[I wrote this essay back when gay marriage was a hot issue; my new blog seems a good place to publish it]
Recent acts by the Supreme Court of Massachusetts and the Mayor of San Francisco have shifted the front line of the controversy over same-sex couples. It used to be civil union versus nothing; it is now marriage versus civil union. This raises an obvious question--why does the distinction matter?
Some commentators assume that the important difference is in the legal rights that marriage would, and civil union would not, give a partner under federal law. Finding that an inadequate explanation for the passions on both sides, I put the question to a gay colleague. His answer was immediate and unambiguous--what mattered was the symbolism. As long as people like him were not permitted to call their unions marriage, the government was implicitly condemning their relationships as at least inferior, arguably wicked.
I put the same question to an intelligent, educated elderly man of my acquaintance, married fifty years and proud of it. He agreed that the essential question was symbolic. He thought it was clear that gay couples should have the same legal rights as heterosexual couples. But he also thought it clear that their relationships were not marriages.
I agree with both of them--the essential issue is symbolic. I disagree with both about the conclusion. A law that forbids same sex marriage imposes on everyone the view of one side of the controversy; a law that permits it imposes on everyone the view of the other side. My colleague has the right to live with his partner on the same legal terms that I live with my wife, but he does not have the right to insist that other people regard their relationship as marriage. Making laws about symbolism is not the business of the U.S. government.
The only way out of this dilemma is the neutral option: Get the government out of the business of defining what is or is not marriage. Revise laws where necessary to define legally relevant relationships in gender neutral terms. If a state wants to give special rights to one person in regard to another based on their relationship--the right, say, to make medical decisions in an emergency --let it define the relationship by how long they have lived together, whether they share property, the existence of a public commitment, or whatever other criteria are relevant. Churches, and anyone else, are free to handle marriage as they choose. The legal consequences are gone. The social consequences are up to all the other people who do or do not choose to regard a couple as married.
34 comments:
One problem with this account is that the state does not attempt to check on qualifications for parenting before issuing a marriage license. The only exception that occurs to me would be blood tests.
Also, restricting marriage licenses is not an effective way of controlling who get to be parents in modern societies, where it is common for unmarried couples to have children.
One might also note that states, even modern democratic states, do quite a lot of things to injure children. The treatment of first nation children by the Canadian government not all that long ago--one of the world's more enlightened governments in most ways--provides one horrifying example.
For a smaller scale example, I know a couple that adopted an infant from abroad. All arrangements were made before the child was born. She was something like eight months by the time they were actually able to get her--due entirely to red tape on the U.S. side. I think keeping a child from her parents-to-be for the first eight months of her life counts as child abuse.
Congratulations, by the way, for being the first person to post a comment on my blog.
David!
Glad to see you back blogging!
Hope all is well with you. I've recently been doing audio recordings of my elders who explain the Snuewueth, (laws, common law, teachings, values beliefs) etc... on my blog. I thought you may want to take a look. They will be sharing their history on a stateless source of laws.
Best Regards to you and Betty and the B's. :)
M
"Regarding my being the first on your blog, it is the type of honor I think should be etched on my tombstone."
Not too soon, I hope.
Exactly!
Well, dammit, how am I supposed to post my conclusion to the problem if you come to the same conclusion?
I've brought up exactly this solution in conversation several times. Separate the two - the "state" (including federal government) can give you civil union. Only the church can marry you. I find it very odd that (in physical converstations, not email/blog/webpage communications) the only people who tell me they have a problem with this are religious.
-chrishartman via livejournal
I respond here.
"My colleague has the right to live with his partner on the same legal terms that I live with my wife, but he does not have the right to insist that other people regard their relationship as marriage. Making laws about symbolism is not the business of the U.S. government."
No, the colleague doesn't have any right to live on the same legal terms as Friedman if both will be granted privileges and benefits at the expense of others. And that's precisely what will happen. Government has no legitimate business at all, but legislating symbolism has to be one of it's most benign activities. I could care less if the state declares that I'm a lazy-good-for-nothing-so-and-so as long as it keeps it's mitts off my person and property. Wouldn't Friedman greatly prefer a government that produced only symbolic gestures to one that produced material benefits and privileges for some at the expense of others?
By seeking to solve a problem of symbolism through legislation Friedman is confirming both sides in nonsense. It is nonsense for either side to be concerned with symbolic state gestures. There is nothing legitimate that the state can contribute to any marriage.
