Why There Is No Middle Ground on the Marriage Issue
A thought experiment: Two managers conduct a joint interview with an Iranian man for a job at a factory in Omaha. One of the managers was raised by xenophobic, racist parents who practiced skepticism towards those from the Middle East, while the other manager has traveled extensively, was raised by open-minded parents, and has no such instinctive sense of intolerance. After the interview, during which both managers were impressed by the applicant's experience and qualifications for the supervisor position at stake, the first manager expresses his apprehensions about hiring a Middle-Easterner, for reasons which are unambiguously racially-charged. The second manager, while disagreeing with his co-worker and finding himself morally offended, looks for the most peaceable solution to this predicament. He subsequently suggests that they hire the candidate -- who is undeniably valuable -- but to appease the other manager's feelings, hires the Iranian man not in management capacity, where he knows he ought to be, but several steps lower in pay and rank.
Who of the two managers bears greater moral reprehensibility for this discriminatory hiring?
It is not outside the realm of reason to suggest that the second manager has committed the more regrettable of the two sins. The racist manager has had no crisis of conscience. To a large degree, he confidently views his racial skepticism as an innate value, a simple matter of basic human judgment. (Here one notices that the word ignorant has begun to creep into the conversation.) No, it is the more liberal of the two managers that has been dealt the moral dilemma. He is aware in this instance of the ethically correct course of action -- to either override the racist manager, or get him fired -- but sidesteps this obligation. He compromises, in order to ensure the hiring of the Iranian man, even in a demeaning capacity, while avoiding confrontation with his co-worker. And it is here that a sturdy parallel begins to emerge between the moral pragmatism at work in this fictitious manager's concession, and in those who support civil unions as a tenable solution to the marriage debate.
Civil unions, or what are called domestic partnerships in California and four other states, are designed to provide all the state and local benefits of marriage to legally-recognized same-sex couples, but without actually calling it marriage. A few states, including New Jersey, recognize these unions statewide, and over a dozen states recognize them on a city or county level. These are pragmatic setups that secure same-sex couples tangible rights and benefits, often to the extent that they are indistinguishable from marriage from a legal standpoint, while preserving the traditional definition of marriage as between a man and woman. That last piece is the most crucial, as a recent Quinnipiac poll informs us: while only 38% of Americans support gay marriage nationally, a rather robust 57% support civil unions (in fairness, a Washington Post/ABC poll found that 49% support gay marriage, but the discrepancy is still statistically significant).
And thus it is not surprising that it is the latter of these unions that garners the endorsement of mainstream Democratic (and some moderate Republican) politicians. During the Human Rights Campaign Forum for 2008 Democratic Presidential hopefuls, only two candidates - Rep. Kucinich, and former Gov. Gravel of Alaska - voiced support for gay marriage; the rest, including then-Senator Obama, were only willing to go as far as civil unions. This is the politically-safe, least contentious road to travel in mainstream politics. And, mindful of the 2004 election, one could argue that Mr. Obama's middle-ground stance on the issue helped position him to pick up the socially-conservative independent votes needed to take the White House.
This would not, however, make it right.
While being careful here not to obfuscate the moral atrocity that is the exclusionary philosophy of the religious right - hypocrisy worth pondering - the case needs to be made that it would be much more productive for those working towards genderless marriage to focus on these moral pragmatists -- the moderate legislator, the open-minded citizen, the liberal clergy -- constituencies that make up the real battlefield of this fight (or are at least its potential tipping point). Theirs are the spirits, much like the conflicted factory manager, that must be bolstered from one of compromise and concession to one of unflinching moral obligation. A shift in this demographic, that 10% or so that supports civil unions but not marriage, is the difference between a heated debate and a public mandate for equality.
