Thursday, May 6, 2010

Tell me why

If you thought that the continuing unpopularity of gay marriage laws--only five states and the District of Columbia have passed laws making same-sex "marriage" legal, while thirty states explicitly prohibit same-sex unions and ten more, which allow some sort of civil union, define marriage as between a man and a woman only--would keep the gay marriage debate out of the public eye for a while, you were wrong. As I've thought all along, the only real reason to get state approval of gay marriage was for gay advocates eventually to attempt an end-run around state laws forbidding gay marriage by appealing the matter to the United States Supreme Court:
The latest legal challenge to the US Defense of Marriage Act began Thursday in a federal courtroom in Massachusetts, in a case that will determine whether gay couples legally married under state law are entitled to the same federal benefits that heterosexual couples receive.

Eight same-sex couples and three widowers, who filed their suit last year, are challenging the 1996 federal law known as DOMA, which bans gay marriage. They argue DOMA is unconstitutional because it denies them equal protection under the law.

The case puts the Obama administration in an unusual situation. The president has said he would like to see DOMA repealed, but the Justice Department is tasked with defending the law.

“The government does not presently support DOMA and would like to see it repealed, But we do argue for its constitutionality,” said Justice Department attorney W. Scott Simpson at the onset of his argument. He filed a motion to dismiss the challenge to the federal law, arguing for the US government’s right and responsibility to apply federal law as it sees fit, regardless of some states’ decision to “experiment” with broadening the traditional definition of marriage.

The argument, of course, is that if same-sex couples are going to pay federal income taxes and federal social security taxes, they should be allowed to do so as a couple, and should be allowed to receive social security survivor benefits etc. when one partner has died.

My question to that is: why?

Giving certain federal benefits to married heterosexuals makes sense to me, because married heterosexuals are overwhelmingly likely to have children as the natural and expected result of their type of union; even if individual married couples are non-reproductive, the reality that most of these types of couples can and do produce and raise children is necessary to recognize. Benefits tied to parenthood outside of marriage likewise make some degree of sense, as people who are not married may still produce children and be responsible for them.

But a same-sex couple is by definition a sterile, non-reproductive couple--as a couple. If they end up responsible for children it will either be by the choice of adoption (or IVF or other evil means) or because of a previous heterosexual relationship. In no way does their "marriage" produce future citizens for the nation, and thus in no way does the nation owe them any sort of subsidy for their relationship.

Some would argue that this would mean the state would have to be "biased" in favor of heterosexual couples who are married. The state has every right to be biased in favor of that sort of couple, because that sort of couple is the sort of couple who produces future citizens and raises them in the most stable environment--again, individual variances notwithstanding. The state does not have to extend the same benefits to polygamous groups, for example, because even though such groups can certainly produce lots of future citizens, the stability of the environment for vulnerable members, particularly the younger "wives" and the children, is highly questionable. The state does not have to extend its benefits to same-sex couples either, who don't as a part of the relationship produce any future citizens at all; nor does the state have to extend its benefits to, say, every cohabitating heterosexual couple of at least six month's duration with no marriage contract between them, because while the production of future citizens may be a possibility, the state has no reason to suspect stability in a relationship which, however much it may call itself "committed," has not made the slightest effort toward establishing any legal committment whatsoever.

The truth of the matter is that marriage, as an institution, is a great deal older than the modern state, which, to me, considerably limits the state's power to redefine it; but even given that, the question is: why would the state have any compelling interest in redefining marriage in such a way as to require the payment of certain federal benefits to couples to whom these benefits have never been paid before?

If you think the state should do this--tell me why. And I'd especially like to know why you think same-sex couples should be given access to federal benefits that continue to be denied to polygamous groups and cohabitating heterosexuals.

16 comments:

David said...

Erin, I'd love to get into this, but I have a quick question that, depending on your answer, will shape my response:

Should society refrain from giving the benefits of marriage to infertile couples due to physical reasons or even couples that cannot reproduce due to being physically separated (cases of incarceration)

Cheers.

Red Cardigan said...

David, I've written about this before--pointing out that there's a difference between a couple who is infertile (either temporarily or permanently) due to age, disease, or illness--that is, in *spite* of nature and the natural process of biological reproduction, and a couple who is infertile because that couple by their nature as a couple are incapable of the act which causes reproduction.