You seem to have ignited a bit of a controversy over at No Treason over the issue of governments granting any rights to married couples. I found it rather odd having actually read your books that they are interpreting your remarks on this as being in favor of governments selectively granting rights, but they are.
I think that there is an important distinction to be made. Granting special status to marriage in the form of tax incentives or legal protection of employer supplied health care benefits is a special right and should not be within the government's purview. However, specifying the default legal interpretation of marriage as a contract between the parties involved is quite legitimate. A presumption that unless otherwise stated one partner will inherit from another, for example, is hardly a special right.
Could I interest you in making some clarifying remarks?
"You seem to have ignited a bit of a controversy over at No Treason over the issue of governments granting any rights to married couples. I found it rather odd having actually read your books that they are interpreting your remarks on this as being in favor of governments selectively granting rights, but they are."
I'm not in favor of having government exist or make laws. In our society at the moment, however, government does exist and does make laws, so it's reasonable to say things about how they should do it.
One of the things that a legal system, private or governmental, has to deal with is contract law. Marriage is a particular sort of contract, and there is no reason why a legal system ought not to take account of that, just as it takes account of other particular sorts of contracts.
Your comment about default rules is the sort of thing I was thinking about. There is never enough small print to specify everything, so a legal system sometimes has to fill in the gaps.
David,
You said:
1. The essential issue is symbolic.
2. The only way out of the problem is to get the government out of the symbolism business with respect to marriage.
Wouldn't it be better for those offended by symbolic gestures of the state to simply wise up? The attractive thing about this solution is that you don't need anyone's permission or help or even agreement, and you can do it in the privacy of your own home in a comfortable recliner while drinking cocktails.
There's wisdom in the old nursery rhyme: "Cops and goons can break my bones, but symbols will never hurt me".
You write:
"My colleague has the right to live with his partner on the same legal terms that I live with my wife..."
The problem is that you don't have a right to the legal terms that you currently live under. You are granted benefits at the expense of others.
If you mean only that equal cases should be treated equally under law that just begs the questions of what cases are equal. Why is it less offensive for the state to impose criteria based on length of relationship than based on gender?
Suppose there's a man who makes a living mugging gays. Would it be an improvement if he stopped discriminating on the basis of sexual orientation and discriminated on the basis of age instead?
David,
You said:
1. The essential issue is symbolic.
2. The only way out of the problem is to get the government out of the symbolism business with respect to marriage.
Wouldn't it be better for those offended by symbolic gestures of the state to simply wise up? The attractive thing about this solution is that you don't need anyone's permission or help or even agreement, and you can do it in the privacy of your own home in a comfortable recliner while drinking cocktails.
There's wisdom in the old nursery rhyme: "Cops and goons can break my bones, but symbols will never hurt me".
You write:
"My colleague has the right to live with his partner on the same legal terms that I live with my wife..."
The problem is that you don't have a right to the legal terms that you currently live under. You are granted benefits at the expense of others.
If you mean only that equal cases should be treated equally under law that just begs the questions of what cases are equal. Why is it less offensive for the state to impose criteria based on length of relationship than based on gender?
Suppose there's a man who makes a living mugging gays. Would it be an improvement if he stopped discriminating on the basis of sexual orientation and discriminated on the basis of age instead?
Marriage as a legal status is a highly efficient economizing arrangement that is eminently sensible -- if it is applied in a non-discriminatory manner.
Need proof? Look at all the myriad legal hoops that same-sex couples have to jump through to replicate just a fraction of what heterosexual couples get with a simple "I do." Now you want even heterosexual couples to jump through those very same hoops, for no other reason than to avoid "symbolism"? Huh?
Such a paradigm isn't "getting government out of the business of marriage." It's merely shifting the business of marriage from the city clerk's office to a courtroom.
Marriage as a legal status is a highly efficient economizing arrangement that is eminently sensible
What are the efficiencies that you're talking about, Kip? Efficient to whom, the hive or to individuals?
While it may be efficient in a one size fits all situation, such as when a couple marries, retires, (collects Social Security, pensions, 401k's etc weighted to the advantage of married couples), the high earning spouse dies, leaves his higher Social Secrity benefit and seamless transfer of wealth to the other long-living, but low earning spouse. That's pretty efficient, but only because the couple has been granted benefits by the State balanced upon the backs of non-married taxpayers (money that the State had no right to collect and redistribute in the first place) and only because the above is the model for the one size fits all marriage, but in the case of say, an Anna Nicole Smith who, as the surviving spouse of a millionaire, should have been the beneficiary of a hassle free transfer of the couple's total wealth, but actually received zip of her husband's estate upon his death, where was the State-generated vaunted efficiency then?