The case itself is rather simple. Civil unions provide neither the full rights to same sex couples as enjoyed by heterosexual couples, nor the sentiment. While states like California may boast complete equality in states rights for domestic partnerships, these couples are restricted from 1,138 federal laws pertaining to married couples. These are not insignificant provisions either, ranging from the right to file joint federal tax returns (which protects couples from having to pay estate and gift taxes in transfers of assets), to Social Security survivor benefits. Other restrictions of tangible rights include immigration status for foreign nationals (who cannot become citizens through a civil union), veterans' benefits such as pensions, housing, and medical care, and the lack of recognition of civil unions across state lines, which forces couples to stay put if they want to retain their rights and benefits.
Then there is the moral case. One need not rely too heavily on comparisons with Jim Crow laws of the early 20th century. One need not enlarge too dramatically the parallels in the arguments for separate civil unions with the arguments for separate civil rights. All of these arguments are, and were then, cowardly. President Obama, explaining his position at the same 2008 HRC forum, said, "We should try to disentangle what has historically been the issue of the word 'marriage,' which has religious connotations to some people, from the civil rights that are given couples." The problem with that is that the word "marriage" also has legal connotations, as we have seen. Unless we strike "marriage" from the books, and choose to call all couples civil unions, or domestic partnerships, or whatever term satisfactorily removes the sanctity and spirituality from it, they will be, as they are now, separate. And unequal.
Somewhere along the way, amidst all the effusive platitudes of late about pragmatism and bipartisanship, liberals have lost their moral virility. There are times for political deal making, as we witness daily in the debate over health care, and as we will no doubt witness in the coming debates over climate change and energy reform. But at what point did matters of human rights get confused with fiscal policy? When did the party of moral obligation, the party of President's F. Roosevelt, Johnson, and the Kennedy brothers, decide that human rights were as reducible as a public option? Why have we constituents not reprimanded those representatives that treat equality as a negotiable substance?
Change often does come slow, and incrementally, as the course of the 20th century painfully taught us. But this does not mean that those who are on the right side of history, who believe that marriage ought to be viewed as Constitutionally genderless, have to stand up for it incrementally. The slow nature of progress does not mean advocates for human rights ought to wait for public opinion to shift. History teaches us otherwise. When the 19th Amendment came to the floor of Congress, less than half the states had granted full or partial voting rights to women. When Roe v. Wade was decided, a slim majority of 52% of Americans supported it. And in 1967, on the eve of Loving v. Virginia, an abysmal 30% supported interracial marriage. The rhyme of history has been such that, often, public opinion evolves in the direction of rightness only after brave advocates have blazed an unpopular trail for us in the name of conscience. If it will not be our morally-pragmatic President, to whom will that torch now be passed?
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Civil Unions should not give all of the rights of marriage, just as same-sex couples should not have all of the rights of married male-female couples. People should only have the right to procreate with someone of the other sex, because procreating with someone of the same sex requires genetic modification of one partner's genes to enable them to join their genes together to form a viable embryo and create a person.
Same-sex conception is unethical and unsustainable and just plain bad public policy.
Civil Unions should be defined as "marriage minus conception rights" so that they can give all the rights and protections of marriage except the right to procreate together, so that marriage retains the right to procreate together and we can decide the issue of same-sex procreation rights without affecting the rights of marriage.
If we decide to allow same-sex couples to conceive biologically related children together using their genes, we would change the CU's to marriages. Otherwise, the unequal bundle of rights should have two different names.
Maybe I missed it but I do not see where Mr. Armento provides a compelling argument for society to grant special rights to unmarried homosexual couples and not to unmarried heterosexual couples. He presents reasons why it would benefit homosexuals, which is true for any self-designated group who receives special treatment.
Eggzactly what "special rights" are you talking about?
Mr. Armento mentioned tax breaks, survivor benefits, immigrations status for foreign nationals, veterans' benefits, etc.
If you want to talk genetics then polygamy is built into our genes. We are primates, and through history multiple spouses were the norm. Monogamy is a recent and religious idea.
Your DNA controls your sexuality, it also provides for harem building behavior. The law failing to take this into account reveals how flawed it is. You cannot legislate biology.
