Unsurprising but still disapointing

Yesterday the New Jersey Supreme Court declined to extend the right to marry to same-sex couples. The vast majority of states examining the issue have concurred with this reasoning.

My opinion is that same-sex couples should have the right to marry, or at least have a legal institution that is the equivalent of marriage. I’m astonished at how controversial this opinion is, and how much resistance it gets. As far as I know, only the courts and legislatures of Massachusetts, Vermont, Connecticut, and to a lesser degree, California have reached the same conclusion that I have.

So today New Jersey joins Arizona, Virginia, and Indiana, and by extension a number of other states that have found ways to side-step the issue, whose courts have denied same-sex couples the same rights as married couples. Lots of states, and the United States Congress, have passed “Defense of Marriage Acts” defining marriage as “only between a man and a woman.”

Now, let’s be clear about one thing — “marriage” is a creation of law. Yes, it is related to social traditions and religion, but all of the rights, privileges, duties, responsibilities, and other incidents of marriage are created by statute, regulation, and common law. The reason one gets married rather than “just dating” is to take advantage of the legal rights and benefits associated with marriage. I’m talking about a set of legal rights when I’m discussing “marriage.” Crass though it sounds, the bulk of those rights have to do with the common ownership of property. Perhaps even more crass, a substantial fraction of laws that are directly about marriage are really about what happens in the event of a marriage’s failure.

I was lucky. I got to marry the person I wanted to marry, with no legal obstacles, because of the fortunate accident that I am male and she is female. But why shouldn’t a gay couple have the same ability to benefit from pooling their lives together that The Wife and I enjoy? There’s many reasons that I’ve seen offered to justify the present state of affairs, and my thoughts on them:

1. The Tautology: “Marriage just isn’t something that people of the same sex can have; by definition, marriage is between a man and a woman.” So what do they have in Massachusetts? By defining marriage such that it excludes the class of people you want to exclude, you’re just playing word games and not reaching the real question, which is why these legal rights should only go to opposite-sex couples.

2. The Normative Argument: “I don’t like gay people.” That’s just plain bigotry — certainly no justification for a law. Sadly, this seems to be the predominant reason for opposition to same-sex marriage.

3. The Reference to History: “Marriage has always only been between a man and a woman in the past.” Marriage also only used to be between couples of the same race. It was obviously wrong to restrict marriage on racial grounds and referring to history and tradition does not justify that wrong. Slavery was also once accepted as a time-honored institution.

4. The Teleological Argument (version 1): “Marriage is about procreation. Same-sex couples can’t procreate, so they shouldn’t be able to marry.” Not with each other, perhaps, but they do have children. Besides, if marriage were about procreation, then only fertile people who intended to have children could get married and they would not be allowed to have contraceptives. What’s more, whenever a guy knocked up his girlfriend in a world where marriage and procreation were inextricably intertwined, the couple would have to get married, which obviously is not the case and is probably not a very desirable state of affairs.

5. The Teleological Argument (version 2): “Okay, marriage isn’t about creating children, but marriage is about raising children.” Two thoughts here. First: same-sex couples can raise kids, whether one of their own biological children or a child they adopt, just as well as opposite-sex couples. Second: The Wife and I don’t have any kids and we don’t plan on having any, at least for right now — but we’re still married. And if we never raise kids, we’ll still be married. How is that any different than a childless same-sex couple?

6. The Reference to Divine Authority: “Marriage involves God, and He objects to homosexual relationships.” What about atheists? They can get married, and God has no part in those marriages. We have a secular government because that is how we protect religious freedom in a pluralistic society. So basing a law on the precepts of one religion, with no secular purpose to the law, moves us a step down the road to theocracy.

7. The Reference to Democracy: “Restricting marriage rights to only opposite-sex couples is the political will of the overwhelming majority of Americans.” The majority can be wrong. The overwhelming majority of Americans were wrong to restrict voting rights to men, and before that to white men, and before that to white men who owned land. The overwhelming majority of Germans supported Hitler. It is overwhelmingly unpopular to be a Muslim in the United States today, just as it is overwhelmingly unpopular to be a Christian in Iran today. Yet we all agree that religious freedom should be cherished and promoted. Some things are of such importance that they are properly not subject to the whims of democracy.

