As the Supreme Court mulls over California’s gay marriage ban; as the smart money gets placed upon the nation’s highest court not ruling for a federal gay marriage acknowledgement; and as thousands upon thousands of Facebook users swap their profile pics in support of gay marriage — I here take a few moments to reconsider the issue.
Gay marriage is an old practice . . . but not an officially acknowledged one.
What we used to call “living in sin” is now entirely legal. Heterosexual couple may do it, and gay couples may do it, too. And so may groups of people larger than a “couple.” Yes, not only has gay marriage been decriminalized-but-not-legalized, so, too, has polyamory. (That’s the next civil rights marriage issue after gay marriage: The repeal of bigamy laws and the next step, the legalization of polygyny and polyandry.) Indeed, one of the things the gay marriage issue helps clear up is the difference between “decriminalization” and “legalization.”
So, the most basic element of marriage, cohabitation with a sexual component, is unregulated by the state, at least in these United States. And that isn’t going to change any time soon.
Gay cohabitation is common in America. Sodomy laws — though a few linger on the books — are all but dead, un-enforced. Many people undoubtedly judge homosexual practices to be wrong, a sin — “unspeakable” and “unnatural,” to allude to the title of Donald Barthelme’s best short story collection — but legally they can do nothing about it.
So what does an official “marriage license” get you?
Not very many things, at least about that core issue for which marriage almost certainly arose: the rearing of children and the distribution of property.
Court rulings since the 1970s — particularly the infamous “palimony” cases — have placed most of the obligations of marriage into something like a common law/common practice framework. That is, states treat cohabited couples as de facto “married” for a whole bunch of purposes. While some of this varies state to state, precedent has it that parents still owe their children food, housing, etc., and the courts decide property and custody matters in contested break-ups according to rules very similar to legal divorce.
Gay couples have children, either through artificial insemination, surrogacy and similar contracts, through adoption, and even through normal heterosexual intercourse (some people will do anything for a child!). Without benefit of “gay marriage” laws, gay folks have received many of the rights and obligations regarding marriage, at least the most important ones.
Further, some things that legal marriage gives couples “as a right” (really, a privilege, since marriage is licensed) are also obtainable through contract — the privilege of visitation and consultation in medical situations, for example. Say you are “married” to a person of your same sex, in all but the licensed sense. A number of gay couples have reported trouble helping and comforting their partners while undergoing hospital treatment: the hospital has refused “family” status to the gay partner. (This also happens with heterosexual couples.) Medical power of attorney is something you can give your lover, and this should be enough to get you through most doors. If some stodgy old institution won’t acknowledge it, threaten a lawsuit, get a lawyer and demand habeus corpus or some such (I am not a lawyer; I trust lawyers will correct me), and that problem should be solved.
Similarly, by regulation as well as by custom there exist commonly available insurance policies tailored for married couples. These were not available to gay couples when I was a youth. But without lawsuits, and without government regulation, many of these provisions are being extended to gay couples. Shop around, gay guys and gals, and you will already have this benefit of licensed marriage.
The biggest privilege not granted to gay couples, today, are those associated with the Social Security Administration’s pension program. This is surely the biggest financial gain that gays could expect from the licensing of gay marriage. If they are lucky, they’ll have it a few years before the system goes broke and means testing of pension benefits goes into effect (and that’s the best-case scenario).
There’s at least one specific right that licensed marriage grants heterosexual couples, today, that gay couple lack— the immunity from testifying against one’s spouse in criminal cases.
As far as I can tell, that’s it.
We live in an age where gay marriage has been decriminalized.
In effect, gays have the right to marry in this country now.
Indeed, they can call their cohabitation status “marriage,” after all, and can contract for many if not all of the specific privileges of marriage, if they bother going to a lawyer (medical power of attorney being a good example). With so little riding on this, and with millennia of tradition in which marriage has been considered a male-female thing, a man-woman relationship, why the huge cultural push to establish this innovation now, immediately?
Is it all about Social Security and spousal immunity?
Of course not.
It’s about inclusion, “acceptance.”
And forcing other people to accept them even if those others don’t want to.
This is where modern libertarians and modern liberals (“liberal progressives,” as they sometimes prefer to be called) may part company.
Libertarians generally prefer decriminalization and equal rights to free contract. And on these grounds, gay marriage is obvious and unassailable. What’s assailable is marriage licensing. The basic policy. Libertarians will often say they’d like to see government “out of the marriage business,” even though there is not the slightest bit of a social movement for this, considering the vast government intrusions into family life, such as the bulk of welfare state provisions, certainly not excluding Social Security.
In contrast, liberals of the progressive bent, in my experience, don’t care one whit for freedom of contract. Their pet legislative projects are almost all about abridging freedom of contract. Few of them want to decriminalize prostitution, though that is also and quite obviously a consequence of freedom of contract when it comes to sexual relations. Though liberals used to talk about drug reform, it’s rarely decriminalization they seek; instead, what we hear is their relentless mantra of “tax and regulate.” No free markets for them — and certainly not for the pharmaceutical industry: they want to regulate that more, place greater burdens on that industry (even if the consequence would be higher prices for consumers, including the poor). And when it comes to tobacco, it’s these “liberals” who boast of all the legal efforts to curtail tobacco’s use, by sin taxes, coerced warning label placements, hidden retail sales, etc etc.
No, what liberals want from gay marriage is the aforementioned forced community and inclusion in same. They want to compel conservatives to eat their hate and smile when they call the neighbors Mr. and Mr. or Mrs. and Mrs.
This incentive will have consequences beyond legalization. Not long after gay marriage is legal, a few liberals will (prophecy alert!) call for forcing churches to perform “gay weddings,” even if such a thing would obviously be against the free exercise of religion clause of the First Amendment.
Personally, I consider the talk of inclusion pathetic and the desire for forced “integration” repugnant — yet I still support legalized gay marriage.
Decriminalized marriage may be all about freedom of contract, but legalized marriage is about (technically) a certain number of privileges and immunities. and according to the 14th Amendment, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That pretty much settles that.
The 14th Amendment still seems like a basically good idea, and it’s certainly there.
I’m with the libertarians on this: There’s a lot I don’t like in the Constitution — and the 14th Amendment is problematic, at the very least — but it’s a whole lot better than what we have now, a post-constitutional empire. Getting modern statist liberals to use the document literally and strictly is a good thing, since it morally compromises their rampant wayward, unhinged and unfettered political instincts. Chain them to the Constitution!
As for why I judge the current “inclusion” demands “pathetic” and “repugnant,” that’s a factor of my personal individualism and my (perhaps limited) experience with Pacific Northwest gay culture of the early 1980s. The men I knew didn’t do a lot of protesting and demanding. They were more self-directed, and, frankly, hedonistic.
I prefer that earlier, self-directed culture. It was more individualist. It did not rely on collective acceptance.
And yet, I accepted then, and accept now, gay folk as human, as “should-be-free” individuals. I do them the honor of holding them responsible for their own choices.
And I even feel some community with them, for, were I to get married, so late in life, I could not be married in those churches that won’t have them either.
The only thing is: I think that’s just fine.
And, from what I can tell, the fact that some folks would exclude them still really really gripes the loudest voices of the gay community.