GAY MARRIAGE & THIRD-PARTY RESPONSE

by Virginia Postrel  •  Jul 10, 2003 at 12:32 am

http://www.dynamist.com/298/gay-marriage-third-party-response

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.

After all, people have been getting married for thousands of years, while the marriage license is a relatively recent development. A sacrament requires God's blessing, not the government's, and that's the way it should be in any society that respects religious freedom.

Suppose a religious group decides to perform weddings between people of the same sex. Since Roman Catholics, Mormons, Baptists, Muslims, and Jews would not be forced to recognize such arrangements as true marriages, it's hard to see why they would have grounds to complain.

Likewise if same-sex couples benefited from the "legal incidents" of marriage that gay people understandably want to enjoy: the ability to adopt children together, to approve medical treatment for each other, to inherit each other's property, and so on. Allowing two men or two women to enter into a contract that provides such benefits does not compel anyone to change their moral views about homosexuality or their religious understanding of marriage.

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:

So we need to take preventive measures by writing marriage into the U.S. Constitution. Some proponents of same-sex marriage will say that this act is premature--they recommend that marital traditionalists wait until later, when it will of course be too late. Others take up the federalism argument, urging that each state be allowed to make its own decisions. In this case, though, federalism simply means letting the most liberal state in the country make policy for the other 49. Marriage impinges on immigration law, the Social Security Act, federal tax law, and federal criminal law, among thousands of other areas of jurisdiction. There can and will be only one standard for marriage in the United States--and it will be all one way or all the other.

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:

A Belo source tells us the News will begin, ala the NYTimes, running same-sex "commitment" announcements on the wedding and engagement pages starting July 1. I was ambivalent on this subject--partly from dislike of innovation, partly out of a feeling that marriage as an institution is somehow diminished--until the Times launched theirs. The very first couple the Times featured included Christopher Lione, my art director from Art & Antiques. My ambivalence disappeared; my only feeling was one of delight for Christopher. There are, of course, still legal and theological issues galore. But in the tangle of conflicting interests, surely personal happiness and stability are values to be cherished and upheld.