This 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.
35 responses so far
1 esurience // May 13, 2009 at 3:09 am
Oh no. Here comes the “to save marriage from the gays, we have to get rid of marriage entirely” argument. I was really hoping for something else… I guess I’ll save my comments for the next article though, since this one didn’t say much.
2 sinz54 // May 13, 2009 at 6:36 am
Mr. Bramwell, your entire three-part series has an air of unreality about it.
Here’s the reality. The 2008 Republican Platform says this:
“Because our childrens future is best preserved within the traditional understanding of marriage, we call for a constitutional amendment that fully protects marriage as a union of a man and a woman, so that judges cannot make other arrangements equivalent to it.”
The phrase “other arrangements equivalent to it” implies that the GOP is dead set against *any* legal arrangements that might weaken the traditional definition of marriage. That would rule out virtually everything you’ve proposed.
All your circumlocutions have avoided the real issue of what should be changed in the Platform.
So: Can we get a clear statement from you that this call for a Marriage Amendment to the Constitution should be stricken from the Republican Platform?
3 sinz54 // May 13, 2009 at 6:39 am
esurience: We don’t need to wait for any more of your comments.
We know your position is full civil marriage rights for homosexuals.
And I think you and I both know that the GOP cannot endorse that. Their entire Christian evangelical wing, plus many Catholics led by Kathryn Jean Lopez, would simply walk out. And without them, the GOP cannot win any national elections.
Mr. Bramwell was trying to seek a compromise. I have my own ideas about a different compromise. But any compromise must be acceptable to the GOP base.
4 Tenek // May 13, 2009 at 7:15 am
There’s not going to be much of a compromise acceptable to the GOP base because they’re most of the problem. Any “solution” to this is going to start with telling off the evangelicals.
5 balconesfault // May 13, 2009 at 7:50 am
I disagree that you need to “tell off” the evangelicals. I do believe that you need to start reframing the debate so that some evangelicals might see it in a different light. To that extent, I applaud Bramwell for taking it on. The fact is, the current Republican position is a long-term demographic loser, guaranteed to erode the base. The biggest danger here is if those social conservatives in large part are not seeing their interests served in other ways by the party … and are willing to walk solely on insufficient fealty to their social agenda. If that’s the case – there is going to have to be some significant fracturing before rebuilding can take place.
6 Tenek // May 13, 2009 at 9:14 am
I wouldn’t say it’s much of a long-term demographic loser. In the long term the social conservatives will more or less drop the issue as they did with race, but I don’t really see that happening for a few years yet. In the meantime, if we can borrow Nate’s numbers ( http://www.fivethirtyeight.com/2009/04/will-iowans-uphold-gay-marriage.html ) all but 7 states will likely favor gay marriage in the next ten years.
How long do you want to have the social conservative albatross around your neck?
7 VerityJones // May 13, 2009 at 9:49 am
In what way are social conservatives an albatross?
8 Tenek // May 13, 2009 at 9:56 am
They’re dominating the GOP policy on gays, which is causing problems attracting younger voters who care about it much less than their grandparents.
9 liv&win // May 13, 2009 at 10:09 am
Social conservatives are albatrosses because they want to legislate personal behavior and limit freedoms of those they don’t agree with. What should be a slam dunk issue of civil rights and equal application of law, the issue of civil unions is unresolvable iwithin the current republican party (in favor of individual liberty) because of the conservative right. Because of these albatrossess, the republican party doesn’t have the mental dexterity to distinquish between an opinion (traditional marriage) and a basic civil right (equal treatment under the law).
10 sinz54 // May 13, 2009 at 10:19 am
Tenek: The social conservatives are not an “albatross.”
They are the heart of the Republican Party’s Get Out The Vote (GOTV) drives. They use the social networks from their churches and social functions to know whom to contact to get votes. In 2004, they delivered Ohio (and hence the election) to Bush–so the Party should be grateful to them. They perform the same functions in a Republican campaign that organized labor performs in a Democratic campaign.
And the GOP can no more expel the evangelicals, than the Democrats can expel the labor unions.
11 VerityJones // May 13, 2009 at 11:01 am
Tenek: Thanks for the answer. I think that Sarah Palin types do hurt conservatives politically, because they are seen by moderates on both sides as driven by irrationality and prejudice. The Rapture types are unfit to be near nukes, if you ask me.