And what about the myriads of cases wherein the higher earning of two spouses finds himself, for example, in a divorce. He may have, indeed, benefitted through the course of say a 10 year marriage to the tune of $50,000 in government tax breaks, but then, upon the government imposed conditions of the dissolution, must pay lawyers, the court, and the lower earning spouse hundreds of thousands of dollars in is his own earnings, property, home equity and legal fees, where is the efficiency there? Yet these kinds of cases are common within the bonds of government imposed marriage contracts.
To individuals, one size fits few. Legal marriage is especially inefficient, particularly when compared to what private marriage has to offer.
It might be argued that legal marriage contributes to overall efficiency, that is - beneficial to the hive. Even that's pretty questionable when the private alternative is fully allowed to flourish. But either way, when it's imposed upon and administrated by the State, legal marriage amounts to nothing better than social engineering?
"Under the law, every citizen must be equal. Anything less is simply un-American."
If you intended to treat individuals equally you wouldn't grant any of them a special legal status with special legal rights.
The purpose of legal marriage is to facilitate unequal treatment.
As someone who is a gay man and a philosophical anarchist I'd like to contribute. I took the view that marriage is private and there are no rights that married couples have that can not be gained by contract. Typical view. Then I meet someone and ended up in a relationship. He was not American. We were together for 10 years very successfully. But I was no longer legally allowed to stay overseas and he was not allowed to immigrate to the US as my partner so after 10 years we were forced apart. And no private contract can resolve that. I wish it could. So it's a pretty miserable life for us right now. It's been 8 months since we've seen each other and we can't afford international flights regularly to visit.
Now the typical "purist" would argue that the immigration laws need to be abolished. True. But what they can't answer is what to do in the meantime. Between now and utopia there is a lot of ground to cover. And libertarians who only have utopia to offer don't offer much. The fact is that in my life time the immigration laws won't change much. The marriage laws might. Should we be forced apart for the rest of our lives to make make a point about immigration laws? Or should we be allowed to continue a 10 year relationships by making marriage laws equal? I prefer the later obviously.
Oddly I find that a huge number of the libertarians who try to convince me that I'm being unprincipled for wanting the legal right to marry are themselves married.
Whether you include gay couples in government-defined marriage or, as David suggests, include gay couples in a revised government arrangement that excludes the word marriage, the symbolic effect is the same: the government is treating gay couples the same as straight couples.
That is why opponents of gay marriage would never accept this sort of compromise. They want and desperately need the continuation of a government-enforced stigma against gay people.
I believe the Mormons and the United States government engaged in a violent dispute about the role of the state in defining marriage. It is the threat of polygamy that threatens those arguing against marriage between same sex partners, equally as much as their disdain for homosexuality. I totally agree with you myself about getting the state out of the marriage defining business, but the symbolism of the issue goes beyond same sex marriage.
Hi,
Great post. But Michael Kinsley wrote it first.
Greg,
"My demand is to have the same right to be at the hospital bedside of my partner after an accident, and not to even consider the possibility of some hetero-suprematist Nurse Ratchet telling me to get lost."
Why shouldn't hospitals be free to treat as they see fit? Why should your preference be imposed on them by force?
This is an example of how gay marriage would expand violations of real rights (like the right to do with oneself and one's property as on sees fit) to produce faux rights (like the right to be treated equally by private parties).
"If my workplace offers health insurance benefits to the spouse of a colleague, why not mine?"
If a movie theater offers discount rates to children and seniors, then why not to me? Because it's up to them to decide what to do with their property.
"Or am I to simply concede that a portion of my labor will go to pay for benefits to someone else's husband, but not mine?"
You could bargain with your employer or get another job.
Suppose you get what you want and your employer must treat you as married. Is a single person at your company to concede that a portion of his labor go to your preferred beneficiary, but not his?
My 'Dear John' letter,
Well, to quote myself, "you've sent a lifetime living happily and complacently under our society's version of the dictatorship of the proletariat - the dictatorship of a heterosexual majority."
Since you can't seem to think out of the box (no pun intended), imagine going to an emergency room, and being put out on the street because you're the wrong race, or religion, or because you part your hair strangely. After all (according to the logic of your post), it's a private business, so why shouldn't a hospital let you die of sepsis if they don't feel like treating you?
