Equal rights for whom?

The same-sex marriage debate increasingly calls, or should call, into question the legitimacy of the privileges bestowed on marital relationships in general. Take this entry in Andrew Sullivan's blog (scroll down to "Why civil unions suck"). Sullivan quotes a letter from an army wife saying that when she and her now-husband were still dating and he was deployed to South Korea, she found that, despite having legally notarized power of attorney, she was repeatedly thwarted while trying to handle his affairs. She also found out that, without being legally married, she would not even be notified if he was wounded.

This doesn't quite make Sullivan's case for full marriage vs civil unions -- many of the current proposals for civil unions specify that the couple would have the same rights as a husband and wife. But apart from that, what is the moral and legal justification for the exclusive rights of the marital relationship? Does this mean that a single soldier deployed overseas will find it much more difficult to keep his financial and legal affairs in order than a married soldier, because whoever he entrusts with those rights will not be able to carry them out as effectively as a spouse?

Or take the issue of estate taxes. Right now, a wealthy 80-year-old widow can leave all of her property tax-free to a 20-year-old boy toy if she marries him a month before her death. If the same widow wills her property to, say, her niece who has been living with her and providing constant care and companionship for 10 years, the niece will have to pay a huge estate tax. Where is the justice in that?

Comments

kwais | March 8, 2004, 1:33am | #

I wonder;
If same sex marriage is legalized, would you have to be gay to get married to someone of the same sex?

What if you were in the military (And being openly gay was still against the law), and you had a buddy that you wanted to take care of your buisness while you were overseas?

What if that person was related to you?

Can the government really legislate the perception of love?

JAG | March 8, 2004, 1:40am | #

Will marriage be "the same" after a couple of decades of "politically correct" treatment in school textbooks and the media?

What will be the effect of virtually no references to "mother" or "father" anymore? Wouldn't want to hurt anyone's feelings would we?

No, homosexuals doing whatever they want will not impact my marriage. However, by graying out the historic image of marriage to mean anything marriage will shortly mean NOTHING. Without guidelines on how to behave quite a few people default to some very destructive choices.

If you believe the gradual evisceration of the important symbolism of mothers and fathers committing to each other in families will advance society you probably also believe that a president being fellated in the Oval Office is no big deal, image-wise, either.

Jean Bart | March 8, 2004, 2:03am | #

Shannon Love,

"The institution of monogamous heterosexual marriage (MHM) evolved in widely disparate cultures (ex Western Europe and Confucian Asia)."

So what? Slavery and other institutions also have had widely dispersed and very strong historical and institutional basis, and thus, given your criteria for what "works," they also worked too. In other words, simply because something has been long practiced is not a convincing argument in favor of that practice; since if it were, institutions like slavery and laws that limited voting rights based on gender, race, etc. would still be in effect. Indeed, laws which criminalized homosexual consensual sex would still be in effect.

"Legal and cultural institution of long standing do not arise from formalized political philosophies. They evolve over time in an organic manner. Formalized doctrines are merely post hoc explanations."

Bullshit; people made decisions concerning the legal regimes they created - they simply did not arise out of the fucking ground; your "legal determinism" is crap, and vaguely Marxist in its flavorings.

"ust from a libertarian philosophical perspective, it's easy to show that the weakening of the family as a social institution and the expansion of centralized state power have gone together. Demographically, its easy to show that people with smaller and weaker family networks are more likely to support the generalized idea of big government.

....

Even in liberal democracies, those political entities that most favor large government are also hostile to traditional families."

You have cleverly tried to equate "weakening families" with "weakening traditional families." Very slippery of you.

To be blunt, a state where people can create non-traditional families seems far more friendly to the libertarian notions that you espouse, than one where the state only allows one type of family. Through the diversity of family types you get less dependence on government, not more, in other words.

I would also argue that notion of what a traditional family is itself a post-hoc creation which does not historical reality at all.

Vigilance Matters | March 8, 2004, 2:40am | #

Shamelessly swiped:

The Canadian government, which is considering same-sex marriage legislation, has just realized that retroactive social-security survivor benefits alone would cost its taxpayers hundreds of millions of dollars.

Just something for you libertarians to mull over while your taxes get raised in the interest of "fairness"

ralph | March 8, 2004, 2:43am | #

"To be blunt, a state where people can create non-traditional families seems far more friendly to the libertarian notions that you espouse, than one where the state only allows one type of family. Through the diversity of family types you get less dependence on government, not more, in other words."
What exactly is a non-traditional family? How does diversity of family types reduce dependence on government?