(The Catholic Church, for instance, permits *infertile* couples to marry, but does not permit a couple to marry when they are physically incapable of the marriage act--that is, intercourse.)

Be that as it may, I'd be cheerfully willing to stipulate that a state does not *have* to treat childless couples the same way they treat couples with children in every instance--and that any differences in treatment still don't change the underlying reality that it is to the state's advantage, generally speaking, to encourage contracted heterosexual couple-ship as the model for the family.

I don't, however, see any benefit to the state as an entity to encourage homosexual couple-ship, non-contracted heterosexual couple-ship, or polygamous groups (contracted or not). Do you?

Siarlys Jenkins said...

The phrase "bans gay marriage" is a misnomer. Marriage laws do not "ban" anything. They define what will be recognized AS a marriage. DOMA does not "ban" gay marriage. It establishes a policy that federal agencies and programs will not recognize or provide benefits for state-recognized marriages which are not within the definitions which have traditionally applied in federal law: the union of a man and a woman.

A law which "bans gay marriage" would establish overt civil or criminal penalties for the crime of engaging in gay marriage. For example, most antimiscegenation laws imposed a year of more in prison and a fine on any couple who married and lived together as man and wife, if they were not of the same "race." That's not an issue for gay couples any more.

Although I would not be unduly disturbed by my state or any state passing laws which recognized and allowed for registration of same-sex couples, I don't see any "right" for "same sex couples" to "marry."

Every person who identifies themselves as "gay," is either a man, or a woman. Equal protection of the laws applies to individuals, not demographic groups. Every man is free to enter into the legal status of marriage. So is every woman. If a man, or a woman, does not wish to enter into marriage, they don't have to. If they want something else in their life, perhaps We The People will choose to extend recognition to it. Perhaps not. If We do, each man and woman must, as a matter of equal protection of the laws, have the option to enter into whatever that relation might be -- or not.

eulogos said...

Red Cardigan,

In my debates with people on this subject I have found that they do not accept or usually even understand, the notion of a "kind" or class of relationship which has a usual but not universal outcome, and that members of that class still belong to it even if they do not have that outcome.

In other words, we say that marriage is a certain kind of relationship between a man and a woman that is ordered to the procreation of children. The fact that it is so ordered gives it much of its meaning and is part of its being. That meaning and being extends to those married couples who through age or defect (infertility) cannot procreate.

These people will tell you they see no difference between a homosexual couple and a heterosexual couple who cannot procreate. They just cannot get the argument that the homosexual couple is intrinsically and by nature unable to procreate while the heterosexual couple is only accidentally unable to procreate.

They can't understand this because they lack the idea that human beings are intrinsically anything...they lack the idea that we have a nature at all. Or that marriage has a definition and a being and a nature.

Their understanding is only functional. The relationship is what it is defined by humans to be. If we are to privilege procreating pairs, nonprocreating pairs will not be privileged, period. To say we will privilege the "sort" of relationship which usually involves procreation makes no sense to them, because the idea of "sort" makes no sense to them.

This is my conclusion after many such debates.
Susan Peterson

David said...

Susan,

Perhaps the people to whom you refer see such a blatant similarity between gay relationships and a heterosexual relationship that the reason you gave for distinction is hardly convincing for differential treatment. That's most likely a direct consequence of there being less stigma to being gay in this country than in the past, where it was much easier to not even imagine those repulsive gays doing anything more than having indulgent, damnable sex.

I would doubt--though I can't say I've spoken to those you refer to, however barbed your comment was in my direction--these people disregard parts of humanity as "intrinsically anything" since it would give them very little with which to argue. They more likely value, contrary to your own views, different things as being intrinsic both to the nature of humans and even marriage.

One example of an intrinsic understanding might be that humans on the fair and large part find themselves attracted emotionally and romantically to other members of humankind, and far, far more common is when this aligns with a member of the opposite sex. Then there are some who, for whatever reason, have the same emotional, romantic, and sexual attractions except only to members of the same sex.

Again, I would doubt they deny the idea of intrinsic nature, else why would it not be so difficult for a gay man or gay woman to simply marry an opposite sex partner and be done with it?