Failure to recognize biological drives is the root of why we have so many broken relationships in America. The law says one thing biology says another, result is biology breaks law. How could it do anything else? It's a catch 22 no win all you can do is lose proposition.
All forms of marriage should be equal under the law.
I could be wrong, but I don't believe monogamy is recent. When did monogamy become the standard, and what religion(s) did were you referring to?
When you say, "You cannot legislate biology," do you mean that people should be allowed to follow their natural inclinations? Have you considered that this could be dangerous? I mean, drivers who have a natural impulse for speed would be allowed to drive at any speed they would like. Or a person could take your DVD player without any legal repercussions.
I believe the difference between doing what comes naturally and principled self-restraint is a part of what holds society together. Are you advocating that all forms of marriage should allowed? That all qualifications and standards concerning marriage should be erased? Or did I misunderstand you? Maybe I did.
Humm, Have you ever read your bible, my friend?
Please do. Then count the number of wives, mistresses, concubines, serving girls etc that most of the Jewish patriarchs had. You'll find monogamy was rather rare.
Monogamy was generally for those too poor to support multiple wives. It has been seen as such in most cultures around the world. Wealth equals more wives.
Is it sexist? You betcha. But it's only been since the days of the rise of Christianity and the early Christian church fathers that monogamy became a religious belief.
Should polygamy be legal? Sure. but not just that of 1 man with many wives. Women should be allowed to have multiple spouses if they wish. Gays and Lesbians should be allowed equal privileges with Heteros. Heck if a guy wants to marry a potted plant, it's his choice. So long as all parties are consenting and willing to share, it's not the laws place to control it. Every law on the books about marriage and against "alternatives" to the hetero monogomy concept exist solely because of religious dogma masquerading as legislation.
Personal choice and biology are intertwined. Biology dictates many of our choices. But the law cannot and never will succeed in changing biology. You might as well try to make the sun shining illegal.
An excellent article. I, too, like the term "genderless" and plan to incorporate it in the future. The points about working with the centrists v the ongoing battles with the far right and the religious extremists are valid. As one of the 18k California couples married in 2008, we definitely have a vested interest in trying to move this along. I've had many conversations with straight friends who had no idea that we live without benefit of federal regulations. For example, we pay more in taxes and receive considerably fewer benefits than opposite-sex couples. The thinking folks understand. The far-right extremists, though, simply deny that as being true. When we've pointed this discrepancy out and asked why they believe they should have more benefits and pay fewer taxes, even when we provide specific examples from our personal life, their standard response: "That's just not true. You're making it up." Would that we were. Sadly, though, we are not.
In all the countries where same sex marriage is now legal, the issue had dropped off the political agenda within six months, no matter how loud or how adamant the opposition had been. I can't think of any main stream conservative parties in those nations which intend to reverse such a law, and I am sure that the lack is a direct reflection of their population's priorities. Gay marriages don't hurt straight people, and don't even effect them much. Conservatives might not like the change much, but if they have to choose between fighting this issue and one which actually affects their lives, like taxes, they'll opt for the latter every time. This IS the middle way.
Just because ":to some people" marriage has religious connotations does not define marriage as religious. Religion need not participate in any form or function to create a marriage between two people. It is a legal, civil arrangement and any blessing or sacrement or ceremony performed is done at the will of the people getting married.
There's no requirement for a religious ceremony in any state marriage law. Atheists who marry are not forced -- against their will -- to have a church wedding. To say the word "also has legal connotations" is not far-reaching enough. It is only and completely legal from the perspective of the law of the state which is why it should not be witheld. Once you get your license, the state has no interest in what kind of agent signs the contract as the officant.
Why do we continue to attempt to explain away the use of the word? It's unnecessary and condescending.
We already have a legal arrangement to join two people as partners. There's no reason to change the word or all the other laws that exist. The only need at this point is to acknowledge that the law must be applied to everyone, equally.
