March 28, 2005
Marriage: How Both Sides Have It Wrong
Now that my home state of Indiana has decided to go down the sad path of “shielding the sanctity of marriage from activist judges” and opponents of the measure decried it as “singling out gays and lesbians for discrimination” I felt it was time to examine how both sides of the issue are both right and wrong. And unfortunately it doesn’t look like either’s deep felt beliefs will allow them to see the common ground that exists and could result in a compromise that would be both legal and proper.
First, let's look at the side of the marriage defenders. They see any attempt to alter the current definition of the word "marriage" to include anything other than a man and a woman as an affront on their current marriages or religious beliefs. Some even go so far as to bring up childbirth as the reason for marriage while ducking quickly out of the argument that a man and a woman who can't conceive should still be allowed to be married.
Now, the side of the opponents of marriage being defined as strictly between a man and a woman feel that by saying that two people who love each other can't commit to each other in the same way as a man and a woman can is discrimination. They contend that "marriage" should be defined as any union between two people who love each other and that this is no different than the attempts to prevent inter-racial marriages in the 60s.
Ok, with that quick and gross attempt to minaturize each side's views on the subject out of the way, let's look at all of the flaws in the previous arguments on both sides.
First, marriage, as defined in the dictionary and common usage for thousands of years, is technically a union between a man and a woman. According to the Merriam-Webster Dictionary of Law, the definition is 'the state of being united to a person of the opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law.' The American Heritage uses the definition of 'the legal union of a man and a woman as husband and wife'.
The history of marriage started with the desire to preserve wealth and bloodlines. It wasn't until very recent times in western society that the majority of marriages weren't arranged, and the notion of arranged marriages still exist in other cultures. And of course, as religion was interwoven into society for many years, it was also used to try and keep people from engaging in 'sinful' sexual activities by committing with each other.
So, unless we are willing to redefine the word, which is the suggestion of some, we have to concede that marriage is between a man and a woman.
However, there is a little problem. Because of the over 1,000 federal legal rights granted to someone because they are married to a member of the opposite sex, there is some very large questions regarding the 14th amendment that have to be addressed. As we have already seen, many judges are agreeing that keeping these rights from couples because they are not married (ie, not a man and a woman) is unconstitutional.
With similar rulings coming from an honest and thoughtful examination of the constitution, what is the solution? Making a constitutional amendment stating what marriage is does little to deal with the 14th amendment violations. However, saying that people of the same sex can be married isn’t valid either unless we decide to redefine words, something I really think we should avoid.
My solution? Glad you asked.
First, create a new word to define the legal union between one person and another. Let's say something like 'joining' as a start (I'm sure that other smarter people can come up with something a little catchier).
We then award 'joinings' to all people who are currently married. They can keep their marriage designation, however we will then remove all legal rights conveyed to marriages and award them to 'joinings'.
Then, we allow no governmental agency to award marriages to anyone, only 'joinings'. After all, marriage has such a history with religion, it must certainly defy some aspect of the separation of church and state.
Marriages can still be performed, in addition to joinings, but only by churches, covens, cabalas, etc, but they will no longer have legal benefits to them. You see, we can't keep marriages with legal benefits and civil unions with legal benefits, because that is 'different but equal', something we decided in the 1960s that we would not allow to occur in this society.
In my opinion, this is the only solution to the problem. Will it ever happen? We will see. The path is in place with the legal maneuverings being played out now.
But the real question, will anyone be happy with it? Mostly likely not. Which, as I have discovered through the years, is the only real sign of a fair compromise.
Let the joinings begin!
Posted by Rhinehold at March 28, 2005 10:15 PMRhinehold,
I think that’s a pretty good system, but what about atheist heterosexual couples? I don’t know whether or not they would care about the terminology of their bond, as marriage is usually associated with religion. But might they also want to have the designation “marriage”? They will certainly not go to a religious association to have this done. But I guess to them the terminology probably wouldn’t matter.
Posted by: Ryan at March 28, 2005 10:52 PMThis seems to be the best idea going for the matter of “marriage” vs “civil union”. It’ll just take, oh, about 200 years to adopt as people leave the 2000 years of “marriages” behind. But it’s a start - slavery certainly didn’t start in the 1800s - it also took several hundred years to abolish. Let’s hope that starting on a more enlightened path gives us less time to change over.
Posted by: Thomas R at March 29, 2005 12:42 AMI think they should ban Divorce as violating the sanctity of marriage.
Posted by: Aldous at March 29, 2005 02:12 AMOne could argue that the easiest way to “preserve the sanctity” of anything is to keep the government out of it.
