Once there was a restaurant that served a wide range of foods, some with meat, and some not. A group of vegetarians asked the restaurant if they would mark the menu with indications as to which dishes contained no meat. The owners said they would not do that, but would provide a separate menu listing the vegetarian dishes. Some of the vegetarians also said they didn’t want to eat in a restaurant that served meat at all, and took up a collection to start their own restaurant.
In response to my two previous posts touching on the Roman Catholic support for the adoption of Proposition 8 in California, the conversation has wandered away from the original theme — the role of the church, and the extent of its mendacity and bad faith, in this political action — and turned to the larger question of, “Why marriage rather than civil unions?”
The question was framed by commenter Rick, who opines that CU
is an innovation whose more open and evolving nature may more flexibly address questions of how gays and lesbians see these relationships.
He bases this suggestion on his recognition that same-sex couples
are of course already there, and many have custody of children from prior heterosexual relationships. So there undoubtedly need to be social institutions and structures to address the reality. The great question is whether we should shoehorn these relationships under the rubric of marriage, or, if there is indeed something distinctive about them, whether we should create new structures to address newly-recognized realities.
He also asks about the suggestion that the notion
that couples living together, not only may get married, but should get married, one that should be imported into all relationships? I don't argue; I only ask the question. The idea of marriage is a large one, with far-reaching implications for behavior in the net of interrelated ideas — not only fornication, but incest, adultery, divorce, annulment, separation short of divorce, marriage by estoppel, sexual fidelity, exclusivity, and duration. Legal marriage is much more a set of restrictions and responsibilities than rights, and its legally enumerated contours don't even begin to address unwritten social and religious norms. I only ask the question: Are they really desired?
He then observes
One distinctive characteristic of homosexual couples is that, if one or both has custody of children, there is always a “third,” whether divorced or deceased or in prison, whether an active outside parent or a sperm donor, or anything in between, there is always someone of the opposite sex somewhere in the background. How to deal with that inevitable “third man” or “third woman”? I don't know. But it seems a matter that might possibly be better addressed in the context of civil unions than in importing the norms of divorce and custody from our current marriage law, where such is the exception, not the norm, and only comes up in the context of a breakdown of marriage.
Let me begin by responding to his final point, which I think betrays the root of his difficulties in coming to clarity on this subject. The existence of a “third party” for same-sex couples with children may be inevitable, but it is neither “distinctive” nor “characteristic” of same-sex couples taken as a whole. It is, as with mixed-sex couples, a factor only affecting some same-sex couples. And, just as with mixed-sex couples, it only involves those with adopted children, or children from a previous relationship.
This addresses Rick’s thinking about the purposes of law — and whether it makes sense, in his terms, to “shoehorn” same-sex relationships under our current marriage laws. Noting for the record that marriage laws vary significantly from state to state, still in general it seems that the laws, as written, do not in every particular of their statutory limits have application to all marriages. Obviously only marriages with children will be affected by provisions of marriage concerning children; only marriages that end in divorce will be touched by the divorce regulations. There was a time in many places where adultery was a criminal offense, and obviously that portion of the law only concerned adulterers.
So the current marriage law contains provisions that apply only to some marriages, in certain situations. Given that, why create a new “Civil Union” law — on the pretext of greater uniformity — when no such uniformity exists in the present law? Same-sex couples can be covered perfectly well under the existing marriage laws (as indeed they are in Massachusetts, and were for a time in California), the provisions on adoption, custody, divorce and so on coming into play as needed.
In short, there is no need for “separate but equal” — a separate menu, to employ my parable — even if such a separate status could truly be equal. It simply leads to an unnecessary multiplication of the laws to no apparent end other than the ability to say, “This is not that.” Thus the sole purpose is to make a separation, not to create equality.
Is separation desireable?
Rick also asks if gays and lesbians really want marriage rather than provision for civil union. It is quite true that there are some gays and lesbians who want to have nothing to do with “marriage” — feeling it to be a heterosexual artifact with little or no relevance to them. (I would also add that there are no small number of heterosexuals who feel the same way.) They are represented in my parable by the strict and doctrinaire vegetarians. However numerous such constituencies, it is also clear that there are many same-sex couples who do want to marry — just as there are many vegetarians who for social reasons wish to dine with their non-vegetarian friends. Apparently there are some thousands of same-sex couples who have taken advantage of this opportunity in the short time it was permitted under California law. My point here is that in a free country people should be permitted to make such determinations without the interference of mob rule to the contrary, unless some good reason can be shown to prevent such relationships being granted civil recognition.
Civil action is civil action
Which brings me to the other question Rick raises: What’s wrong with civil unions? Well, it seems to me to be relatively clear that a civil marriage is a civil union. It is not a religious ceremony — and no one is saying that any religious body is either forced to perform a religious ceremony for a couple joined under the civil law, or to recognize such a civil marriage. In fact, many churches are by their own law forbidden to do so — there are many civil marriages that cannot be recognized by a church. For instance, the Roman Catholics would not ordinarily recognize as a valid marriage one in which one of the parties was divorced, not having obtained a statement of nullity. Episcopalians are not permitted to perform a marriage where neither of the parties is baptized. (The fact that an Episcopal cleric can perform a marriage in which one of the parties is not baptized is recognized as a peculiar development, and stands in some conflict with the canon on marriage. But that’s a topic I’ve expanded on elsewhere). In short, there are any number of religious restrictions that do not apply in the civil sphere.
So is all of this a logomachia — a battle over words? It would seem so. Some of my conservative correspondents have noted they really don’t care if civil unions are permitted — or even civil marriage, which they will of course not recognize as marriage. And an air of inevitability hangs over the question as a younger and more tolerant generation arises, fewer and fewer of whom are interested in being part of intolerant religious bodies.
The whole idea that marriage is a religious institution is what is strange to me in all this. Marriage — in its many and various forms throughout history — is a human phenomenon with many manifestations, including variations in number, gender, and duration. Even the so-called Judeo-Christian teaching on the subject is a false summary, as Jewish law allowed polygamy, and mandated divorce and even incest in certain cases, while Christian law forbade all of these.
However, in our culture at least, this has been forgotten, and “marriage” has come to be seen primarily as a religious rather than a civil institution. Some suggest going with that flow and reserving “marriage” to the religious, and “civil union” to the civil sphere. My sense is that this is too much a case of toothpaste and tube, and we are left with a term used in both the civil and sacred realms. But it is at least clear that civil marriage is a civil union — and the law should reflect that.
To reiterate: In terms of how people should be treated under the law, there is no difference between a mixed-sex couple and a same-sex couple apart from the gender of the parties: and under the equal protection provision, to treat such couples differently on the basis of sex is a constitutional violation.
As the courts will eventually rule.
And then we can all go home.
Tobias Haller BSG