Should we also work towards quantity neutral and age neutral marriages? The arguments are the same for all of them.
You can't conflate polygamous marriage with genderless marriage because, structurally, they're entirely different arrangements.
Gay marriage could be enacted in one fell swoop by changing all the gender-specific pronouns in our current set of laws into gender-neutral pronouns, and the laws will make just as much sense.
But the legal structure of polygamous marriage would be very tricky. If a man marries two wives and then dies, are the two wives still married? Do they split the estate? Can one of the wives divorce her husband but remain married to the other wife?
If the law was written to say that "no limit shall be placed on the number of spouses a person can have" then you might get a bizarre family like this:
John + Martha
Martha + Bob
Bob + Jill
Jill + Sam
Sam + Sue
Sue + John
(The "John" in the last line is the same person as the "John" in the first line.)
How would you handle property rights if someone in this circular-marriage dies? What about child custody?
That's the reason why comparisons between gay marriage and polygamous marriage are flawed. It's not because of a "slippery slope" argument. It's because the abstract concept of marriage could apply equally well to any two people, but our current set of laws discriminates based on gender. That same set of laws could not possibly apply to polygamous relationships, so the lack of legal polygamous marriage is not discriminatory.
Incidentally, I wouldn't personally be opposed to polygamous marriage, even if bizarre arrangements like those circular marriages actually came into existence.
I was just saying that legalization of polygamous marriages would require the development of new family law policy, whereas gay marriage (or "genderless marriage", a term I really like) could be implemented simply by erasing all gender-oriented concepts from the current set of laws.
The arguments still are the same for quanity neutral and age neutral marriage.
The arguments of "rights" being violated. If people love each other why not allow it. They are the same. Either those reasons apply to all three alternative "marriages" or the reasons are unfounded.
Marriage is a contract. As underage people can't enter into legal contracts on their own, this argument is invalid. Homosexuality is a sexual orientation, polygamy is not. The argument for polymany has nothing to do with marriage equality for gay couples. This is also an invalid argument. Marriage is a legal contract between two consenting adults. It makes no sense that gay couples be barred from this on account of bigots not understanding that the world does not revolve around their ignorance. Justice and equality are what liberals fight for, and our leaders shouldn't be compromising our moral clarity for the sake of anti-humanists.
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Are the arguments the same?
It seems to me this would be like claiming that establishing voter rights as genderless would endanger legal restrictions on voting age or quantity of votes per person.
The essence of voting law, like marriage law, is untouched by gender-neutrality (and, for that matter, racial neutrality): one vote per person of a reasonably mature age, and a legal union between two people of a reasonably mature age. In both cases, there are no constitutional grounds on which to invoke gender. There are reasons to invoke age and quantity.
These are two different issues. In voting you have the rights of one person.
With marriage you have a contract between two people and society. Contract law and election law are totally different.
The US Supreme Court in Maynard v Hill went further in explaining
"(Marriage) is something more than a mere contract. The consent of the parties is the course essential to its existance, but when the contract to marry is executed by the marriage, a relation beween the parties is created which can not change. Other contracts may be modified, restricted, or enlarged, or entirely released upon consent of the parties. Not so with marriage. ... It is an institution, in the maintenance of which in its purity the public is deeply interested, for the foundation of the family and society..."
It is impossible for two people of the same gender to produce a family. With marriage being founded in the family same sex unions are different than the legal definition of marriage.
I'm glad to see someone use the word "genderless" as often and as firmly as this piece does. It's a term that explains much of how this should be approached, that not enough people are thinking about clearly.
A quibble: "history teaches". No it does not, as it a subject not an actor. History is complex, some of its most compelling research evidence hidden or unrecognized, and is open to near-endless interpretation, and any conclusion one can easily draw from it is usually wrong, in that not enough history has been taken into account.
A full professor of history, lauded for his grasp of a specific era, might be qualified to use this phrase, but then again, such a person probably never would.
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