A fine example
By Sean Aqui | Related entries in Gender, General Politics, Good Decisions, In The News, Law, Money, News, Religion, SexualityI am, of course, pleased by New Jersey’s top court recognizing what I consider the obvious: that same-sex couples deserve the same legal and tax benefits as heterosexuals.
But what really interests me is not the whole debate over whether same-sex unions should be allowed; it’s that the debate provides a near-perfect example of how a government that is studiously neutral with regard to religion ends up being the best guarantor of religious liberty.
With the government providing benefits based on someone’s marriage status, what do you get? The government getting involved in deciding what is a legal marriage and what isn’t. Marriage itself becomes an issue; pastors aren’t just uniting a couple in holy matrimony; they are the agent by which the couple receives government largess. What is largely personal opinion — is it okay to be gay? — becomes a matter of government policy, and thus necessarily politics, lawsuits, etc.
But what if we got the government out of the marriage business, and went with the dream scenario of “civil unions for all, marriage for those who want it and can get a church to bless it”?
In that scenario the government can provide legal and tax benefits based on objective criteria, serving its secular purpose. And marriage, its connection to those benefits severed, can be freely bestowed or withheld by each church as it sees fit.
That is how a secular government protects religious liberty: by staying out of religious matters entirely, leaving believers (and nonbelievers) free to conduct their own affairs without interference.
And that is why I support the doctrine of the separation of church and state. Because it serves both believers and nonbelievers very well.
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October 26th, 2006 at 1:27 am
In NZ, our Bill of Rights (it is not our Constitution – we don’t have a formal one at all) makes it illegal to discriminate against another person on the basis of (among a fairly long list of instances) sex, age, or marital status.
The government is bound by that Act (The Human Rights Act). It is therefore illegal for the NZ government to make distinctions on (in your example) pension rights on the basis of marital status. We have separate legislation for marriage and “civil union” – the latter includes non-Christian marriage, same sex marriage, and anyone else who wants to make a public declaration of a permanent relationship.
I guess that in the US, it is probable that if a State were to pass such legislation, someone somewhere would prove the legislation breached one of the legs of your Constitution.
How sad…
October 26th, 2006 at 6:20 am
Not everyone who gets married gets married in church. Many get married at city hall – my guess is that many of these people would not want their relationship deemed a mere “civil union”.
October 26th, 2006 at 7:24 am
I was thinking the same thing, Tom. The problem with Sean’s “dream scenario” is that the marriage ideal, to the extent that it stil exists, transcends religious distinctions. If having a parallel “civil union” status amounts to second-class status based on being gay, it seems to me that calling all civil unions, well, “civil unions,” while religions still sanction marriage on top of that, amounts to second-class status based on one’s religious convictions, or lack of same.
Now, this may still be the best workable solution as to the nature of government-sanctioned marriage, but I’d hesitate to call it a dream scenario. Not to mention that it doesn’t translate well linguistically either. (”Will you civil-union me?” “I’m just not the civil-uniting kind.” And of course, what would they put on the sign in back of the limo on the way to the reception – “Just Civil-United?”)
October 26th, 2006 at 9:21 am
I’m glad we are all so very smart to be playing around with the bedrock social order. I’m sure that the concept of marriage is, in fact, an artifical construct created by some bigoted professor somewhere just to hide his own homosexuality. Sean, I’m in complete agreement, it is about time the government get out of the business of supporting traditional families and open the ball park up to all sexual inclinations. I can’t wait to be at my daughter’s civil-union and to explain to her that her relationship is on par with our gay neighbors. Yes, what a great world we are creating. Congratulations New Jersey and good luck getting it recognized in Missouri.
October 26th, 2006 at 9:38 am
Interesting concerns. But let’s break them down.
Tom, Joshua: Just because they’re legally called civil unions doesn’t mean they would be called that casually if they became the standard. I suspect you’d end up with everything being called a “marriage” colloquially, with a distinction between civil and religious marriage.
As a side note, who would be causing the linguistic and aspirational dissonance if we had to get “civil unioned”? People who oppose gay marriage, and insist on reserving the term “marriage” for heterosexual unions. Gay-marriage advocates cause no such problem.
Dos: The slippery slope argument is false, and I’ll be happy to go into it if you like. What I’m saying is that the government, if it wishes to confer tax or legal benefits on citizens, must do that according to a defensible, objective standard that does not discriminate on the basis of irrelevant characteristics
October 26th, 2006 at 9:42 am
Interesting concerns. But let’s break them down.
