Should we discriminate in favor of gay and lesbian couples?
One would expect that an article about homosexuality and discrimination would discuss discrimination against gay or lesbian people. This article is about discrimination in favor of gay and lesbian couples.
In the past few years, a few legislatures and courts have been persuaded to cull from the entire universe of human relationships one form of relationship, that of two gay men or two lesbian women, and grant the parties the right to marry (or enter into domestic partnerships or civil unions) and grant them the benefits of marriage. Furthermore, many private and public employers have been persuaded to extend employee benefits to domestic partners. These legislatures, courts and employers have been persuaded to discriminate in favor of gay and lesbian couples to the exclusion of all other possible parties who would benefit from marriage, civil unions, or domestic partnerships. There is, however, no principled basis for them to favor gay and lesbian couples to the exclusion of others.
Upon what basis do gay and lesbian couples seek to marry and to obtain the benefits of marriage? Their legal argument refers to "equal protection" and "due process." At bottom, they claim they are like heterosexual married couples in all important respects except for the refusal of the private sector or the government to recognize their relationship as a marriage. How are they married except in name only? They respond: They love each other and are intimate with each other. They live together. They are committed to loving each other and living with each other forever. They share responsibilities and financial resources for caring for each other, for children, for parents. For example, New Jersey's Civil Union Law refers to individuals who "live together in committed relationships," California's Family Code defines "domestic partners" as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring," the Massachusetts court in Goodridge v. Dep't of Public Health (2003) recited the life situations of seven plaintiff couples, and the September 18 Maryland decision, Conaway v. Deane, described "committed same-sex couples" who love each other.
Yet, the law of marriage does not require these attributes (Point 1). Furthermore, if the law of marriage did require these attributes, many people not eligible to marry under current law, not only gay and lesbian couples, could demonstrate them (Point 2). So, allowing gay and lesbian couples to marry (or become domestic partners) without allowing these others to marry (or become domestic partners) is discrimination.
Point 1: The Law of Marriage Does Not Require Love, Intimacy, Common Residence, Sharing of Resources, Having Children, or Commitment
The law governing who can enter marriage and the law governing married persons, does not require love, intimacy, common residence, sharing of resources, having children, or commitment. I speak of the law of marriage, not the customs of our ethnic and religious cultures associated with marriage. Thus:
The law of marriage does not require that the spouses love each other in order to marry or to remain married. For example, arranged marriages, so long as there is consent, are lawful. Marriages entered into by a woman (or a man) primarily to obtain protection or financial support are lawful. Couples who were once in love but "fall out of love" may remain married. The law simply does not inquire into the motives of the parties contracting marriage or their motives for remaining married. The one body of law that does inquire into the motives of the parties is immigration law to ensure that the marriage is not entered into to evade the otherwise applicable requirements of immigration.
The law of marriage does not require that the spouses be intimate with each other. The requirement of consummation for the validity of a marriage no longer exists (with the exception that male impotence is a ground for annulment or divorce). Married men and women may abstain from sexual intercourse for any number of reasons, for any duration, and remain married. Not only are they not required to be intimate with each other, they may be intimate with third parties. The law of marriage does not require exclusivity of sexual relations. There may be laws prohibiting adultery still on the books, and adultery has long been grounds for divorce, but adultery does not dissolve a marriage. Married men and women are free, in this sense, to have sexual intercourse with others.
The law of marriage does not require that the spouses live together, either at the outset of their marriage or at any time during the marriage. Bicoastal marriages, for example, are valid. And, of course, that a couple enters into a separation agreement does not dissolve their marriage.
The law of marriage does not require that the spouses have the financial wherewithal to care for each other, either at the outset of marriage or during the marriage. If one abandons the other, the marriage remains. If one physically attacks the other, the marriage remains. Of course, abandonment or spousal abuse may be grounds for divorce, but they do not dissolve the marriage. There are laws concerning the financial responsibility of one spouse for the "necessaries" of another, but failure to support a spouse financially does not terminate the marriage. Furthermore, only nine states have "community property" laws whereby the financial resources are, by law, shared by the spouses. In any case, these laws, and other laws concerning a married couple's property, allow spouses to alter their provisions through prenuptial agreements.
