Monday, October 27, 2008

Marital Musings

I was going to try to be the first on the block to write about gay marriage, but GreenYogurt beat me to it. She did a fine job, and here is a link to her awesome post.

Being a wordy attorney, however, I have to add just a couple of points. And then I have to belabor them ad nauseum just in case anyone is interested, and even if they're not. It's what I've been trained to do, so get used to it. (Happy reading....!)

A Republican friend of mine stated that she felt that allowing gay marriage would "devalue" the sanctity of her own marriage. I asked her for clarification, didn't get much, and have struggled to understand how this could be. And frankly, I just don't understand the relevance of someone else's marriage to determining the value or sanctity of my own marriage.

There are two aspects to marriage: the social and the legal. I assume that her comment about gay marriage "devaluing" her marriage is referring to the social aspect, since the legal status of her marriage is not in any way jeopardized by gay marriage (or any other kind of marriage, for that matter).

The legal contract part of marriage is between two people and the State. The State has taken over the right to determine the social, tax, and death benefits of marriage. These benefits include, among many others, tax benefits, the presumption that a child born during the marriage is the child of both marital parties, the right to visit your spouse in the hospital, to determine whether he/she is removed from life support or kept on life support, and to determine whether he/she is buried or cremated after death, the right to sue for wrongful death, and the right to rest secure in the knowledge that even if you fail to prepare a legal will, your spouse will inherit your property. The benefits also include the right to access the courts to divide property and debts equitably if you decide you no longer want to be together (divorce); this is not a right that is granted to folks who merely live together -- they are at the mercy of the person they are breaking up with to determine whether the division of assets is fair and who gets the equity in the house (not an enviable position).

Many of the benefits of marriage can be conferred by contract or other legal documents. A power of attorney, health care power of attorney, mental health care power of attorney and a last will and testament or properly drafted trust can do wonders to cement a loved one's position as your caretaker and recipient of all your stuff, whether you're married or not. But the right to access the courts for a divorce cannot be conferred by contract. One must be legally married in order to get a divorce. You can't get the marriage tax benefits by contract, either. The IRS frowns on attempts at that sort of thing. Here is some free legal advice for you: Don't do things that make the IRS frown.

There are legal burdens to marriage, too. In community property states, for example, you can be held financially responsible for debts your spouse incurs during the marriage.

Frankly, I don't understand why the State should care if the two people seeking the legal benefits and burdens of marriage at issue are men, women, or hermaphrodites. (And here, I have to insert a plug for a novel I enjoyed a few years ago: Middlesex, by Jeffrey Eugenides.) If they are of legal age and want to be married, the State should let them be married. It certainly would not change the legal status of anyone else's marriage. And it seems unfair to deny a substantial portion of the population the potential legal benefits of marrriage just because they are born gay.

Moving on to the social or spiritual aspect of marriage. This is an aspect that the State should not concern itself with. The State does not have the right to impose any particular religious beliefs. Under the Constitution, the State also does not have the right to force us to associate with others, nor the right to keep us from associating with others (with some limited exceptions in the criminal law area such as allowing the State to prohibit contact between felons).

Thus, even if two persons have a marriage license from the State, my church is not required to perform the marriage ceremony. So if my God (church) doesn't recognize gay marriage, that's fine; I don't have to acknowledge or sanctify someone's gay marriage in my church. I don't have to socialize with gay people, any more than I have to socialize with white people, or black people, or hispanic people if I choose not to do so. (I am not advocating rampant discrimination; merely pointing out that there is no legal requirement to spend time with people you don't like, even if your reason for not liking them is narrow minded and abhorrent). I don't have to recognize their union as being blessed by my God or Gods. I can simply view it as a government-blessed legal contract, or a marriage blessed by some other church (much like we would recognize a plural marriage in an Islamic country. We might or might not agree that such marriages should happen, and we don't have to perform them in our church, but I assume we would recognize their legal validity in their own country). If I don't want to associate with persons who are gay and married, I don't have to go to their church, hang out with them, or even think about them.

If my God / church chooses to recognize such unions, that's fine, too; I can acknowlege and sanctify that union in my church. But if the church down the road recognizes and sanctifies gay unions, who am I to tell them not to do so just because my church doesn't recognize it? There is no universal religion that everyone agrees with, and, as GreenYogurt pointed out, even those who agree with a particular religion don't always follow every rule, so why should they be allowed to tell others which particular rules of their religion everyone must follow?

And it seems to me that the spiritual status of someone else's marriage, or even my belief about whether my God thinks their marriage is valid or not, simply isn't relevant to the sanctity or validity of the marriage between me and my spouse, or (if I am religious) between me, my spouse, and God. If I am in a wonderful, spiritually fulfilling, God-exalting marriage and the neighbor down the street cheats on his wife, well, I may be sad to learn that, may be appalled at his adultery, may feel that he has devalued his own marriage, may feel repulsed by him and many other emotions -- but the feeling that my own marriage was devalued would not be one of them.

So it seems to me that, even if one disapproves of the concept of gay marriage, the fact that it happens would not "devalue" someone else's marriage.

In short, let the State set the rules for the legal consequences of marriage, and let the churches decide which marriages they will sanctify before their God, and let individuals decide for themselves which church, if any, to join, and which marriages will be accorded their full support and respect. If some people and private churches choose to exclude or shun gay married couples, that is their choice to make. But let's not allow them to make a public choice for all of us regarding whether the State can confer certain legal benefits on gay people.

Just my two cents.

Looking forward to the comments (I think).


Late addition: in addition to Green Yogurt's excellent post, here is another insightful blog post with a more humorous approach. My thanks to "Dave" for posting a comment to point me in the right direction for this post.


Fancy Schmancy said...

Brava, that was extremely well said. Thanks for your two cents.

Dave said...

Loved your post. seems there are many worthy of a read on this issue. Check this one out

And I agree with fancy! Bravo!