RSS Feed MenuThis is part three of a series. Read part one here and part two here.
In previous posts, I argued that marriage traditionalists have no reason to oppose the right of same sex couples (or other unmarried persons) to enter into private covenants governing the division of property and income. In this post, I argue that they also have no reason to insist that government policies affecting married couples apply to only opposite sex couples. On the other hand, same sex marriage proponents should not necessarily insist that the government treat same sex and opposite sex couples equally. Both sides should separate the marriage question from questions of government policy.
Marriage as a legal status — what I have called government marriage — appears in a huge variety of laws. (The General Accounting Office once listed over a thousand federal legal consequences here.) Many writers simply assume that the legal consequences of marriage exist to favor marriage over other relationships. On close inspection, however, it turns out that government only uses marriage as a means to an end. Take the ability of married taxpayers to file joint tax returns. Somewhat comically, the right to file a joint return is often treated as a special sign of government favor. Congress did not create the joint return system until 1948, and then only because state law in “community property” states had made it possible for some married couples to be taxed at lower rates. The joint return system prevents local property rules from favoring taxpayers in some states over taxpayers in other states. Marriage was only incidental to Congress’s more fundamental policy of tax fairness.
To take another example, surviving spouses may qualify for social security survivor’s benefits. Once again, Congress did not mean to privilege marriage per se. Rather, it wanted to support households that had lost the primary breadwinner. As with the policy of allowing joint returns to be filed, Congress granted special privileges to spouses, but only because spouses (i.e., impecunious widows) were more likely to be the intended beneficiaries of Congressional policy.
In short, marriage as a legal status has given lawmakers a handy shortcut for achieving their underlying policy goals. Sometimes the legal consequences of marriage actually punish individuals for getting married: Under the so-called “marriage penalty,” for example, many individuals are taxed at higher rates once they get married. Further, as marriage evolves, reliance on marriage to achieve policy goals often becomes less tenable. In an age of two-income families, for example, it may no longer make sense to make social security survivors benefits dependent on mere marital status. Surviving spouses these days can and do support themselves.
In any case, given the multiplicity of policy concerns underlying the legal consequences of marriage, it makes little sense to make a wholesale change to dozens of different bodies of law. Rather than proceed in such a procrustean fashion, each legal consequence should be considered independently of the gay marriage question. Take the rule that married participants in some retirement plans have less freedom to choose their plan’s beneficiaries. Do gays really want to lose the right to designate beneficiaries of their retirement plans? Is this rule appropriate even for opposite sex married persons? The answers to these questions should be kept separate from whether gay marriage is a good idea or not.
The gay marriage debate founders on the failure to distinguish between what I have called government marriage and what I have called social marriage. Surely gay marriage advocates are not actually lobbying to restrict the right to gay Americans to choose the beneficiaries of their pension plans or to force gay Americans to pay taxes at higher rates. Rather, they are fighting for the signal that marriage as a legal status — whatever its legal consequences — allegedly sends to the world. They feel that the legal status of marriage sends a message that the government approves only of those relationships it calls marriages.
Doubtless both sides overrate the importance of the signal sent by government recognition of marriage. The married people that I know are largely indifferent to or ignorant of the legal consequences of marriage. They do not lord their rights to file joint tax returns over their unmarried friends and colleagues. Rather, they care only about the social meaning of marriage. Government marriage is nothing to them. Social marriage is everything.
Nevertheless, government recognition of marriage continues to inflame passions, because both sides feel that the government should endorse their preferred view of what marriage is. In my next post, I argue that government-recognized gay marriage is actually inconsistent with marriage equality. Under true marriage equality, the government would simply cease taking a position as to which relationships may qualify as “marriages” and which can’t.
Tenek // May 13, 2009 at 1:51 pm
“Redefining an institution thousands of years old”. We told men that their wives were not property; that they couldn’t beat or rape them; that they could only have one; that they didn’t have to pick someone of the same race, class and religion; that they could get a divorce if they wanted one. But none of that compares to letting the gays get hitched, apparently. It’s not a matter of prudence – show me the “traditional marriage” advocates who are actually suggesting we cautiously study this thing. No, instead we have the Bronze Age morality from the religious right that says gay is *wrong*.And actually, I do know what’s in their minds, because they… say so. Loudly.
