Wednesday, March 02, 2011

Love and tactics

David B. Rivkin Jr., Lee A. Casey; Wall Street Journal:

Marriage is unlike any other governmental benefit. License to marry carries with it far more than mere permission, as in obtaining a license to drive or practice a profession. The reason that gay-rights supporters are so determined to achieve equal status for same-sex unions, and the reason that so many others vigorously oppose that recognition, is that marriage is an affirmative statement of societal approval.

Congress took account of this fact in enacting DOMA [the Defense of Marriage Act], and of the fact that large majorities of Americans still oppose recognition of same-sex marriages. Significantly, most Americans do not oppose some other form of legal recognition for same-sex couples that isn't called marriage.

"Civil unions. Because you're not a person -- you're a gay!"

Marriage is an example of a social practice that has become so thoroughly conflated with the state that it is difficult -- even for people who love each other bunches -- to imagine undertaking the endeavor without making it "official" in the eyes of virtually everyone.

In the present context, to deny one group of people this "affirmative statement of societal approval" which has become culturally bound to the state can be interpreted in turn as an affirmative statement of societal disapproval as regards those individuals in particular.

Of course, there is always the argument to be made that what is elemental about "marriage" does not spring forth from the blessing of a loveless bureaucracy, but is rather whatever two people and their immediate community can sustain by the force of their own creative design. But this does not mitigate the injustice at the point where it presently resides: within a society that, for now anyway, cannot imagine "marriage" developing toward its most fruitful maturity in the absence of a state.


Anonymous said...

Well, yes, but the State prohibits a man from marrying his horse, from marrying a corpse, from marrying his sister. And as always I am forced to wonder why someone would want the State's approval-stamp on his or her desire to join with another in a formalized relationship.

Secondary status via "civil union" really doesn't seem such an oppression. Were I interested in permanent coupling I'm not sure I'd want either one, since I'm an essentialist (made up there, on the spot!) and not an externalist (also just fabricated!).

I remain puzzled over why someone gay or lesbian would seek the social approval of the State, when it remains clear that the State is run by people who either don't care about homosexual equality, or who do care but do so only behind closed closet doors.

At the same time I see why this is another bit of evidence on the unfairness of the State, but my response is to want to smash the State, not make it more bureaucratic for my personal aims. The more we chase personal aims furtherance by Govt the bigger we make Govt. Isn't that a big part of why Govt is bad now? So many little personal preferences, with the larger swath of humanity being ignored?

I remain convinced that the solution is to step outside the State's purview, to the greatest extent possible... live on the fringes, or off the grid, or under the radar... whatever you want to call it.

People have lived together as common-law spouses forever. I've litigated such relationships and the body of caselaw in my remote and relatively unpopulated state contains cases of same-sex common-law relationships, and the division of "marital property" when those relationships fail. The very fact that the court is willing to address that Q of how to divide such an estate shows an acceptance of non-traditional, non-State-sanctified relationships.

They're just not in the media all the time... seems they haven't been since Liberace's death, or Lee Marvin's palimony suit.

Jack Crow said...

Or three people. Or four. Or whatever.

Anonymous said...

I have an experience of why I needed the State's approval. I was in a long-term, relationship with a woman. We had no intention of getting married and no need to marry for our own purposes or those of anyone who mattered to us. We were headed to Central America for a few weeks and as I left the house for work one morning, my SO said to me "I really want that thing on your leg looked at before we go. Let's get married." I knew what it was, a benign, but very ugly skin cancer which I, being self-employed, would have to pay to have treated under my health insurance. And so we married and remain so many years later.

Now, we didn't have to get married and our marriage did not change the nature of our relationship, except now there is a third party to it, one that we don't need and we we only invited in because the state and powerful institutions which support it, denied us one small "affirmative statement of societal approval."

This isn't a fairness question in my mind but a social one that requires us to ask yet again "what is the purpose behind the state's activity here?" It is not an endorsement of a life. We were already alive. It seems to me it is a matter of control, partly to become more deeply imbedded in private life, but mostly to exert control because it can.

Jack Crow said...

Legally, marriage has allowed me to keep custody* of children I would otherwise likely have lost, on account of being an unmarried male of the species.

Doesn't mean I or my wife endorse the "institution" anymore than we need it, but it's worth noting that in spite of raising our eldest for all but a single year of his life, and being his primary caregiver for his first six years, her only access to him, and claim as his mother, comes by way of marriage to me. She's done all the work, but my ex- (because of the law, and those saidsame institutions) is still his official and recorded mother, despite seeing him only about twice a year.

*which is not an endorsement of the misogyny masquerading as "men's rights"

Anonymous said...


Your story gets to the heart of what I'd examine: why is the State even involved in marriage? Why does it need a say in approving who can be "married" and who cannot? Wouldn't it be a wiser course to work toward eliminating that interference in people's lives?

That's what I was driving at in JRB's prior post somewhat related to this subject, when I said I think we can find solutions that aim a bit higher in the hierarchy of governmental power. Eliminate the chance to make arbitrary classes of "approved" or "not approved - must use civil union".

Anonymous said...

CFO -- It seems clear to me that the state is involved in marriage/civil unions to manage the lives of it's citizens. Mine was a civil ceremony. There was no religion involved I walked into the clerk's office in Upper Mayberry a BF and walked out a husband. I was a different person in the eyes of the law. This gave me some good things and some bad things, only one of which was important to us. I knew what I was doing, but I was in a different position than those who are denied the choice. I remember your earlier comment and while it is true that gay couples, for example, could contract their way to many of the relations that were available to me through marriage, they could not do so for all of them and they certainly lack the choice that I had. These are two different problems that result from the state's desire to be a party to the relations of it's citizens. A step to a fairer capitalist system would afford all life partners "equality". But that is not exactly what I want to see. I don't need "societal approval" filtered through the state for myself, or for others. That is something on which we certainly agree. Whether civil unions could provide more fairness under our system, or whether such fairness is desirable are different questions.

Anonymous said...

Yes, different Qs. Indeed. Sometimes my interest in efficiency and my impulse to find solutions leaves me insensitive to others' feelings, wants, needs.

For example, on this question.