Thursday, August 5, 2010

One big difference

In his decision yesterday in regard to same-sex "marriage," Judge Vaughn Walker wrote the following (in the text, FF refers to the Finding of Fact section and numbers in the document):
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
What I'm going to talk about below may delve briefly into some descriptions that may involve sexual terminology; parents of young readers are cautioned in case they don't want their young ones seeing some of these words as of yet (though I won't be unduly or gratuitously graphic).

An opposite-gender couple, when they enter into a marriage contract, are entering into a state in which they promise certain rights to each other. A central right, in fact, the one that makes marriage different from most other types of legal relationships, is the right to engage together in the act known as coitus or sexual intercourse (which used to be referred to delicately as "the marriage act" in a less promiscuous age). This right is granted mutually (e.g., husband to wife and wife to husband) and exclusively (at least as far as the law is concerned--that is, there is no such thing, as yet, as a legal right to marry more than one person at a time).

So important is this right to marriage that most states consider non-consummation, under at least some circumstances, to be grounds not for divorce, but for annulment. A secular annulment (like a Church one) is a statement by the competent legal authority that no marriage ever took place between the couple. The use of non-consummation of marriage as grounds for annulment varies by state, but many states posit that the inability to engage physically in the act of coitus, if known by one partner and hidden from the other prior to the attempted marriage, may indeed be grounds for such an annulment.

What does this mean? It means, in essence, that heterosexual couples are exchanging the right to sexual intercourse with each other, and that failing to disclose that one is incapable of this act at the very least, or the incapacity to engage in this act at all whether disclosed or not (in some states) renders the marriage invalid--null and void. Does this force every married couple to engage in sexual intercourse? No--but if they do not, if one of them cannot, and if the other takes his or her case to court, the state may very well rule that they were never married at all.

How does this relate to same-sex "marriage?"

Clearly, a same-sex couple cannot, by definition, engage in the act known as coitus or sexual intercourse. Thus far, this objection is dismissed out of hand by most pro-gay "marriage" types; gays can have sex, they say, so there's no issue here. But what same-sex couples mean by "sex" is not coitus or sexual intercourse (obviously). They are referring to other sex acts, specifically anal sex (men) and mutual masturbatory acts performed on each other in various ways (both male-male and female-female couples). They cannot be said to be "consummating" their "marriages" at all.

Why does this matter? Because as the law stands, a heterosexual couple can have their marriage declared invalid, null and void, for the non-completion of an act that same-sex couples are by definition unable to engage in with each other! This is not equal treatment under the law--this is placing a specific burden and obligation on heterosexual couples that by definition cannot be placed on same-sex couples.

I know that the same-sex side will argue for a remedy: simply do away with consummation as a factor when considering the legal status of a marriage, or else define "consummation" to mean the engagement by the couple in any sex act, including anal sex etc. The problem with either of these proposals is that they both do a specific harm to opposite-sex couples, who have always been able to annul a marriage in the event of certain factors centered around non-consummation, defined as the non-engagement in the act of sexual intercourse following the marriage.

If an opposite-sex couple marries, and, let's say, the wife has hidden from her husband a condition which makes her permanently incapable of engaging in sexual intercourse, and the husband seeks legal remedy regarding the marriage, it makes a big difference to him whether the law recognizes his marriage as invalid, or whether he must divorce his wife (and possibly be liable for alimony etc.). The law's recognition of the central importance of the act of sexual intercourse to marriage, and its upholding historically and up to the present day of the right of a man or woman to have his or her marriage annulled under some circumstances surrounding non-consummation, supports this notion. It is a positive, if putative, harm to opposite-sex couples if, in a post-gay "marriage" world, the ability to seek annulment for non-consummation is permanently removed from them.

But if opposite-sex couples retain the right to annul marriages for non-consummation according to the laws of their states, and concurrently face the peril of having their spouses seek this legal remedy for non-consummation, but same-sex couples are neither permitted this right nor face this peril, then opposite-sex marriage and same-sex marriage remain fundamentally and unjustly different according to the law.

And, as I mentioned briefly above, the right to annul a marriage for non-consummation may be restricted or limited by the states in some ways, but the right has not generally been abrogated altogether; moreover, it is a right which is historically present in regard to marriage, certainly since the earliest days of this nation, and present in some form or other dating back hundreds of years--so stripping it from opposite-sex couples is doing them a very definite harm, by changing in a dramatic and irreparable way the rights and obligations of marriage in a way that puts them in a specific jeopardy.