The law of marriage does not require that both spouses be heterosexual. The law of marriage does not require that the spouses have children or, if they do have children, to love them. If they do have children, they must simply not abuse them or neglect their "necessaries," medical care, education. The law of marriage does not require the spouses to take care of any other person, whether related by blood or marriage or not, including siblings or parents, except natural and adopted children.
The law of marriage, or more properly the law of divorce, does not require a permanent commitment to each other. The law of marriage does not dictate that any particular vows, or any vows at all, be exchanged at the commencement of the marriage. Any vows are purely aspirational. No court can enforce them and the vows can be broken with impunity. The spouses have the option, of course, to remain married until one dies since marriage, unlike other contracts with specific terms, is of indefinite duration. At the same time, they may freely, at their bilateral or unilateral option, dissolve the marriage. (Covenant marriage laws in a few states allow spouses to restrict the causes for divorce.)
The only laws that are available to enforce a particular marriage are criminal laws against bigamy and civil laws, in about 10 states, retaining the historical torts of "criminal conversation" and "alienation of affections," that is, grounds for a lawsuit against a third party for interfering with a marriage. Indeed, if the parties meet the minimal grounds for divorce, courts cannot deny a request for a divorce -- even where a spouse seeks to avoid financial responsibility for an ailing spouse. (Some estate planners suggest that a spouse divorce an ailing spouse, even where their love perdures, in order to conserve the family assets.)
If a Martian studied the current law of marriage in the United States, without knowing how marriage is lived, the Martian would know practically nothing. As we have just discerned, the law governing who can enter into marriage is extremely minimal. The law has just six requirements: that (1) two (2) adults (with exceptions) (3) of opposite gender (heretofore implicit) (4) not related by blood (5) consent to marry, and (6) are not currently married to someone else. The law governing the termination of the marriage is equally bare. Whether the divorce is unilateral or bilateral, a court must grant it. No governmental body may initiate the termination of a marriage; (by comparison, the government may initiate the termination of a parental relationship with a child). And the grounds for divorce are minimal and easy to satisfy.
When our focus is solely on the law of marriage, gay and lesbian couples are simply two men or two women who meet the minimal requirements of the law for marriage (number, age, lack of kinship) who wish to marry. It is incorrect to state, as does the plurality opinion in Goodridge, that "same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another," since civil marriage -- the only type of marriage at issue in Goodridge and other cases on same-sex marriage -- does not require this. Civil marriage has no obligations, no commitments, solemn or otherwise. By the law of marriage, almost everyone is eligible to marry and to remain married. They may marry for any reason for any length of time and under any living arrangements.
If we were to restrict marriage (or domestic partnerships) to those who love each other, wish to be intimate with each other, wish to share a common residence, wish to share financial resources, wish to have children, or desire to make commitments to each other, or any combination of these, then there would be a very large number of people eligible to marry of whom gay and lesbian couples are only a subset.
Point 2: Many Persons Ineligible to Marry Under Current Law Can Demonstrate Love, Intimacy, Common Residence, Sharing Financial Resources, Having Children, or Commitment
Our laws do not prevent unmarried adults from:
Not only do our laws not prevent unmarried persons from such activity, many unmarried persons do engage in this activity. Many of these people cannot marry under the current law of marriage. Gay and lesbian couples are only some of them. Two additional categories of such people are immediately apparent: (A) sets of people numbering more than two, and (B) blood relatives.
(A) There is nothing that distinguishes a gay or lesbian couple who wish to marry from a polygamous group who wish to marry other than the legal requirement that marriage consists of two people. If, however, marriage can consist of two homosexual people on the principle that they love and care for each other, then that same principle would allow a polygamous marriage if the parties love and care for each other. "If...the meaning of marriage and the right to marital status is sufficiently defined without reference to gender, then what principled objection could there be to removing its binary barrier as well? If, for instance, marriage were only defined with reference to emotional or financial interdependence, couched only in terms of privacy, intimacy, and autonomy, then what non-arbitrary ground is there for denying the benefit to polygamous or endogamous [i.e., marrying only within a particular clan] unions whose members claim the arrangement is necessary for their self-fulfillment?" (Judge Parrillo's concurring opinion in the 2005 New Jersey appellate case, Lewis v. Harris.) Furthermore, while same-sex marriage is, historically speaking, novel, polygamy is not. It has historical precedent across time and space. Moreover, unlike proponents of same-sex marriage, proponents of polygamous unions may argue for freedom of religion.