Scott Harris | March 8, 2004, 2:54am | #

This view is completely narcissistic. The ONLY interest that society has in protecting and encouraging marriage is that marriages provide a stable environment for the creation, care, and nurture of children. The interests of the two marriage partners are entirely incidental to the interests that the greater society has in the relationship.

thoreau | March 8, 2004, 3:03am | #

The ONLY interest that society has in protecting and encouraging marriage is that marriages provide a stable environment for the creation, care, and nurture of children. The interests of the two marriage partners are entirely incidental to the interests that the greater society has in the relationship.

OK, time to revoke my wife's and my marriage license (Jennifer: Can you help me out with the correct grammar for the plural possessive of two people, one of whom is referred to by a possessive pronoun?). For medical reasons my wife can't have kids, and there's a chance that her condition may make it harder to adopt as well.

Since we are a biological dead-end, perhaps the state should take away our right to grant each other power of attorney, share property, inherit from one another, etc.

rst | March 8, 2004, 3:30am | #

JB - a libertarian view I think would run more towards subtracting the government from the equation of gay marriage and examining what would remain: A social movement with no traction.

Society is not overly compelled at this time to redefine a term that it has found vital to its identity. It may or may not actually be vital, but I submit that the distinction thereof should carry as little social weight as whether other historically contentious terms should be freely adapted for general use by everybody, or just left to their current usage patterns. Nebraska's Education Dept. taught us that no matter what the words in "African-American" indicate, the term itself explicitly means black, and further to construe that term differently even in protest is an offense so severe that like beating up a SpEd kid or setting fire to your locker, you can be suspended or expelled for it. This is fine, just don't be surprised when equally indoctrinated human animals react en masse in a similarly irrational manner. Far too many act as though the preservation of some word spontaneously appeared on the political scene when some right wing Christian zealots got their feathers ruffled over gays.

So really, is the fact that gays can't get marriage licenses any more surprising from a standpoint of "equal protection" than the fact that white kids can't get NAACP scholarships? Whether right or wrong, who cares, but the way the system is built, you can't just summarize the fifty years of case law between Plessy v. and Brown v. as "equal protection," slap it on a placard, wave it around, and expect the rest of us to take you seriously. The devil is in the details, and the details say the gays have little to no claim.

rst | March 8, 2004, 3:42am | #

Of course in the libertarian view, the gov't doesn't administrate much of anything, so marriage I suppose would be left entirely to religion. Good luck getting traction there.

Jean Bart | March 8, 2004, 3:45am | #

rst,

"...a libertarian view I think would run more towards subtracting the government from the equation of gay marriage and examining what would remain: A social movement with no traction."

According to whom? You? By what metric do you make your judgment? It appears to have a great deal of traction to me.

"Society is not overly compelled at this time to redefine a term that it has found vital to its identity."

A constantly changing "term," not one that as you imply has been passed down through the ages.

What you are referring to in the rest of your statements are memes; mind-viruses if you will. Merely because it is a meme does not give it any validity.

Jean Bart | March 8, 2004, 3:49am | #

ralph,

"What exactly is a non-traditional family?"

I was going with what Love was implying to be a "traditional family" - Leave To Beaver in other words.

"How does diversity of family types reduce dependence on government?"

Because clearly everyone can find independence in more diverse family types; it does not prohibit so-called "misfits" from forming families; these people would otherwise have to conform to the "norm" (creating the sorts of stressors that would invariably lead to family breakdown - thus loss of independence) or not conform and not even be able to create the stilted independence found in the "norm."

Scott Harris | March 8, 2004, 3:57am | #

Thoreau,

You are committing a logical fallacy. You are confining your argument to your marriage specifically, not marriage in the aggregate. The vast majority of heterosexual marriages will produce children. It is statistically relevant that children raised in stable marriages between their two biological parents have the greatest chance of success.

The fact of your wife's infertility is naturally accidental, and not relevant to the overall natural purpose of marriage in the aggregate. The interest of society is in encouraging and promoting marriage as a mechanism for the perpetuation of society itself. This includes more than mere propogation, but propogation is a necessary component. In the aggregate, marriage is the only proven structure that can provide for both propogation and long-term care and development of children.

On the other hand, exactly ZERO homosexual relationships have ever, in the history of the world, produced offspring. That some might claim to provide for the long-term care and development of children is not a sufficient condition to recognize them as marriages. The fact of the inability to provide the necessary condition of being able to PRODUCE children is sufficient cause to deny the relationshp the recognition of marriage.