I recognize that same-sex "marriage" advocates are going to object; I expect that some will do so because, after all, marriages aren't annulled every day of the week for non-consummation. That may be true, but it's not important to the central point: opposite-sex marriage and same-sex "marriage" are fundamentally different concepts, which at their core are centered around a fundamentally different obligation as regards the sexual rights and duties of the married couple toward each other. In the simplest possible way to put it, opposite-sex couples are, essentially, at risk of annulment if the couple does not engage in post-marital sexual intercourse or coitus with each other; there is no identical obligation or identical risk for same-sex couples, and there never can be.

22 comments:

Rebecca in CA said...

It just seems to me a farce, Red, to even include sexuality at all in the definition of marriage, once you have thrown the man/woman thing out the window. Why should dear friends who aren't sexually involved not be able to marry one another? Why should they not be able to rear children together? Why should the state place any interest or priority on people who engage in sex acts with one another, any more than they place interest in people who like to cook together?

I really just want to hear, from the POV of people who are for all this, what really is the definition of marriage, once and for all, and whom it should or should not exclude, and how many folks ought to be involved.

David said...

Rebecca...that's already the case with marriage, so long as you're a male and female going to get a marriage license (in addition to blood tests and other ID verifications). That's all the state requires.

Sexuality is implied in the definition of marriage because of precisely the reason that Erin chose to expound...sex happens in the marriage union, and it is known/expected to the outsider that the married couple has a sexually intimate relationship. Our laws do not reflect this, nor do they require it...that is the cultural expectation and understanding, and that is what supports it.

Where sex happens and the individual is concerned, there is a sexuality. You can't really escape it, even if at most times you never have to think about it or have it come in conflict with your family, friends, and others.

Erin, you are right that I would consider the forms of sexual intimacy that gay men and lesbian women undertake on peer or comparable to the consummation of a man and a woman (I suspect most gay men and women would too), and I don't see why they couldn't have similar options of annulment if their spouses did not consummate or meet up to the expectations of the institution.

Sterling Crews said...

Since this is a family blog, I don't really know if we want to go down this road. All I'll say is that yes, gay men and women can have sexual relations. While it may not be procreative sex, I don't think anyone who witnessed it would say that there are not sexual relations happening.

And how many people who read this blog thought Bill Clinton was absolutely lying when he declared that he "did not have sexual relations with that woman." Probably most people. So this argument actually comes back to the argument about procreative sex. No, gay men and women can't have procreative sex. But anyone who believes they can't have sexual relations isn't using their imaginations.

@ Rebecca: Dear friends - or cooking partners - who aren't sexually involved can get married now, as long as they are of the opposite sex. Notwithstanding the point made by Erin, the state makes no investigation into whether or how often sexual intercourse will probably occur between married couples. If two people wanted to, they could get married because they both like listening to Miles Davis. And that's not even really the point. When the marriage discussions on Catholic blogs don't center around gay marriage, the lament is usually that people just aren't getting marriend anymore. Lovers cohabitate or just have non-procreative sex without marrying. In general, couples are less willing to enter into marriage. Fair enough. There is a reason for that. Marriage is hard (as I'm sure you know). It is not all tax benefits and hospital visitation rights. Additionally, people are mostly reluctant to mingle property, money, and assets and take on other obligations with another person they are not extremely romantically involved with. I don't think there are many (and none that I know of) non-romantically involved couples who would be willing to take on all the obligations of marriage just to receive the benefits. Again, there is a reason that - right now - opposite sex friends who would enjoy the tax benefits of marriage don't get married. Gay marriage would not change that.

Rebecca in CA said...

First, Wait, did I get an answer to the question:

I really just want to hear, from the POV of people who are for all this, what really is the definition of marriage, once and for all, and whom it should or should not exclude, and how many folks ought to be involved.

Second: Of course marriage as it has always been defined, involves sex, because marriage has always had something to do with the natural manner of a)producing and b)educating, children. My question is, according to the POV of people pushing for homosexual "marriage", why should there be some special state recognition of a sexual relationship? The old answer was that the state is interested in producing fine new citizens. The sexual relationship between a man and woman is ordered precisely towards that. So what's the new answer?

Rebecca in CA said...

So Sterling, with the rights/obligations of marriage being as you say, how ought marriage to be defined? Why is there this big important Institution, which carries with it such rights and such burdens? What's it about?

Red Cardigan said...

So far, I seem to have anticipated the reactions from our opponents in my post (yes, same-sex couples engage in sex acts, no, none of those are intercourse, etc.).

