, for example, has the right not to perform marriages between Catholics and non-Catholics. They have the right to require non-Catholics to convert to their belief system in order to enjoy the rights and sacraments of the church. And they have the absolute right not to marry same-sex couples. Forcing the Catholic Church to marry non-Catholics or gays is just as wrong as denying gay people and non-Catholics their rights. But the church doesn't have the right to impose their requirements on anybody who is not voluntarily a member of their belief system. The Boy Scouts have the right to exclude atheists, I don't like it but it is their right to determine the make up of their own organization.

So, the question is: How do we guarantee the rights of gay people to marry and pursue the so-called American dream, and still acknowledge the rights of religious peoples and organizations to believe as they will?

Our own history provides solid data on how not to solve the problem of rights:

- Denying one group of people their rights, in order to maintain the beliefs of others does not work, i.e. straight people can marry and enjoy the economic and social benefits of their legal bond, gays can't. This is no different than saying white southerners are full citizens, and black southerners are only half citizens. Don't think this ever happened? It did. Do some research into voting rights in the period after the US Civil War.

- Separate but equal does not work, i.e. marriage for straights, 'civil unions' for gays. Separate but equal has never worked, and never will, because it's really not equal, is it? If separate but equal was an equitable situation, there would be no need for the word 'separate.'

So, what do we do?

It's simple really, we get the state out of the marriage business altogether.

1) We make a specific separation between 'Marriage' and 'Civil Union.'

- We define marriage as a spiritual and/or romantic pair bond between human beings. Formal marriage is an acknowledgement of that bond. You can get married however the hell you like, according to the strict custom of your people, or just by making it up as you go along. While you may need permission from your particular God, or a guy in a funny hat, or your folks, or your friends, or etcetera - you don't need permission from the state. You may have to perform rituals and jump through hoops in order to meet the requirements necessary to get married in you church of choice, just as you may need to meet certain regulations in order to get married in your local community park (usually you have to pay a fee, promise to keep the noise down, clean up afterward, and keep your drunken uncle out of the bushes). Whatever, it's your wedding, do whatever trips your particular trigger. And if you want to dissolve your marriage, you do it in accordance with your belief system, it could be as complex as having to get permission from a guy in a funny hat, or as simple as just walking away. Now, here's the kicker, while marriage confers all the rights and privileges of your belief system, it confers no legal rights whatsoever. Period.

- Legal rights are defined by formal contract, i.e. Civil Union. That's where the state comes in. You pay a filing fee. You get a Civil Contract and declare whothehellever as your designated Civil Partner. Here's the cool part, you can declare anybody as your Civil Partner. You can declare only one person as your designated partner. While it would normally be the person you are 'married' to, it doesn't necessarily have to be. In fact, you don't have to be 'married' at all. Civil Unions can be between a man and woman, or between two members of the same sex - regardless of whether they are gay or straight. That's right, you could enter into a Civil Union with your roommate, friend, or who the hell ever. Civil Unions confer all the legal rights of the pair bond, i.e. insurance, housing, taxes, survivor benefits, child custody, inheritance, and etc. Think about it for a minute, you have a good job with benefits, your roommate has a job but doesn't have healthcare. You're both male, single, heterosexual and chase girls together. He's your best friend. You can declare an open ended civil contract and extend your benefits to him. Of course there's a fee, just as there is a fee for your spouse and children currently. Other advantages? Both of you have legal rights in regard to the other, you get hit by a bus and end up in a coma, he has the legal right to be your advocate - or not, specify what you want in the contract, with a default setting of "Unless Specified as .... ." There is no reason why a Civil Union has to be any more complicated than a basic Power of Attorney. You have a basic boiler plate that anybody can do for themselves, or you can get a lawyer and make it as complex and specific as you need it to be. One size doesn't fit all, tailor the legal instrument to whatever best suits your own individual needs at the moment. Later, when you find the right girl, you can dissolve your contract with your friend and transfers it to her - or not. The best part about the contractual civil union is that it places the power directly into the hands of each individual and takes it away from the state and the mob, which is exactly what our founders intended.

2) Marriage is between you, your spouse, and your God, church, coven, or Dungeon Master. Civil Union is between you, your partner, and the state. Your church may require you to have a declaration of Civil Union before they will consent to marry you, exactly the same as today. Don't like it? Find a different church, or suck it up, that's up to you.

3) Civil contracts can be required by law in the case of children, wealth, property, etcetera. They could be amended or modified as easily as any legal contract. Standard clauses could be inserted regarding disposition of property, children, and friends in the event of dissolution, making pre-nuptial agreements unnecessary and massively simplifying and streamlining custody hearings and 'divorce' proceedings, inheritance, and all the other crap currently clogging up our legal system.

