Saturday, January 23, 2010

The Problem with Same-Sex "Marriage".

The battle surrounding the legal challenge to California’s Proposition 8 constitutional amendment continues to rage. Now in its ninth day, parties on either side of the issue have refused to give any ground and have brought forth a multitude of arguments. As this latest article from the Christian Science Monitor observes, “thus far, it has been an examination of modern marriage, contemporary attitudes about homosexuality, and the idea that sexual orientation warrants special legal protection.” The full article is available here.

Stepping beyond Proposition 8 to the broader context of same-sex marriage, what exactly is at stake legally?
What is marriage? Are social issues, legal issues? Do social issues, legally enacted, tread dangerously close to establishing a particular interpretation of homosexuality along religious lines? Even these few questions could leave people and states polarized or paralyzed. What I would like to suggest is that the problem with same-sex marriage is marriage itself and the only compelling legal interest for the state is in regulating the marriage contract. All other considerations derive from a blending of religion and state that have grown organically over time.

“Marriage” is a term that has been at the center of the battle and ultimately represents the key to the legal resolution. All the wrangling over the definition of marriage and the many references to “traditional marriage” or other similar descriptors is a pushback over the authorizing of two same-sex individuals to marry. The problem arises from the fact that marriage is defined in at least two distinct ways that are most often conflated in legal discourse, but adopted and defended separately by the pro and anti same-sex marriage supporters.

On the one hand, defenders of “traditional marriage” are correct. Marriage has traditionally been between a man and a woman. However, opponents of same-sex marriage also recognize marriage as a religiously sanctioned commitment, a commitment before god or other religious authority or a sacrament. Claiming marriage is a “sacred institution” is fundamentally correct. Unfortunately, marriage is also defined and recognized as a legally binding contractual partnership between two parties that confers legal rights and privileges. Herein lays the problem. Understanding marriage as a sacrament and a legal contract places the term “marriage” in a precarious position by asking it to fulfill two very distinct roles that may, in the case of same-sex marriage, be mutually exclusive.

Speaking traditionally, marriage, as it was understood by the state, has had an equally muddy relationship. No less difficult as the supposed separation of church and state idea itself, marriage and church and state have existed in close harmony with each other. Indeed, in the state of Massachusetts where same-sex marriage is now legal, the language outlining the “solemnization of marriage” is filled with religious designations – read it here. It seems clear that ambiguity of “marriage” as both a sacrament of the church and a legal contract have been peacefully coexisting for the majority of time in the United States. At the same time, the marriage relationship also saw attempts to regulate the partnership along social lines, specifically with respect to race, ultimately overturned by LOVING v. VIRGINIA, 388 U.S. 1 (1967). The current debate about same sex marriage seems to be built along these same lines. The interest in defining homosexuality as non-biological or “choice”, as well as opposition to regarding homosexuals as a protected class, may be an attempt by same-sex marriage opponents at circumventing a similar decision to Loving vs. Virginia.

A more legally acceptable solution may be to abandon “marriage” altogether as a descriptor or concept of the state regulated contractual partnership. Amending the social definition or the legal definition of marriage has yielded and will continue to yield contention due directly to its duality of meaning. Only by abandoning this term and its understanding entirely can a satisfactory resolution be reached.

Marriage is a legal contractual partnership. The state already has structures in place to regulate these types of legal arrangements. Other legal business relationships are not regulated on the basis of gender or sexual orientation and this business relationship would be no different. “Marriage” could then revert to being a sanctioned commitment (but not legal contract) governed by whichever rules the sanctioning body sees fit in accordance with their rights and beliefs - whether they be religious or not. While any perceived discriminatory policies stemming from religious interpretation may be subject to later challenge, the legal arrangement would be clear, and the question of “marriage” as a state concern would be resolved. As a result, no one would be “married” as far as the state is concerned, but all rights and benefits accorded to the contractual partnership; medical visitation and decision, inheritance, joint ownership and property rights etc. would apply to all.

Social concerns could still be regulated as they currently are with respect to prostitution, incest and polygamy, but since same-sex relationships are not currently subject to any regulation or prohibition in and of themselves, the point would be moot until such time as separate legislation may be passed, but that legislation would again be subject to already established constitutional rights. In any event, the state does not regulate concepts like love or religiosity, so any gesture to these concepts in legal form are irrelevant to the discussion of a legal business arrangement. However, they could be germane to a theological, philosophical or doctrinal discussion outside the boundaries of legal regulation.

