Tuesday, November 30, 2004

A match made in Heaven--not the courtroom

I largely agree with Juan Cole on the issue of marriage (DailyKos argues in a similar vein). Basically, there is no such thing as a "traditional" definition of marriage. I mean, many cultures--some in antiquity, some in the present-day--permitted a man to have several wives. In many cultures, it was (or is) permissible for a man to physically beat his wife, which we rightfully consider inexcusable today. The etymology of the word "marriage" is difficult to trace, but some equate it to the Latin term for "married man" i.e., husband. If this is the case, then the "dictionary definition" of marriage does not exclude gay men from the institution. Arguing from a dictionary definition is asinine anyway. The dictionary editors don't dictate the meaning of words; they assign definitions based on how the word is actually used. As far as the state is concerned, the only definition that matters is the legal definition.

Putting aside the various cultural and historical definitions of marriage (many of which could be deemed "traditional"), let's work out the legal definition of marriage. Now, as Sir Edmund Burke noted, the law is common sense. The law seeks to define and codify what the society and the people in it are already doing. Gays and lesbians have had conjugal, cohabitating relationships for decades, and many of them have raised children as well. There is no empirical evidence that homosexual parents do worse than their heterosexual counterparts. Thus, "common sense" dictates that the state recognize gay and lesbian unions.

What is the purpose of recognizing marriage, from the point of view of the state?

Is it to provide a stable and secure social institution so that children can be brought up in a positive environment? Obviously, it is proper for the state to concern itself with the quality of its future citizens, and would like the majority of them to become stable and productive members of society. But if this is the purpose of marriage, should not marriage licenses and certificates only be issued to those couples who actually have children? Again, because the law is "common sense," it must recognize that couples can have children through means other than vaginal intercourse. Adoption, in vitro fertilization, and surrogate motherhood are some of these ways. These are, for the most part, not outlawed by the state and thus any couple, gay or straight, who has children by any method, should be recognized as "married" under this interpretation of the institution. Likewise, couples without children would not be considered married.

The other possible purpose of marriage from the state's point of view is recognition of the fact that intimate relationships--especially of the romantic and erotic kind--help to perpetuate a society of contented and balanced individuals. Civil order and contentment is largely in the state's self-interest--it means less crime, less apathy, and more productivity (read: better and more effective workers with higher wages spending more money = more taxes collected). "Common-law" marriage already reflects this to an extent--in Ontario, after a year of conjugal cohabitation (i.e., "shacking up") , the law considers a couple to be married in all legal and financial senses of the term.

Rather than engage in a pointless debate about the "definition" of marriage, the state should proceed thusly:
  • No longer recognize the legal term "marriage".
  • Recognize only "civil unions" or "civil contracts", which can be between any two consenting adults regardless of sexual orientation.
  • Empower members of the clergy to recognize civil unions (much as they can perform marriages now).
Because the state enshrines the freedom of religion, clergy can refuse to perform marriages for whomever they choose. If rejected by their clergyperson, a couple can find a clergyperson more sympathetic to their union, be recognized by the state directly (e.g., getting "married" at City Hall), or just wait a year and the state will recognize their union anyway.

This way, gay and lesbian couples who wish to legitimize their union (for purposes of parental, spousal and survivor/next-of-kin benefits) can do so. Churches that oppose gay unions are not required to perform them, while churches accepting of gay unions are free to do so.