Yet (as a tangent to this conversation), I wonder if it’s this imposition of a lack of intrinsic qualities that leads people to fear a consequence of gay marriage being devaluation of marriage, leading to straight men and women suddenly deciding they want to be with someone of the same sex since “anything goes” and sex/gender doesn’t matter. I’m not quite sure their fear is justified, as it conflicts with the bewilderment of many straight men and women how someone could be attracted to a member of the same sex, a tragic outcome that requires similarly tragic circumstances (abuse, neglectful parenting, indoctrination), however untrue. Although, I guess “indoctrination” fits the bill.

As some likely unnecessary disclosure, I come from a different background where I find the previously underlying nature shaped by evolution and then further co-opted by society and other institutions to creating an essentialist view of marriage (and oftentimes the men and women involved in the arrangement).

David said...

Forgive me, Erin. I’m still new to your blog (didn’t find it until Rod started working for the Templeton Foundation), so I hadn’t crossed you making the distinction before.

I’m aware of the difference with regard to the Catholic Church, but since you posed the problem from the standpoint of the state and institutions and their promotion of child rearing and stable environments for children, it seemed odd that infertile couples would miss this requirement (since by definition they cannot do the former). I do believe that gay couples are another form of infertile coupling in that respect, and if the other infertile couples were squeaked under this requirement and allowed marriage, there would need to be more justification than simply child-bearing as the reason disallowing gays. That was the primary focus of my asking the question.

As to the crux of your post, I do believe there is a benefit to the state to encourage gay couple-ship, as you term it. On its face, I believe neither state encouragement of celibacy is wise (nor is it even a vocation forced upon people from my understanding of the Bible) for gays nor is encouraging them to enter heterosexual unions. With celibacy, if we treated the group like any other population, it’s likely not all of them could make that decision and follow it, just as we would expect with the heterosexual population, ignoring whatever demands to chastity they may have. It is hardly any coincidence that the moral demands of heterosexuals are not permanent sexual asceticism. I see no reason to suddenly ignore nature here and then make that moral demand of gays.

With the other idea, encouraging gays to enter heterosexual unions…well…the recent case of George Alan Rekers is a sad example of this, as are the other Ted Haggards and closeted gays who attempt to make it work. While these men might be a testament to its possibility, I tend to worry more about the horrific fallout to those families involved. I don’t quite understand how it would even be preferable to encourage gays to marry someone of the opposite sex, actually, than to form a relationship with someone they’d probably have some attraction to build upon.

Ultimately encouraging long-lasting relationships and families (because gay couple-ships are essentially forming a family) that align with the individuals’ romantic, emotional, and sexual urges seems to me a legitimate interest rather than having those same individuals wandering about, cavorting with whom they may. I cannot properly express how galling it is to read the occasional diatribe against gay marriage referencing the promiscuity of gay men as a reason to not allow gay men or women to marry (when the institution of marriage is pivoted on creating that promise of fidelity, aided with public affirmation, acknowledgement, and accountability).

David said...

(Part 2)

There are other social benefits to the society. With marriage, two people are making an affirmation of providing for one another emotional care and support throughout their lives in a way that we shouldn’t expect the greater society to give. The most cited example is the hospital situation and making decisions/caring for a loved one. I can’t see why there should be a motivation (other than not wanting gays to pair off) for making it harder socially for gays to make this familial commitment. Marriage grounds adults, makes them happier, and transmits them through their adolescence into adult life, establishing them into their communities.

Obviously, I come from a different camp, where gay sex is not a direct route to Hell. I’m not attempting to impose an opinion on you, so please read the following as more of an observation: I do believe it would be hard for some Christians to want that good encouraged on the simple basis that it would simultaneously be encouraging people to sin against God and Nature…whatever the state interests may exist.

With non-contracted heterosexual couple-ship…you already mentioned a reason not to give those rights to them. They aren’t trying to be a permanent relationship, whereas it would appear to me, that’s the aim of gay marriage proponents. The odd thing about your objection, however, is that a scant few states do have common law marriage for those circumstances of heterosexual cohabitating for a long time with not the express intent to last as long as they live.

With polygamists…I don’t quite see how my position entails its support, but I’m sure you’ll point it out :)

Sterling Crews said...

"My question to this is: why?"

