Honest debate about marriage and gay marriage
Bookworm on Aug 15 2006 at 10:00 am | Filed under: Gay marriage
Whenever I do a gay marriage post, I feel like prefacing it by saying “some of my best friends are gay.” In fact, that statement is no longer true. I didn’t turn on my friends, but I did settle down to marriage with children in the suburbs. In this community there are no gays, not because they would be discriminated against (Heaven forfend, in my liberal enclave), but because this is not the life gay couples seek. Those gay couples I know live to the south of me, in urban environments, sans children, with both parties to the relationship working at high paying yuppy jobs.
These on the ground realities — and I know there are exceptions, with gay couples devotedly raising families and childless straight couples partying in the big city — need to be recognized before there can be honest debate about gay marriage. And Thomas Sowell does just that:
Analogies with bans against interracial marriage are bogus. Race is not part of the definition of marriage. A ban on interracial marriage is a ban on the same actions otherwise permitted because of the race of the particular people involved. It is a discrimination against people, not actions.
Justice Oliver Wendell Holmes said that the life of the law has not been logic but experience. Vast numbers of laws have accumulated and evolved over the centuries, based on experience with male-female unions.
There is no reason why all those laws should be transferred willy-nilly to a different union, one with no inherent tendency to produce children nor the inherent asymmetries of relationships between people of different sexes.
Despite attempts to evade these asymmetries with such fashionable phrases as “a pregnant couple” or references to “spouses” rather than husbands and wives, these asymmetries take many forms and have many repercussions, which laws attempt to deal with on the basis of experience, rather than theories or rhetoric.
Wives, for example, typically invest in the family by restricting their own workforce participation, if only long enough to take care of small children. Studies show such differences still persisting in this liberated age, and even among women and men with postgraduate degrees from Harvard and Yale.
In the absence of marriage laws, a husband could dump his wife at will and she could lose decades of investment in their relationship. Marriage laws seek to recoup some of that investment for her through alimony when divorce occurs.
Those who think of women and men in the abstract consider it right that ex-husbands should be as entitled to alimony as ex-wives. But what are these ex-husbands being compensated for?
And why should any of this experience apply to same-sex unions, where there are not the same inherent asymmetries nor the same tendency to produce children?
I believe that there is room for the law to expand to protect gay civil unions. Gays should not be banned from participating in their partner’s significant life moments, such as illness or death. If they’ve melded their finances over the years and then split. they should be entitled to protections at law. Those gay couples who have children need special protection, not for their sake, but for the children’s sake, since they will see the same economic asymmetries as married couples with children. And so on.
I do not believe, however, that we should just overthrow an institution that has defined human-kind since the dawn of time. It may ultimately be the right thing to do, but it certainly shouldn’t be done by our judges, nor should it be done based on a couple of decades of political agitation aimed at the judicial system. And certainly, to the extent that there is a national debate on this subject, it should be a debate that addresses the issue honestly, rather than one that parades around under the guise of remedying discrimination.
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10 Responses to “Honest debate about marriage and gay marriage”
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We don’t need new laws to protect “civil unions”. People already have the right to make a legal contract with anyone they please.
Ordinarily, especially because I’m a lawyer, I’d agree with you, Trish. However, it’s difficult to contractualize every aspect of a long term relationship, especially one with children. That’s why it would be useful to have default legal settings.
Although, considering how opposed I am to too much government interference in people’s lives, I may not be doing gays any favors in suggesting this. But since they want government recognition, let them take the consequences of the government oversight and convenience that come with that recognition.
I’ve always enjoyed the specious “they are as free to marry anyone of their choice as any heterosexual individual.”
I think of it as similar (if only vaguely) to an individual sitting at an all you can eat steak buffet (we have a place in Houston, Fogo de Chao which serves 15 different types of meat in an all you can eat setting), but the individual is a vegetarian. The statement that he or she can have all she can eat is true, and she has the same selection to choose from as any other individual at the buffet. However, the selection is not what he or she is willing (or even capable, considering the testimony of many vegetarians I know who tried to go back to meat but couldn’t due to the taste) to ingest.
A gay person is free to marry whomever they choose, in keeping with the civil rights act in one sense, however, not in a complete sense, and that’s where the debate lies.
There are several reasons that have been given in various debates on this issue throughout recent times supporting gay marriage. In my opinion, one of the most important is that it allows for mutual care to be given to couples who enter into a long-term, monogamous relationship, through insurance benefits, property issues, and even probate – public policy arguments that would promote the general welfare (doesn’t that sound familiar?). However, the most compelling reason against gay marriage/civil unions that I’ve heard is that it would undermine the sanctity of marriage. This does not strike me as a public policy issue, rather a personal and/or religious view. From this weighing of base arguments, I would have to lean towards allowing the marriage/civil union to stand from a public policy perspective, and, one might argue, that it would be a fundamental right offered under the penumbra of the Constitution (ok, I just wanted to use penumbra in a sentence). It seems as though equal protection should win out over religious ideals, especially when it comes to governmental policy.