Greg,
"...imagine going to an emergency room, and being put out on the street because you're the wrong race, or religion, or because you part your hair strangely. After all (according to the logic of your post), it's a private business, so why shouldn't a hospital let you die of sepsis if they don't feel like treating you?"
I completely defend their right to do what they want with their property and their labor. They don't owe me anything.
Why do you think you are entitled to their service even if they'd prefer not to treat you?
Blogrolled!
An interesting factiod/allegation I stumbled across at one point and forgot to bookmark was the actual origin of state-issued marriage licences.
Apparently it was to prevent the awful spectre of black people and white people "commingling."
Before then, it appears that from a standpoint of legality, if you did not care to take advantage of a church service, common law applied - in other words, if you acted as if you were married long enough, the state would hold you to the implied obligations should it come to their attention that you attempted to default upon the arrangement.
I observe that nothing much seems to have changed - the state's permisson to marry or not is conditional upon meeting an arbetrary standard of who the state approves of.
My wife and I applied for a licence simply to take care of such things as any committed couple should be able to do for each other, and extended family, come to that.
We applied for that licence when it came to us that somehow we had become "one flesh" without actually noticing the transition.
Although I like to say - and believe it to be true - that it happened on the first hug.
But as not everyone can be that lucky - alas - rational people need to deal with the "what ifs and therefores."
Whatever role government has in this; there is one thing that should be inarguable - it should never choose to make life more difficult than need be for citizens and taxpayers.
A silly remark was made that gays have the same rights as straight--- to marry any person of the opposite sex they want. This is like saying that in Christian theocracy Jews have the same right as Christians to attend any Christian church of their choice.
I'm skeptical that marriage is a matter of law rather than of fact. Marriage is merely regulated by the state, not defined by it. (If a municipality gives a dog license to [the owner of] a cat, that doesn't make the dog a cat.) The words "married", "spouse", etc. are non-technical terms with meanings arrived at by custom, as with non-technical language in general. The words are referenced by many existing legal documents, and it would be a usurpation of them to try to retroactively change their meaning.
godlesszone,
"A silly remark was made that gays have the same rights as straight--- to marry any person of the opposite sex they want. This is like saying that in Christian theocracy Jews have the same right as Christians to attend any Christian church of their choice."
It's also like saying that people who don't want to marry have will have the same rights as legally married gays because singles have the right to marry.
Why is it that advocates of gay marriage are so concerned about equal treatment for gays and straights, yet seem so unconcerned about equal treatment for singles and married individuals?
This is part of the problem I have with David's post:
" If a state wants to give special rights to one person in regard to another based on their relationship--the right, say, to make medical decisions in an emergency --let it define the relationship by how long they have lived together, whether they share property, the existence of a public commitment, or whatever other criteria are relevant."
I don't see why one form of social engineering is more justified or less offensive than another. If the state can decide how to arrange people's lives why can't it decide that gender is relevant to a certain benefits package? How is discrimination against single individuals(*) more justified or less offensive than discrimination against gay individuals?
(*)In David's case I refer to those who don't share property or a public commitment or whatever other criteria David finds more acceptable than sexual orientation.
godlessone wrote:
A silly remark was made that gays have the same rights as straight--- to marry any person of the opposite sex they want. This is like saying that in Christian theocracy Jews have the same right as Christians to attend any Christian church of their choice.
That's a good analogy. Applying the same logic used by those in favor of legalizing gay marriage, the solution to the above situation would be to expand the theocracy to include Jews rather than do away with the theocracy altogether.
Rather than abolish the practice of doling out special State enforced privileges to Christians, they would expand the rights and benefits extended to Christians to also include Jews. This would necessarily be done at the expense of non-Christians and non-Jews.
If the state can decide how to arrange people's lives why can't it decide that gender is relevant to a certain benefits package? How is discrimination against single individuals(*) more justified or less offensive than discrimination against gay individuals?
(*)In David's case I refer to those who don't share property or a public commitment or whatever other criteria David finds more acceptable than sexual orientation.
Because single people can choose to be married, while gay people cannot choose to be straight.
Perhaps the choice/no choice divide is not that black-and-white. Some people perhaps cannot or should not marry. But surely there is more justification in the government penalizing singles for not being married than penalizing gay people for not being straight.
rick and gary,
Because single people can choose to be married, while gay people cannot choose to be straight.
...
But surely there is more justification in the government penalizing singles for not being married than penalizing gay people for not being straight.