Furthermore, the natural imperative is to model the behavior that will result in children copying the behavior which leads to further propogation. For this reason, homosexual relationships cannot claim equivalence to heterosexual relationships even in the case of child-rearing.

On a natural basis, families are simply biological entities. Families are families by virtue of their biological relationships. A marriage is simply a representative of one biological family commiting to a member of another biological family for the purpose of the perpetuation of both families. Once a child is born, the two two families cease to be separate biological entities. They "become one."

I may think of my family vs. my wife's family. But as far as my children are concerned, both sides are their family - one entity. Think about your own biological family. Do you not have equal claim on both your paternal and maternal sides of the family? Would your claim be obviated if your parents were to divorce? Does not the law maintain that obligation regardless of the decision of your parents to remain married or not? Would the law have any interest in maintaining the relationship if you or your siblings did not exist?

The concept of a surviving spouse being given special consideration is to recognize that the estate has been jointly built. In the absence of a will, and in the absence of a surviving spouse, the law will distribute the estate per stirpes - the default position of the law. In order to exclude a particular child, a parent must explicitly do so. Would you have the law change in this respect?

Just because your marriage, in particular, has failed to fulfill the biological imperative, does not invalidate that imperative. Also, while propogation is a necessary possibility, it is not sufficient. Studies show that illegitimate children suffer from the lack of commitment of their parents as well.

All told, the reason society recognizes marriage is that marriage provides real, significant, indeed indispensible benefits to society itself. To reduce marriage to a contract between two people, or to recognize only the selfish interests of the two marriage partners involved is to ignore reality.

Many relationships can be beneficial to the individual members of the relationships without requiring the protections of marriage. Marriage is a social institution that has value as a concept regardless of the particularities of specific individual marriages.

I have been married without children, and am now married with children. They are two different states of being. Now, I can never escape the relationship to my wife. I can deny it, ignore it, or otherwise neglect it. But it will always remain unless or until our posterity ceases to walk the earth. And the power of that fact is not lost on me.

I cannot know whether you consider your wife's sterility a blessing or a curse. Certainly, adoption is a path you can choose, because you can still model the behavior that leads to procreation. That option does not exist for homosexual couples. And for that reason, adoption should be off limits to them.

If you choose to be childless, or you would have irrespective of your wife's infertility, then yes, your relationship is no different than that of a any homosexual couple in that you fail to meet either of the two conditions for marriage. That you might illegitimately enjoy the protection of marriage is not a valid reason to extend that protection to relationships that cannot ever meet either of the conditions to propogate and model behavior that leads to propogation.

rst | March 8, 2004, 4:02am | #

It appears to have a great deal of traction to me.

Because the media has given it the attention you desire it to have, for now. The political and legal maneuvering, however, has put the movement's lofty goals largely out of reach for now. To say nothing for the fact that the Great Apathy has yet to set in.

How much the term has changed is irrelevant.

Marriage is a meme, JB. "Equal protection" is a meme. "Separate but equal" is a meme. And so on. That it is a meme means absolutely nothing w.r.t. to its practical application...any learned social institution that isn't necessary for our biological survival is a meme; it could not have survived otherwise.

rst | March 8, 2004, 4:05am | #

JB the problem with assessing the libertarian view on where to take the status quo is that according to them, the status quo is already fundamentally flawed. The libertarian view I think is to totally dismantle the system of government-recognized marriages, leaving it in the hands of society and religion, both of which are largely opposed to gay marriage.

Jean Bart | March 8, 2004, 4:10am | #

rst,

"Because the media has given it the attention you desire it to have, for now. The political and legal maneuvering, however, has put the movement's lofty goals largely out of reach for now. To say nothing for the fact that the Great Apathy has yet to set in."

Gay people have been working on equality since turn of the 20th century; the idea that this is some movement which started a few weeks ago is ludicrous; indeed, because of their willingness to struggle, look how far they have come - to paraphrase Marti, rights are not given, they are fought for.

"...any learned social institution that isn't necessary for our biological survival is a meme; it could not have survived otherwise."

Thankyou for illustrating my point; it is a meme; it can evolve (like all memes do). SEE Dawkins.

thoreau | March 8, 2004, 4:11am | #

How many times do we have to go through this: There's a big difference between a societal institution and the handful of benefits that the government confers on married people. A law for gay marriage only confers some benefits on people who weren't planning on marrying members of the opposite sex anyway. It doesn't force the rest of us to change our attitudes toward it. Those who believes that gays are a sign of Armageddon can continue to believe so, they just can't stop two guys in San Francisco from sharing power of attorney and property and whatnot.

