Tuesday, May 20, 2008

Marriage and sex -- not necessarily in that order

It was nice to see someone writing about the debate over gay marriage from a a little different perspective. Froma Harrop brings up an obvious point by telling a story:

Joyce Burden, 90, and Sybil Burden, 82, are unmarried English sisters who have spent more than 30 years in a house left them by their father. Under British law, when one of the women dies, the surviving sister will be hit with an inheritance-tax bill of 40 percent of her share of the estate over a certain amount. The house has become quite valuable, and the sisters say that whoever outlives the other will have to sell it to pay the inheritance tax. The Burden sisters thought that unfair.

So they brought their case before the European Court of Human Rights. There they demanded the same tax benefits now afforded married gay as well as hetero couples in Europe. The court turned them down, arguing that their relationship was of a different nature than that of married people.

There is only one difference between these two sisters sharing their lives together and a married or civilly-unioned lesbian couple. The one pair of ladies are presumed not to have sex with each other, while the other one presumably does or did engage in such activity.

If we are to have marriage and civil unions for gay couples, then any two (or more) individuals should have the right to unionize their home shop, getting the financial and legal benefits that come along with such unions. Why should they have to have sex with each other (or at least imply that they are having sex) in order to have those benefits?

There is a strong argument to be made for leaving marriage as a monogamous heterosexual phenomenon -- but unfortunately, such an argument has to be made on antiquated notions of ancient legal and social traditions. And those traditions are based on the presumption of at least the possibility of such a marriage producing children through the usual techniques. (Laws against 1st degree relatives marrying each other, like laws against polygamy, are largely based on the same combination of old social/religious mores and biological realities.)

Now that law is considered to be something that can be molded and created out of whole-cloth based on majority opinion (whether the majority on a court or a majority at the ballot box at any given instant in time) without deference to the experience of tradition, such arguments are, one fears, doomed to failure.

Which returns us to the benefits of marriage. They are many, and they mostly have to do with matters of money and taxes -- inheritance, gifts, deductions, pension benefits, and the like. There are also responsibilities -- and those responsibilities are tied up in equally financial matters like child support, alimony, and reporting of incomes when determining various governmental benefits. To make sure that scofflaws don't try to make their way around the responsibilities of marriage and the children marriage usually produces, we have legal constructs like that of the common-law marriage (which would presumably be applied to co-habiting gays once gay marriage is widely established.)

The question that the above columnist has asked is this: why don't we shift the debate to the question of why we even have these benefits in the first place? Or more precisely, whether it makes sense to keep them in the face of shifting definitions of marriage.

Her argument for dropping all of the governmental benefits of marriage isn't entirely convincing to a traditionally-minded person, since presumably the societal reasons that governments thought it good to have those benefits haven't disappeared for straight couples (who are still in the vast majority) just because homosexuality is now socially acceptable.

Harrop makes what should be a key point in this entire debate as it evolves: when one leaves behind the concept that a marriage is an institution that has historically been the primary vehicle of child-rearing, then what is left to replace it?

True, there have always been couples who are childless because of age, infertility, and most recently, choice. But in the vast majority of marriages, there was at least the possibility -- and indeed probability -- of children coming as a natural consequence of formalized cohabitation.

And through various ways of getting around what has been scientifically proven to be the 100% infertility rates of homosexual couples, there are now children being raised in gay households. But such children are in no way a natural biological consequence of two men or two women living together.

What is the equivalence between the straight couple and the gay couple, then? It isn't that they live together -- there are married couples who largely live apart, and people who live together who wouldn't dream of considering themselves to be married. It isn't that they have children, for reasons noted above.

It is, quite simply, that they are presumed to have sex with each other. Harrop makes a good point when implying that two people deciding to have sex with each other on a regular basis isn't perhaps the best grounds for making law. (And they have to be legally allowed to have sex with each other -- one presumes that even in Europe, the two elderly ladies noted above wouldn't be allowed to marry each other, whereas two elderly unrelated ladies could do so with impunity.)