And people can choose to be Christian, too. So "surely" there is more justification for the government penalizing Jews than for the government penalizing gays.
ANY law that has the effect, intended or not, of allowing individuals to restrict the liberty of others based on religious belief should be struck down on principle.
And the courts seem in general to agree.
But this particular issue seems to make people loose their critical facilities entirely.
I should like to see some officious sort keep me from a loved one of any gender simply because I could not prove a relationship they found legitimate.
"ANY law that has the effect, intended or not, of allowing individuals to restrict the liberty of others based on religious belief should be struck down on principle."
Why add the caveat "based on religious belief"? What's more acceptable about restricting the liberty of others for other reasons? Would it be more acceptable if gay marriage were outlawed by atheists?
Because single people can choose to be married, while gay people cannot choose to be straight.
Single gay people can choose to be married, just as any other single person can.
There is nothing that stops gays from privately marrying any person they desire to marry. The legal marriage requirements are, obviously more restrictive, but I see no reason to prefer legal marriage over private marriage unless 1) your desire is to force others to recognize your marriage against their wills or 2) to secure a benefits package from the government.
With regard to the first desire, forcing others to recognize your marriage. You don't have a moral right to force others to afford you special consideration due to your marital status, nor do you have a right to compel others to recognize your status as a married couple. Why do you think you do?
With regard to the second aim, the benefits package, gay singles have exactly the same legal right to obtain special legal benefits as do single straights, by marrying another single adult of the opposite sex. After all, there is nothing in the State-granted marriage benefits package that says either gays or straights have a legal right to be sexually attracted to the person they marry.
If gays choose not to legally marry under the conditions set forth by law, they remain among the ranks of the legally single and must continue to subsidize the benefits of the legally married. The injustice here is not that the government refuses to sanction same sex marriage. The injustice is that the government robs you in order to bestow benefits upon those who meet certain criteria to fit its social engineering projects.
The answer to this particular problem is for the State to butt out of the marriage business, altogether.
graphictruth wrote: ANY law that has the effect, intended or not, of allowing individuals to restrict the liberty of others based on religious belief should be struck down on principle. And the courts seem in general to agree.
The courts do allow individuals to restrict the behavior of others based on religious beliefs. Catholic individuals are allowed to restrict non-Catholics from joining the priesthood. Mormon individuals are allowed to restrict atheists from attending Mormon summer camps.
Also, I don't think individuals who run a Catholic hospital are required by law to allow you to administer pagan rites over patients in their care. Although they may voluntarily abide such ceremonies on a case by case basis. It's really the call of the hospital owners, as it should be. If a patient doesn't like the administrative practices of a private hospital, he's free to negotiate the terms of his stay ultimately, not be a patient there, is he not?
its a hospital not a mcdonlads
I like your interpretation of the marriage debate, especially since it is more than ever relevant now in 2009. I just have a few thoughts about your post
As a gay man, it seems to me that gay marriage will be accepted when American society converges towards higher tolerance, which is not an unrealistic prediction. Think of the steady growth in acceptance of homosexuality and gay rights since 1969. This tolerance must come about naturally and much of it has to do with "market forces" interestingly enough, and not through the judicial process as my gay cohorts continue to pursue.
In this scenario, the term "marriage" can be defined as both same-sex and opposite-sex when society sees no difference between the two. Again, this might seem too idealistic and implausible, but I believe that as MLK said "history tends towards tolerance" (or something like that)
As for your interpretation, the neutral option seems nice, but is it economically wise for the government to stop out of the business of 'defining' marriage? Studies, by UMASS economist MV Lee Badgett and her associates at the Williams Institute, have shown that government revenue can increase from the legalization of gay marriage from state sales and income taxes and marriage license fees. Additionally, increased private consumption on weddings etc. can better stimulate real growth. They conclude that the net impact will be the result of the above plus savings in expenditures on state means- tested public benefits programs
However, if the government should move out of the business, then should it reap the benefits? If the answer is "no", then as I said above it would lose out on revenue that it could use (especially now to pay off the national debt and the future debt we will need to pay off from the stimulus package).
Additionally I think you make the assumption that the word 'marriage' has no intrinsic value. The word marriage to many guys reflects the "love and commitment" we want to express as heterosexuals. A neutral option can seem watered-down emotionally. However, it is still an option that the government should consider.
When did marriage licenses become the norm? At what point did the state deceide it needed to licence who is married?
Post a Comment