VerityJones // May 13, 2009 at 3:22 pm
Tenek: “It’s not a matter of prudence – show me the “traditional marriage” advocates who are actually suggesting we cautiously study this thing. No, instead we have the Bronze Age morality from the religious right that says gay is *wrong*”Yeah, they say it is wrong, because the Bible says so. But they’re not the only ones who are worried about changing family law in yet another profound way and the implications for society as a whole. Plenty of legal and family law scholars and sociologists are debating the impact of gay marriage and the condition of marriage as an institution (particularly after no-fault divorce was rushed through without much thought to the impact on children).Gays who accuse anybody debating or questioning of being homophobes are being manipulative. Blacks and women had to make thousands of persuasive arguments for changing the status quo to much tougher audiences, yet they persevered. It was that process that transformed society. Gays want to use the victim status of those groups and the gains from their arguments to declare themselves entitled to redefine a societal institution,which is based on the de facto procreative abilities of heterosexual unions and aimed at protecting children and connecting them firmly to their parents. Gays also declare that even a debate about this is discriminatory. I support gay unions, but I find this tremendously selfish and offensive.
Tenek // May 13, 2009 at 4:45 pm
Verity: The condition of marriage as an institution is not going to be significantly altered by something that increases the allowable number by a couple percentage points. And let’s not pretend that it has much to do with children. You have childless married couples, you have unmarried couples with children, you have single parents, you have adoption. “Think of the children” is just a flimsy attempt to come up with a secular justification for religious bigotry. As for the persuasive arguments part… persuading people is very hard, sometimes impossible, and it’s a bit much to throw away equal rights for a quarter century or more while the homophobes die off.
VerityJones // May 13, 2009 at 5:56 pm
Tenek: I can’t predict how marriage would be significantly altered as an institution by the small percentage of gay people getting married, but statistics in Scandinavian countries show that gays and lesbians have a much higher divorce rate and this may contribute to more negative attitudes, such as a fear of or sense of futility toward marriage in straights. Also, like it or not, many people still will not like gays and it may further diminish the importance and status of marriage for young straight couples. And, finally, gays can be trendsetters in the media and irresponsible gays like Dan Savage may glamorize non-monogamous marriages, which will probably prove to be very unstable and bad environments for kids.I don’t think the answer to concerns regarding the weakness of marriage as an institution and how that negatively affects children and society is to deny marriage to same-sex couples, but I do think the importance of marriage as an institution that supports children and benefits society should be discussed at great length.The reason it matters is because strong, healthy marriages are good for people. They do better health-wise and economically. If they have children, the children do better as well. Divorce hurts adults and it really hurts children for a variety of reasons. Check out the Judith Wallerstein chapter of this book. http://books.google.com/books?id=EcyIAW3R8e0C&printsec=frontcover&dq=rriage+just+a+piece+of+paper&client=firefox-a#PPA92,M1
esurience // May 13, 2009 at 6:52 pm
VerityJones: I’m all for discussing how government policies impact society. But why limit the discussion to just gay people when it comes to marriage? Why not look at subgroups of heterosexuals and see whether they have a negative impact on marriage? And if they do, why not propose eliminating their right to marry? Do Jews have a higher divorce rate than Catholics? Are black people more prone to infidelity? Should we strip marriage rights from those groups of people to better the institution of marriage? If the answer is no, then it’s hypocritical to apply a standard to same-sex couples that you wouldn’t apply to certain groups of heterosexuals.And by the way, gay people have faced much persecution in society. Gay sex was illegal until 2003. Gay publications in the 1950s had to fight for their right to publish under the 1st amendment (the US Postal Service would confiscate them as “obscene” — and no, I’m not talking about pornography, I’m talking about writing about homosexuality in a positive way — that was considered obscene). States had laws against serving homosexuals alcohol, which was used as a pretense for police to raid gay bars and beat/abuse and arrest patrons. If a person was arrested, it was standard practice for police to call that person’s employer, and they were usually fired from their job as a result.
