Same-sex, whole-milk marriage: 50 Shades of Gay

[Teremia]

IIRC, the license is gender specific. But you'd think one quick visit to Kinko's, and that problem could be solved.

Jn, you're up late again!

[Jnyusa]

Teremia, yes! My insomnia is kicking in because I spent two days half-conscious with the flu, and now I'm on rebound!

You know, I can't remember what my own marriage license looks like, or my daughter's for that matter. I thought it said "party of the first part" or something like that! I'm quite sure that our divorce papers do not specify our gender.

Actually, now that I think about it, gender specification on a marriage license seems a very odd thing to me. Why would gender be specified if marriage was "understood" to be between a man and a woman? And if it was never defined as such under law, how did it happen that anyone was denied a marriage license in the first place?

[Ellienor]

And this is where the conflict starts: which is to be expected whenever you mix church and state. The people who are against gay marriage are arguing from a religious and cultural point of view. They talk about the sanctity of marriage, quote the Bible and cite cultural precedent and norms. On the other hand, people who support gay marriage argue from a legal point of view. They talk about the specific rights and privileges of marriage and cite legal precedent and the constitution to defend their point of view.

This of course is a big problem because each side is referring to a completely different concept. Plus, they’re both right.

Religions should be allowed to decide how their members behave. That’s the whole point of religion. By setting up very specific rules and expectations you create a tightly knitted group of like minded individuals. In exchange for following these rules and expectations you’re granted access to the group and can proudly declare your allegiance to that group. It's a way to feel special. It’s also a screening process, and all strong institutions have it.

However, when it comes to marriage as a legal concept we have much different standards to follow. There’s legal precedent and the constitution. We have concepts of equal protection under the law. We have laws that define our property rights, laws that protect our children from abuse and abandonment, and laws that prohibit discrimination in housing, employment and education. From a strictly legal point of view, gay marriage is a no brainer. Of course two men or two women should be allowed to participate in the rights, privileges and responsibilities of marriage!

I thought this was a nice summation of how the two groups, the ones for gay marriage and the ones against it, talk past each other.

I have to say, I don't get why people think that the term "marriage" is restricted to the narrow biblical interpretation. I would be interested to see some professor's analysis of the origins of the word (maybe it came from the original Indo-European mother tongue, which arose during pagan times?) If so, then this would be an argument that the word has actually been co-opted by Christians to indicate a biblical marriage, instead of the other way around.

[Ellienor]

OK, just because I don't have enough to do (*sarcasm alert*) I looked it up on the web:

1297, from O.Fr. marier, from L. maritare "to wed, marry, give in marriage," from maritus "married man, husband," of uncertain origin, perhaps ult. from "provided with a *mari," a young woman, from PIE base *meri- "young wife," akin to *meryo- "young man" (cf. Skt. marya- "young man, suitor").

PIE means proto-Indo-European, so "marry" and "marriage" are terms that arose in Europe during pagan times (I believe PIE which was the basis for languages in Europe is believed to have been spoken about 10,000 years ago?)

So the word is of pagan origin with nothing to do with the Bible, I'm guessing.

[Frelga]

I have to say, I don't get why people think that the term "marriage" is restricted to the narrow biblical interpretation.

Actually, Biblical marriage was between one man and one or more women. See Jacob.

[Primula Baggins]

Excellent point, Frelga, and one that is not brought up very often—even though everyone learned about Jacob, Leah, and Rachel in Sunday School. I've seen it presented as romantic—"Look! He did get to marry both of them after all!"

[JewelSong]

... everyone learned about Jacob, Leah, and Rachel in Sunday School. I've seen it presented as romantic—"Look! He did get to marry both of them after all!"

Not to mention sleep with both their maids...

[yovargas]

Was it Solomon or David that had a whole horde of wives?

[Frelga]

Not to mention sleep with both their maids...

Who, curiously, were under control of the wives, not the husband.

I love the Jacob story. The scene with the mandrakes is one of my favorites in the Torah.

Yov - and.

[Primula Baggins]

Not to mention sleep with both their maids...

Who, curiously, were under control of the wives, not the husband.

Yes—the wife gives her maid to her husband. Sarah gave Hagar to Abraham that way.

[Ellienor]

Thanks for that edifying discussion on "biblical" marriage! I'd say that should take some moral wind out that argument....


More seriously, though, I have to say the one issue that does bother me about legalizing gay marriage (although I think it absolutely is the right thing to do) a bit is the next step.....legalizing polygamy. I guess I'm just not personally all that comfortable with finding a constitutional right to have more than two people in a marriage.....but perhaps taking it out of the context of cultish withdrawal from society (a la Mormon fundamentalists that have made the news lately) it wouldn't be horrible. I don't know. Will have to ponder.*

*although when I pondered how it would feel if my husband came home and introduced me to his fiance, I have to say I retract the horrible part!

[axordil]

The main problem with polygamy (if one is dealing with adults and not minors, really a separate issue) is how it messes with property rights, which kind of tells you what marriage is all about...

[Ellienor]

How does it mess with property rights, Ax?

[Frelga]

What problem is it, Ax? If we are talking Biblical, all man's children inherited equally, IIRC.

It was actually marriage between men that would have wrecked the established tribal property inheritance. Which, some say, is the reason it was condemned.

In modern terms, how are property rights in polygamy different from those where multiple marriages occurred serially?

[solicitr]

Because an ex-spouse (divorced) has no inheritance rights at all.

