Lee's Blog

In the series of posts called “What’s love got to do with it?”, most recently this one, I’ve argued at (great) length that I don’t think legalizing same-sex marriage will solve the personal, social, and religious issues that it’s touted as solving, and that the existing benefits (and responsibilities) of marriage either should be eliminated or could be imposed through a contractual mechanism with the same effect.

So why would anyone object to same-sex marriage? You could make marriage a contractual matter, or you can produce the same effect by legalized same-sex marriage. Essentially all you’re doing is applying a tag, right? And if people want the marriage tag, well, go for it!

Right now, if there are two adults living together down the street from me, and they introduce themselves as married, it’s not like I’m going to demand to see the marriage license. If they happen to be of the same sex, then there are only a limited number of States in which they could have obtained that marriage license, but it’s not like I’m going to grill them about the legalities. If they say they are married, then I will treat them as such. Any reasonable person would. (And someone who objected to same-sex marriage in principle would not treat them as such regardless of whether they have an actual marriage license, as I have pointed out previously in this series.)

So, what difference does it make if the people who introduce themselves as married have a marriage license or have a private contract that they keep in a safe deposit box somewhere?

The difference is that if they have a marriage license, then the State knows about their arrangement. It has to know.

Contracts, on the other hand, are private. Unless it becomes necessary to go to the Courts for interpretation or enforcement, no one outside of the contracting couple need know of the terms or even the existence of the contract.

But who cares whether the State knows about the arrangement?

Many years ago — maybe as early as the late 1980s — I read a book by Thomas Sowell in which he observed that the reason there were so many Jews in Germany when Hitler rose to power was that Germany was one of the least-bad European countries for Jews just prior to that time. And when I thought about it, that was credible. A fair number of scientists who were Jews fled Germany as Hitler rose to power, which implies that, while there was antisemitic prejudice, still Jews were able to get good educations in Germany at the time. Dr. Sowell finished by commenting somberly that if Nazism could happen in Germany, it could happen anywhere.

I have never forgotten Dr. Sowell’s words, and that is the reason I think that, instead of enacting same-sex marriage, we should get the State out of the marriage business altogether. I don’t think it is a good idea to have official records of who belongs to a same-sex couple. When things get bad — and I have a feeling things are going to get very bad — people look around for someone to blame. A good orator could point them at homosexuals, particularly if very religious people were already angry that their beliefs had been trampled on in the drive for same-sex marriage. In that case, official records pointing out practicing homosexuals could well act as death warrants, whereas private contracts and clergy records would be less likely to fall into the hands of the mob and endanger the individuals involved.

So that’s why I think the issue of same-sex marriage should cause us to stop, ponder whether the current institution of marriage really even qualifies for the name, ponder whether the current tax system is really just in a world where a lot of people don’t live in nuclear families, ask ourselves whether we really should be recording people’s sexual histories — and come up with the solution of getting the State out of the marriage business altogether.

(Almost) finishing up (finally!) with comments on “What’s love got to do with it?” on Accept No Substitutes, I move on to the legal aspects:

Legal: A binding contract which carries with it tax consequences, legal rights, responsibilities, and termination clauses.

Mephistopheles continued this thought in greater detail in “Here is the paper which bears his name upon it as well as mine”, wherein he listed a number of legal effects of marriage

• a quick way for one (or in some jurisdictions, both) parties to change her (sometimes his) legal name
• a different set of tables on income taxes
• a presumption of parenthood for children (unless proven otherwise)
• a defense against having to testify against another person in a court of law, sometimes
• a default way of passing on someone’s assets after death
• a way to expedite someone’s application to come to or remain in the country
• a default power of attorney
• a default combining of assets and incomes

The thing to notice about this list is that, except for the presumption of parenthood, none of these effects is strictly unique to marriage. Even the defense against having to testify against another isn’t unique to marriage; there are laws that protect attorneys and psychiatrists from having to testify against their clients/patients.

To my mind, it would be far better to bypass the argument about same-sex marriage by making these legal effects equally available to all — regardless of desire or lack thereof to marry. In particular, I have deep doubts about the “a different set of tables on income [also estate] taxes.”