Tom, Joshua: Just because they’re legally called civil unions doesn’t mean they would be called that casually if they became the standard. I suspect you’d end up with everything being called a “marriage” colloquially, with a distinction between civil and religious marriage.
As a side note, who would be causing the linguistic and aspirational dissonance if we had to get “civil unioned”? People who oppose gay marriage, and insist on reserving the term “marriage” for heterosexual unions. Gay-marriage advocates cause no such problem.
Dos: The slippery slope argument is false, and I’ll be happy to go into it if you like. My main point is that the government, if it wishes to confer tax or legal benefits on citizens, should do so according to a defensible, objective standard that does not discriminate on the basis of irrelevant characteristics. Want to provide tax breaks for having kids? Then provide tax breaks for having kids. Want to give committed couples a tax break? Then give committed couples a tax break. Want to give partners certain rights, such as inheritance and medical decisions? Then do so. In such cases, sexual orientation are irrelevant to the government goal being pursued. Under current law, marriage is used as a proxy for measuring the closeness of relationships; all I’m saying is stop using the proxy and start using more directly applicable criteria.
October 26th, 2006 at 12:14 pm
This is not true in my opinion. The law makes no assumptions on the “closeness of relationships.” A legal marriage, imparts a legal closeness, regardless of the “personal” closeness of the parties. As such, the purpose of the law is not to gauge closeness, but to affirmatively increase the closeness.
Our compact does affirmatively recognize (and has for the history of mankind) because the union of man and woman is, correctly, viewed as the bedrock of society and should be affirmatively supported. In this respect, not all relationships are equal. Homosexual relationships are not equal to heterosexual relationships because children (the future of humanity) are not produced through homosexual relations. If there was no product, merit or purpose to traditional marriage — if sexual relations btw man and woman were merely a bio-commercial transaction of pleasure — then I would agree. Who cares? Sex is sex, be it between man & woman, man & man, man & pony, man & fence post and who is government value one transaction over another. But I don’t believe this is the case, nor am I inclined to think that the Establishment Clause or Equal Protection Clause confines government to view all sexual behavior equally.
If you are looking for objectivity in terms of “relationship” Sean I don’t know how you can claim there isn’t a slipper slope. I would think that the etymology of “relation”-ship proves this point.
October 26th, 2006 at 12:37 pm
Dos – obviously you haven’t met many gay couples with kids (I have). There are a LOT of them out there, so your assertion that “children are not produced through homosexual relationships” is utterly fallacious. In addition, there is any number of heterosexual relationships that have produced no children, and have no intention of ever reproducing – so what, we should forceably divorce them?
The difficulty with the whole “civil union” concept is that the laws and rules regarding such a new structure must be built from the ground up. Each individual right and responsibility must be specifically added for it to be in force.
So what you end up with is a patchwork of quite different civil unions in various states with clashing rules on such important things as child guardianship and adoption, inheritance, divorce laws, partner benefits, etc.
That is my main reason for wanting full marriage for gay people – that way we get the same thing everyone else gets without having to beg for each specific right, and without having to write reams and reams of new laws governing the situation, and those rights would be the same everywhere we go.
I agree with the concept of civil unions for everyone, but I also see that culturally speaking, spoiled heterosexuals would never agree to having their marriages called “civil unions” (so why should I agree to it???) Thus perhaps a better way to handle it is use “marriage” as the civil term, and “blessed marriage” as the religious term.
I am particularly interested in this issue, because my ex-husband whom I was with for seven years was from another country, and rather than marrying me and gaining effectively instant citizenship, he had to run through hoops with the INS and pay tens of thousands in legal fees to try to get his green card via a work visa. Not to mention being trapped in a job he hated for years (it now takes approximately 7-8 years to get a green card through the work visa program, thanks to 9/11, and if you change jobs you start ALL OVER AGAIN).
Gay couples face many legal problems due to being denied legal status, and it is unfair and unconstitutional. I have a hard time seeing how any church can dare to claim any level of hardship due to gay marriage that comes close to what many gay couples deal with on a daily basis due to its lack.
October 26th, 2006 at 12:58 pm
Dos: “legal closeness” is what I meant, even if the couple live in separate houses. The point is that the law finds the intimacy implied by marriage to be a convenient way to settle arguments about inheritance, custody, medical decisions, etc. If an unmarried 20-year-old ends up in a coma, his parents would most likely make medical decisions for him. If he were married, that power shifts to his wife. It’s all based on the theory that decisions should be made by those closest to the victim, unless other specific arrangements have been made.