(B) Similarly, there is nothing that distinguishes a gay or lesbian couple who wish to marry from two persons related by blood who wish to marry other than the legal requirement that bars kin from marrying. If, however, marriage can consist of two homosexual strangers on the principle that they love and care for each other, then that same principle would allow relatives who love and care for each other to marry. Remember there is no requirement under the law that they engage in sexual intercourse. So, a woman and her daughter who care for the daughter's child could marry each other.
(A) Polygamous Unions
If our courts, our legislatures, or our employers (private or governmental) were to recognize unions consisting of one man and two or more women, based on the principle that the man loves the women and the women love the man, then additional forms of plural marriage would logically need to be recognized.
i. Polyandrous Unions
The conventional term for a marriage of one man and two or more women is polygamy. More properly, it is polygyny. Polygamy is a broader term encompassing any form of plural marriage. Given the equality of the genders, polyandry, consisting of marriage between one woman and two or more men, would need to be recognized.
ii. "Rim" Unions
For polygamous marriages (both polygynous and polyandrous), the marriage is like a hub and spokes of a wheel. There are multiple marriages between one person, the hub, and of two or more of a different gender, the spokes. The two or more individuals of a different gender share a spouse but they are not married to each other. If polygamous marriage were recognized, however, then marriages between persons on the "rim" of the wheel would also need to be recognized. Thus, if Man A is married to Woman B and married to Woman C, the two women could marry each other. This form would be particularly suitable for a Woman B who is bisexual and for Woman C who is a lesbian but wants the benefit of marriage to a man.
iii. Interlocking Relationships
Moreover, while polygamous unions have historically been exclusive, based on the principle that, where love is marriage should be able to follow, there is no reason for polygamous unions to be restrictive. Thus, Woman A could be married to Men A, B and C, and Man B could be simultaneously married to Woman D and Woman E. These would be interlocking polygamous unions. We would devise new terms to describe the various resulting relationships, perhaps using terms endemic to organic chemistry.
Government and society have interests in polygamous unions. Such unions would provide an alternative to the maintenance of mistresses or gigolos. They would encourage adults to care for each other. There would be less reason to divorce, a form of serial polygamy. We would be more accepting of people from, for example Africa, who have a tradition of simultaneous polygamy. See Nina Bernstein, "In Secret, Polygamy Follows Africans to N.Y.", N.Y. Times, March 23, 2007, p. A1; Diane Riehm Show, April 12, 2007 (interview of Debbie Rodriguez, author of "Kabul Beauty School: An American Woman Goes Behind the Veil," married to an Afghan man with another wife).
(B) Not Strangers
The law of marriage bars marriage between blood relatives, but the degree of kinship (or consanguinity) varies by state (and country). If, however, two (or more) people who fall within the proscribed degrees of kinship love each other and wish to take care of each other, there is no principle articulated by the advocates of same-sex marriage that would allow gay and lesbian couples to marry but continue to forbid relatives from doing so.
Government and society have an interest in promoting caregiving, for example by allowing two elderly sisters to marry, see Burden v. United Kingdom (European Court of Human Rights, 2006) (two sisters sought "civil partnership" to avoid being forced to sell their common home to pay estate taxes after the first sister dies), or to ensure that a man can care for his elderly aunt or disabled nephew. They could marry and obtain the benefits of marriage.
We could also argue this: Students of anthropology know that cultures define kinship and degrees of kinship differently. For example, a Native American tribe may consider a man and a woman as brother and sister (and therefore forbidden to marry under the tribe's customs) where Western culture would not regard them as brother and sister. Who is to say that the traditional Western definition of kinship is right or wrong? Or that the Western definition of kinship matters when it comes to love and marriage? What was all that fuss about Henry VIII's marriage to his relative Catherine of Aragon? If we can change the traditional norms of Western marriage, if a child can have two gay fathers but no mother, or two lesbian mothers and no father, then surely we can change the definition of kinship.