That's all.

Jean Bart | March 8, 2004, 4:12am | #

rst,

"The libertarian view I think is to totally dismantle the system of government-recognized marriages, leaving it in the hands of society and religion, both of which are largely opposed to gay marriage."

Which wouldn't really matter; as it would be a private choice that the state could not interfere with.

rst | March 8, 2004, 4:33am | #

it can evolve

Agreed. It can evolve. That doesn't mean it must. Evolution is of necessity, and the Organism doesn't appear to need this.

the idea that this is some movement which started a few weeks ago is ludicrous; indeed, because of their willingness to struggle, look how far they have come

I said nothing about the movement's age, rather its impotency. Movements can be new or old, but on this one, society as a whole is free to take it or leave it. It lacks any explosive potential. SEE Alabama, United States, 1960's.

Shannon Love | March 8, 2004, 4:45am | #

Jean Bart,

"a state where people can create non-traditional families seems far more friendly to the libertarian notions that you espouse."

I agree completely. That is why I am strong advocate of privatizing marriage. A free market works better than a command one because economic entities are free to experiment and, most importantly, to fail.

Privatizing marriage will short term create a plethora of experimentation but the failure of many of these forms will soon allow us to converge onto a few successful forms. Some people may be hurt by such experimentation but the overall long term effects will be better than a politically determined one size fits all solution.

"people made decisions concerning the legal regimes they create"

Yes, but that doesn't mean the laws had the effects they intended. Even a cursory view of history shows that the people of any era rarely understood what was going on around them and have little ability to engineer a society they would like. (If I thought that degree of knowledge and control was possible, I would be a statist.)

A free market is comprised of millions of actors, each one making conscious decisions based on local information. Does that mean a free market is therefor the result of a conscious design? Clearly not.

Likewise, legal, political and social rules evolve over long periods of time and result from the conscious actions of many actors each pursuing their own goals. The size and scope of the resulting system is greater than any one person can comprehend or predict. It is not a designed system.

"You have cleverly tried to equate "weakening families" with "weakening traditional families."

The traditional family, a heterosexual couple and their biological children, has been shown empirically to be the optimal solution for all concerned. It has been dogma since the 60's that other forms of family worked just as well but research in the last 10 years as shown this not to be the case.

This observation is, however, totally separate from supporting the imposition of this form by state dictate. I believe that privatized marriages will converge on the more traditional form. I believe that gay couples will adopt this form as well to everyone's benefit.

Commitment is the key to successful relationships especially when children are involved. I believe that people will voluntarily impose a greater degree of commitment upon themselves via a private contract than they let the state impose on them.

The end result will be society with happier people who have more freedom and less dependence on the violent coercive power of the state.

Scott Harris | March 8, 2004, 4:48am | #

Thoreau,

"It doesn't force the rest of us to change our attitudes toward it."

Hogwash! That is exactly what it forces. Will the schools teach father-father, or mother-mother as equivalent to mother-father relationships? Will they punish children who oppose this viewpoint under "hate-speech" regulations? Will Society attempt to marginalize those who strenuously object to the characterization of such relationships as morally equivalent to normal natural heterosexual marriages? Will the state, in its zeal to uphold dubious "equality" claims, actually overcompensate by demeaning normal marriages? I think the answer to all of these questions is an unqualified YES.

As to the nature of marriage itself, having separated the concept of sex from procreation, will the society at large further demean the value of children to society? Those who have no children may deceive themselves by believing they have no stake in the future generation. But this is pure deception. Those older citizens who are indigent depend upon social security to pay for their survival. But all older citizens depend on younger generations to provide the labor, products, and services to survive.

And for those who consider themselves self-sufficient, do they really believe themselves to be independent? The fact that you can afford to pay for products and services does not obviate the fact the SOMEONE must physically exist to provide those products and services.

If you own a million shares of Microsoft, but Microsoft has no employees (everyone is retired), and no customers (no new generation to need their services), how much are your million shares worth. Like it or not, your continued wealth depends upon the existence of next generation, regardless of whether you specifically have contributed any members of that generation or the ones to follow.

The point of public education is that society recognizes that all of society has an interest in the development of the next generation. The point of marriage is not merely to create the next generation, or even to produce a new generation of individuals. The point of marriage is to produce a new generation of parents, who will in turn produce a subsequent generation of parents, and on and on, ad infinitem.

