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This is the first in a series. Read part two here, and part three here.
This post and the four that will follow argue for a conclusion that will strike many readers as preposterous: The goals of those who favor marriage equality, I believe, are not inconsistent with the goals of those who defend traditional marriage. Not only do the two camps not have to compromise, they should actually join forces. The Republican Party — which arguably needs a new strategy on the marriage issue in any case — can lead the way.
First, we need to unbundle the concept of marriage. As most who follow the marriage debate realize — even if they often stumble over the point — marriage is not an indivisible essence but a complex of many different features. It is, first, a contract between two parties. The contractual features of marriage I call “private marriage.” Second, marriage is a legal status with implications for taxes, government entitlements and dozens of other bodies of law. The legal but non-contractual consequences of marriage I call “government marriage.” Finally, marriage is a system of norms and expectations beyond the direct control of either the government or the couple. The norms of marriage I call “social marriage.”
Let’s unpack these three further, beginning with private marriage. By entering into a marriage, husband and wife ordinarily acquire rights to each other’s property and income. In some states, property acquired during marriage generally becomes “community property” in which each spouse has a half-share. In other states, divorce courts have discretion to divide marital property in a way that seems fair. During life, each spouse typically has a duty to support the other, while at death the surviving spouse may have a right to a portion of the deceased spouse’s estate. The rules vary from state to state, but all states recognize some basic form of marriage covenant.
In addition to being a contract, marriage is also a legal status. For various reasons, courts and legislatures have found it convenient to treat married persons differently from unmarried persons. To take one example from the tax law, Congress in 1984 decided that an exchange of property between married persons should not ordinarily trigger gain or loss. (Instead, gains and losses are deferred until property is exchanged with a third party.) The policy behind this rule is thought to be that the tax code should not intrude on inter-spousal transfers. Congress could always take away this privilege or extend it to non-married persons. The same goes for the myriad other government policies implicating marriage: they can be revoked, altered or extended as lawmakers see fit.
Finally, marriage is a set of norms, customs and expectations. Despite all the cultural upheavals of the past three generations, some recognizable marriage ethos has survived. A married couple, for example, may have sex, live and have children together entirely without stigma. (They may even feel pressured to do these things.) On the other hand, they cannot break up without risk of shame and are expected to wear a visible signal of their married status (i.e., a ring). For most people, it is these and other norms that make getting married such a momentous event.
Distinguishing these various features of marriage make it possible to resolve the gay marriage debate. I will leave the reasoning for later posts. For now, consider only what each side really wants. Do marriage traditionalists really want to deny same sex couples the right to enter into enforceable agreements for the sharing of property and income? Do advocates of marriage equality really want the government telling people what marriage norms they should adopt? My answer to both questions is no. In my next post, I will explain why.
Tenek // May 11, 2009 at 1:54 pm
Or you could just let the gays get married.
treen // May 11, 2009 at 2:08 pm
Or you could let the guy finish what he has to say before deciding that you don’t like it, instead of automatically rejecting it out of hand because it would apparently require some compromise.
sinz54 // May 11, 2009 at 2:38 pm
Mr. Bramwell: “Do advocates of marriage equality really want the government telling people what marriage norms they should adopt? My answer….is no.”To you, that wouldn’t be a compromise on the part of gays? Of course it would.When gays speak of “marriage equality,” they mean more than just the legal arrangements. They mean the same respect and approval from society that heterosexual couples have when they get married. And they mean the same right to have and raise children that heterosexual couples have.Here in Massachusetts some years ago, when Catholic Charities refused to place an orphan child with a gay couple, the gay couple sued. Catholic Charities protested that their religious beliefs prevented them from placing orphan children with gay couples. Catholic Charities even offered to find another adoption agency to place the child with the gay couple. But the gay couple said no. They wanted nothing less than 100% of the same rights as other couples–even though that would step on Catholic Charities’ religious beliefs.Unable to run their adoption program according to their own moral precepts, Catholic Charities shut the program down completely.That’s an example of how far the gay community is prepared to go. If they could successfully sue churches for refusing to marry them, they would.That’s what you’re up against.So whatever you propose may make the GOP look better in the eyes of moderate heterosexual voters.But you won’t get gay voters to go for it.