Seriously. If two people live together, share a household, pool their money, provide moral and physical support for each other, I see no reason why they should be treated differently depending on whether they wish to engage in marital relations (to be delicate). When I was working in a law office, one of our cases was a man who had lived his whole life with his widowed mother. He was her sole support. Why were they disadvantaged in taxes vis-a-vis a couple who have been married for a week?

We also had a case where a woman had died and her widower and sister were good friends and continued to view each other as “family”. But the law regarded them as utterly unrelated, so when he left his estate to her, the State of Oklahoma and the United States penalized her as heavily as if he’d left his estate to the girl who was nice to him at the drug store. (Before he died, we thought of suggesting that either they should marry or he should adopt her but it was clear that the first suggestion was out for religious reasons and they were not interested in the second.)

I would avoid the problem of discriminatory estate taxes by eliminating them for all but the very largest of estates and then removing the marriage exemption. If keeping large estates together is bad, then it’s bad whether you give the estate to your children or to your spouse. In fact, it’s probably worse if you give it to your spouse, who can remarry after your death and pass it on to the new spouse, who can later remarry and pass it on to yet another, and so keep it together perhaps for decades longer than if multiple children had received it. There is, after all, no requirement that a spouse be anywhere near your own age.

I also think one could eliminate “chain” immigration by virtue of marriage, which Mephistopheles mentions. I think here the law could be made both stricter and fairer by removing the “marriage” entanglement. An employer who wants to bring in an immigrant employee has to prove that they will continue to employ the person. Likewise there could be some provision that any person who wanted to bring in any immigrant could be required to enter into a legally binding agreement with the government to provide that person with a home and monetary support, regardless of whether they are “married” in the eyes of the State or anyone else.

[And at this point Windows Vista blue-screened and I had to pick up the thread of thought the next morning ... good thing WordPress was auto-saving.]

I think I’ll go on with this in a new post, as this one is getting long.

Continuing with comments on “What’s love got to do with it?” on Accept No Substitutes, I move on to the religious aspects:

3. Religious: The mystical joining of individuals, typically as ordained by the appropriate deity or deities, surrounded by ceremonies and prayers, carrying with it various supernatural risks and allowing certain benefits.

In the United States, at least, the State has no right to dictate religious beliefs to anyone. The most it can do is prohibit practices that are harmful to others (the State outlaws human sacrifice no matter how willing the victim nor how important the sacrifice is thought to be). If a religious institution contends that homosexuality is a grave sin, well, that’s up to them. Offensive as it may be to others, such beliefs cannot be prohibited.

(Not in the United States and not at the moment, anyway. In Canada, a Christian pastor was enjoined from ever again expressing anything disparaging about homosexuality, in public or even in private email, on pain of being held in contempt of court and fined or imprisoned. He was also ordered, again on pain of being held in contempt of court, to preach a sermon which according to his beliefs was utterly false and harmful to the souls of those who heard it. Although I disagree with his belief, I find that sort of assault on someone’s freedom of conscience to be absolutely reprehensible.)

Suppose same-sex marriage is legalized. Does that mean religious authorities would be compelled to officiate at rites for same sex couples? No, that would be an assault on their freedom of conscience. It is already the case that the State says two people may legally marry and religious authorities say they may not (last I heard, Catholic priests would not officiate at the marriages of divorced individuals, unless the prior marriage were annulled in the Church). In that case, the two people find another religious official (maybe in another sect) or get married before a justice of the peace.

I think it will be hard, really, for Christian sects to come around on same-sex marriage. Mephistopheles mentions that some feel “anything that prevents a same-sex couple from marrying is the equivalent of anti-miscegenation laws”, and the Christian churches did come around on miscegenation — hardly any of them still object — but I really don’t think same-sex marriage is entirely comparable to the miscegenation issue. The Bible doesn’t clearly come out and say “miscegenation is sinful” so believers in the Bible could, however reluctantly, accept that miscegenation was okay in the eyes of God and that prior objections really were just based on prejudice. The Bible does clearly come out and say that homosexuality is sinful, more than once, and I really don’t see how believers in the Bible could realistically turn around and say that objecting to same-sex marriage is really just a matter of prejudice.

