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Thursday, June 18, 2009

My Rambling Response...

My friend Dan raised some interesting points in his comment on my link to Zoot's post on gay marriage. I sent him an email in response, then realized that it would probably make sense to put it here too. I will admit that I kind of wrote in on the fly, so there may be some errors here and there in my logic. Please feel free to poke holes in my argument (although, I may try to fill them/justify myself). I encourage people to present their take on the issue, just PLAY NICE and remember that everyone is entitled to their own opinion -- even if you don't like it, even if you think it's wrong.

And now, my response:

As far as the religious/legal definitions of marriage, I think they should just be two distinct things. (Edited to add: This is not really how "marriage contracts" currently work; consider it my reform proposal.) A "religious" marriage means you are married in the eyes of your church and any other church that chooses to recognize it (so polygamous religions could still go ahead with that practice no problem), and then a "legal" marriage is just the two people getting a marriage license and taking the necessary steps to enter into the legal contract of marriage as required by the state.

(Edited to add: A better explanation of this distinction is a system with both state civil unions (which cannot discriminate between heterosexual and homosexual unions) and religious/spiritual marriages (which can do pretty much whatever they fancy but have no legal effect).)

Right now, a lot of people have the combination of the two -- they get married in/by their church, but they also take whatever steps necessary to become legally married in their state. But some people aren't religious, so they don't have the religious ceremony, but just go to a justice of the peace or town hall or whatever and end up legally married. Or, they are like my grandparents, who were both widowed and wanted to keep the benefits tied to that, so only had a religious ceremony to get "married" but never made it legal.

While marriage itself is not a constitutional or civil right, freedom from gender/sex discrimination by the state is. So, if a state decides to allow individuals to enter into a legal contract of marriage with each other, it must do so regardless of their gender. But a state could also say, we won't allow anyone, whether it is a man and a woman or a man and a man to get married, and that's just fine too, because as you say, the right to marry is not guaranteed by the Constitution. And really, from the state's perspective, "marriage" is only defined by the implications of two people entering that contract (taxes, benefits, etc.) But a state saying it allows a man and a woman to marry, but not two people of the same sex -- I just can't see any way that isn't prohibited sex discrimination.

As far as the adults marrying children or their cow or whatever other bullshit arguments people come up with, COME ON. A cow cannot fucking enter into a legal contract. And neither can a minor, in most instances -- that has been long established. As far as the polygamy argument, there is nothing inherently discriminatory (at least, in a way that is barred by the Constitutional protections) in a state limiting the number of parties able to enter into a contract for marriage or prohibiting an individual from entering into more than one marriage contract; nor is there anything that prohibits a state from allowing legal polygamous marriages if it chose to do so. Same goes for incest.

Now, given my belief that, when a state allows people to enter a legal contract of marriage it must do so regardless of their gender or else it runs afoul of the Constitution, the whole "federal mandate" thing doesn't really come into play, does it? If a state chooses not to recognize the legal contract of marriage at all, then that is its prerogative and there cannot be a federal mandate requiring it to recognize the contract as entered into in another state. But if a state does choose to recognize the legal contract of marriage, it must allow individuals of the same sex to enter into that contract or else it is engaging in prohibited sex discrimination.

As for gun control, marijuana legalization, gambling, etc, etc. -- I agree with you that the federal government generally shouldn't be involved. Assisted suicide is a closer call for me, just because it may invoke the question of an individual's "right to privacy," which the Supreme Court currently recognizes as being protected by the Constitution.



Comments:

Steph,
I found your sexual discrimination argument very compelling. I too throw out all arguments that invoke marrying cows or little boys too. Slippery slope arguments are fallacies. However, as I understand it, sexual discrimination laws cover mainly employment. The Civil Rights Act of 1964 specifies in Title VII that sexual discrimination is prohibited in hiring, firing, and compensation practices. It says nothing about contracts. Are there any analagous laws that extend this protection to entering into contracts?
I only ask because I know that men can't join a Curves gym (my sister worked at one and denied heavy, older men membership all the time!). There's also a "gentlemans" club and gym in downtown Albany for gay men. Not only do you have to be a man, you have be to gay to join (how they "check", I don't know!). It seems these are also contracts, no? I'm not comparing getting married to joining a gym, but a contract is a contract. If you can exclude a certain sex or sexuality from entering into 1 contract, why can't you do it with another?

Posted by: Daniel | June 18, 2009 03:15 PM




Aha! I think I know the answer to that one. (Trying so hard to remember con law classes... )

The difference between the gym membership and the marriage contract is that the latter involves a state actor, and the former does not. In my hypothetical, the marriage contract is actually between three parties: the two individuals getting married and the state (because the state is granting certain rights and responsibilities based upon that contract). I mean, you and Melissa could have written a "contract" on a piece of paper and said you were "married," but until the state approved it, it wouldn't have any legal effect as far as benefits/rights from the state was concerned. So the state is a party to the marriage contract in some way.