Both the Goodridge and Conaway courts spent a great deal of time on the proposition that, the barring of same-sex marriage hurts the children of same-sex couples, contrary to the argument of those who argue that restricting marriage to one man and one woman furthers the governmental interest in favor of children. In principle, then, this proposition can be used in favor of marriage of any adults who wish to procreate children or care for children. Thus, if two (or more) relatives, such as a woman and her niece are raising the woman's nephew's children, the woman and niece should be able to marry. "[M]any people are raising children outside the confines of traditional marriage, and, by definition, those children are being deprived of the various benefits that would flow if they were being raised in a household with married parents." (Judge Sosman, dissenting in Goodridge). Four per cent of all children live in households with neither parent. (Judge Cordy, dissenting in Goodridge).
First, there are three logical legal regimes dealing with marriage:
(a) no marriage;
(b) marriage open to all adults simultaneously; and
(c) marriage restricted to certain types of adults.
The first two extremes result in chaos. Although there are some who assert that marriage is not a fundamental right but a creature of state law and could be abolished (Goodridge, plurality opinion, n.14), a society without the civil law of marriage and without people entering into such marriages would be chaotic. The second type of legal regime obviously portends chaos for the adults, for their children, and for society.
This leaves the third regime and the issue is the nature of the restrictions. Judge Parrillo's concurring opinion the 2005 New Jersey appellate case, Lewis v. Harris, stated: "[T]here are reasons for limiting the unfettered access to marriage. Otherwise, by allowing the multiplicity of human choices that bear no resemblance to [monogamous, heterosexual] marriage to qualify, the institution would become non-recognizable and unable to perform its vital function." "The legal nature of marriage cannot be totally malleable lest the durability and viability of this fundamental social institution be seriously compromised, if not entirely destabilized." As this article has attempted to demonstrate, allowing same-sex marriages necessarily reverts to a situation in which every adult could be married to every other adult simultaneously.
Second, the law, our government, our society all assume the centrality of procreation to marriage and the use of marriage to control or ameliorate the consequences of procreation. (Judge Parrillo.) "[A]n orderly society requires some mechanism for coping with the fact that [normal] sexual intercourse commonly results in pregnancy and childbirth." (Judge Cordy.) Judge Battaglia, in dissenting to the September 18 Maryland Conaway decision, would have sent the case back to the trial court so it could receive evidence on how restricting marriage to opposite genders (one man and one woman) serves, or does not serve, the state's interest in promoting an orderly, stable society, in light of the ability to procreate without normal human coitus.
More and more of our children are not born within marriage. More and more of our children, whether born within or without marriage, are not born through normal human coitus. What laws concerning marriage, divorce, and procreation serve their rights and needs?
Given all of the foregoing, may I suggest the following as this debate continues:
(1) A child has a fundamental right to know the identity of its parents and to obtain their support; this fundamental right is at risk when a child can be born outside marriage and even more so if a child can be born outside normal human coitus.
(2) Since a fundamental right must be given "careful description" (Conaway, quoting the Supreme Court's Glucksberg decision), the right to procreate is fundamental only if it occurs within marriage.
(3) As a corollary, procreation outside marriage is subject to legislative regulation; our state legislatures have a duty to regulate it -- with due regard for privacy and due regard for the fundamental rights of children.
(4) The right to marry is a fundamental human right, but it must be given "careful description."
(5) If there is any fundamental right to a divorce, it must be given a "careful description." And, as a corollary, our state legislatures should review narrowing the grounds for divorce.
(6) Our state executives and legislatures have a duty to encourage unmarried persons to marry and to promote marriage as a permanent bond. (While public recognition and the benefits of marriage draw gay and lesbian couples, they have not served as sufficient incentive for heterosexual couples.)
(7) Although it may be in the best interests of children to have two parents and to have them married to each other, it does not follow that any adults having or caring for children should be eligible to marry. Children may follow marriage, but marriage does not necessarily follow children.
MY FINAL OBSERVATION IS THIS: Lawyers, legislators, judges and policy analysts cope continuously with complexity. If they take a step back and look at the requirements to marry and to remain married, they see that the law and structure of marriage is so minimal, so simple. It is an example of what mathematicians call elegance -- like Einstein's equation E = mc2:
One man -- one woman -- indivisible.
As the poet Keats wrote in his "Ode on a Grecian Urn": "Beauty is truth, truth beauty."
James M. Thunder is a former general counsel of Americans United for Life whose master of art's degree was on marriage. This article is dedicated to the late David Orgon Coolidge, founder of the Marriage Law Project.
Read the entire article on the American Spectator website (new window will open). Reprinted with permission of the author.