12 VerityJones // May 13, 2009 at 11:03 am
As far as gay marriage is concerned, I think homosexual pair-bonding is biochemically (and thus emotionally and psychologically) equivalent to heterosexual pair-bonding and, as such, homosexual couples should have access to an equal legal instrument for this type of bonding combined with commitment.
On the other hand, the very nature of marriage, as a legal instrument in society, comes from the fact that procreation has and continues to be the de facto result of male/female sexual relations.
This is still an important factor when you consider that less than 4% or so of the population is exclusively same-sex oriented, and even an even lesser percentage will get married and have children.
Churches started sanctioning marriages in the Middle Ages, because, at the time, all you had to do was say you were married and that was enough to be married. This created a large social problem due to too many feckless men privately agreeing to “marriage” to gain sexual relations, then denying the marriage when his “wife” became pregnant. In other words, churches started sanctioning marriage to make it harder for men to deny paternal responsibility. That had a positive and stabilizing effect that lasted centuries. Then, the church split, and split again, and lost power. As civil life and democracy developed, the government took over the same sanctioning role as the church. The appearance of two separate branches of sanction is a bit of an illusion. The original purpose of sanctioning marriage was exactly the same.
13 VerityJones // May 13, 2009 at 11:09 am
I’ve found this Bramwell series interesting and I’m looking forward to the conclusion.
First of all, I should state that I’ve historically been very liberal, but find myself increasingly attracted to moderate conservatism. I like it when people, regardless of political party, bring social science, good data and good arguments to issues. I hate knee-jerk political positions. My overarching commitments are to truth and justice, to Western Civilization, to my health and well-being and security of my country and my society.)
I have to say it is knowing intimate details about the lives of some former friends, who are gay and male, turned me off to gay culture and what I see as a deep and pernicious self-indulgence, sense of personal entitlement and pervasive feelings of actual superiority toward straights. These aspects of gay culture are obviously not publicized much in gay marriage debate, because that all comes under the rubrik of “private behavior.” I should add I don’t imagine that all gays behave/think that way. Perhaps those that actually want to get married are less like this than others.
14 VerityJones // May 13, 2009 at 11:11 am
Is there some way to edit comments? I meant to say “My overarching commitments are to truth and justice, to Western Civilization, to the health and well-being and security of my country and my society.
15 VerityJones // May 13, 2009 at 11:23 am
Anyway, sorry for the multiple posts, but I found I couldn’t lay out my points without breaking them up into smaller posts.
I wanted to point out that when a Christian like Tony Perkins discusses how gay marriage could undermine society, someone like Dan Savage can scream him down on national television without mainstream rebuke. This is because too many evangelicals have simply cherry-picked their biases out of the Bible and that undermines conservative credibility on the issue.
In reality, Tony Perkins was not only actually representing the position of societal norms in that scenario, but his claims about what’s best for children were based on social science data. Dan Savage was not required to account for his non-normative advocacy of non-monogamous gay marriage (which he actively advocates), particularly as to how it may affect the child he and his partner adopted. In fact, I’ve read Dan Savage’s advice column “Savage Love” and seen him strongly encourage straight people to explore homosexual attractions they felt when they were high (suggesting that was how they really feel) and also encouraged them to cheat on their partners or pressure their partners to indulge their sexual fantasies of three-somes. His suggestions were consistently to either do it behind their back or dump them. Yet, when he goes up against an evangelical, he gets to play the righteous latter day civil rights worker facing Biblical bigotry. If you know gays and ever read his column, you’d find it a complete joke that someone like him gets to represent gay’s equal access to the type of love and commitment and stable family life that straight marriage traditionally offers.
Meanwhile, the opportunity was lost to discuss what Savage really means by marriage and what social science actually shows about what’s best for kids. Studies show that children of gays do as well as *single (straight) parents.* This has been turned it a bit of sophistry about how “kids of gays do as well as kids of straights,” when, in fact, the data shows kids of single parents don’t do very well at all compared to kids of married parents — and even children of straight cohabiting parents don’t do as well as those of straight married parents.
Gays have no doubt suffered from discrimination and a status of illegitimacy in society, but they haven’t been anywhere near as systematically deprived of rights as blacks (or even women) have been historically, because they’ve had the option of restricting their sexuality to the bedroom (instead of making it an identity issue), whereas women and blacks have had no such option, but they have so successfully coat-tailed gay marriage on the black civil rights movement, they’ve garnered an unearned, IMO, credibility, which allows them to denounce any debate as bigotry. Yet, society has every right to publicly discuss the pros and cons of gay marriage or lack of it, discuss the strengths and weaknesses of different types of family structures and so on.