[Frelga]

But the children do. And doesn't the ex-spouse have rights to social security benefits?

[solicitr]

Yes, they do.

I suppose there's no argument other than long tradition to raise against polygamy (the Brits have now extended welfare benefits to multiple wives!), except that of course the known forms are hardly gender-neutral. I suppose eventually we'll evolve the Heinlein society where all sorts of multiple group marriages and combinations are recognized.

[Ellienor]

Heinlein made a "line" marriage sound pretty workable in The Moon Is a Harsh Mistress......

[nerdanel]

Ellie -

It's a potential consequence, not an automatic consequence. (And, I do not fear that polygyny, in the sense of one older man with many young girls often below the age of consent, will ever be legalized, btw. I'm thinking about what would need to happen to legalize polyamorous marriage between, say, 3-5 consenting adults in all gender configurations.) In that regard, some food for thought:

1. Interracial and same-sex marriage both exemplify the idea that it is NOT an easy sell to include new groupings of people within marriage, particularly where those people (a) trigger negative "gut" reactions in others; and (b) have previously been (or are currently) the target of religious condemnation. Moreover, it is not possible to include a new group by resort to only one branch of government - ultimately large chunks of the legislature, judiciary, and the general population will have to unite behind the idea. (Even if SCOTUS was the last frontier for interracial marriage and (I predict) will be the large frontier for same-sex marriage probably two decades or more from now, SCOTUS will not act without at least a marked trend from a significant minority of states.) IOW, just as interracial marriage advocates paved the way for same-sex marriage advocates but still left much hard work for the latter to accomplish - advocates of polyamorous marriage would face an uphill battle notwithstanding same-sex marriage. (Indeed, they would face significant opposition from a critical mass of gay and lesbian people who are often the FIRST to state, 'That's not what marriage means - marriage is the union of two people.' Irony is in the eye of the beholder, I guess.)

2. If polyamorous units of people wish to get married, they will need to create a critical mass of organizations, amass financial resources, and mount a tremendous public relations campaign. I do not see even hints of this momentum. My personal and admittedly quite limited experience with polyamorous individuals is that many of them seem to have deliberately chosen to step outside of what they see as overly restrictive social expectations with respect to marriage and monogamy. Again in my limited experience, I've perceived several of them to direct a fair amount of disrespect and scorn towards the idea of marriage. (Of course, sometimes we scorn the things we feel we cannot have - and certainly I've encountered gay people who say they used to scorn the idea of marriage when it seemed like a hetero-only institution, but now realize, as it comes within reach, that they're more interested in it than they previously thought.)

3. If, as a society, we are ever called on to consider seriously whether to legalize polyamorous marriage, I think it would be incumbent on those of us who feel a viscerally negative reaction to avoid a kneejerk "that's not what marriage is" reaction. First, what marriage has been in the past (which is society-specific, for starters) does not absolutely dictate what it must be in the future. Second, because marriage means one thing to you does not mean that you can dictate what it must mean to everyone else. And third, because it is frankly both intellectually lazy and annoying. That said, marriage-as-a-legal-institution is really designed for two people, and I think we would be entitled to consider the practical problems in extending it to units of three or more:

- Inheritance rights become nightmarish, as Ax has noted - especially with respect to community property and intestate succession issues
- Medical decisionmaking - if there are three partners who heard three different versions of the patient's wishes, who makes the final decision
- Child custody - four people are raising a child together, and one of them leaves the "marriage unit." What custody and decisionmaking rights does the one person have vis-a-vis the other three? How does this change if the one person is, say, a biological mother? Or a non-biological male parental figure? And this is JUST the legal nightmare of it - I'm not even going into the impact on the child.
- Testimonial privilege - ordinarily you have a spousal privilege only vis-a-vis a single partner. If you now share this privilege with four other partners ... that seems problematic to me, and could open the door to using group marriage as a shield for criminal activity (maybe a little far-fetched, but crazier things have happened.) Even apart from organized criminal activity, this seems to me like many bites at the apple.
- Coverage under health insurance plans. Does an employer have to insure its employee's two or three partners? How does this affect the burden on single employees, people with only one partner, etc.
- Tax returns. Isn't the tax code nightmarish enough without four people filing jointly?
- Sick care/family leave - if one partner is sick, do her four partners all get to take time off under government-mandated family leave plans?
- Wrongful death suits - who gets to bring them?
- And, a huge one - divorce becomes impossible to navigate. If you have four people in a marriage unit, what happens if one of them wants to leave and the other three want to stay? How do you navigate property and child custody issues when one person "divorces" the other three?

Frankly: I think this issue will always be evaluated by the courts under a rational basis standard, and I think the above illustrates very clearly why the courts will always find (infinite) rational bases for saying "no dice." Even under a heightened scrutiny standards, I think there are some compelling reasons above for the government to say no. And ... I just don't see this issue gaining traction in the legislature. I don't see the momentum on any frontier, which is why I don't think it's an inevitable consequence of legalizing same-sex marriage in practical terms. And, in logical and legal terms, I think there are significant reasons (many given above) to differentiate. I believe it's not a logical, natural progression for the above reasons. So I see what you're saying but I strongly disagree.

[vison]

Many countries have polygamous marriage and the rules are pretty clear and common, as far as inheritance, etc.

There are issues in simply "transferring" those rules to our culture, but those issues are not insurmountably difficult.

However, the FLDS nutbars are outside the normal universe.