esurience // May 11, 2009 at 3:29 pm
sinz54: When marriage equality has been enacted by legislatures (in Vermont and Maine), they have also enacted protection for religious folks who disagree. For example in Vermont the bill included this section:”Notwithstanding any other provision of law, a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage or celebration of a marriage. Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this subsection shall not create any civil claim or cause of action.”And please stop it with the lies about the MA Catholic Charities. That had nothing to do with same-sex marriage and everything to do with anti-discrimination laws. Anti-discrimination laws which were already on the books long before MA got marriage. The reason the case came up at the time it did was because Catholic Charities changed their position on gay adoption. They used to allow gay couples to adopt, and then they changed their mind. And _one couple_ filing a lawsuit against an organization is not an example “of how far the gay community is prepared to go.”There are good arguments for or against allowing an organization to operate with public tax dollars, and yet discriminate against a certain class of people. But those arguments have nothing to do with marriage, and everything to do with anti-discrimination laws. So they’re irrelevant to this discussion.And FYI: 27% of self-identified gay voters voted for McCain.
ChristianMiller // May 11, 2009 at 5:15 pm
Prop 8 generated some pretty raw feelings on all sides. A graceful solution is for the government to withdraw completely from its involvement in marriage and civil unions: no licenses; no distinction between married and single; no discrimination; no special financial benefits to married people; no special legal rights. Folks can still have fancy weddings; be blessed; exchange vows and rings; live together; be married or anything they want to call it. No ones life changes. No more laws, no more propositions, no more court rulings. Fairness finally to the 85 million single people. Last year my wife started collecting $700 per month from Social Security based solely on the basis of being married to me. Hard to argue that this situation is fair.
dragonlady // May 11, 2009 at 7:29 pm
Most voters do not want to deny gays any rights. But we recognize marriage is about family, the most fundamental institution in society. It’s not just about two adults loving each other. If it is, how is it different than people who live together but for whatever reason, choose not to marry? This doesn’t mean gays can’t have children or be together, or have legal rights. Traditional marriage advocates believe it is preferable for a child to have a mother and a father. This is not a diss to single parents or gay couples–we know loving a child is not about being gay or straight. Anyway, I am interested in the whatever argument the author makes in the next piece. But I hope it takes into account the role of family in society. Gender is not a social construct, and not interchangeable, no matter what others may claim. It is a very real part of our identies that young children grow up and need role models for.
esurience // May 11, 2009 at 8:27 pm
dragonlady: If you believe that a married, two-parent household is better for the raising of children, why deny the benefits of married parents to the children of same-sex couples? And do you not recognize any benefits of marriage even without the raising of children? Married people are healthier, happier, and more financially secure than non-married persons. Does society not have an interest in promoting happy, healthy and financially secure individuals? Marriage means knowing you don’t have to grow old alone, it means knowing that there’s a person who is first in line to take care of you if were in need. Why deny this to people who are gay? Isn’t that cruel?
kroner // May 11, 2009 at 10:18 pm
dragonlady:That argument doesn’t make any sense. Just as making it illegal for a couple to get married doesn’t prevent them from being in a loving and committed relationship, it also doesn’t prevent them raising children. Obviously in our society most couples who raise a child together choose to get married, but if that choice were taken away (or never provided), that certainly wouldn’t stop them.And frankly I’m tired of the thinly veiled bigotry of gay marriage opponents who claim that children are raised better by straight couples. If you said something like that about the race of parents, you wouldn’t be allowed to show your face in public. Saying something so disgusting and hateful about gays should receive the same treatment.