It’s not to say that such a change is impossible — Christians don’t abide by all of the restrictions in the Bible, such as not eating pork — but I think it will be hard for the religious establishment to change its view on this. I think the most one could expect is the sort of “render unto Caesar” attitude that Catholics have toward divorce: “Yeah, the State has this institution of same-sex marriage, and it has legal effects in the eyes of the State, but we don’t recognize it as valid.”

I express no opinion about most religions other than Christianity, as I don’t pretend to be very familiar with them, but I do think it will be even harder to Muslims to come around since in many parts of the Middle East homosexuality is still a capital crime, based on passages of the Koran, and it would be even harder for Muslims to say, “well, it looks like we are required to kill anyone who practices homosexuality, but really it doesn’t mean that.”

I don’t think changes in the law are going to have any immediate beneficial effects on the religious view of homosexuality, and indeed I can see changes in the law actually hardening the religious view. It appears to me that that is already happening (”We’re under siege! Our age-old beliefs and values are under attack by the evil atheists! Cling to them more tightly!”) In the long run, I think most Christian sects will come around, but the long run is a long time, and even then there will be hold-outs. So, regardless of the law, people who are hurt and angry because their religious authorities call them sinful and refuse them the marriage sacrament are going to remain hurt and angry for a long, long time.

A month ago I started commenting on “What’s love got to do with it?” on Accept No Substitutes. At that time I was thinking about the individual/emotional context of same-sex marriage. Continuing on to the social/societal context …

2. Social/societal: the way that people and organizations treat people they consider married, single, and various states in the continuum. This also includes various expectations for proper behavior once married.

Again, I think this context has gotten quite disconnected from the legal aspect of the problem. There is already a problem with “marriage-like” relationships, and society is already coping with it.

(I once heard an officer of a bank talking about an employee and “her … uh … her … uh …” and at this point the president of the bank jumped in with “her good friend”. I believe the good friend was male, but might not have been. It didn’t matter. The president of the bank was obviously comfortable with the relationship and wanted to make sure the other person recognized that.)

I don’t think, in any case, that laws will help in this case. If some people find same-sex relationships distasteful or offensive or consider them unnatural and refuse to recognize them as equivalent to opposite-sex marriage, laws aren’t going to change that. Laws can compel organizations to treat same-sex couples equally with opposite-sex couples, but reasonable organizations (like the company I work for) are already doing that because doing so keeps their employees happy.

Laws are not going to induce people who disapprove of same-sex relationships to, for instance, invite both partners to social events. Only social pressure, like the invited partner declining to come if the other is not invited, and others staying away in sympathy, can have that effect.

Likewise, if a family has kicked out their son because of his orientation, laws aren’t going to make them take him back. If he’s of age, they are, generally speaking, able to wash their hands of him for any reason that might occur to them. One of the arguments for same-sex marriage is that it will put a stop to this. It won’t.

You might think that, eventually, new laws would have the effect of changing people’s attitudes, and I think they would too. But not quickly and not entirely, not in a situation like same-sex marriage, which is fraught with religious issues. Notice how, after — what, thirty-five years? — Roe v Wade has not legitimized abortion in the eyes of a large number of Americans.

This is in reference to “What’s love got to do with it?” on Accept No Substitutes. Mephistopheles O’Brien has had several posts about marriage, particularly with respect to gay marriage. I have commented a little, but don’t want to take over his blog with my comments. So I think I will respond here, beginning with this one.

Mephistopheles observes (read the whole thing, of course) that:

“Marriage” has meanings in at least 4 different contexts, and while these overlap they’re not identical. The 4 contexts are:

1. Individual/emotional: the choice of individuals to “join their lives together”, “dedicate their lives to each other”, “blend their families”, and similar sentiments.

2. Social/societal: the way that people and organizations treat people they consider married, single, and various states in the continuum. This also includes various expectations for proper behavior once married.

3. Religious: The mystical joining of individuals, typically as ordained by the appropriate deity or deities, surrounded by ceremonies and prayers, carrying with it various supernatural risks and allowing certain benefits.

4. Legal: A binding contract which carries with it tax consequences, legal rights, responsibilities, and termination clauses.