4) Everybody gets the same deal. Everybody's rights and beliefs are protected.

For most people, nothing would change. They would live their lives and marriages exactly as they do now. But for many, including traditionalists, it would open possibilities that simply don't exist now.

Will it happen? No. No it will not. Instead we'll open yet another divisive debate here in America. We'll draw out battle lines, and declare yet another 'War' on the forces of evil. We'll scream and yell and protest. We'll hold votes and go to the Supreme Court. We'll pray. We'll march. We'll hold candlelight vigils, or break out the torches and pitchforks. We'll do all of these things and more.

And we'll get nowhere.


  1. Well said. My own thinking has followed similar lines over the past few years. Let the State get out of the marriage business altogether.

    Defining a broad category of civil unions solves the problem I was pondering of what to do about the kids (or the house, or the record collection). Well done.

  2. Amen, neighbor.

    That would be a completely secular "Amen", btw.

  3. Wouldn't the Full Faith and Credit clause of the Constitution (Article IV - "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State" and "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States") require that other states accept the gay marriages in California as valid? That's the way I read it.

  4. Why yes, I bother to know something about our Constitution. Too bad so many of our politicians don't.

  5. Jim Wright for President.



  6. Vince, yeah, that's the way I understand Art IV too, however there has been a major push from the 'heartland' to 'interpret' Art IV differently - say, OK, we recognize your queer, uh, quote marriage unquote, BUT here OklaKansaBraska we call that 'Domestic Partnership' and while you may be allowed some benefits, you'll have to go our supreme court and spend a shitload of money in order to get the recognition we give to 'normal' folks.

    Doc, they don't have a woodshop in the White House, so no deal.

  7. Vince: 'fraid not, actually. (Well, sort of: I'll come back to that.) It's generally accepted that States do not have to give full faith and credit to laws that violate the State's public interest. E.g. in the case of marriage, if one state recognizes the age of marriage as 12, or recognizes marriages between first cousins, other states are not obligated to honor the marriage if it violates their laws against pedophilia or incest.

    My favorite legal textbook casenote ever stems from one of those cases, a 1953 New York case called In re May's estate, 205 N.Y. 486, 114 N.E.2d 4, if you're interested (the occasion of this comment caused me to pull the book off my shelf after a decade in which I didn't touch it except to move it). In May, a court was asked to settle the estate of a Jewish husband and wife who also happened to be uncle and niece. Unable to legally marry in New York, they went to Rhode Island, a state which recognized such marriages between persons of the Jewish faith if permitted by Rabbinical law and performed by a Rabbi pursuant to such custom, etc. The couple then returned to New York, their state of residence, and tried to live happily ever after.

    Except after several decades of apparently happy marriage and the raising of a brood of kids, the wife passed away. At this point, some kind of rift between three of the couple's six children and their father became apparent: these children sued to invalidate their own parents' marriage, thereby negating their father's claim to his wife's estate. The New York court voided the marriage as incestuous.

    A comment/question in the textbook (Conflict Of Laws, ed. by Lea Brilmayer) notes, my all-time favorite note, read:

    (7) Weren't the petitioners in the May case, who were trying to have their own parents' marriage declared invalid, a bunch of bastards even if they lost?

    Yes. Yes, they were.

    The really crucial thing about all this is that this isn't anything new or novel: probably any lawyer who took a ConLaw or Conflicts Of Laws case knows it--the principle is so basic that the textbook I'm referring to covers it around page 41 (out of 992, including index); so any lawyer, at least, who has gone on and on about how recognition of gay marriages in Massachusetts or California would open the floodgates has simply been disingenuous. If another state can find that recognizing a gay marriage is against the public interest, they can decline to do so: therefore what the anti-gay-marriage lawyers are really admitting is that they don't believe such a finding by a state court will survive Constitutional scrutiny by the SCOTUS. In other words, the "every state will have to recognize this" is at best a red herring (they won't have to) and at worst an admission that the whole thing is about bigotry (that is, the states won't have to unless homosexuality is a protected class such as race--c.f. Loving).

  8. Eric, many thanks for a highly educational reply. Seriously, I learned something significant and that doesn't happen to me every day. I very much appreciate it.

    ...they don't believe such a finding by a state court will survive Constitutional scrutiny by the SCOTUS. And that, Eric, is I believe precisely the issue here and precisely what these people are trying to hide in plain sight.

    Despite the grief and pain it will cause gays who were married in California, I almost hope for an amendment banning same sex marriage and/or nullifying current same sex marriage - because then this issue will end up in front of SCOTUS. The protect-marriage folks may just be hoist on their own petard, nationally. Won't that be a hoot?

