I'm a married, heterosexual, middle-aged woman who supports same-sex marriage.
Yawn, right? I'm aware that this revelation is hardly noteworthy, particularly from where I am sitting -- here in a liberal-leaning suburb just north of New York City. What I do think worth noting is why.
It's not that I harbor a fantasy of leaving my marriage and cohabiting with another woman (not that there would be anything wrong with that). Nor do I have reason to believe that either of my two teenage sons will someday wish to marry a man (not that there would be anything wrong with that either). And I am not seeking to push the institution of marriage downward along a nihilistic slippery slope (you know -- the one which starts with two men marrying and ends with two men marrying one woman and her aging Labrador Retriever for whom health insurance would otherwise be financially prohibitive).
The way I see it, marriage should be (and always should have been) any union of two people who together are legally entitled to form a domestic partnership (a cohabiting and/or sexual relationship between two people who have expressed to one another their intention to continue in such relationship for the long-term). See? No slippery slope.
In fact: just the opposite. I believe that the benefits of marriage are significant, and the more people that have access to such benefits, the better off our society can be. From the looks of my Facebook newsfeed and my Twitter timeline, the emotional benefits of recognizing the validity of gay marriage are apparent even to those who've spent the better part of their adult lives running from marriage and commitment. "One Love," updates my Facebook friend -- the one who assiduously avoids using the word "love" in any other context. "I support #MarriageEquality," my divorce-lawyer friend tweets from her iPhone as she ducks out of court at the end of a long and acrimonious day. People who speak of "marriage equality" tend to already understand that everyone should have access to health insurance and file joint tax returns, not just married heterosexuals. And the ubiquitous proliferation of "gay marriage" avatars in place of the profile photos of heterosexual social media consumers goes a long way in supporting the proposition that validating gay marriage would vastly reduce any remaining stigma that remains regarding homosexuality.
Each of these benefits speaks to the importance of striking down pointlessly discriminatory laws such as Proposition 8, on which the Supreme Court is expected to rule in Hollingsworth v. Perry if the case is not dispatched on procedural issues). But what I'm here to address are the benefits that will never become #trending topics on Twitter -- the sort of benefits that married heterosexuals tend to take for granted, but from which homosexual Americans are flat-out excluded for as long as they continue to be forbidden to marry one another. And so, without further ado, I give you now three hashtag-free benefits of marriage, all of which should be enjoyed equally by all people, not just the heterosexual ones:
1. Seemingly Arcane Real Estate Lingo Can Have "Real" Consequences
In this country, a very special form of real estate ownership is available only to married spouses: Tenancy by the Entirety. Under a Tenancy by the Entirety, the real estate is owned, indivisibly, by the couple as a legal unit. Neither spouse may sell or otherwise dispose of the property without the other spouse's consent. Tenancy by the Entirety, like marriage itself, cannot be undone, except through legal means. And by legal means, I mean the mutually agreed-upon sale of the property, a mutual agreement to extinguish the Tenancy by the Entirety or the legal ending of the marriage by divorce or annulment. In the case of the death of one of the Tenants by the Entirety, the property continues to be owned by the surviving spouse. Perhaps more importantly, no creditor of either spouse can get at the property through lien, attachment or forced sale. Only creditors of both spouses can do so.
If same-sex couples are not entitled to marry, then they can never enjoy the benefits of Tenancy By the Entirety. At best, they can own property together as "joint tenants". But that won't insulate the property from the creditors of one owner. Thus, if one member of a gay couple were to make a particularly bad investment, then there goes the house. Unless, of course, they are entitled to marry.
2. Where There's No Will, Don't Be Gay
It's not something we like to think about, but there comes a time in our lives when we really ought to consider -- what happens to our stuff after we die? When a married person dies without a will, his spouse will inherit most of his earthly belongings; the rest is divided up according to the laws of "intestacy", usually amongst his blood relatives. It does not matter if the married person hated his spouse; if they were married and there was no will, this is how the money goes.
By contrast, when an unmarried person dies without a will, his or her entire estate is apportioned according to the laws of intestacy, regardless of whether he had been in a lifelong, committed, live-in relationship with a same-sex partner. It does not matter one iota if the blood relatives who stand to inherit fervently believe that "homosexual sex is ... as destructive as cocaine use," or that Michele Bachmann's hubby could have helped the deceased to "pray away the gay".
One might argue that a same-sex couple (who is not entitled to marry) might avoid this problem simply by making sure to make out their wills to include one another. Unfortunately, wills are subject to challenge, and I think it wouldn't be a stretch to suppose that the fwill of a dead homosexual is far more likely to be challenged by a bible-thumping, cash-poor relative than the will of a dead heterosexual who was married at the time of his death.
3. When Tommy Has Two (Too Many) Mommies
When a married heterosexual couple has a child together, the two spouses begin with equal rights as parents, regardless of whether the child was born to, or adopted by, the couple. If the marriage were to end, and the spouses were to disagree as to custody of the child, a court would make a determination as to what custodial arrangement it believes is in the child's best interest . In the event of the death of one spouse, there's hardly a question as to what happens next: the child would simply remain with the surviving spouse.
But here's a question: When a same-sex couple has a child together (in a state that does not recognize same-sex marriage), what happens in the event that the couple parts ways, through a break-up or because one dies?
And here's the answer: none of the above.
First, when that same-sex couple decide to have a child together, only one of them can possibly be the biological parent, and most states do not permit the non-biological same-sex partner to adopt the child (California being one notable exception at this time). Those same states would also prevent a child that is biologically related to neither parent from being adopted by a same-sex couple - only one of the two same-sex partners would get to be the "legal" parent.
In many states, a "non-legal" parent has no rights, period. If the legal parent were to die, the non-legal parent could easily lose custody to a blood relative of the legal parent. If the couple were to split up, the non-legal parent would have no rights except those granted by the legal parent. By the same token, the non-legal parent would also have no legal obligation to the child whatsoever (moral obligations exist notwithstanding; however, the lack of legal rights might put a damper on the ability to satisfy them).
The way I interpret this, the institution of marriage actually bestows upon its heterosexual participants their own handy-dandy "GPS-For-Getting-Out". The way things stand currently, no such benefit exists for gay couples. It strikes me as ironic that the proponents of Proposition 8 would have the Supreme Court believe that the notion of same-sex marriage is subversive to the institution of marriage in general, when, it is only heterosexual marriage that comes with its own built-in set of exit strategies.
"Love is love," wrote my gay-leaning bisexual friend on his Facebook status update today. I see his "love" and raise him two cash benefits and one welfare of the children.
(Lauren Cahn graduated from NYU School of Law and worked as an attorney in New York City from 1990 through 2003).