The selfishness of those who see only the benefits of marriage and not the parallel responsibilities is apalling. Has our society actually devolved to the point where everything is about the existential ME? How pathetic is that? There is something much larger than the individual benefits of marriage partners, per se. Those who claim marriage is only about the love and commitment are narcissists.

As a society who values tolerance, perhaps it is incumbent upon us to tolerate homosexual acitivity. But it is not tolerance to give homosexual relationships the name and protection of marriage. It is societal suicide.

Gadfly | March 8, 2004, 5:06am | #

From one philanderer to another, Scott, I say let's keep those marriage protections to ourselves, no matter how many times.

Andrew | March 8, 2004, 5:25am | #

It is apparent that the actual implementation of Gay Marriage/Civil-Union will be loaded with the same kinds of unintended consequences (actually, covertly intended by the most far-sighted of the activists) as the Equal Rights Amendment would have.

A huge additional payload on mandated and quasi-mandated benefit and entitlment programs is one. A sizable net contribution of kids raised (basically) by single parents in the coming generation is probably another. And even more frictions between free expression and sundry "hate-speech" codes is also likely.

America dodged a bullet when the ERA died. We should wisely duck another one here, and simply respect the majority preference not to pass ANY of this stuff.

rst | March 8, 2004, 5:48am | #

respect the majority preference not to pass ANY of this stuff.

Democracy is the tyranny of the majority, Andrew. And tyranny is baaaaad. Better to have the tyranny of the judiciary, because they've got their gavels plugged into What's Right.

Scott Harris | March 8, 2004, 5:58am | #

rst,

You summed it up. You believe that democracy is equivalent to tyranny. As opposed to what? What would you prefer over the will of the common man? Who is to be sovereign, if not the people? You simultaneously trade on the values of the majority, i.e. tolerance, patience, respect for law, and trample them as well.

The tyranny of the minority far exceeds the tyranny of the majority. Which oligarchy would you prefer? The one that gives you the right to trample the rights of others, no doubt.

Scott Harris | March 8, 2004, 6:01am | #

Gadfly,

Your sarcasm missed the mark. My wife is my only, and I am hers. The failure to meet the ideal in all circumstances does not invalidate the ideal. Accomodations can be made for the failings of us all; but that is what they are - failings. To enshrine a failed model as the ideal is the ultimate in perversion.

Gadfly | March 8, 2004, 6:01am | #

Go, Scott! Those Blacks, Mexicans and Asians have been tyrannizing me for years.

Jean Bart | March 8, 2004, 6:27am | #

rst,

"Evolution is of necessity, and the Organism doesn't appear to need this."

Actually, it may not be neccessary at all; evolution (at least the biological variety) doesn't have any set path.

"It lacks any explosive potential. SEE Alabama, United States, 1960's."

Many would have said the same thing about the civil rights movement in say the 1920s or 1930s; and I reallly don't see what sort of metric you make this judgment by.

Jean Bart | March 8, 2004, 6:37am | #

Scott and Andrew,

Again, what you both fail to acknowledge is that your system of government is neither a "democracy" nor is it a "oligarchy." You have some elements where majority power is fulfilled, and others where it clearly is not.

Furthermore, by itself, a claim that is based on "popularity" is fallacious.

BTW, I suspect if a majority of Americans ever favor gay marraige that you will be screaming your fucking head off about "minority rights" and how yours are being impinged. Because I suspect that you both hypocrites (well, I know Andrew is).

Andrew,

"A huge additional payload on mandated and quasi-mandated benefit and entitlment programs is one."

Yes, because gay married couples will get the same benefits as straight married couples. The real solution is of course to get rid of the programs instead of blaming gay people for qualifying for them. You're a bigot, so I know you make this rather obtuse observation.

"A sizable net contribution of kids raised (basically) by single parents in the coming generation is probably another."

What do you base this conclusion on? Sticking your finger up your ass?

"And even more frictions between free expression and sundry 'hate-speech' codes is also likely."

Marraige or not this will occur; and again, the solution is to attack the codes and not the liberty of people you find so "icky" that you are willing to act like a member of the Taleban to deny them their liberty.

scott | March 8, 2004, 7:03am | #

Scott Harris,

"Certainly, adoption is a path you [thoreau] can choose, because you can still model the behavior that leads to procreation. That option does not exist for homosexual couples. And for that reason, adoption should be off limits to them."