8. The Parade of Horribles: “Allowing gays to marry opens the door to incestuous marriages, polygamy, and/or bestiality.” Get real.

9. The Straw Man: “Gay people can already get married — to someone of the opposite sex.” This is pure sophistry. I could just as easily complain that a straight person cannot get married to someone of the same sex.

10. The False Appeal to Statistics: “Same-sex marriages in other countries have resulted in a decline in opposite-sex marriage rates and declining birth rates.” This is a reference to Denmark, which began recognizing same-sex marriages in 1995. While opposite-sex marriage rates have declined in Demark since then, they have also done so throughout Europe. In fact, Denmark presently has had the highest rate of opposite-sex marriages of any EU country. Vermont, which has had civil unions for more than five years, has remained well above the national average for opposite-sex marriage rates since adopting its civil union statute.

Here are the reasons I offer that marriage, or at least its functional legal equivalent, should be offered to same-sex couples:

1. The Libertarian Argument: It’s none of the state’s business to say what consenting adult can marry what other consenting adult and restricting marriage to straight people serves no secular purpose.

2. The Counter-Teleological Argument: If marriage is about kids and not about the married couple, well guess what, gay people have kids too. Those kids should have married parents. And no, just because a kid has gay parents does not mean that the kid is necessarily going to grow up gay — and if the kid did grow up gay, why would that necessarily be a bad thing?

3. The Economic Argument: There is no reason that a gay couple cannot, right now, go hire a lawyer and give one another many the economic rights of marriage, and thus legally “marry.” But that would unfairly cost the same-sex couple thousands of dollars in attorney’s fees while an opposite-sex couple can get the same thing for about thirty bucks. (Hmm; maybe I should look in to this; it would be the sort of thing I could turn into a no-brainer part of my practice and hire a paralegal to do.)

4. The Harmlessness Argument: The Wife and I will not be any less married if same-sex couples are allowed to marry as well. Neither will any other couple that is already married. No one’s going to be hurt by it. So if a same-sex couple wants to marry, that’s really none of my business, or yours, or anyone else’s. If it doesn’t hurt anyone, it should be permitted.

5. Separation of Church and State: Keeping marriage restricted to opposite-sex couples is really motivated by religion, and the state should not enshrine a religious principle into law without some secular reason for doing so. For their part, churches will still be perfectly free to continue preaching whatever level of intolerance of homosexuality they believe appropriate, even if the law extends these rights to same-sex couples. Catholics do not recognize divorce, for instance, but the law does and the law permits a divorced person to re-marry and if that happens, the law still recognizes the second marriage as valid. Somehow, Catholics have managed to continue being Catholics, and maintaining their opposition to divorce, despite not getting a vote in whether a divorced person can re-marry.

6. Constitutional Argument: The Constitution, in my view, requires it. The Equal Protections Clause compels treating all people equally unless there is a sufficiently justifiable reason for not doing so. Amazingly, the Supreme Court has consistently punted on definitively stating what level of scrutiny same-sex relationships earn; but we know that marriage is a fundamental right, so that means that restrictions on the right to marry require a compelling governmental objective. No such objective exists for this issue.

Look, we as a society are either going to take our social commitment to equality seriously, or we will not do so. Some people have profound moral objections to homosexuality; however, I do not share them. I don’t care if the word “marriage” is used or if some other term like “civil union” or “domestic partnership” is chosen instead — but the legal institution must be the complete equivalent of marriage or else we are not taking our commitment to equality seriously. That means the same tax rates, the same default joint ownership of property, the same eligibility for welfare — everything. There are some parts of that which I could draft documents and give to clients without the consent of the government; there are other parts of that equation which I cannot; for instance, a right to a partner’s retirement benefits.

I think that gay Americans are still Americans and they deserve the same rights that all other Americans have; it saddens me that our government will not treat these people equally.