And also with regard to the elderly sisters mentioned above, why would two (or more) people have to have sex with each other in order to have the benefits of a being civilly unionized in some way? And how does the government know that either a gay or straight married couple actually is having sex? And why should it be the government's business if they do or don't? Should a "straight" couple be denied a marriage license unless they certify that they promise to engage in carnal relations?

Which is a long way of getting around to the idea that if we are not going to follow the biological and historical reasons for keeping marriage as it has been traditionally defined, then it makes no sense -- and is indeed unjust -- to deny these legal and financial benefits to those people who want to have civilized unions with each other, but who don't want to have sex with each other. It makes no sense to prohibit polygamy. It makes no sense to prohibit a father, for instance, from having a legal civil union with his son, allowing him to pass on his entire estate to him free of taxes (or allowing the son to give health insurance benefits to a father who needs them.) Or two business partners, allowing them to make for a smooth tax-free transition of ownership when one of them dies. It is celibatophobia to say that they can't share such benefits with whomever they please.

And why should the fact that a man is married to the son's mother prevent him from being civilly unionized with his son as well? It is polygamiphobia (or polyunionaphobia) to believe that it isn't a basic human right to be able to share the benefits of marriage with however many whomever's that one pleases.

Why would these sorts of reasons for "marrying" be less worthy than is the fact that two men or two women who have sex with each other want to allow the health insurance policy of one to cover the other as well?

What would of course be best, to this hide-bound traditionalist, would be to leave marriage as it has traditionally been defined -- one man, one woman.

But we are kidding ourselves if we do not acknowledge that if a line is going to be drawn, it has to be drawn somewhere, and that the place chosen for that line should make more sense than the one it replaces. At least to this observer, the hazy definition of marriage that is currently evolving is not a step in a rational direction.

We are engaging in intellectual delusions if we do not acknowledge that, just as the elderly ladies mentioned above discovered, we have switched from a definition of marriage that is based on the historically normal and stable environment for conceiving and rearing the next generation to a definition that awards financial benefits solely on the basis of a purported but generally unproven (and certainly legally irrelevant) sexual relationship.


touchstone said...

Hm. Interesting. I read the editorial in a vastly different way than you. First, it seems Harrop is advocating for non-married, asexual unions to have the same rights and goodie bags as married couples.

Also, she seemed clearly in support of gay marriage.

However, the notion that marriage or coupling in only about sex -- that's patently ridiculous. For someone who laments the passing of tradition of marriage, you seemly strangely unaware of what that tradition actually is, what marriage symbolizes.

The best definition, IMHO, of what marriage is was written by the Chief Justice of the Massachusetts Supreme Court in the decision that legalized gay marriage in that state.

She wrote:

"Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. 'It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.' Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition."

Sex is there in the word "intimacy," but rightly wrapped in the closeness and security that word bestows.

You ask, rhetorically: "What is the equivalence between the straight couple and the gay couple, then?"

The answer isn't sex, as you claim. If anything, in our more open society, in which sex is neither legally nor socially bound to marriage, marriage is less about sex now than it has ever been.

Personally, I'm with Justice Marshall. Marriage is about mutuality, companionship, intimacy, fidelity, and family. It remains an "esteemed institution," and will remain so, I have no doubt.

I should add that I have two family members who are both "married"; between the two, they have three children, biologically related to at least one parent. These women embody the ideals set forth by Justice Marshall. In fact, more so than many straight married couples I know.

In short, there's no societal need that exists that I can see that could reasonably deny gay couples the same officially sanctioned esteem for their projects in love and family.

goof houlihan said...

I think a lifelong commitment to a partner/spouse is still in society's best interests, children or no.

Ed Kemmick said...

I could have overlooked it in your very long post, but I don't remember seeing the word "monogamy." Maybe that's what government ought to be in the business of promoting. Two people who devote themselves exclusively to each other. This creates a kind of stability in society at large because people who are serious enough to tie the knot signal that they have put aside childish things are ready to get down to the business of being stable, forward-looking citizens.

