GAY MARRIAGE & THIRD-PARTY RESPONSE
by Virginia Postrel • Jul 10, 2003 at 12:32 am
In his most recent column, my friend Jacob Sullum makes a point about marriage that is both true and incomplete: Marriage does not inherently require state approval.
I'm all for the movement from status to contract, in this as in many other aspects of life. But even business contracts implicate third parties, from creditors to employees. Business contracts also have default provisions embodied in common law and the Uniform Commercial Code, thereby making it easier to enter into and enforce contracts. A real contract, as opposed to an idealized libertarian argument, is messy and inherently incomplete. That's why a huge body of common law has developed, even in commercial relations.
Moving marriage from a one-size-fits-all standard contract (or a status relationship) to something more personalizable wouldn't make the problems of third-party relationships disappear. To take a relatively simple example, Wal-Mart has adopted a policy against discrimination on the grounds of sexual orientation, but it does not extend benefits to gay partners. Instead, it uses the existing state definition of "marriage" to define who gets benefits. If such a default definition didn't exist, the company would have to make a case-by-case determination of spousehood. That would be so cumbersome and costly that the most likely result would be no recognition of any marriages at all.
Nor, barring a move to anarchist utopia, can the government remain utterly uninvolved. It, too, uses existing family law to govern all sorts of other decisions. Here, I find David Frum inadvertently making the argument for gay marriage even as he calls for a constitutional amendment banning it:
David is right. Marital status affects all kinds of public policies just as, say, adoption law does. That means the inability to legally marry the person you love affects many more aspects of your life than those the two of you can govern by private contract. If, say, you and your other half are Canadian nationals, and you get a job in Washington, no spousal residency privileges come with your permission to work in this country. The two of you have to live apart. (This exact dilemma is why conservative essayist Bruce Bawer lives in Norway.) To someone who believes in committed relationships--or to a love-struck romantic like me--that is incredibly mean.
The policy argument about gay marriage is ultimately an argument over whether the heterosexual majority will extend its moral sympathy to include homosexuals: whether we will identify with the "you and your other half" in that sentence above. Do we think it's a terrible thing for the law to break up loving couples? Or do we think that gay couples aren't real couples (or, perhaps, real people)?
On that question, yet another blog item suggests that experience in fact begets empathy. This month Dallas Morning News started publishing gay commitment announcements on its wedding pages. Anticipating the announcement, Wick Allison, the editor and publisher of D Magazine and the former publisher of National Review (with the requisite NR politics and religion), wrote:
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