Aldous, your comment is not only funny, but highly insightful. The main reason we give “over 1,000 federal legal rights” to married couples is that marriage is supposed to promote family stability (with or without children), which is good for society.
One major argument I’ve heard against gay marriage is that it does not promote this same stability, and thus is not good for society. But with the rampant nature of divorce in our society, is marriage, at a legal level, even worth it anymore? If the contract can be so easily dissolved, what good is it?
Posted by: Rob Cottrell at March 29, 2005 07:24 AMRhinehold, you’re right in your definition of the problem - at least from the mainstream Democrat side. That’s a pretty good solution, too. It should satisfy almost everyone, after everyone has had a chance to mark it up.
Unfortunately, a solution isn’t in the best interests of politicians who use the issue as a wedge and a call to arms. You’re basically asking the religious right to disarm. ;)
Rhinehold, thanks for a clear assessment of this problem. I see marriage as a religious agreement between God, my wife and I. Honestly, I could care less if the state of Ohio calls my marriage a marriage, a civil union, a joining, a party for two, a commitment, a nuptial union- whatever! The moment that I reminisce about and celebrate is the exchanging of vows with my wife, not going to the county offices to get my marriage license. Let the state call it whatever they want- my wife and I, the church, and God will all consider it holy matrimony.
Posted by: Dave at March 29, 2005 09:09 AMWhy should the Left allow the Right to define marriage or make judgements about gay marriage when they are divorcing more frequently and when they have less Gay couples living in their states?
Red States Average
Divorces/1,000 5.08
Same-Sex Couples 0.81%
Blue States Average
Divorces/1,000 3.61
Same-Sex Couples 1.05%
Here is the link for those numbers.
They’re also not doing so hot when it comes to stability and “family values” either, because in addition to the fact that All 10 of the 10 states with the highest rates of divorce are Red States, check out these facts:
9 of the 10 states with the highest rates of birth to single mothers are Red States.
All 10 of the 10 states with the highest rates of teen pregnancy are Red States.
8 of the 10 states with the highest reported incidence of child abuse are Red States.
9 of the 10 states with the highest rates of infant mortality are Red States.
8 of the 10 states with the highest rates of suicide are Red States.
7 of the 10 states with the highest rates of violent crime are Red
States.
Maybe many of these things have to do with the fact that:
All 10 of the 10 states spending the least per capita on public elementary and secondary education are Red States?
Adrienne
I clicked on the links but MY browser isnt opening them up properly so if it is ok, I will ask if you saw the answer to my question.
I love the red vs blue comparisons and was wondering if those divorce numbers come mainly from blue cities that happen to be in red states? or is it actually the red counties and such that contribute the most to those numbers?
Just curious, thank you for any help.
Aldous, Rob:
I couldn’t agree more. I think you should have to file taxes as “married filing separately” if you’re divorced. You should have to include all tax information of all your spouses, former and current. I’d love to see Elizabeth Taylor’s or Donald Trump’s taxes in that situation.
They should dice up those 1000 rights and just hand them out to everyone. For example, everyone should have the right to designate any one person as their default power of attorney. This whole Schiavo debacle would have been avoided and it would obviate a major point of debate in this gay marriage waste of time.
Posted by: JP at March 29, 2005 12:27 PMkctim:
“I love the red vs blue comparisons and was wondering if those divorce numbers come mainly from blue cities that happen to be in red states? or is it actually the red counties and such that contribute the most to those numbers?
Just curious, thank you for any help.”
On both of the links I posted (is anyone else having trouble opening them?) the numbers almost entirely came from the US Census Bureau. When they put out the national statistics, I don’t believe they break things down into smaller numbers such as city or county areas, but I’m really not sure.
Posted by: Adrienne at March 29, 2005 12:47 PMAdrienne-
I see the data that you linked, but I’m not sure what conclusion to draw from it. It looks like the writer also wasn’t sure what to make of it.
I think there might be several factors as to why those numbers are as they are: socio-economic, racial, cultural, and religious. Certainly there is more to it than who the State voted for in the latest election.
Posted by: George in SC at March 29, 2005 01:46 PMThanks Adrienne and George
I think its just my firewall or something like that. I’ll try to read it when I get home.
“Certainly there is more to it than who the State voted for in the latest election.”
I totally agree George.
Posted by: kctim at March 29, 2005 01:49 PMRhinehold excellent idea! Now I wish politicians would adopt this as it seems like the perfect compromise.
