Saturday, May 12, 2012

Love and Marriage

They go together like a horse and carriage, as we know.  And if a horse and carriage is like a marriage, why not gay marriage?

I'm being silly, of course.  But as our President has caused the issue to raise its head again, as it were, I feel given to expound on it.  He is an able politician; he says that he is in favor of it but thinks the states should decide whether or not it should be legal.  The best of both worlds in the political universe, it would seem.

I heard on the radio recently the argument that gay marriage should be allowed as it involves the pursuit of happiness, one of the "inalienable" rights identified in the Declaration of Independence of our Glorious Republic.  The drafters of that remarkable document, being lawyers, were careful not to state that happiness itself is a right.  If one considers our society litigious now, just imagine what it would be like if we could sue for being deprived of happiness.

So, we have only the right to pursue happiness, it seems.  If a gay person wants to pursue happiness by marriage, should not he/she have a right to do so?

Well, the pursuit of happiness is subject to some limitations.  One can't pursue it through fraud, for example, or criminal conduct.  Not quite the same thing, though, I hope all would agree.  But the law also imposes restrictions on conduct in other circumstances, purportedly for the public health and welfare.

No doubt those who oppose gay marriage would claim that it is detrimental to the public health and welfare in some manner.  It's hard to imagine, though, how it would be any more detrimental than marriage is now.  The contentions being made regarding the "sanctity" of marriage are laughable.  It should be obvious that marriage is not, at least in the law, a sacred or holy relationship, nor should it be.  It should also be obvious that it is not treated as such by most of us, or is at most treated as a sacred and holy relationship which may be revoked at will and is revoked by many in fact; in other words, not very sacred and holy at all.

I've voiced the opinion in this blog and elsewhere that it would be useful if the word "marriage" was not used in the law, i.e. that all marriages be considered "civil unions" or "domestic partnerships" or something along those lines.  That would only make sense, as for purposes of the law they are nothing more than partnerships of a special kind, which operate and are construed as business partnerships in most ways.  This would it is to be hoped release us from claims being made that marriage has some kind of unique status, which cannot be sullied in any fashion.  Claims made in the context of the law, that is to say.  Religions may treat them as holy as they like.  However, what they do would and should make no difference to the law.  Whatever penalties or prohibitions a religion may impose as to marriage may be imposed, provided that they are not relevant to legal status, rights and responsibilities.

But I daresay someone would claim that this is caving in to bigotry, or that marriage does, indeed, have a special status in the law, as some federal judges have held, which renders it in a manner I find bewildering different from civil unions in the law, and that this special status should be made open to all.

Words do indeed have power.  But sometimes they are accorded too much power over us.


  1. Civil unions have a very specific legal definition in the United States, and they come with (over 1000) fewer rights than marriage. I doubt very much that those who are married would appreciate having those rights taken away from them retroactively merely because a few bigots cannot stomach gays using the word "marriage."

    Of course, I take it that you are suggesting getting rid of civil unions altogether and repurposing the term for what we currently call "marriage." Do you also think that the Civil Rights Movement could have been avoided if only we had called the back of the bus the front? Such linguistic solutions seem wholly inadequate in addressing the underlying issue of discrimination.

    Marriage began as a social institution long before Christianity even existed. As such, Christians cannot claim any special right over the institution or the word. Nor is it a particularly sacred institution. It has evolved and been repurposed many times. This is just one more instance of it changing with the times. Why insist on an exception all of the sudden. If using marriage to treat women as property didn't offend us in the past, surely using marriage to treat gays as equals shouldn't offend us now.

  2. Certainly on the federal level, the "Defense of Marriage Act" as it is called limits rights availble in the case of civil unions. But you're correct that I refer to a situation where a legally created relationship would have the same rights and obligations and be available to all, but would not be called "marriage." I suggest the word carries too much baggage which isn't (or shouldn't be) relevant in the law, but we make it so. This baggage isn't, though, peculiarly Christian; it's broader in scope. The pre-Christian Romans, for example, probably would have found the idea of same-sex marriages unusual; perhaps even "unnatural," though it seems they didn't have the prejudices we have--they had others. The idea would be to eliminate a basis on which objection is made. But you may be right, and perhaps this change in view can take place.

  3. I understand the drive to try and simplify the problem by removing emotional elements (such as the baggage associated with the particular term "marriage"), but it seems to me that the most emotionally charged element of the debate is that certain people just don't want same-sex couples to have the same rights as them. Therefore, same-sex unions that are legally equivalent to those available to opposite-sex couples will be just as distasteful to them no matter what they are called. In fact, many opponents of same-sex marriage didn't even like it when civil unions were introduced as a sort of compromise. The real baggage in this fight is homophobia.

    I also wonder about the efficiency of the "renaming solution." It seems that it requires a lot of revision to extant statutes and the passage of new statues, whereas legalizing gay marriage could be as simple as passing something (or getting a court ruling) that says "current marriage laws extend to people of all sexual orientations." The only repeals needed would be for the so-called "marriage amendments" that have flourished lately, and those repeals could be done in the same bill (or decision) that clarified the scope of extant marriage laws.

    As for what people from the past would find unnatural, I think many of my European ancestors would be simply appalled that I did not receive a single cow, goat, or chicken in exchange for my agreement to marry someone's daughter. Somehow, though, their disappointment doesn't bother me.

  4. No doubt you're right that there will be people who will object, and have objected, even to civil unions. That won't go away. But the thought would be to deprive the objectors of the religious basis for their claims (given the religious associations of "marriage") by making it clear that the relationship for purposes of the law is purely secular whether it is man-woman, man-man, woman-woman. The modifications to the law would be significant, but I don't think it would be any more complicated than what has resulted from the change experienced when common law property states have become marital or community law property states.

    In any case, thank you for your comments.