16 Tenek // May 13, 2009 at 11:35 am
Verity: They’ve been killed for being gay, how much more deprivation of rights do you want? Most of the problems that happen when gays raise children are directly related to being treated poorly by the self-righteous. However much you want to expound on the technical differences between race- and sexual orienation-based discrimination, the homophobes are going to be as fondly remembered in a few decades as the racists are today.
17 VerityJones // May 13, 2009 at 12:02 pm
Tenek: Gays historically haven’t been free to pursue their sexual and romantic relationships openly without fear of persecution. Being killed for being gay is persecution, but it isn’t equivalent to systematic deprivation of rights, such as the right to not be property, the right to be considered a 100% human, right to vote, right to work, right to equal pay, the right to own property, right to public services, etc. I’m not suggesting gays should be deprived of some legal instrument for their bonded and committed relationships. But I am criticizing how they have seized the unassailable moral high ground earned groups who have suffered injustice in significantly different ways from their own to shut down debate and critique of their own movement.
18 VerityJones // May 13, 2009 at 12:13 pm
Tenek: “the homophobes are going to be as fondly remembered in a few decades as the racists are today.”
No doubt. Witness the Fred Phelps phenomenon. A Phelps-based character will become as standard a villain in movies and novels in decades to come as KKK members are today. They are an equivalent.
But, is anyone and everyone who questions gay marriage or who critiques gay culture a homophobe? No. But they will be accused of it.
19 Tenek // May 13, 2009 at 12:25 pm
I see no reason to refrain from labeling anyone who doesn’t support equal rights for gays as homophobic. And fine, gays didn’t have it quite as bad as the blacks, but it’s ridiculous to say that only the worst-treated group has any right to complain or monopolize the moral high ground. “Debate and critique” is very nice in theory; in practice it means dragging your feet while people suffer.
20 VerityJones // May 13, 2009 at 12:36 pm
Just to clarify, you are saying you see no reason not to accuse people of being homophobes if they question what kind of impact gay marriage will have on society and on the institution of marriage? Can you explicate how gays suffer while the debate drags on?
21 VerityJones // May 13, 2009 at 12:42 pm
Tenek: “but it’s ridiculous to say that only the worst-treated group has any right to complain or monopolize the moral high ground.”
That’s not what I was saying.
22 Tenek // May 13, 2009 at 12:58 pm
Verity: “… I am criticizing how they have seized the unassailable moral high ground earned [by?] groups who have suffered injustice in significantly different ways from their own to shut down debate and critique of their own movement.”
You get the moral high ground when you’re persecuted for what you didn’t have the option to change. That applies to gays, blacks, and women. If you want to bring up systematic deprivation of rights, all right, the gays never got denied the vote. So what?
And to answer your question – no, I don’t see any reason to drop the ‘homophobe’ label any more than I would the ‘racist’ label if you want to put the brakes on interracial marriage while people are busy not getting any of the http://en.wikipedia.org/wiki/Rights_and_responsibilities_of_marriages_in_the_United_States
23 dragonlady // May 13, 2009 at 1:02 pm
Ah, the libertarian argument. But I will wait for the author’s conclusion. He is making a thoughtful argument although I have my own ideas on how we can compromise on this issue. I’m not as confident as the author that the signal sent by govt recognition of marriage is meaningless, either.
24 dragonlady // May 13, 2009 at 1:11 pm
Tenek, people who question the impact of same sex marriage on the institution of marriage itself, and by extension, child rearing and society are not de facto homophobic. They are questioning the wisdom of redefining an institution thousands of years old and common to all civilizations. It is within the conservative tradition to urge prudence on these types of changes in societies while the progressives want to go full speed ahead on the latest social issue of the day, and would happily take on social engineering experiments without concern for the potential consequences. Labeling traditional marriage advocates as homophobes are ad hominem attacks since you do not know what is in their hearts and minds, and has the effect of shutting down debate. The interracial marriage argument is a red herring. That has historically been based on the view that blacks were inferior to whites, and as such, society had a right to deny them rights.
25 dragonlady // May 13, 2009 at 1:31 pm
The author believes the government recognizes marriage as a means to an economic policy end. However, that is only partially true. State courts such as NY and MD have recognized that it within the states’ interest to have and protect children within an institution that promotes stable social bonds that provide a return benefit to the rest of society.
26 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.
27 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.
28 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.
29 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
30 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.
31 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.
32 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?
33 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?
34 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.
35 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.
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