The only issue for debate I see here that a deeply religious person might see is the “pandora’s box” scenario relating to polygamy. If a person wants to be legally joined to one person, but married through a religious institution like the mormon church that allows polygamy to more than one person, would it be legal?
If the “marriage” has no legal or government contex what would give the government the right prohibit polygamy?
Personally, I think that if three people all want to call themselves married, but with no legal contex. I do not have a problem, but I know many people that would have a problem in this case.
Posted by: Warren at March 29, 2005 02:15 PMAs for the whole question of marriage, most of this has to do with our government’s social engineering practices. Rights have been given to families, especially in the tax code, on the basis of helping or promoting families. After all, it is the family that is the MAIN source of our future citizens.
Although I really don’t see a 14th Amendment issue here, I generally agree with you solution Rhinehold. As long as it is on State by State basis since they are the issuers of marriage licenses and the enforcers of contracts.
And while we’re at it lets get rid of the DOMA. The fed should recognize any marriage or civil union a State issues. Period.
“Some even go so far as to bring up childbirth as the reason for marriage while ducking quickly out of the argument that a man and a woman who can’t conceive should still be allowed to be married.”
When do most couples find this out? Before or AFTER they marry?
If they discover this after they are already married - should they be made to divorce?
The marriage/divorce stats…
Are there more couples (man/woman) just living together and not married in the Blue States? This could account for the lower divorce rate. There is no court record when they split unless they fight over the dog in court.
When do most couples find this out? Before or AFTER they marry?
When my wife’s widowed grandfather remarried at 75 to a woman his age, and pretty sure they knew before the wedding.
If they discover this after they are already married - should they be made to divorce?
Not by my reckoning.
Posted by: LawnBoy at March 29, 2005 03:44 PMWarren:
Sorry to nitpick, but Mormons don’t allow polygamy anymore. There are fringe “fundamentalists” that still practice it, but they are excommunicated for doing so.
George:
The problem with the state-by-state approach lies in the “Full Faith and Credit” clause of the Constitution (Article IV, Section 1), which reads:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
This means that, if you are married in one state, other states have to recognize that. That’s the reason why my Florida marriage is valid in Indiana. You don’t have to get “re-married” when you move from one state to another.
So if, for example, Massachusetts allows gay marriages, then Indiana would be forced to recognize these marriages, even if Indiana didn’t allow them. Indiana gays could drive to Massachusetts (as my wife and I drove to Florida), get married, and come back to Indiana, and the state would be forced to recognize it.
Posted by: Rob Cottrell at March 29, 2005 03:45 PMThat’s supposed to be “…I’m pretty sure…”, not “…and pretty sure…”
Posted by: LawnBoy at March 29, 2005 03:45 PMThere is no court record when they split unless they fight over the dog in court.
Or unless they fight over the children, but that’s a whole other issue….
Posted by: Rob Cottrell at March 29, 2005 03:47 PMRob-
My concealed weapons permit (a license) is not recognized by many States. Same with other types of licenses such as the State Bar, Realtors, Appraisers, Surveyors, Nurses, Engineers, etc.
Although the FFC argument is one that anti-gay marriage advocates use as part of their “slippery slope”, I don’t think it would hold up legally given the many precedents. Just as I don’t think there is a 14th Amendment issue either as all licenses conveys some sort of additional benefit to the holder. In my case I get to carry a gun….
Warren,
I don’t understand why polygamy is always brought up as the most repugnant consequence to allowing gay marriage. I am certainly not arguing that it should be reinstaed as legal, but polygamy as a practice has been happening far longer than modern marriage, is currently completely accepted by many cultures, and even has Judeo-christian religious history. Nor is it likely that a swarm of people are suddenly going to decide that they want to live a polygamist lifestyle because it’s now legal.
I think the slippery slope argument is true—if gay marriage is legalized, it is inevitable that polygamy will be also. I would just like to understand why so many on both sides of the isle seem to think that this would be the end of the world.
George,
The problem is that the marriage license comes with FEDERALLY granted rights and benefits. And, the notion of denying those benefits based on someone’s sexual preference is a violation of the 14th amendment.
Posted by: Rhinehold at March 29, 2005 04:35 PMThe key to marriage is commitment. That is why it is a good thing for society and without commitment it is nothing.
To the extent that gay couples are committed to each other, I fully support their “marriage.” I am not really concerned what it is called. It is good for society and good for the individual.
A monogamous couple – gay or straight – has almost zero chance of getting HIV/AIDS. Committed married people commit less crime, make more money and live healthier lives on average. I wouldn’t deny that to anyone willing to undertake it.