What kind of logic is this? You're saying that heterosexual bedroom behavior is necessary for an infertile couple to properly raise adopted children? Doesn't that sound the slightest bit insane to you? How did you come to this conclusion?

"But it is not tolerance to give homosexual relationships the name and protection of marriage. It is societal suicide."

Well, we'll see... Hundreds of thousands of gay couples in this country are raising children as we speak, and gay marriage is already a reality here. And as our society becomes less bigotted, more gays will come out, and more will raise families. It'll be good to see how things evolve. I suspect that your fears of societal collapse aren't going to play out. They'll just be chalked up to one more failed attempt of the right-wing to control everyone and everything.

rst | March 8, 2004, 8:00am | #

JB - in the 20's and 30's, they were right. 50's and 60's, not so much. Not because society established a path towards the advances of the 50's and 60's during or before the 20's and 30's, but because it had progressed to that point of its own accord. Vermont outlawed slavery in 1787 and Ohio in 1803 before even its own statehood. Society, however, does not change with - or like - law. The idea was not delimited by state lines and was likely shared by adjacent legislatures and constituencies. This is how your "memes" change. A society is not going to change its definitions because a glorified lawyer in a robe has ordered them to do so.

The metric: one state recognizes civil unions, and one (somewhere across the Pacific) recognizes gay marriage. The majority opinion in Congress and the administration is solidly against, and with nearly 40 states passing laws against gay marriage (and in some cases even civil unions), a convention and amendment seems more likely.

Scott - I was being sarcastic. My b-a-a-a-a-a-d.

others where it clearly is not.

Such as? Minus the legal precedent of Marbury v. Madison and its derivative case law, where is majority will clearly not the basis for law (bearing in mind that regulatory commissions do not pass "law," they pass regulations within the context that Congress provides)? A court can stop a specific law from being passed, but cannot make law of its own accord.

ralph | March 8, 2004, 8:38am | #

" If the same widow wills her property to, say, her niece who has been living with her and providing constant care and companionship for 10 years, the niece will have to pay a huge estate tax. Where is the justice in that?"

Maybe the problem is the estate tax not marriage?

Walter Wallis | March 8, 2004, 9:01am | #

Write up a new law and submit it to the people. If it is reasonable it will likely be accepted. It is the hijacking of existing law that many are opposed to.

Ruthless | March 8, 2004, 9:06am | #

I'm with ralph.
Most of these distinctions are losing us in the trees. We need to be skimming over the forest in an ultra-light.

rst | March 8, 2004, 9:48am | #

Where is the justice in that?

Equal protection doesn't actually mean equal protection. It just means in this case, "we've abstracted this concept of marriage out to the level of person-and-person instead of man-and-woman, and we demand that you (the majority of society) do the same." The estate tax only affects people who are not poor, ergo, not an issue of equality. Brilliant, really...forward an agenda by hooking on some notion of "equality" and drag it through the water for the day's catch. Smells like yesterday's catch, though.

Skip Oliva | March 8, 2004, 9:50am | #

Ending the estate tax is fine by me, although it would be bad for my business (I freelance in estate planning).

I continue to have concerns over the legalization of gay marriage, however, because of the inevitable negative impact on private property rights. By this I mean businesses will be legally forced to treat married gay couples as equal to married straight couples. Aside from any individual moral objections a businessman might have, this could impose enormous insurance and other benefit costs. I don't see anyone on the pro-gay marriage side--notably the alleged conservative, Andrew Sullivan--seriously address this problem. "Civil rights" and "individual rights" are not synonyms; the former usually attaches to an expansion of state power that is used against property rights.

alkali | March 8, 2004, 9:52am | #

[W]hat is the moral and legal justification for the exclusive rights of the marital relationship?

Generally, administrability.

Does this mean that a single soldier deployed overseas will find it much more difficult to keep his financial and legal affairs in order than a married soldier, because whoever he entrusts with those rights will not be able to carry them out as effectively as a spouse?

Yes, but the problem posited is a rarity; young single soldiers generally don't have much in the way of personal affairs to be managed. If that were not the case, doubtless people would be more accustomed to seeing people holding powers of attorney to do business on behalf of soldiers, and it would be less of a hassle.

Right now, a wealthy 80-year-old widow can leave all of her property tax-free to a 20-year-old boy toy if she marries him a month before her death. If the same widow wills her property to, say, her niece who has been living with her and providing constant care and companionship for 10 years, the niece will have to pay a huge estate tax. Where is the justice in that?

