Celebrating Victory With An Argument

Referring to my assertion that the FMA "not only prohibits gay marriage, but also 'any legal incidents' of marriage rights...[i.e.] domestic partnerships and civil unions...Gay couples are to have no legal rights whatsoever," a friend and sometime opponent whom I shall call Gene, writes:

This is false. Gays can still form contracts and name their partners as executors of their will or beneficiaries or whatever else they want to do. Lack of the granting of a license to be married does not deny them the right to marry. Marriage is both a legal and a social institution, each of which has its separate spheres. For example, the Catholic church prohibits contraception, whereas the legal institution makes no such prohibitions.

Gene is correct to point out the distinction between marriage as a civil instititution and marriage as a religious/social institution, but he is mistaken in his placement of the division between the two. A marriage in an Episcopalian church, say, that includes a legally valid marriage license is not the sum of a legal contractual relationship and a union recognized by the church; rather it is the sum of a union recognized in civil law with a union recognized by the church. Divorce is prohibited by the Catholic church, and divorce proceedings in Judaism require a hearing before a Rabbinical panel; nevertheless, persons married in a RC church or a synagogue are free to resort to civil proceedings in order to dissolve their marriage, and if they do so, they are no longer married in the eyes of the law. They are still, I would assume, married in the eyes of the church/temple and perhaps even in the eyes of God. The result we can confidently rule out is that they remained married in the abstract while a contractual agreement between them was dissolved.

This is relevant because civil marriage is something other than the ability to "form contracts and name their partners as executors of their will or beneficiaries." (I would ask that we recall, however, the law recently passed in Virginia stripping gay couples even of that very modest concession.) I'm guessing that Gene is not adopting the Ralph Nader position that the word "marriage" should be confined strictly to social relationships, and that the legal aspect of both heterosexual and homosexual partnerships all have equal standing as civil unions. I'll continue this line of thought after excerpting a bit more of Gene's post, but before the jump, I want to pose the following questions: Why exactly is it that gay couples should not have any legal standing as couples? The current language of the FMA prohibits civil unions (I don't see how Gene could argue with that point), so the legal relationship between gay partners would be precisely identical to the relationship between business associates or benefactors and beneficiaries. Let's table, for a moment, the question of whether any two people have a fundamental right to marry. The fact is that heterosexuals do have a right to marry, and to be recognized in civil law as something other than executors' of each other's estates; so why isn't it arbitrary discrimination to deny that right to gay couples?

After quoting me as saying that the movement for gay marriage rights isn't about needing the government to validate one's love, but that any of the proposed marriage substitutes are psychologically inadequate because the legal rights in marriage are secondary to the emotional bond that it forges, Gene believes he has caught me in a contradiction:

Well, that seems to be a logical contradiction. If "the rights concordant with a valid marriage license, are secondary to the psychological bond forged by marriage" as he claims, why is it that one would need government recognition of this. That doesn't make sense to me. The FMA does not ban gay people from marrying eachother in say an Episcopalian church or a Reform synagogue. They can still live together and have honeymoons to South Beach and bridal showers (who's the bride, by the way?) and bridal registries at Barney's and what have you. They can still have the "psychological bond forged by marriage" if they love each other as much as [you] claim they do. And if that psychological aspect of marriage is so much more important than a marriage license itself, who cares if one has the legal documents or not if they are secondary to begin with? [You are] undermining [your] own argument here.

Let me begin by asking whether heterosexuals would be willing to give up the civil recognition of their marriages as superfluous to the psychological bond between them and their spouses. Probably not. And that's because the recognition of a couple as married in civil law is a part of the psychological bond of marriage. No matter how elaborate a ceremony any two people have, if their arrangement consists of nothing but empty words, then it is instantly reversible; in contrast, the bonds of civil marriage consist of an abstact, yet permanent and substantial commitment to another person that cannot be quantified in terms of legal rights and obligations. This point goes back to my earlier comments about the distinction between civil and religious marriage: the emotional attachments of marriage do not belong solely to the province of religion (or softer spirituality, or whatever); rather, civil marriage is an abstract entity that creates a deep psychological bond, above and beyond the "legal incidents of marriage," which is nevertheless a secular bond.

So, am I reversing my earlier claim that this is not about government validating love? First, if I am doing so, then it is only to the extent that gay couples neither need nor are entitled to any more or any less government validation of their love than straight couples. But I don't think that I have contradicted myself. The value of civil recognition of one's marriage is not to make the government part of the basis of one's relationship, or to give it regulatory power over one's relationship; instead, the utility of civil recognition of a marriage is to use the liberty afforded by the civil law in order voluntarily to enter into a deep and theoretically permanent relationship with another person. And gay people are no less entitled to utilize their liberty as citizens than heterosexuals are.

I posed the following question: "If you were suddenly told you were not allowed to marry the person you love, would you be satisfied to know that it's actually okay, since you don't need government validation of your relationship? Or could it be that you would be robbed of something fundamental to your identity?" And Gene answered thus:

Doesn't the same exact argument apply to siblings getting married or a parent marrying their child? Why not allow that to happen? I want to hear a defense of incest. That would make this blog much more interesting.

Well, I need to immediately express my gratitude that Gene did not employ the Rick Santorum strategy of comparing homosexuality to bestiality, but merely incest. It seems to me that he has inadvertently highlighted one of my strongest points about the arbitrarily discriminatory nature of excluding gays from civil marriage. Namely, but for the fact that they are homosexual, there is no criterion that straight partners wishing to marry one another must meet in order to obtain a marriage license that gay partners would fail to meet. It is illegal for relatives of the opposite sex to marry; and it would continue to be illegal for relatives of the same sex to marry.

Those who wish to draw the comparison to incest or polyamory fail to grasp the nature of the discrimination under discussion. Heterosexuals who commit incest may indeed be barred from marrying their cousins, but they still have the right to marry someone that they love, even if they may not marry anyone or everyone that they love. Homosexuals are prohibited from marrying every single person with whom they fall in love. Moreover, incest and polyamory refer to the objects of particular individuals' love (or actually lust, I would think) at particular moments in time; homosexuality refers to the manner in which some people are capable of falling in love, to the exclusion of all others. Homosexuality is a form of love, not a taboo sexual relationship, and I have yet to hear an argument as to why it is any less valid than heterosexual love.

There are, finally, practical reasons (which may be too obvious to be worth mentioning) for keeping both incest and polyamorous marriage illegal, mainly having to do with rape, abuse, and in the former case, birth defects.

Last point: I don't know what I was thinking in referring to the 15th rather than the 14th Amendment. As Eric Idle said in a Monty Python sketch in which his character couldn't pronounce the letter "c," "What a silly bunt!"