I think this goes to the widening divergence between the Church's ideas on marriage and the general population's view on the subject. I would argue that both the Church and the general population's views on marriage begin with love between two people. However, while the Church sees children as the logical (and even necessary) outpouring of this love, this is not so in our culture. For many (most?) people, the love between two people is the be all, end all of marriage. Children may come, but they may not. Children are no longer a given in marriage. Many married couples eschew children entirely.

This redefinition of marriage is a large part of the reason that gay marriage is now closer to being accepted. RC, your definition of marriage is not the version that has taken hold in the popular culture. When love between two people is the defining reason for marriage, love between two people becomes the defining reason for all the benefits flowing from marriage. And tax credits, hospital visits, etc flow naturally from two people codifying their love for each other.

You sees the federal benefits flowing from parenthood, our culture sees the benefits as flowing from the love between two people. There is your disconnect.


"The truth of the matter is that marriage, as an institution, is a great deal older than the modern state, which, to me, considerably limits the state's power to redefine it."

I think I would, to a certain extent, disagree here. From a Catholic perspective, I would agree. Marriage is as old as the Church, and the Church has no power to redefine it. However, as far as the state is concerned, marriage is nothing more than a social contract. The state can always redefine the terms of social contracts. In this country, social conservatives have so far been lucky enough that, for the most part, the Church and state's versions of marriage have coincided. I think that this convergence will likely end within the next 30 years (at most).


"Polygamy"

As for why the polygamy wouldn't get this treatment, people still overwhelmingly see marriage as between two people. If 70 percent of the people in this country believed polygamists should receive federal benefits, they would. Logically, it may not be that much of a jump to give polygamists benefits, but our culture doesn't approve of polygamy, so federal benefits are a no go there.

I think in this instance, familiarity is also an issue. Since being gay is not as much of a stigma as it was before, many more people know open homosexuals (they don't know many polygamists). Many of them are every bit as normal and well-adjusted as their heterosexual friends. Heteros may even see gay couples with adopted children. They see families. And when people see these homosexual families that are no more dysfunctional than hetero families, they are more apt to support gay marriage and all the benefits that flow from marriage.



"Cohabitating heterosexuals"

This is a fairly easy distinction. The state gives cohabitating heterosexuals a way to state their love and commitment to each other. If couples choose not to do so, they have no reason to complain. The state has an interest in making sure that people who receive federal benefits are serious about their relationship. Even as glibly as our culture treats marriage, it is still much more serious than just living together.

Red Cardigan said...

David, I think you are, in a sense, just restating the assertion that the state "ought" to give same-sex couples the same benefits it gives opposite sex ones. Your reasoning appears to be this: "Ultimately encouraging long-lasting relationships and families (because gay couple-ships are essentially forming a family) that align with the individuals’ romantic, emotional, and sexual urges seems to me a legitimate interest rather than having those same individuals wandering about, cavorting with whom they may."

But even if you were to stipulate that two same-sex people can be called a "family" in some sense, you haven't really made the argument, I think, that the state *needs* to privilege the committed same-sex couple "family" in the same way that it privileges the committed heterosexual couple family.

Why does the state privilege any sort of family type at all, anyway? Why can't two spinster sisters (for one example) who live together and are most decidedly not romantic partners get Social Security survivor benefits, file jointly on income taxes, and the like?

I think that once you demand federal privileges for the same-sex romantic partner couple, you must also give those privileges to the same-sex non-romantic spinster sister "family" as well as the polygamous family group, and anybody else who shares a residence--because you are no longer saying that there's anything unique about that type of family which is overwhelmingly likely to be productive of new citizens for the state. Either there is something different about the nuclear biological family of husband, wife, and their own children which somehow justifies giving this type of family some tax breaks and privileges, or there is nothing different about them, in which case two non-romantically-involved college roommates ought to be able to file joint tax returns and claim Social Security survivor benefits if they want to, for the duration of their time living together.

Otherwise, you are putting the state into the business of privileging romantic partnerships based on "love"--but only those which jump through certain "paperwork" hoops (e.g., a marriage license) and which involve only two, never more, people--both of which are highly discriminatory to the non-committed and the non-romantic, to say nothing of the non-monogamous.

Red Cardigan said...