dragonlady // May 13, 2009 at 10:01 pm
Tenek wrote: “And let’s not pretend that it has much to do with children. You have childless married couples, you have unmarried couples with children, you have single parents, you have adoption. “Think of the children” is just a flimsy attempt to come up with a secular justification for religious bigotry.” So now any attempt to discuss the impact of marriage on children is bigotry? Do you believe that it is preferable for government to have absolutely no interest in the welfare of children? And do you believe that all these situations you cited are the same for children? Unmarried couples have a higher tendency than married couples to part ways, which leads to single parenting. Single parents are more often on welfare than not, with the majority of children living near the poverty line. The social science is in on thiskids do better in most aspects of life when they are raised in married households. That is why government affirms marriage and is involved in its recognitionbecause if it dissolves, govt is certainly involved in custody disputes. The fact is that most marriages DO result in children. Marriage has high exit costs in our society because it disrupts family structure which is bad for children. The fact that some married couples choose not to have children is irrelevant. No one is advocating that they should be excluded from marriage because this is highly intrusive, impossible to enforce, and arbitrary. I just cant get over how dismissive you are on the impact of family arrangements on kids.
esurience // May 13, 2009 at 10:13 pm
dragonlady: The positive impact marriage has on children is a great reason for heterosexual marriage. It’s also a great reason for allowing gays and lesbians to marry, since many of them raise children as well. It’s certainly not a reason to disallow gays and lesbians to marry.But marriage also benefits adults, with or without children. And we recognize this with regard to heterosexual marriage. It would be very easy to to disallow a woman who is obviously over the age of menopause from getting married. We could also automatically dissolve people’s marriage once their kids were grown up. But we don’t set expiration dates on marriages because we recognize that their is a positive value of marriage beyond the environment that it creates for kids (for couples that have them). Why can’t you recognize this for same-sex couples as well?
dragonlady // May 14, 2009 at 7:37 am
esurience, I do recognize these benefits for same sex couples. But I don’t believe we have to redefine traditional marriage in order for them to have equality under the law. That’s why I support civil unions or domestic partnerships. We did not pass the ERA because we realized the genders were different, and it would have brought to the forefront of host of thorny issues. We ensured women had equality through under measures in the law. Why can’t we do this with civil unions or domestic partnership?
Tenek // May 14, 2009 at 8:40 am
Well, aside from Bramwell’s suggestion, you would have to redefine marriage in order for gays to have equality, since if you don’t you have a group of second-class citizens not entitled to actual marriage. Yes, you can also try to disentangle the secular and religious aspects of marriage and grant civil unions to everybody, but it seems completely pointless when you can get the same result by extending existing marriage rights. This is much easier than trying to create a separate institution which would be equivalent to the current one but named differently. It’s just a flimsy attempt to placate the social conservatives, who are never going to be happy as long as homosexuality isn’t a capital offense.
sinz54 // May 14, 2009 at 10:13 am
My challenge to the social conservatives is this: Would you change your mind about same-sex marriage, if carefully controlled scientific studies of children of gay/lesbian couples found no significant difference in the psychological health and intellectual abilities of those children? Or would you still refuse to allow same-sex marriage on moral grounds alone?The theory that “same-sex couples might be deleterious to their children” is a hypothesis that can be investigated and tested scientifically. And it has. So far, no studies have shown that children of same-sex marriages suffer psychologically or intellectually.Yet that hasn’t caused social conservatives to reconsider their opposition to same-sex marriage. So I am forced to conclude that this theory of it being hurtful to the children is a red herring. Despite the scientific studies, and despite there being thousands of kids from same-sex couples in school and they’re not rioting and tearing up those schools or committing suicide or flunking out, the opposition to same-sex marriage persists.