Posted by: stephanie | June 18, 2009 04:00 PM




Steph,
Damn, you're a good lawyer! I see now that there's a clear distinction between contracts with and without state "actors". However, this is where I think the Constitution is a self-contradicting document. It spells out clear rights for states, including the ability to pass and enforce their own laws. But just not ones the federal government feels are "discriminatory." Well, why not? I guess this is just my libertarian, federalist point of view, but I think thats exactly what the Founding Fathers would have wanted. States are comprised OF the people; they're not some independent entity controlling the people. If the people of a state want to be discriminatory, I don't see why they shouldn't be allowed to. If people don't agree with others in their state, they move out, and the state loses population, and with it some of their Representatives in Congress. Eventually, the population in each state would settle to represent the majority viewpoint for each state, and this collection of states would represent who we are as a country.
My marriage license clearly has a line for "Bride" and "Groom." Why? Because the etymology and meaning of marriage and matrimony clearly imply a woman being "given" to a man. The root for matrimony is the same as matriarch. I would argue that marriage by definition implies a man and woman. Perhaps if Melissa couldn't sign on the "Groom" line or I couldn't sign on the "Bride" line, it might be gender discrimination. But if the meaning of the word, and hence the contract itself, requires BOTH a man and woman to enter into it, then how can you re-legislate that? Can you legislate language? I'm all for gays having civil unions and being given the same tax and insurance rights as married couples. But maybe, just maybe, you can't call that arrangment marriage.
I once was at a bar and guy ordered a martini but with an onion instead of an olive. The barternder told him he wanted a Gibson instead. The guy started arguing with the bartender! The bartender gave him his Gibson and said "I don't know what to tell you. A martini is a martini and a gibson is a gibson."
It's not a great analogy, but it gets at the root of some of these semantic issues. I think gay couples really want a gibson (the same legal and financial benefits married couples have), but they demand martinis (the right to call themselves "married.") Maybe there should be marriages AND civil unions. Non-religious heterosexuals could choose which one they want and homosexuals could have civil unions. I think many people feel that anybody who opposes gay marriage is an intolerant bigot. And many people who hold those opinions are. But there are some people who don't want to deny rights to homosexuals, but rather preserve and protect the meaning and implication of a word and convenant they hold very dearly. Don't they have the right for political representation at a local, state level?

Posted by: Daniel | June 18, 2009 04:55 PM




So much of it is a game of semantics, which I find frustrating because I think it really detracts from the bigger picture, which is equality.

When I say "legal marriage by a state," that really is what a "civil union," for those states that have them, is.

The problem is, so much context and history and culture is tied to the word "marriage," so to create something new called a "civil union" to "accommodate" homosexuals necessarily makes it sound like it is something "less" than "marriage." You can give them all the rights of "married" heterosexual couples under a civil union, but then why do you stop short of allowing them to be called "married"? Because they don't have the proper genitalia?

I think the argument that people want to "preserve and protect the meaning and implication of a word and covenant they hold very dearly" falls short, way short, too. What is the "meaning" of the word marriage you are referring to? "Man and woman" -- why? What's the "covenant" you hold so dearly? Does restricting marriage to a man and a woman really preserve and protect the meaning and implication of this word, this covenant? What about the heterosexual marriages where one (or both) of the spouses cheat on the other; marriages where one (or both) of the spouses don't believe in the "sanctity" of marriage, don't believe that it is a relationship that is constantly evolving, that must be worked on, cultivated, made stronger? They are "preserving and protecting" the covenant simply by the fact that one has a penis and the other has a vagina?

Posted by: stephanie | June 18, 2009 05:33 PM




Actually, this whole game of semantics is why I would advocate for a distinction -- state civil unions and religious marriages -- in the first place. I should probably clarify that in the original post.

Posted by: stephanie | June 18, 2009 05:43 PM




The meaning of a word is pretty difficult to pin down exactly because of the differences between denotation and connotation. But i think historical usage and the etymology of a word are clear indicators of what a word "means." (What do you mean by "mean", by the way?). In that sense, yes, marriage means pretty much a penis and a vagina. It doesn't mean you can't use the word as you see fit, but it might mean that in doing so, you can't expect others to accept your meaning, execept if they conditionally do so of their own volition

Posted by: Daniel | June 18, 2009 05:57 PM




The argument that historical usage and the etmology of a word indicating what a word "means" - and thereby validating the argument against same-sex marriage because only a person with a penis and a person with a vagina should be able to marry - is seriously flawed. So a "family" is only people who are related by blood? Because that's the "traditional" definition of the word. People used the same arguments against interracial marriages, by the way. Historically, marriages were little more than an exchange of property, and the word has certainly evolved since then. That's the wonderful thing about words - their definitions can evolve over time. It's happening again with marriage, thanks to Massachusetts, Iowa (YES, IOWA!), NH, VT and Maine - as well as the countries of Belgium, Spain, Canada, South Africa, Norway and Sweden.

If you want to completely make it a state issue, that's fine - but then straight couples will have to give up 1,100+ federal rights and protections of marriage that are currently denied to same-sex couples. That's what should happen if the federal government gets out of the marriage issue.

Why should anyone else's marriage have any impact on yours? I think Steph alluded to this earlier. If someone else has a bad marriage, does it tarnish in any way what you and your wife share? Does anyone else's good marriage make your marriage better or worse? If the answer is no, then I really don't understand why extending marriage to gays and lesbians has any impact on you at all - especially if your argument is about the word "marriage" and not about equal rights.

Posted by: Carolyn | June 19, 2009 12:20 PM




What do you people have against cows? If a cow wants to put his/her hoof down and "sign" a contract to marry someone then said cow should have that right. :-P

I know this was a serious discussion, but I can't help myself.

Posted by: Sarah | June 22, 2009 04:04 AM




Carolyn,
I don't personally hold ANY of these viewpoints. I was merely playing devil's advocate and probing some interesting issues. Many of these issues center around the intersection of law and language. Steph's a lawyer; I'm a writing teacher. Just a fun little dialogue - nothing else.
- Dan

Posted by: Daniel | June 22, 2009 01:58 PM




Carolyn,
I don't personally hold ANY of these viewpoints. I was merely playing devil's advocate and probing some interesting issues. Many of these issues center around the intersection of law and language. Steph's a lawyer; I'm a writing teacher. Just a fun little dialogue - nothing else.
- Dan

Posted by: Daniel | June 22, 2009 01:58 PM



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