Sterling Crowns, my points to David apply to what you write, too. Here's the thing: since when has it been any state's business to get involved in what we call love?

The state doesn't care if a man loves his wife--they may cordially hate each other and live mostly apart, in fact, but are still entitled to the federal benefits we mention so long as they are legally married to each other. I fail to see the state's compelling interest in regulating romantic partnerships at all, in fact; what do we say to those spinster sisters in my example--that they may be sincerely attached to each other, but so long as they're not performing sex acts on each other they're not entitled to federal benefits?

No, if we decide that same-sex couples can be "married" according to federal law, then it's nothing but rank bigotry to keep the spinster sisters out of the benefits pool--and it would be the height of injustice to keep the polygamous group and their children out in the cold.

Of course, all of this essentially renders the whole concept of marriage meaningless. But that really has been the end-game from the start.

Todd said...

Perhaps it's time to consider why governments offer any incentive at all to couples. Do marriages make society better? What about college roommates, communities of religious, or the like?

My mother is in her 80's, and lives with my sister. Even if one or both of them were married, why not appropriate certain legal benefits to such a living relationship, especially if it were of benefit to society?

The hang-up, it seems to me, is sex. Some married couples do not practice sexual intercourse, so are they some kind of cheaters for filing jointly on the 1040?

Same-sex couples don't want to bother with piecemealing the legal obstacles to adoption, visitation when ill, sharing mortgage and insurance, making a household more financially stable, and all the other niceties of modern living. Blanket approval of same-sex marriage throws out all the obstacles. Why go on a handful of political campaigns when one will get the job done?

I can't figure out why conservatives, the supposed-champions of government minimalism, don't see this.

David said...

Regarding your first two paragraphs (didn’t copy to save character space), to clarify, I’m not sure the state “needs” to—as opposed to “ought” to—privilege without qualification heterosexual relationships. But it is for the same, sound reasons we “ought” to privilege heterosexual relationships that I find myself convinced we ought to do the same for what is readily appearing as their mirror image, same-sex relationships.

A lot of the privileges stem from the assumption that the two people entering the agreement are pledging to care for one another, be responsible for one another (becoming a family), as well as providing the appropriate environment for children to be supported and cared for. Increasing the incidence of families and marriage, given the many ancillary benefits to the people involved and our society, seems to me a legitimate state interest. I do not make light of the importance of children and their rearing to marriage. I do not, however, believe it is correct to reduce marriage to where children are the only aspect of it that makes it significant or worthy of promotion. It’s far too reductionist for my appreciation of marriage. Children are a natural and expected result of it on the population level, but we shouldn’t ignore that this is ultimately through the sexual nature associated with marriage (in fact, the drive promoted to be only exercised in the confines of marriage), and which is the same activity having its disordered outcomes in infertile and same-sex couples.

(Next two paragraphs, beginning “Why does the state privilege…”)

I don’t see why that’s the necessary result. This is kind of the case where, not because of hostility (though for some reason I find this habit repeated often from Catholics), you are essentially devaluing any same-sex relationship of worth or dignity, much less appreciating what the relationship is. In the same way that you take for granted there is a substantial difference between a marriage and any two random people co-habitating, I believe there still exists a significant, qualitative difference between a same-sex relationship, those seeking the moniker of marriage, and the two roommate scenario. Although I can appreciate how someone would presume that once same-sex marriage were allowed, it’s suddenly a “whatever-goes” game. I often find, however, that those same people have quite prejudiced understandings of gay individuals in the first place.

The fact of the matter is, as you’ve pointed out, the state does not currently distinguish between opposite-sex couples filing for a marriage license based on love and those based on wanting those privileges. The love and other aspects are a cultural expectation, inculcated and fostered by our society, given imprimatur by the state. This is where the social expectations arise in defining how people act within a marriage and how they should approach making that form of public commitment.

There will always be people who take advantage of the situation, and there already those who currently do exactly what you mention but in the opposite-sex sense (two non-romantically involved roommates). The driving force of what shapes marriage is not the state but the current social view/ understanding of marriage, how it operates, when one should enter it, when one shouldn’t leave it. It is truly the only thing that keeps it meaning what it does (since the state, as you pointed out, does not distinguish based on love or even expressed procreative utility).

David said...