Rebecca, I've been told by many same-sex marriage advocates that as far as they're concerned, two spinster sisters who share an apartment should be allowed to "marry" so they can have the tax breaks. The agenda is not simply to redefine marriage to include same-sex couples; the agenda is to destroy marriage, render it an utterly meaningless concept, and split it once and for all from parenthood, which itself will be defined as merely *raising* a child and specifically exclude any privilege extended on the basis of biology--that is, there will be no preference whatsoever that biological parents should, whenever possible, raise their own children.

Marriage will not mean a man and a woman, it will not include any notion of parenthood, and it will be expanded to include groups of more than two people and relationships that have no sexual components at all. The end game, like I said before, is the total annihilation of marriage. Don't be fooled by these interim steps in which the same-sex couples pretend to want what we have. What they want is to destroy what we have as a societal norm, and create a brave new world of fluid and transient sexual groupings and institutional child care for everyone's children--begat or manufactured.

Red Cardigan said...

And with that, night owl though I am, I'm done for the night here. :) Just thought I'd mention it, in case anybody posts later and thinks I'm fleeing from their devastating brilliance. ;)

Deirdre Mundy said...

Erin-- thanks for this post-- we were wondering about the anullment issue yesterday!

I think a big question at this point is: Are anullments treated differently than divorces in civil law, especially when it comes to property/children.

Because this could make a HUGE difference in terms of gay custody disputes and visitation rights. (I'm thinking, in particular, of that case last year where the court gave visitation rights to the ex-lover of the child's mother...)


And if gay custody battles are treated differently than straight ones... that's HUGE.

**

Also, in terms of destroying a civil concept of marriage-- honestly, at this point, I'd almost prefer that to the alternative where they call the new forms 'marriage' and then expect the Churches/ Wedding professionals/etc. to go along with it, regardless of their personal beliefs.

And an end to civil marriage (replaced with 'long-term-civil-partenerships') WOULD make life a lot easier for Catholic families-- none of this lapsed-brother-getting-married-at-the-courthouse drama. There'd be Marriage in the church, and living without marriage, and that's it.


One weird thing(to me) about the whole Gay marriage debate is that the proponents of gay marriage always argue about equal protection under the laws, visitation rights, etc. They seem obsessed with the contractual and legal nature of marriage. But if a straight couple ENTERED into marriage focused on legal issues and possible divorce and visitation rights and whatnot, we'd think they were nuts, and tell them they probably shouldn't be marrying in the first place.

David said...

Don't be fooled by these interim steps in which the same-sex couples pretend to want what we have. What they want is to destroy what we have as a societal norm, and create a brave new world of fluid and transient sexual groupings and institutional child care for everyone's children--begat or manufactured.

Do you believe this to be an intentional aim or unintentional aim?

As I asked before, do you consider the child brought in by an adoptive man and woman, both married, to be their child, his or her mother and father, even if there is no biological link involved? Words do mean something, yes, but I put more priority in the man who raises the child with no biological connection and is there as a father than the one who pushes his teenage girlfriend to abort the fetus yet is biologically the father you crave.

I've been told by many same-sex marriage advocates that as far as they're concerned, two spinster sisters who share an apartment should be allowed to "marry" so they can have the tax breaks.

I've never said that myself...it's just we're in a tricky situation. For a
Church, they are not obligated to grant that scenario as a marriage.

The problem is, where it intersects with the state, you have a hard time policing that the couple has sex in their relationship to ensure it's a marriage. It's not that I think two spinsters should get marriages, it's that there's no way to really stop them...except for the same way that we've discouraged such marriages before, by imparting the social meaning of marriage and its institutional properties. As the law stands that is the main reason, not the legal words or descriptions or difficulties of getting out of it, that doesn't encourage random roommates get "married" in the eye of the law. You'll get some who do, sure, but that's the way with any system, philosophy, or ideology. There are cheaters. Man's fallen nature...whatever you want to call it.

And to say that those gays are pretending to want it... Do you mean the ones who are already living as married couples without the imprimatur of the state, those in the same form and function, already raising children, caring for one another, depending one another, monogamous--all those things we associate with the responsibilities of marriage--they're pretending and doing it because they want the state to eventually sanction it and therefore destroy it?

David said...

Deirdre,

One weird thing(to me) about the whole Gay marriage debate is that the proponents of gay marriage always argue about equal protection under the laws, visitation rights, etc. They seem obsessed with the contractual and legal nature of marriage. But if a straight couple ENTERED into marriage focused on legal issues and possible divorce and visitation rights and whatnot, we'd think they were nuts, and tell them they probably shouldn't be marrying in the first place.