I disagree with your argument that heterosexual unions are the bedrock of society. *Intact families* are, whatever their gender makeup. The bit about “being able to reproduce” is technologically obsolete thanks to in vitro and sperm banks; doesn’t recognize the complex realities of life (adoption, kids from previous marriages, etc.); and simply ignores the math. We’re talking about a small minority of the population. 90-95 percent of humans are hetero. So as a practical matter, there will always be plenty of children. The survival of the human race is not at stake, not even an issue, and thus not a reasonable justification for discriminatory policy.
My point about “slippery slope” is that any dividing line is arbitrary to begin with. If marriage can be between a man and a woman, why can’t it be between a man and a man? It can; we just arbitrarily say it can’t. Allowing gays to marry doesn’t increase the slipperiness of the slope; it just moves the arbitrary line to a frankly more defensible spot. Any two consenting adults can marry; any three can’t. That’s more defensible than “you two can marry, but those two over there can’t.”
October 26th, 2006 at 2:05 pm
No it isn’t Sean. The roots of Marriage are based on property and legal rights and responsibiltiy. Not on closeness. The law implies no intimacy – beyond what use to be ordered. Like it or not, man has needed the state to sanction and enforce the marital covenants through the law – least starved little bastard cluttered the streets of Rome with no father to support them. You are simply wrong on the historical basis of marital rights. It has nothing to do with convenience, but with social necessity.
Look, you and Sleipner can rejoice in the Huxlian world of feely-parenthood all you want. New Jersey can tell traditional families that they are of no greater value and protection than a gay couple who has been allowed to adopt. No one allows me to have children, it is not a privelege, it is my natural right. Oh but wait, what about invitro and sperm banks — there is only one thing my gay neighbor is missing Sean…a uterus! “Technically obsolete”, please, lets try, biologically incomplete.
“There will always be plenty of children” – tell that to the Europeans who have a negative birth rate – cultural suicide.
Anyway, Sean, I agree to disagree with you, but a gay marriage will never be recognized in a state with significant numbers of fundamentalist Christians. It simply won’t happen, because we value traditional families too much. And I would not look for this SCOTUS to find an equal protection right in the US Constitution anytime soon.
The real legal issue here is Full Faith & Credit and I would be interested, Sean, in knowing your opinion on that.
October 26th, 2006 at 2:27 pm
Dos, I’m confused. At one point above, you seem to be endorsing marriages of convenience (including childless ones). At another, you seem to argue that the driving purpose behind the state encouraging marriages is to produce children to maintain the nation/culture.
Maybe I’m just slow, or totally misunderstanding your position. But those two positions seem to me to be in conflict. Help?
October 26th, 2006 at 3:21 pm
Sleipner: I’ve got a cousin-in-law who was in the exact same boat. At one point his partner — with whom he owned a house, and who had an employer sponsoring him for citizenship — had to leave the country for a year and hope to be allowed back in. Luckily his employer had international operations, otherwise he would have lost the job that was allowing him to apply for citizenship in the first place.
That’s crazy on its own, but what’s unfair is that he could have avoided the whole mess had the two of them been able to marry. And that disparity — citizenship — is one reason why eventually gay marriage becomes a federal issue.
Dos: I don’t pretend to be a lawyer, but I don’t think we disagree on the substance. Call it contract law; fine. The point is, a married partner has automatic legal rights that an unmarried partner doesn’t. Why? The law assumes that the act of getting married implies certain things, like consent to the transference of inheritance rights and the right to make medical decisions, even though no such contract is signed. The logic used, to this layman, seems to follow a rule of relational closeness. Who gets to make medical decisions, for instance? As a general rule, it seems to look like this: If single, parents; if married, wife; if widowed, children; and so on. Biological links are easy to understand, but marriage trumps that by default.
October 26th, 2006 at 3:37 pm
What amuses me about those who so harshly oppose gay marriage is that they seem to believe marriage is some sturdy institution threatened only by same-sex couples.
But marriage as an institution is threatened not by the boogeyman of homosexuals but by a much more severe breakdown in the social order. Divorce is so commonplace that no one even really criticizes it anymore. And nearly 30% of children are born out of wedlock. THAT’S the problem. The core values of committment and responsibility are withering away from American life. Homosexual marriage doesn’t ADD to that problem. It helps correct it by giving more people a means to become committed, responsible adults.
October 26th, 2006 at 3:43 pm
I keep hitting the *#*!(!!*!(! “submit” button by mistake.