Only by abandoning the legal designation of "marriage" can these issues be resolved in a way that avoids unconstitutionality and provides equal rights and access for all parties.


Teresa M said...

Absolutist language (such as always, never, and only) is an example of powerless language. It is powerless because they instantaneously negate the arguments of others as irrelevant. The current oft-heard argument that the State should get out of the marriage business-- on the surface-- offers resolution to this complex problem. Marriage, as both a religious and social institution, offers the State more than simple contractual relationships. When marriage is defined as sacramental, spiritual, or covenantal it offers the State a degree of stability of relationships not found in a business relationship. Although marriage is certainly an economic relationship serving both the partnership and the State, it is the additional dimension of commitment and permanence that gives marriage its inherent allure. This is a significant reason why homosexuals are asking specifically for marriage and not a civil union. In the end, the State and its people will find it difficult to separate the connotative and denotative understandings of marriage, as well as separating the legal and the religious and the secular and the sacred aspects.

John S. said...

I would argue that the social benefits of marriage that you cite create the very untenable situation that we currently find ourselves in. I would further argue that the state does not have a compelling legal reason for regulating such social aspects, so in that regard, yes, I would like to take "marriage" off the table for everyone and thereby instantaneously negate the arguments of others (on both sides) as irrelevant. Also, for clarification, I would suggest that the desire of same-sex couples for marriage vs. civil unions is specifically because the creation of civil unions while marriage is still a legally recognized relationship, leaves civil unions as an unequal category. By removing "marriage," then "married" is not a recognized category by the state and carries no legal benefits or status. However same-sex couples would still need to seek redress from their religious institutions if they still wanted to be "married" in the sacramental sense, but that would not necessarily be a legal matter for the state to address, unless it encroached on their pre-existing constitutional rights.

John S. said...
This comment has been removed by the author.
josh l. said...
This comment has been removed by the author.
josh l. said...

John, this is a very interesting and provocative post. My only concern with this argument is that when we attempt to move outside the troubling relationship between marriage and civil law, do we not negate the very thing that is valuable. In other words, if "marriage" is regarded as valuable, whether in "secular" and "religious" idioms, might it be self-defeating to try to drop the language form the law completely. It seems like this leads to a lose-lose situation, where instead of arguing for a more inclusive and robust account of marriage, we instead end up minimizing marriage to civil unions, thereby negating value that is marriage itself. Thus, I am in somewhat of an agreement with Teresa M, although I don't feel the need to say so quickly say what marriage offers in excess of civil unions.

It would seem that maybe we would need to take a step back. Before making the move you suggest, perhaps we need to first attempt to figure out exactly what it is about marriage that seems valuable in excess of civil unions, and whether this is a value we feel is important to sanctify with state recognition.

John said...

I just want to be clear that I am not suggesting the abolition of marriage as a whole, only as a legally recognized entity with some form of state interest. The discussion about the possible social benefits of a committed marriage relationship apart from a legal contract, could be a separate conversation. But I am certainly suggesting that those social aspects within its present exclusionary context (especially given the religious overtones) are not of sufficient compelling state interest to warrant a clearly discriminatory legal policy.

melissak said...

This is a very interesting discussion in which I would also argue along the lines of John that the term marriage in legal writings should be replaced with civil union. There is a need to erase the religiously associated term marriage so that the legal benefits of a union can be applied to all, and not just heterosexual unions. I agree that the state should strictly be concerned about legally recognizing a union instead of its social aspects. The state should not have authority over marriage, but should instead label it as a civil union and then allow those who are seeking the commitment and permanence associated with the religious side of a marriage to then get married in their own religious institution. In response to Josh, I believe that much of the value you are attributing to marriage is out of the realm of state regulation. Leaving the term marriage in legal documents simply because people believe it preserves these undefined values only leads to the exclusion of a large part of the population from legal recognition of a “marriage”. Marriage is a word that entangles religion with law and therefore is allowing states to let religious debate dictate their decisions on what partnerships are given legal rights.