That's because they're already "married" in the sense of having made the obligations and expectations associated with the institution. Given that, let's not penalize them for it (those things you listed). If those were the only reasons, it would be nutty. But you already have children being raised by gay and lesbian parents in states which do not afford them the same securities and protection that is given without question to a married man and woman. The crux of the matter is extending a label and its privileges to something that already happens...those gays and lesbians who model their relationships, as would be expected, like their heterosexual counterparts.

Deirdre Mundy said...

David-- So you're equating Gays and Lesbians to, for instance, a heterosexual couple who move in together and after a few years of living together decide to 'make it legal'?

(just clarifying, so I can think about my response...)

Barbara C. said...

"And to say that those gays are pretending to want it..."

In states and countries that do allow same sex marriage, a much smaller percentage of gays actually DO get married compared to the percentage of straights. For all of the noise, it seems like the majority of gays like the IDEA of being allowed to marry but don't actually want to do so.

Furthermore, studies show that a higher percentage of gays that are allowed and do marry are not actually faithful in their marriages. Whether gay or straight, what is the point of getting married at all if you are not going to be faithful??

It reminds me of when my kids get it stuck in their heads that they have to have something even though deep down they know that they don't like it.

I'm not saying that there is not a small percentage of gay couples who do have long-term monogamous relationships comparable in affection and faithfulness to many secular heterosexual marriages. However, is it in the best interest of the state to legalize such unions when doing so will rip out many underpinnings of our society and damage the majority of the population in the long run?

If only the courts had put in more forethought before legalizing no-fault divorce than the instances of depression, suicide, eating disorders, anxiety disorders, bullying, drug use, teen sex and every other destructive tendency that is decimating children would not have been increasing at such a rapid pace for the past 30 years.

Red Cardigan said...

Just popping in to thank everyone for keeping the discussion civil and pleasant. I'll be continuing to post on this topic, so it's encouraging to see this level of discourse on what I know is a hot-button topic for many people. Thanks, all!

Michael Maedoc said...

Erin, You almost hit the nail on the head with this one. I know I'm late but to this discussion but this point is most important.

Its unfortunate that we are forced to argue that same sex marriage hurts us because the parameters of the argument is a positivist perception of civil rights and its emphasis on infringement... but the Judge did make a negative but factual claim about the historical core of marriage. He claimed gender was not a part of the historical core. I am not an expert on the law, and his use of the word restriction has its use for his objective, but the basis of his argument for gay marriage is faulty. The inclusion of the failure or inability to consummate in annulment law is due to the nature of marriage. Marriage, if it is natural or sacramental, requires coitus. It is not possible for same sex couples to physically unite in sexual intercourse... I could go into more detail including ends but suffice it to say your approach is important for reasons different than mentioned. The historical core of marriage matters and its only gender difference (really complementarity) that makes it possible.

I do strongly agree that gay movement wants more than to become equals but to redefine marriage to the point that it will lose much meaning. Its no joint conspiracy but the result of the logic of gay marriage proponents and liberal ideology will reduce the meaning of marriage. So, our logic should not reduce the marriage debate to the argument that gay marriage hurts us.

Michael Maedoc said...

Just one clarification, I wrote "its only gender difference (really complementarity) that makes it possible." Gender difference (that is complementarity) is a necessary condition but it is not the only condition.

Thanks for posting on this.

David said...

"David-- So you're equating Gays and Lesbians to, for instance, a heterosexual couple who move in together and after a few years of living together decide to 'make it legal'?"

Deirdre, I wouldn't equate with so large a brush... I think that you could have similarly those gays and lesbians who live together and might later decide to make it "legal" in the same fashion or perhaps even proportion that you see in heterosexuals (I'd expect less in either category because of social expectations brought on by the past few decades...i.e., how the general population has treated their gay brothers and sisters and expectations of them).

I wouldn't expect there to be more active participation in marriage, it being available, than what is already evident of the population at large since there is nothing intrinsic to someone's gay sexuality that would prevent them from the same ideas or pratfalls of straight men and women.

But, for the most part, there was no equivalent for those gays and lesbians who made it "official" amongst themselves to be in all expressions of the word, "married." For straights, it entailed getting the license or approval of the officiating body (church) of their arrangement as a marriage.

I hope that helps clarify as reading this quickly seems to be riddled with so many qualifiers to be useless...but such is the way.

David said...

"In states and countries that do allow same sex marriage, a much smaller percentage of gays actually DO get married compared to the percentage of straights. For all of the noise, it seems like the majority of gays like the IDEA of being allowed to marry but don't actually want to do so.

Furthermore, studies show that a higher percentage of gays that are allowed and do marry are not actually faithful in their marriages. Whether gay or straight, what is the point of getting married at all if you are not going to be faithful??"