The rule about married couples has to do with the general idea that we don't want the estate tax to hit a surviving spouse who may be relying on the estate to live on, not because we are trying to provide incentives to members of married couples for taking care of their spouses on their deathbeds. That you can think of a hypothetical in which that isn't true doesn't mean that it's a stupid rule.

Walter Wallis | March 8, 2004, 10:00am | #

Way back, I said that if fringe benefits were taxed as ordinary income I would drop any objection I had to Gay marriage.

Thorley Winston | March 8, 2004, 10:03am | #

Or take the issue of estate taxes. Right now, a wealthy 80-year-old widow can leave all of her property tax-free to a 20-year-old boy toy if she marries him a month before her death. If the same widow wills her property to, say, her niece who has been living with her and providing constant care and companionship for 10 years, the niece will have to pay a huge estate tax. Where is the justice in that?

Wouldn’t this just be a good example of a reason to abolish the death tax?

Critic | March 8, 2004, 10:05am | #

I'd like somebody, someday, to address the inequities that single people face, specifically the loss of their entire Social Security account if they die childless and spouseless. If that money is truly theirs, they should have the right to name a beneficiary. As it is, they could die before receiving a cent of their retirement fund, only to have it vanish without a trace, to the benefit of no one.

alkali | March 8, 2004, 10:25am | #

I'd like somebody, someday, to address the inequities that single people face, specifically the loss of their entire Social Security account if they die childless and spouseless. If that money is truly theirs, they should have the right to name a beneficiary.

It isn't. Hence, no right to name a beneficiary.

(That doesn't mean that the Social Security system is fair to single people, but pretending that the system works on an defined-contribution basis doesn't clarify things.)

Ron Hardin | March 8, 2004, 10:32am | #

Your Social Security is an annuity. It pays until you die. That's the way it works. Those that die young make possible paying those who don't. Think if it as asset insurance: you won't outlive your assets. That's its point.

An annuity costs less than the principal to produce the same income stream. Many people even buy them.

fyodor | March 8, 2004, 10:45am | #

Critic's right that single people should be able to name a Social Security beneficiary if married people can. Likewise, Cathy Young is making a potentially worthwhile point about marital privilege, but I wish that she had used a more relevant example than one involving an 80 year old widow marrying a 20 year old toy boy and dying a month later. Law is made to deal with what usually happens rather than the exceptions. I.e., no law is going to seem just in every single situation and therefore one can always come up with a contrarian example if one tries hard enough. That's the point I made on Radley Balko's blog when he asked if property rights should apply to pets if someone buys pets just to torture them.

Gadfly | March 8, 2004, 10:56am | #

I'm an old fart. Have a couple of marriages behind me - kids, grandkids, bunches of other family members - and now plan to live it out with my girlfriend of the last 5 years, whom I love dearly. I don't give a whit whether the government or a church blesses our arrangement. Our relationship is well known to everybody who knows us.

If something happens to one of us, though, things get complicated quickly. Maybe I have a stroke and she can't visit me. Maybe somebody sues me and demands she testify about my lascivious habits. Maybe the kids get into it over my financial affairs, etc.

To address this I can either run up some legal bills that will only address estate issues or I can pay $25 and get a marriage license. Problem solved.

People raise eyebrows that I would enter into holy matrimony for such crass, practical reasons. I say "bullshit". I'm just using the tools at hand. I think gays should be able to do the same.

Shannon Love | March 8, 2004, 10:59am | #

"what is the moral and legal justification for the exclusive rights of the marital relationship?"

Because it works or at least, worked. The institution of monogamous heterosexual marriage (MHM) evolved in widely disparate cultures (ex Western Europe and Confucian Asia). This strongly suggest that it provides social, political and economics benefits to the general culture that other forms of cultural and legal relationship do not.

We forget that in the past, even up a 100 years ago in the industrial west, family was the only reliable institutions. People's first loyalty and responsibility lay with their family. Family provided the only protection for the individual, especially children. Family mediated every aspect of a persons life, social political and economic. Laws and customs surrounding marriage
were of critical importance to a cultures success.

Even in the modern era we can say that MHM provides the best environment for raising children. We can empirically demonstrate that children are safer, healthier, better educated, less prone to crime, etc when raised by their formally married biological parents. The further away we move away from that arraignment, the higher the risk to the child becomes. Surprisingly, it is even better for a child to live with a married step parent than it is to live with two unmarried biological parents. (Families with Gay parents don't yet comprise a large enough pool to provide a comparative picture but I would imagine the statistics would be the same as similarly arranged heterosexual couples.)