This is a world away from two people co-habitating to save money, or because they happen to be sisters. And at the risk of spouting a mantra, weren't biology and tradition the main props of the institution of slavery?

Montana Headlines said...

Touchstone -- read the editorial again. The author is clearly stating that the bag of goodies shouldn't be there for anyone. The example of the sisters is given as a way of demonstrating that as long as that bag of goodies exist, there will be those who want to take advantage of it (and she specifically mentions that this applies to heterosexuals deciding to marry, as well.) I lean toward agreeing. Here are two snippets from her piece:

The troubling aspect of the push for gay marriage is the part that perpetuates the notion of marriage as a goody bag for sundry government and corporate benefits.


It's easy to understand why gay people would want to get in on the marriage gravy train. There's just no logic for there being one.

You also write that "...mutuality, companionship, intimacy, fidelity, and family" are the kinds of things that "define" marriage. There is nothing there that doesn't describe many non-romantic, asexual relationships, such as ones that I mention: the two sisters, a single son living with his father, etc. Homosexuals rightly point out that heterosexual serial polygamy masquerading as monogamy has done far more damage to the institution of marriage than would gay marriage.

In other words, one argument that has been given in support of gay marriage goes roughly like this (and touchstone uses it to some extent in the comment above): "with all of the heterosexuals making a shambles and mockery of marriage, what justification do straights have for denying marriage to a gay couple that is far more stable and committed than many straight couples?"

If that argument has validity, then so does the following argument: "a significant number of people, gay and straight, have financial advantages as a primary motivation for wanting a government-recognized marriage or union (otherwise they would just get married in church or wherever and not bother to get a government marriage license) -- so what justification do gays and straights in monogamous, sexual/romantic relationships have for denying those financial advantages to people in other sorts of relationships?"

Ed, I do indeed address monogamy, but in reverse. If it is only our traditional religious and societal prejudices that have wrongly kept us from extending the franchise of marriage to gay couples, then what is to be said of the traditional prejudices against, say, polygamy or consanguinous unions? Who is the moral judge who determines that polygamous relationships do not involve love, stability, and commitment?

I would also point out that the same cultural left that promotes gay marriage was also the same cultural left that dealt marriage one of its biggest blows through no-fault divorce laws. If promoting monogamy and long-term stable relationships (as goof mentions) is in the best interest of the state (and I don't necessarily disagree,) then the same people promoting gay marriage using the props of generic "monogamy" and "stable relationships" should by all rights be working to make it harder to get divorces.

Unlike many of my conservative brethren, I accept that gay marriage or civil unions will become standard fare in a changing America. I am simply intrigued by the idea that perhaps a part of the answer to this question may be to cut off the "gravy train" part of marriage, making it a purely religious or cultural phenomenon.

I would be married whether or not it was a state-recognized institution, and regardless of whether there were any financial benefits or penalties. Gay couples today have a variety of churches and clergy who are happy to perform the religious/cultural ceremony of marriage for them.

It seems reasonable to level the playing field by eliminating the legal, financial, and corporate benefits of marriage entirely, and let the institution rise or fall on its own merits.

Vince said...

Interesting that you say "the same cultural left that dealt marriage one of its biggest blows through no-fault divorce laws." It seems to me that the demand for no-fault divorce comes from all political persuasions since they all certainly take advantage of it.

Montana Headlines said...

You are right that divorce cuts across political boundaries. (Although being married is one of the strongest independent predictors of voting Republican.)

But when no-fault divorce laws first came about, they were very much a product of the cultural left and were opposed by cultural traditionalists.

Easy divorces were one of the "triumphs" of feminism, since the perception (actually a false perception that was part of a holdover from a century or more earlier) was that men had an easier time filing for and getting a divorce than did women.

The irony is that women have overwhelmingly borne the brunt of the poverty, social disruption, troubled children, and general familial instability of what the easy divorce produced. And so have taxpayers.