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.