mlindroo // May 11, 2009 at 10:41 pm
Sinz54:> Unable to run their adoption program according to their > own moral precepts, Catholic Charities shut the program > down completely.By the same logic, adoption agencies run by religious denominations that regard blacks as inferior should have the right to refuse applications from blacks. It offends their religious beliefs after all!!!—I don’t know about you Sinz, but in my book discrimination against people due to religious bigotry is no less offensive than other forms of discrimination. MARCU$
InTheMiddle12 // May 12, 2009 at 4:18 am
I’m a dollar and cents type of guy. To me it comes down to taxes and social security. If I’m in a ‘gay’ relationship and my partner and I contribute throughout our life to the tax strcture, why wouldn’t I be awarded the same potential death benefit that a male/female couple receive, let along the ongoing marriage tax break for jointly filing?I think the gay community should take a strong Republican position related to paying taxes and fairness, period. Also, it’s the Republican history to separate one’s personal life from government control, of any type. It’s no doubt the Republicans should be pro-gay marriage because it’s clearly more aligned to Republicans history.
sinz54 // May 12, 2009 at 6:41 am
esurience: Insofar as the Church runs so many charitable organizations dealing with poverty, medical care, the care of children, etc., I fully expect those legal exemptions you described to be challenged in the courts. Remember that no charitable organization run by a Church is allowed to discriminate on the basis of race, for example. So the idea that a charitable organization run by a Church can still discriminate on the basis of sexual orientation is going to get challenged on exactly that analogous basis.The legal language you described was just sugar to get the bill through the legislature. Nobody expects it to be upheld in the courts without a big fight. So stop being disingenous.
sinz54 // May 12, 2009 at 6:45 am
esurience:The ONLY reason that Catholic Charities of Massachusetts had been doing adoptions for gay couples is that they were FORCED into it by the state’s antidiscrimination laws. They sought an exemption. But they got slapped down. (And I fully expect liberal judges to declare those religious exemptions you cited for Vermont as unconstitutional too. Just give it a year or two.)Anyone who wants to read the REAL story of what happened, can still get it off the Internet. Here, for example:http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/
treen // May 12, 2009 at 7:07 am
kroner: If Dragonlady is such a bigot for believing that a child should have a mother and a father (as opposed to 2 mothers or 2 fathers), then please explain to me the studies in every freaking parenting magazine I’ve picked up in the pediatrician’s office stating exactly that. Males and females parent differently, and apparently children need both the male and female influence in their lives.There are also studies and reports on juvenile crime that indicate that children from homes without a good father have a higher chance of landing in jail. They don’t say that the children need “two parents of either gender.” They say they need a father and a mother – male and female. These aren’t exactly religious publications here.If you’ve got something that shows differently, fine. But for crying out loud, if the only response you’ve got is the hysteria of “you’re a religious bigot!!!!!!!!!”, I’m not listening anymore.
sinz54 // May 12, 2009 at 7:25 am
treen: There are numerous studies showing no significant difference in the behavior of children from homosexual parent *couples* versus heterosexual parent couples.http://www.apa.org/pi/lgbc/publications/lgpstspec.htmlThere are plenty of other studies showing that a child does better from a two-parent household than a one-parent household where that parent works all day. Gee, what a surprise.
mlindroo // May 12, 2009 at 7:47 am
> The ONLY reason that Catholic Charities of > Massachusetts had been doing adoptions for gay > couples is that they were FORCED into it by the > state’s antidiscrimination laws. They sought an > exemption. But they got slapped down. (And I fully > expect liberal judges to declare those religious > exemptions you cited for Vermont as unconstitutional > too.Let’s hope so! This is absurd, like allowing Muslim taxi drivers to refuse (on religious grounds-) to serve unveiled women, blind passenger with seeing eye dogs etc..http://pajamasmedia.com/phyllischesler/2008/02/04/raging_muslim_taxi_drivers_in/MARCU$
kroner // May 12, 2009 at 11:09 am
treen:First of all, that second study is almost certainly comparing single mother households to households with a mother and a father. Lack of involvement of fathers in raising their children is a serious problem especially in the inner city, where these kids end up involved with gangs and drugs. As such, it’s been a specific area of attention and research lately. Unless you can show a link that says otherwise I would extremely surprised if two parent same-sex household were considered.But the point is that the statistics don’t matter. You would also find in a study that children of white parents are more successful than children of black parents. And yet if you decided that there should be a law banning blacks from getting married, you would be a bigot. It’s not about who the best parents are, it’s about fairness under the law.And again, I’ll point out that child rearing is unrelated to the legality of marriage. People not allowed to marry may still raise children together and every gay marriage opponent knows this. It’s just a distraction from the real issue.And yes, I get angry about bigots. I’m not going to apologize for that.