I don’t think gay couples want government recognition, I think they want social recognition. THey see marriage as a way to get what they want, where legal unions would only get them government recognition.
Not only have I heard gay activists say that, but it makes sense.
There is also the problem with current marriage laws as it is inconsistent with gay couples. FOr example, if a man donates sperm to a woman-woman couple for them to have children, and the woman-woman couple splits up, the man is responsible for alimony for the pregnant women. This never would have came up had parentage been based upon marriage, but parentage is based upon DNA and patriarchy. You cannot just give gays marriage, it wouldn’t work. You’d have to change a lot of laws to make it fairer and more representative.
However, if you are required to change the laws for married couples, why interfere with the status quo when you can just make up new laws for new relationships?
Ymarsakar,
I’m not certain that your sperm donation statement is true. At least not here in Texas. In Texas, if a male does not engage in intercourse with the female then that male is not the father of any child born by that female, as such, is not liable for child support. Under no circumstances at all is a man liable for alimony to a woman he wasn’t married to, with the exception of the putative spouse (in a bigamy situation).
The sperm donor in such a situation has no parental rights, and as such has no parental responsibilities. To that end, I can only speak based on my experiences in family law class and as a law clerk in a family law practice here in Texas; I don’t suggest that is the case all over the country.
Speaking from an anthropological viewpoint, breaking down the family further would be disasterous.
As Dr. Sowell stated, marriage as defined as a union between a man and woman is a universal concept throughout human civilization. There have been a few backwoods tribes that did not have a concept of marriage, but they have been few and far between. No matter what part of the world the civilization developed in, marriage has been about uniting men and women in a legal bind.
There are very few universals in human civilization. It’s not nice to murder your neighbor or steal his property (but it’s OK to murder the tribe over the hill). Even the caveats applied have meaning. The caveats suggest that the purpose is to protect the tribe… however you define your tribe.
We don’t know for sure ALL of the reasons for the universality of the marriage law. We know for a fact that one of the reasons is to protect children of the union, but we don’t know if that is the ONLY reason.
Modern society, almost world-wide, is already in a state where we can’t handle the influx of troubled children from single-parent homes. Sociologists have been discovering, about 40 years too late, that children need two parental role models, one male and one female. To not give them both is to start that child out in life with a handicap. This is regardless of the reason for the single parent. The Welfare state has aggrivated a situation that was already difficult due to two major wars in one century. The societal safety net that stepped in to help out the widowed mother with children has been strained beyond the ability to be effective, and is even now breaking down.
While we are working hard to try to pull society back together from a past disasterous error is NOT the time to introduce a NEW experiment that will further break down family definitions.
Now just isn’t the right time.
And it may be that “never” is the right time. Gay couples CAN have civil relationships, they can write each other into their wills, or better yet, make each other the co-owners of their property, bypassing the possibility of a will being broken in litigation. They can name each other their next of kin on their official paperwork.
There are already legal ways to bypass the problems of a gay relationship without further breaking down what has been a universal norm since the beginning of humanity.
I agree with Ymars in his belief that what gays really want is social acceptance. But they can’t have that by harassing the rest of us through the courts and legislatures. Those who are against gay relationships will just set their heels and kick harder. As Dr. Sowell pointed out, this is NOT the same thing as civil rights for minorities, and everyone knows that at the gut level.
Oh it’s true, I just don’t remember which state it was in. It was related to something other than gay marriage, it was actually about custodial rights concerning men in marriage.
And I must addendum what I said, for accuracy purposes. In Texas, a husband can be determined to be the father of a child via artificial insemination as the donor if (as I just said) he’s the husband AND he consented and the consent is recorded.
The problem is that marriage has already been degraded to the point where we think of it as a “contract” or a “relationship”. It isn’t. It is, in its basic essence, the joining of two disparate halves of a single whole.
Steve, the argument isn’t specious. The point of marriage isn’t permission to have intercourse. If two homosexual people wish to have the legal benefits of marriage, why shouldn’t two heterosexual people of the same sex have the same right? Many elderly widows would appreciate that opportunity.
Marriage isn’t sexual intercourse. It isn’t “being in love”. It isn’t having a long-term, committed relationship. It is something more, less and outside these things. It is unique.
As Isak Dinesen said (in another context), ” A left glove and a right glove make a pair, but two left gloves you throw away.”
… or you turn one of them (the gloves) inside out.