Oh but wait, what about invitro and sperm banks � there is only one thing my gay neighbor is missing Sean…a uterus! “Technically obsolete�, please, lets try, biologically incomplete.
Well, unless your gay neighbor is a lesbian. Or hires a surrogate mother.
Take it to an extreme, Dos: If every hetero American died tomorrow, the surviving gays would produce another generation, if by nothing else artificially impregnating the women with sperm taken from the men.
“There will always be plenty of childrenâ€Â? – tell that to the Europeans who have a negative birth rate – cultural suicide.
Are you saying this is the fault of homosexuals? Otherwise your argument is false. Granting marriage rights to gays will not have any effect on the birth rate.
The real legal issue here is Full Faith & Credit and I would be interested, Sean, in knowing your opinion on that.
I haven’t made up my mind. Undoubtedly there will be lawsuits under that provision. But legally speaking, DOMA would appear to nullify such an approach. Were DOMA to be repealed or overturned, however, then Full Faith could well force states to recognize such marriages.
So the first thing to do is get SCOTUS to accept a DOMA case.
Philosophically, I lean toward the idea that Full Faith is properly applied to marriage, and thus states should be forced to recognize such unions made in other states if DOMA is overturned. Practically, I’d like to see what effect the differing state laws have. Aspirationally, I hope states that ban it find themselves under strong pressure to repeal such bans as the inequities imposed by bans make themselves known — from stories of people left without medical power of attorney or inheritance rights simply because they moved to another state, to employers finding it hard to lure promising candidates, or having to give an extra couple of thousand dollars to such employees to pay for the legal work of creating through contract the rights they enjoyed for free in their old state.
October 26th, 2006 at 3:53 pm
Sean: I think we are getting places. Here are the models:
a. relationship –> marriage
b. marriage –> relationship
I truly do understand the argument for gay marriage with model A. Gay relationships, why not gay marriage. Furthermore, arguably marriage has deteriorated in this culture to such an extent why even attempt to salvage it. If you have “a” relationship, why not memorialize it with “a” marriage.
Model B is, of course, the far less romantic version of marriage and also the version that tends to stay in tact.* Here marriage is not necessarily the byproduct of a good relationship, but is in fact, the starting point for a good relationship. It is dependent upon an absolute respect for the institution. Something which we have obviously lost.
I believe all children deserve Model B parents. Parents with a wonderful relationships which is a byproduct of mutual reverence for the institution of marriage. This isn’t fairy tale love, this is real life. With Model A parents, when the relationship hits hard times, the marriage crumbles away. With Model B marriages, when the relationship hits hard time (which all do) the marriage is there to support it till stronger times.**
Gay marriage officially turns all marriage into Model A marriages and it weakens the culture and the bedrock of society.
* I’m not talking about pre-arrangement marriage, but of course, that is the historical antecedent.
** DosPeros will be on Dr. Phil later this week.
October 26th, 2006 at 5:22 pm
The rights that come with marriage have now been beaten to death. But I wonder if it would enlighten the discussion if we spent a little time talking about the OBLIGATIONS that come with marriage.
I believe that those obligations, after all, are why a majority of the “registered domestic partners” (in California, at least) are not homosexual couples. They are heterosexual couples who could have gotten married, but chose not to. My assumption is that in most cases their reasoning was: if I can get all the benefits, without having to assume the obligations, why not? Admittedly, there may be a few who are allergic to the word “marriage” because of how bad their parents’ marriage was (and I know one or two of those). But for the vast majority, why else pick domestic partnership over marriage?
And if the obligations are significant factors, perhaps a real conservative (as opposed to a mere homophobe) should be arguing to simultaneously enact gay marriage and abolish all the domestic partnerships. And wouldn’t the dust-up (from both the left and right) over that kind of a bill be fun to watch?
October 26th, 2006 at 6:00 pm
Sean – Your point about DOMA invalidating Full Faith and Credit is not defensible, since (I believe) the Full Faith and Credit is a constitutional obligation, and DOMA is merely a congressionally enacted law, which is not capable of overriding constitutional requirements. Please correct me if I’m wrong on this, as I’m not a lawyer. Granted the current conservative court is more likely to vote their beliefs than actual constitutionality, but I’m hopeful that the next few replacements won’t still be stuck in the June and Ward ’50’s.