(con't)

I guess you could rightly claim, we already have this problem, just not where people of the same sex could enter meaningless marriage pacts (see this short vid for an example: http://www.youtube.com/watch?v=V5t233AUh8s).

A curious anecdote, however, if we want to talk about socially devaluing marriage, is marriage “lite” situations (civil unions, domestic partnerships, etc). Those I find the case far more convincing that they degrade marriage and its social understanding. They are created to be a step below marriage, more easily broken, less social import, and often neutered with no distinction for being for same-sex couples—a tactic, I fear, to assuage the consciences of those who vote for them. I don’t quite know where you stand, but I find that creating a parallel institution with far more insignificant import ex nihilo more dangerous grounds for impacting the first institution. In what might seem an odd position, I shun the idea of civil unions for this reason, where pragmatism decided marriage lite for gays was more palatable to the public conscience.

As to your last paragraph, I would be quite amicable to arrangements that allow people to set up another person as a “family member” for those purposes, in much the way we have health care proxies now, though I would doubt how extensively used they would be with the ideas you mentioned. With the non-committed or non-romantic (confused as to what exactly you mean…euphemisms?), I’m not sure what privileges you are speaking about. As an example: I wouldn’t expect a non-committed person—someone who wouldn’t want to associate/settle down with anyone at all—to be too worried about sharing health insurance, unemployment, or social security benefits with an imaginary person. I also couldn’t quite imagine the impetus for a non-romantic to want to share their life with someone else and start a family. But truly I’m digressing because it was never my intent that the state start policing relationships based on “love.”

Siarlys Jenkins said...

I don't think child-bearing, per se, is relevant. It is obvious, however, as a matter of biology, that sexuality exists primarily for the purpose of reproduction, and that heterosexuality is the biological and statistical norm for the human species. I didn't say it is "normal" behavior, I said it is the norm.

Therefore, it is not unreasonable, as humanoids become by some process human, whether by an unspecified final evolutionary advance, or because God breathed into man's nostrils and man became a living soul, for governments instituted among men to give some recognition to this basic component of the human life cycle, even perhaps regulate its social consequences. The concurring opinion in the NY state court decision turning down a constitutional right to gay marriage was eloquent on this point.

It is true that in every generation, some portion of the human species becomes attracted to, or victimized by, their own gender. Why? Probably a wide variety of reasons, and they have had widely differing social expressions in different cultures. I have some sympathy for the assertion that gay couples want to engage in life-long monogamous commitments to each other, rather than be relegated to unstable affairs or casual encounters. Should the state officially acknowledge this desire? Perhaps, but its not a matter of equality. Like I said, every man, and every woman, already has an equal right to enter into what the government does license.

TROLL said...

From the perspective of GLBT studies at the university level, gay marriage is the first step in destroying hetero-normativity. More than the couple is involved. For example, in Canada, gay marriage once approved led to changes in the law where "mother" and "father" were replaced by "legal parent", thus severing in the law all biological bonds between parent and child. Polygamy is no longer a prosecutable offense. Gender becomes floating, depending upon an individual's orientation of the day. Sexuality is a smorgasboard of bi-sexual practices. In my youth, it was free sex that caused a lot of ink to flow in campus newspapers. No more. Now the inf flows in favour of the freedom of gender orientation.

Anyone wanting to know more about this should read the papers written under the auspices of GLBT university studies freely available on the internet.

Siarlys Jenkins said...

GLBT studies are somewhere between an abomination and a ludicrous farce, and TROLL's brief description evidences why. Destroying heteromormativity is wishful thinking. Our biology predates the Canadian declaration of human rights, it predates the very distinct and different adoption of our Bill of Rights, it even predates the Roman Catholic Church, monotheism, and even paganism. We are what we are. To think we can culturally over-ride it in the name of "diversity" is bound to fail.

There is a limited role for examining socially developed attitudes toward homosexuality, just as there is a legitimate role for "black history" as an interim measure to restore to human history what was deliberately obscured or left out. But, just as Dr. Carter G. Woodson said the end result of black history would be to make black history unnecessary as a distinct discipline, once the missing pieces were fully recognized as part of human history, the most that GLBT studies can hope to do is secure open acknowledgement of the presence of homosexuality throughout human history (some of it ugly, by the way). It is not, and never will be, the norm.