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Musing About Marriage Equality

Living in a state where “race” is still a box to fill in on marriage licenses, I’m often reminded how parallel today’s marriage equality issues are, legally speaking. Some of the same arguments are even used (see “Why the Ugly Rhetoric Against Gay Marriage Is Familiar to This Historian of Miscegenation“). How simple to allow marriage, regardless of the race or gender of the partner!

Certainly the issue cannot just be procreation. We do not dissolve marriages automatically if the partners cannot procreate, nor do we require procreation of married couples where the partners are different sexes or genders.

There are three other arguments sometimes floated in support of discriminating in marriage by gender of the partner, on the assumption that these are relevant parallels.

One is to point to marriage laws that discriminate on the basis of age. But we have many laws that discriminate against minors, assuming that they have a diminished capacity to make contracts. And marriage, under the law, is primarily a legally binding contract. Religiously and ethically, a marriage takes on other dimensions, but the civil aspect of it is contractual. And we don’t permit minors to make binding contracts, or we ask at certain ages that their parents sign for them. So it is with marriage. And a partner of the same gender is hardly equivalent to a child.

A second, more offensive argument, is to ask “Will the next step be to marry an animal?” Besides the basic offensiveness of comparing a partner of the same gender to an animal, this argument fails logically as well, because marriage requires consent, and animals cannot communicate consent to marriage or even comprehension of what marriage means.

A third argument is more convincing to some: if “one man, one woman” falls and marriage can include two men or two women, why not two women and one man, or other combinations of more than two people?

I consider this another straw man argument, logically, because our legal system is already set up to handle marriages of two people, but is in no way set up to handle marriages of more than two people. Regardless of whether I think such polygamous marriages should be legal, the issue is not parallel.

In removing discrimination based on the gender (or race) of the partner, marriage laws remain essentially the same. Two people make a contract for life, or until they legally end the marriage, to share their property and their lives. There’s already a body of law about how to handle children who are not the biological offspring of both partners in the marriage. Nothing really changes with removing gender discrimination.

Same sex marriage requires almost no other changes in the law other than removing the gender of the partner as relevant, just as Loving v. Virginia meant nothing more in the law than removing the race of the partner as relevant. But “number” has more implications.

If four people are “married” are each married to each of the others, is there one marriage? Or are there multiple interrelated marriages, each of two people? Is there a primary partner all others are married to? Does a divorce of one dissolve the whole marriage — or can that divorce leave someone still married to others who are now divorced from each other? Do all spouses have to agree to a divorce, or only two people?

Are all in the marriage parents of the children, with full legal guardianship rights, even such simple things as signing permission slips, and such complex things as custody after death or divorce or remarriage? Or, are only the biological parents the legal parents? What adoption rights do the other spouses have? What custody rights to surviving spouses have if one or more parents die or leave the marriage?

Property ownership within marriage: do all share everything? Or is this two-and-two, with, for examples, two wives married to the same man not sharing property with each other but only with their mutual husband? And in such a situation, how does his property get shared?

How do joint tax returns get filed, and how are taxes calculated? If one person has health care coverage, are all spouses and children of the whole interconnected marriage covered, or is this split by pairs of adults and “their” children separate from other children?

Inheritance — do laws that exist now on inheritance — e.g. giving 1/3 of the estate in some states automatically to the spouse and 2/3 to children — apply to all spouses and children, or only pairs within the group? How are surviving spouse benefits calculated and who gets them? Are separate checks sent to each of the surviving spouses? Since such benefits can be given now even after divorce, in certain circumstances, what if the surviving spouses are no longer married to each other yet are equally eligible?

There are a LOT of legal implications. Whether or not one accepts that it is a “good thing” or even ought to be accepted on the principle that people have some rights to be wrong — the legal implications are complicated and a simple “yes let’s include this” won’t suffice to implement such a change. When I’ve talked with people in polyamorous relationships, or even marriages that are legal in other parts of the world but not in this country, I realize that those in such relationships do not agree among themselves how these issues get sorted out. At a minimum, every such marriage would require detailed legal agreements.

If society gets to a point where we are considering the legalities of polygamy, we’ll sort it out, but we’re not there yet. It’s a quite different social problem from simply removing race (as happened with Loving v. Virginia) or gender of the partner as an impediment to a legal marriage.

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