Legal and cultural institution of long standing do not arise from formalized political philosophies. They evolve over time in an organic manner. Formalized doctrines are merely post hoc explanations.

Critic | March 8, 2004, 11:27am | #

"...pretending that the system works on an defined-contribution basis doesn't clarify things."

I know exactly how many dollars have been stolen from my paycheck every week to finance the illusory Social Security "fund." That amount is very well defined, and I am reminded of it every Friday. My point is this: As the money is taken from me without my permission, ostensibly for my own good, I should at least have some say in its disposal should I have no wife or children or legally defined "survivors." Married people have this right, as do individuals with children. Single people do not.

MJ | March 8, 2004, 11:38am | #

"Does this mean that a single soldier deployed overseas will find it much more difficult to keep his financial and legal affairs in order than a married soldier, because whoever he entrusts with those rights will not be able to carry them out as effectively as a spouse?"

Well, yes, I suppose. This comes from the notion that, in a certain sense, your spouse is you ("become one flesh"), and therefore can act as you. Of course, I don't see how eliminating marriage as a legal institution helps the single soldier improve his situation, it just makes it equally hard for the married one. I do not understand why that is a desirable outcome.

"Or take the issue of estate taxes...Where is the justice in that?"

We're talking about estate taxes here, I defy anyone to find justice in the entire concept.

"...what is the moral and legal justification for the exclusive rights of the marital relationship?"

Marriage is the basis of familial relationships. But that base relationship of the family is necessarily, between two people(largely) unrelated by blood, so the vows of matrimony make those two family to each other.

Again, I do not see that there is any benefit to society to eliminate marriage as a legal institution and any number of obvious problems with doing so. Furthermore, I have not seen an attempt to explain why legal marriage should be eliminated except that it irritates the dogmas of certain ideologies.

Shannon Love | March 8, 2004, 11:47am | #

Another thought,

Just from a libertarian philosophical perspective, it's easy to show that the weakening of the family as a social institution and the expansion of centralized state power have gone together. Demographically, its easy to show that people with smaller and weaker family networks are more likely to support the generalized idea of big government.

For a person with little or no family, little support from non-government civic institutions like churches, fraternal orders, business networks etc. government must seem the only reliable and trustworthy factor in their lives. If they have no confidence in their ability to make it on their own they will automatically turn to the state for protection and support.

Totalitarian states consciously set out to destroy all none-state social institutions in order to atomize the population into solitary non-cooperating individuals who could not coordinate against the interest of the state and who were totally dependent on it. Even in liberal democracies, those political entities that most favor large government are also hostile to traditional families.

I wonder if a feedback loop exist? Entities that favor big government advocate polices that weaken families which in turn makes people need government more so they vote for the entities that favor big government and weaken families. If so, libertarians who advocate polices that weaken the family (or other institutions) would unintentionally drive the expansion of government.

thoreau | March 8, 2004, 12:18pm | #

When I debate gay marriage with people, I sometimes raise a point similar to gadfly's:

Say that in 50 years or so I find myself widowed, sick, and broke. Say that a friend of mine of the same sex is in similar straits. So we pool our money and live together, and we grant each other power of attorney. A perfectly reasonable relationship. No sex, no romantic love, just two friends looking out for each other because, well, we're good friends.

Give me one good reason why (in this hypothetical case) we shouldn't be able to pool our money, property, power of attorney, and make one another our heirs. Give me one good reason why the state should stand in the way of that, or why the state should make it really easy for some people to do that (e.g. hetero couples) and more involved for others (e.g. anybody other than a hetero couple).

Now, instead of me and a friend, imagine that two other people of the same sex want to share property, power of attorney, etc. And imagine that these two people also enjoy a sexual relationship. Should that affect the state's stance toward their arrangement? I don't see any reason why that should matter.

Mind you, if I ever find myself sharing my retirement with a fellow widower due to financial hardships, I hope the state doesn't force us to call it "marriage." I favor separation of marriage and state. My point is that for the legal aspects of marriage the state shouldn't discriminate.

Critic | March 8, 2004, 12:42pm | #

Very good points, thoreau.
I think this can o' worms is now permanently open.

Ayatollah Usoe | March 8, 2004, 12:49pm | #

I have no problem with gay marriage; its this same sex, day in day out marriage that's killing me.

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