When someone says (as some have) something to the effect of, “it’s none of ….’s business whom I marry,” is that true? In the individual context, I suppose it could be. Every other context, though, has the need for someone else to recognize the marriage an provide some sort of approval. That gives the organization (society, church, government, whatever) some ability to define what it means to be married, under what conditions they will recognize that marriage (and in some cases, stop recognizing it), and how the “married” people will be treated compared to “unmarried” people.

I agree with all of this, but I think there is already a massive disconnect among these various contexts, and in particular, the legal aspect has gotten increasingly disconnected and, frankly, irrelevant. In this post, I will begin with Mephistopheles’ first context: individual/emotional.

When I was a child, I remember hearing a song that included the line, “We’re not forced to love each other, we just love each other naturally.” This was based on the complaint made in the 60’s that “marriage is just a piece of paper” and people shouldn’t have to (or want to) get that piece of paper. At the time, that was not true, however. Divorce was, I understand, difficult to get as a matter of law and often entailed heavy financial penalties for the man which might make it difficult for him ever to remarry.

(A cultural note: I remember a scene in Alas, Babylon, written in the late 50’s, where Dr. Gunn observes that he cannot remarry; indeed he cannot even build his practice, because, between the progressive tax structure and the escalation clauses in his alimony obligations, if his income ever rises to $50K, he will have to declare bankruptcy.)

So, in the 60’s, marriage was not just a piece of paper, but today, to a very large extent, it is. That is, people may feel a personal commitment based on the piece of paper, but they do not in fact have much more commitment based on that piece of paper.

You doubt me?

I read an article back in the 90’s to the effect that the institution of marriage simply does not exist in the United States any more. The author pointed out that:

• Marriage is not permanent. Every State has provisions for divorce; many allow “no-fault” divorce, meaning that either party can get a divorce just because they feel like it; and if the grounds for divorce in one State are not liberal enough, either party can simply move to another State, establish brief residency, and get a divorce there. The author observed that a contract terminable at will by either party is not a contract at all, and a marriage terminable at will by either party is not a marriage either.
• Marriage does not produce unique financial burdens in the form of alimony. Alimony has all but disappeared over the decades, with the recognition that marriage is ephemeral and thus a woman cannot expect to be supported for life by her husband. On the other hand, to the extent that one partner can claim to have been promised life-long support, marriage is not a pre-requisite to recovery. Remember palimony?
• Marriage does not produce unique financial burdens in the form of child support. As we all know, a man can be pronounced “father” of an out-of-wedlock child in the absence of any evidence except the mother’s word, and on that basis, without even the slightest pretense of due process, compelled to provide child support for that child. Thus, the obligation of a man for his children (or some other man’s children) is the same whether he married the mother or not. (Note that I do not think it is unfair to require a man to support his own children in or out of wedlock, though I do strongly feel that the Constitution should be honored even here.)
• Marriage does not produce a unique relationship with the resulting children. Fathers who did marry the mother have no greater right to the company of their children than fathers who didn’t bother; while the Courts do issue visitation orders in divorces, they don’t enforce them in any way and such orders are routinely ignored by hostile mothers, without penalty. Out-of-wedlock fathers can also get visitation orders, and I assume those are routinely ignored in the same way.

The author of the article observed that “marriage” in the United States today is essentially an iterated game of Prisoner’s Dilemma: since each party can defect at any time as soon as a better offer arises, the other party must be prepared to defect first, as soon as it becomes evident that the first is getting ready to make the move. Thus, have an iron-clad prenuptial agreement, maintain separate bank accounts and make sure the other party can’t drain them, think long and hard before having children….

It is true, of course, that some marriages are built on a basis of mutual trust where the Prisoner’s Dilemma aspect is disregarded. I know a number of couples like that. But that’s only because the couples have decided as an individual emotional choice to join their lives together and dedicate their lives to each other. It is not in any sense the product of “marriage” as an institution in the United States.

That being the case, getting back to Mephistopheles’ comments about gay marriage, I don’t see any difference on an individual emotional level between a committed relationship between people of the opposite sex and a committed relationship between people of the same sex. In neither case is there any legal obligation to continue the relationship, whether or not there is a “piece of paper” involved.