Barbara, I will be very terse. I ask you please forgive me, but at times things must be spoken quite plainly when it seems people like to be ostriches or play a Pontius Pilate and absolve themselves of any play in the issue at hand.

If you tell a child throughout her life that she can't expect to do things well, can't excel, that she will never be able to paint or read well, never be able to succeed, never be supported by you, don't be (insert whatever appropriate expletive) shocked if that child doesn't!

The similarity is here: if you, Erin, and others sit here and pontificate about how gays can't possibly have relationships like marriage, that their relationships are counterfeits, are oriented toward an intrinsic evil, nowhere near the peer of heterosexual marriage (without evidentiary claims) and you do your best to discourage their relationships at all costs for their eternal salvation...how do you have the (insert again, expletive) gall to then turn around and be shocked that, if it's true, gays aren't as monogamous or faithful as you believe? That many are not entering into marriage as you would expect?

What do we funnel our young into now, how do we socialize them? We encourage them to marry. Being very general here, but it's in application to the issue at hand. Obviously there are many other things that children are socialized in.

What do we socialize our young gay men and women into with re: to their sexuality? Certainly at this point, not marriage. Erin would rather they didn't. If you don't quite support the model, if the society does not quite support the model, and it is a newer flavor...does this need to be explained more? Obviously, these gay men and women, especially in times where they would get hurt, could lose jobs for being open, ostracized from families, would have it very difficult to be with their partners!

And it wasn't that long ago! Things are still very hard in some areas! I don't endorse the excesses of the past, but when those individuals had no other option, no other opportunity to even form those relationships, no societal backing for them to make it work (don't believe for a second that a marriage happens in a vacuum without the community behind it!), what do you expect?

The only advice I've seen is "don't do it!"

A more pragmatic approach would have been, conservatively, to expand marriage to include gays and lesbians, encourage them since they're gonna have sex, gonna want that affiliation like most straight people do (read Paul and burning in flames of passion, etc), and channel them with a better moral guideline than, "don't do it." If that's the only guideline, when it obviously fails and is not enough, why should they care about your expectations of them being monogamous?

You made it clear you don't think they should have sex in the first place.

Lauretta said...

I find it interesting that we are so bold in this era that we think we can redefine that which has been in place for millenia. Marriage has been defined as something that takes place between a man and a woman in every culture since history began. How great the hubris that thinks we can change something that has been unchangeable for this vast amount of time and not suffer major consequences. So it happens when we replace God with ourselves. May He have mercy on us all.

Siarlys Jenkins said...

Precisely correct. The union of two individuals of the same sex is a DIFFERENT relationship for two human beings to enter into than is a marriage. Equal protection of the laws demands that such a marriage be annulled upon pronouncement.

Bob Arctor said...

Doesn't the fact that this angle was not mentioned once (even by the Yes on 8 folks who testified) in a 136 page decision that exhaustively reviewed the issues probably mean that it wasn't relevant?

Assuming that the unconstitutionality of Prop 8 is upheld, any lawsuit following your reasoning (that gay marriage is an equal protection violation to heterosexuals) would be laughed out of court.

eulogos said...

There wasn't a serious attempt by the state to defend its own law, so, no, Bob, it doesn't mean that.

I don't think that "this deprives heterosexuals of an opportunity for annulment" is a really serious argument.

But I do think that the association of marriage with a particular sexual act is very important. This sexual act is the one and only sexual act which by its nature is reproductive.

("natural" is what happens always or for the most part, says Aristotle. For the most part when a man and a woman engage in this act over an extended period of time, a pregnancy results. This is obscured in people's minds by the prevalence of contraception, and perhaps by the number of people not marrying until their natural fertility is already declining.)

And yes, this act is indeed intrinsically different from other sexual acts. It should be obvious that an act which can bring about the existence of a whole new human being is something different from an act which can only bring about orgasm! I would indeed say that these other acts are "not really sex" in the same sense as the marital act is sex. There is some warrant for saying that even intercourse with a condom is "not really sex" in that sense, because it doesn't lead to the deposition of semen in the vagina. Other forms of contraceptive sex maintain the form of intercourse but distort its meaning by attempting to cheat its finality.

I would argue that if the use ofcontraception had not become widespread, we would not even have to be having this discussion, because anyone would be able to look at marriage and understand that it is something different from anything two men or two women could engage in.

Susan Peterson

Lauretta said...

I agree very much with your comments, Susan. We heterosexuals have to accept the blame for this gay marriage becoming an issue because we have contracepted, lived together, divorced, used IVF and totally distorted that which the sexual act, rightly called the marital embrace, is. We have no one to blame but ourselves and our relentless search for pleasure without consequences.