DosPeros – you seem to be assuming that any gay relationship cannot possibly be as good as any straight relationship – tell that to some of the 50+ year gay couples I’ve heard about. Also, your assertion that the marriage comes first then the relationship is rather twisted, and definitely does hearken back to the bad old days of arranged marriages for the purposes of consolidating family fortunes. People shouldn’t be together because their parents or some piece of paper tells them they should be together, but because they love each other and want to build a life together. That is a much more stable foundation on which to build a relationship and a loving family environment into which children may or may not be brought.
However, the lack of a marriage institution for gay people does put strain on some relationships, as it is a way of codifying and validating that relationship within the community. Considering how difficult it is even for straight people to stay together, imagine how much more difficult it is for gay people who are told every day that their relationship doesn’t exist except in their own heads.
WJ – your point is another reason why I think civil unions being the only option for gay people is not acceptable. It’s yet another case of unconstitutionally separate and unequal. If a civil union statute is allowed for unmarried couples of any type, that’s fine, but it should have it’s own justification from a societal standpoint – i.e. fill some sort of a gap that normal marriages do not cover and that is perceived as societally necessary. But creating such a new structure specifically to prevent gays from getting the ability to marry vis-a-vis bait-and-switch is inappropriate and unfair.
I still have a problem in even seeing where straight couples or religions should care at all about gay people getting married – if you don’t like it, don’t have a same-sex marriage. The amount of effect it has on you is nearly zero, while conversely it affects the lives of gay people in hundreds of ways, many of which can quite painful and expensive.
October 26th, 2006 at 6:26 pm
I’m not getting into this argument at all; I don’t DO religion, and a piece of paper indicative of civil union is all I’ve ever had (and I didn’t even need THAT – HE did silly man).
I just want someone to start forcing the state of Utah to get the damn mormon church out of government. PLEASE.
October 27th, 2006 at 2:44 am
Can someone tell me –
If a couple (heterosexual so that we are clear about this) wish to get married in the US and they choose a Hindu ceremony or Jewish ceremony to solemnise their marriage (because they are Hindu or Jewish) does the State recognise that as a legal marriage? Or are they required to undergo a State defined “legal marriage” under laws which are based predominantly upon the Christian form of marriage?
Prior to the Civil Unions Act in NZ, Hindus married either in Fiji or India, then returned to NZ and “formalised” their marriage in a Registry Marriage – the form of which was strongly based (uses many of the same words) on the formal Christian service. The same “double ceremony” stricture applied to the Jewish ceremony. Without that double ceremony, the couple were not “legally” married, unless the specific words required under the Marriage Act had been used in the formalisation. The new legislation has permitted social recognition of their relationship without the stupidity of a State imposed formal requirement.
Do the same legal strictures apply in the US?
October 27th, 2006 at 9:49 am
Probligo: Laws may vary by state, but generally all that you need to have a legal marriage in the States is a marriage license, signed by whomever performed the ceremony and two witnesses.
The ceremony must be performed by a recognized authority — a religious leader or judge, generally — but there are no specific words that are required in the ceremony as far as I know.
I’m agnostic and my wife is best described as a Deist. When we got married we had a local judge preside, but we wrote our own vows and scripted our own ceremony. Afterward, the judge and two of our friends signed the license. Voila! We were married.
October 27th, 2006 at 9:59 am
Sleipner: You may well be right about DOMA, but until it is overturned or validated it remains law — and so for now states don’t have to recognize gay marriages performed in other states.
Dos: I don’t find your logic compelling. I’ll agree that “taking marriage seriously” is important, and that kids are best raised in a household containing two parents with a deep commitment to their relationship. But I don’t see why your dichotomy is valid. Falling in love before getting married doesn’t mean people take marriage lightly, and falling in love *after* getting married leads me to wonder why they got married in the first place.
WJ: I don’t have a cite, but I’ve seen studies of why people don’t get married, and the results may surprise you. What they found was that people “living in sin” value marriage very highly, and aspire to the romantic ideal of a long-term marriage. But precisely *because* they take it so seriously, they put off getting married until they’re sure they’ve found “the one”, or their finances are secure, or they’re ready to have kids, or whatever. That, of course, can be an excuse to procrastinate forever and never get married, but it’s not because people take marriage lightly; quite the opposite.
I think most marriages fail because of unrealistic expectations, not because people don’t take marriage seriously.
Another thing worth noting: you know that statistic about how half of all marriages end in divorce? That’s roughly true, but to get that number you have to count *all* marriages — including ones that last for 50 years before the divorce. If one stays married for 50 years, can you really say they didn’t take their marriage seriously?
IIRC, the average divorce occurs after 8 or 9 years of marriage. I see nothing in that stat to support the idea that the participants entered their marriage lightly.