    Of course, in reality, what I really hope will happen is that Californians validate my faith in humanity and America and strike the bigots down, and married gays will stay married. And if California retains gay marriage, well, it's only a matter of time until the rest of the country follows suit, because as the West Coast goes, so goes the nation.

    But - ultimately, sadly, I expect this issue to end up in front of SCOTUS.

  9. The risk in letting the SCOTUS decide the matter right now (or in the foreseeable future) is that we have what appears to be a 5-4 court divided on ideological grounds. At least one Justice (Scalia--did I even have to name names?) has been quite clear that he thinks Lawrence v. Texas (the case outlawing sodomy prohibitions) was wrongly decided and that he doesn't have much use for stare decisis on the subject. Worse yet, it would be quite possible for a conservative court to decide the case based on deference to the states' prerogatives in defining public interest/health/safety and declining to find that homosexuality is a protected class like race--such a ruling would default to the present status quo: at present, states do not have to recognize marriages that violate the public interest as defined by the state courts or legislature. Given the composition of the court, a 5-4 decision the wrong way is quite conceivable.

    In short, a court case could make some really bad law in this instance. Better would be if, as you say, Californians do the right thing and avoid the dice throw.

  10. I have absolutely no desire to get into a "is gay marriage wrong" debate (my personal thoughts are much less exciting than either side, and much less interesting) -- but I thought some insight might be accepted as offered:

    The whole notion of what harm gay marriages represents to other folks is much the same, in the views of the opposition, as public indecency like any other sort. If homosexuality is viewed as wrong, the public acceptance of such "wrongness" is just as indecent as women walking around topless, or a dude going to the Walmart with his Johnson hanging out. It's largely considered (again, by the opposition) as indecent, and therein lies the implied harm. I'm sure many of your readers see those as very different circumstances, but I assure you, in the eyes of those opposing gay marriage, it's actually more indecent than the public nudity bit.

    I honestly don't identify myself with either side of the argument, but I hear about it all the time, so thought I'd share the non-screamed-from-the-mountain-top, rational thoughts I've sifted out.

  11. Oh, and your solution is friggen brilliant, BTW. :)

  12. Y'know Shawn, *not that I have any desire to do so myself*, but I think public decency laws are wrong, and if people want to walk around nekkid, they should be able to do so.

  13. Michelle, the kind of people that would actually walk around naked, are exactly the ones you wouldn't want to see walking around naked. Just saying. :)

    Shawn, your comment is exactly why I think you're a hell of a guy. Well, that and you liked my solution.

  14. It's simpler to leave things as they are except any consenting adults can marry.

    Marriage is already a civil union; a contract between two people and between those two people and the government, which represents their larger community.

    Marriage is important to any society because it is two people (or more if a polygamist marriage, but we can all argue that one another time), vowing in front of family members and community that they are forming a new family and from that point on they will be responsible for and to each other. It's as much a promise to their community as it is a promise to each other.

    In return for the shouldering of the responsibilities, the community/state gives them rights and benefits in order to better ensure their new family unit survives, and it does so because it is better for the community. I don't see any valid argument for playing with semantics and pretending marriage is anything less or more special than that; and as you said, Jim, people are already free to make their ceremony a religious one if they choose. Or, they may skip a religious ceremony and make it purely a secular one. Both, though, are ceremonies that accomplish the same thing for the entire community/state. I was married by a judge but my license and certificate say marriage on them, and it was a marriage ceremony.

    Currently no church, minister, or judge is forced to perform marriages for anyone they do not want to, and allowing gays and lesbians to marry won't change that. Therefore, leaving it as is and just ending the discriminatory prohibition against gays and lesbians marrying is good enough.

    I think the searching for hairs to split, semantic game playing originated with younger conservatives who know it is wrong to discriminate but they can't just give up the argument.

    As for undermining marriage, making it up to gays and lesbians by twisting and contorting our customs regarding rewards and benefits, providing domestic partner benefits that once belonged only to legally recognized families via marriage, does more to undermine the institution of marriage than allowing gays/lesbians, who make up only 2-10% of the population, ever could.Since we hets aren't going to stop chasing each other around, and we aren't going to stop wanting to pass on our genes, how a small percentage of the population lives won't make any difference. Giving rights to people for merely cohabiting, though, without the same responsibilities married people must live up to, that will end up making a difference.

    Just remove the prohibition against gay/lesbian marriage and move on, me thinks. There will be hardly a ripple in the pool as we all get back to other inane arguments over personal behaviors and lifestyles.


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