In many ways, civil unions are the worse alternative, since it might entail less commitment.
For that matter, I don’t oppose polygamy among consenting adults. It is not my business or yours. I don’t understand why people get so upset about it.
Adrienne
Enough with the Blue/Red thing. The statistics don’t support the conclusions. All states have both red and blue voters and many states were very close. Ohio (as you have pointed out) was almost a blue state and Pennsylvania (as others countered) was almost a red state.
We also talked about statistics in general. Any statistic on gay marriage can’t be compared with non-gay marriage because there are not many instances, the characteristics of the couples are different, it hasn’t been going on very long and the very definitions are unclear. Massachusetts was the first state to allow gay marriage and that was only a year ago. You wouldn’t expect the divorce rate to be that high if you only include marriages that are less than one year old.
Rhinehold-
I’m closer on that one with you and that’s why I think the DOMA act should go. Then the feds would only be in a position of only recognizing what a State has licensed(marriage, contract, civil union, etc.).
Posted by: George in SC at March 29, 2005 04:56 PMPeople who bring up polygamy, like myself, in the context of gay marriage view a quality (e.g. gender) bias on the same plane as quantity bias. No one limits you to how many children you have. Most parents would say they’re equally committed to their children regardless of how many they have and no one would contest that. So why is it unimaginable for someone to be equally committed to more than one spouse?
I’m in the same camp as Brian and Jack: polygamy should be protected under the same constitutional allowances as gay marriage.
Posted by: JP at March 29, 2005 06:33 PM“Enough with the Blue/Red thing.”
Sorry — I know it’s an annoying separation and often holds little significance in many areas, but in this instance it has to be viewed that way since it is the states who are currently voting over the definition of marriage as something “between a man and a woman”.
My point in showing these statistics is to point out the hypocrisy that exists due to the fact that the states with the highest divorce rates and the lowest numbers of gay people are also the ones who are preaching “moral values” and reflecting more homophobia when they cast their votes.
“The statistics don’t support the conclusions.”
These are the states that went predominantly Republican in the presidential election - therefore it is perfectly reasonable to view this as solid evidence for this important policy question.
Conservatives here and elsewhere keep claiming that if too many people recognize same-sex marriage, and also have liberal attitudes towards divorce, this will lead to higher divorce rates and a breakdown in morality. I think these statistics go along way toward proving that assumption wrong.
“All states have both red and blue voters and many states were very close. Ohio (as you have pointed out) was almost a blue state and Pennsylvania (as others countered) was almost a red state.”
Well, you’ll note that there are plenty of blue states that rank on many of those statistical graphs, but the 10 states with the highest rate of divorce had more people who voted Republican. So, I repeat, why should people on the Left keep allowing the Right to act like they’re the only ones with a handle on morality or the ability to hold their families together when obviously we’re doing a great job at both?
And why should we allow them to push for an amendment to the Constitution which is based on unfairness and inequality against gay people on the completely unfounded basis that it will destroy society, when the blue states seem to be proving that living in close proximity to gay folks has little if any effect on marriage and family?
“Any statistic on gay marriage can’t be compared with non-gay marriage because there are not many instances, the characteristics of the couples are different, it hasn’t been going on very long and the very definitions are unclear.”
The US Census Bureau only collected data on gay people who defined themselves as in a couple - it had nothing whatsoever to do with marriage. But who knows how many of those couples would have been married by now if they were allowed to?
Adrienne
Yours was a reasonable response, but I still see problems with such analysis. The reddest of the red states is Utah, which does not have a high divorce rate, but even in the reddest state we still have more than 30% Democrats. We don’t know who is getting divorced or the circumstances.
We also have the problem with repeaters. About half of all marriages end in divorce, but not half of all people who get married get divorced. We all know people who have been divorces many times. Each of these balances several successful marriages.
The definition of gay marriage used by the census figures you mention makes me even less confident. Being self-defined allows for a lot of self-deception. We all have convinced ourselves that the “love of our life” was just a passing fancy after the breakup.
My guess is that the early gay marriages will be fairly durable, since the self-selecting group will be committed. It would be similar to taking the top 10% of married hetero couples. As it becomes more mainstream, you will get more of the casual relationships that end in divorce.
I have written on many occasions that I support gay marriage, but I don’t hold out great hope that very many will actually take advantage when it is offered on a regular basis.
The purpose of marriage was to form a family and to protect children. In many traditional societies, the inability to produce children was grounds to dissolve the marriage and/or add additional women. This has changed, but some of the original motivations linger even when we no longer are aware of them. This applies much less often to gay partners.