dragonlady // May 12, 2009 at 12:44 pm
Wow, so because I believe in traditional marriage, an institution that’s been around since the dawn of time, I’m a bigot? Kroner, you’re the one that sounds quite intolerant. Making a comment that all things being equal, kids tend to be better off with both a mother and father does NOT make me a bigot. You’re painting strawmen kroner. I clearly stated in my post I do not want to deny gay couples legal rights. I also stated that being gay has nothing to do with be a loving parent. The states can decide to have civil unions or domestic partnerships. Stop spreading your intolerance and misrepresenting my opponent. It’s the same crap those on the left pulled towards Ms California.
dragonlady // May 12, 2009 at 12:45 pm
Kroner–I meant you are misrepresenting my position but I doubt you’ll listen anyway. You’ll use McCarthy-like tactics to shut down folks who support traditional marriage.
kroner // May 12, 2009 at 1:50 pm
If I could drum up public anger towards homophobes in congress McCarthy-style, I totally would. But you know as well as I do that is a ridiculous notion in the context of our society. Prejudice toward gays is still treated as a legitimate view point, however shameful that is to me as an American.Don’t get me wrong: I’m not claiming that you are homophobic. I don’t pretend to know what is motivating you here. But if you aren’t claiming that a child is better off with straight parents out of homophobia, than what are you claiming it on the basis of? And why are you claiming that the we should be legislating based on who we believe makes the best parents when it’s clearly not the government’s place to do so? And why are you dragging parenting issues into a discussion of marriage legislation when you just admitted they are not related?When I see these sorts of unsubstantiated and tangential arguments I can’t help but think that they are merely rationalizations. I would like to be proved wrong about that, but you’re going to have to do a better job making your case.
dragonlady // May 12, 2009 at 4:51 pm
kroner, if you don’t know my motivations, you shouldn’t claim I’m a bigot. Pres Obama has said he believes in traditional marriage–so is he a bigot too? While I recognize gays can be loving parents, I never stated that child rearing should be decoupled completely from marriage. What I am saying, for example, is that it’s important for a boy who grows up to have an adult male, preferably his biological father, in his life as a role model. Every family therapist will tell you this. That’s something that two lesbians or a single mother will have difficulty in providing him. The rational premise that opposite sex couples can provide everyday living role models for their children is the same rationale that the NY courts have used in finding that same sex couples do not have a constitutional right to marriage. They also state this does not violate the equal protection clause because anyone can marry; we recognize it when its between a man and women. By saying 2 men or 2 women can marry, we are completely redefining marriage. Procreating and child rearing do not matter anymore in government recognition of marriage–it’s completely subject to adult desires. Why then, can’t someone who wants to practice polygamy request that their relationships be recognized by government? Or a dad who wants to marry his daughter be recognized by government? I also believe redefining marriage impacts other basic freedoms: freedom of association (see eharmony), freedom of religion (Boston Catholic charities anyone?), etc.
dragonlady // May 12, 2009 at 7:24 pm
Also, I want to point out the difference in the nature versus nuture debate. Both play an important role in our interactions with each other, regarding marriage and family. For the most part, we don’t legislate on the nuture aspect of parenthood and decide who’s a bad versus good parent because it would be ridiculously intrusive to do so. However, my point is that ignoring the nature aspect is fraught with consequences. Gender is not just a social construct–it is a very core part of our identity and how we react to situations in life, regardless of race or sexual orientation. Another analogy is this one: the feminists tried to pretend in the 70s there was no difference between the sexes when they pushed the ERA. I’m not saying men and women aren’t equal, but they are different, and passing it would have brought a host of problems. There are good reasons we don’t force women to sign up for the selective service. Every psychological study now claims what most with common sense have always known–yes, there are significant differences between the sexes!