Thursday, May 22, 2008

Separate but unequal

Here's another review of the Calif. gay marriage ruling. It is long and covers much of the same ground I covered (though it quotes from the ruling). I mention it because of an idea I missed: Marriage is beyond the reach of law. It's a given. Domestic Partnerships are created by law and, as gay citizens in several states (including Michigan) have found, what the law gives, the law may also take away. DPs mean gays are second-class citizens because "separate but equal" is made unequal by that vulnerability.

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2 comments:

  1. The CrowMay 22, 2008 at 10:58 PM

    A friend writes:

    I have no idea what "Marriage is beyond the reach of law. It's a given." means.

    What is a "given" and by whom / what is it given? Maybe gravity is a "given"; we are all born with no choice but to deal with it.

    Partnering and living together may be "natural" outgrowths of wanting to raise one's children (born helpless in our species) or more simply of wanting emotional closeness and stability. But partnering isn't marriage.
    Marriage is the state's / society's legal control upon a wayward partner, enforcing responsibility for the partner being abandoned. Whether rooted in religious law / dogma and enforced with shame and stigma, or rooted in civil law and dressed up with financial benefits, it is a cultural control mechanism. It's a human invention, not a "given". No one has to have
    anything to do with it.

    DPs are a chance to help the species grow beyond the superstition of marriage as a sacrament. I count that as progress toward a rational, whole life not based on fear.

    I do wonder whether the G&L community will regret what it asks for...

    I reply:

    Perhaps this is a better way of saying it.

    Marriage is so thoroughly a part of society that at least state constitutions and their supreme courts (especially in Calif.) say that being allowed to marry the person you choose is a fundamental right. It is so fundamental that the state legislature may not restrict who you can marry (except in specific cases, such as siblings) and may not eliminate the ability to marry. The gay marriage ruling in Calif. notes all that, describes the benefits marriage has on the society and the couple, the obligations of government and the couple, and then goes on to say if the state cannot restrict who you can marry then marriage must be available to gays. In terms of law, marriage is "a given" because it is beyond the reach of the voter and legislature (though both may tinker with fringe benefits around the edges and voters in Calif. may decide the constitution says gays cannot take part). This is in contrast to DPs, which are entirely at the whim of voter, legislature, and court.

    Many gays are so annoyed at being rejected by the loudest Christians they are not seeking marriage as a religious sacrament. The Calif. ruling carefully notes that while the state must allow gays to marry, that shall not be construed to demanding any particular religious organization to offer gay marriage ceremonies.

    The justices noted that offering DPs to gays is fine -- as long as in the eyes of the state opposite-sex unions are also called DPs. But since the Legislature didn't take that option, then same-sex unions are to also be called marriage.

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  2. The CrowMay 23, 2008 at 9:00 AM

    My friend responds:

    "being allowed to marry the person you choose is a fundamental right"
    EXCEPT
    -- that the LAW requires it be someone of the opposite gender.
    -- that within my lifetime it was against the LAW to marry across races in some U.S. states.
    -- that only two people can marry.
    -- that men could legally beat or rape their wives when I was young; now that's criminalized.

    No, marriage isn't a human nor a legal right, it's a religious or civil legal structure with plenty of limitations, much at the whim of legislators. In New York State when I was young, marriages could only be terminated based on adultery; now they are dissolved when either partner demands that. Divorcing wives had no rights to their husbands retirement assets when I was young; not so today.

    Marriage has changed drastically in legal terms during my life; it is today much more just and balanced between the genders.

    G&Ls are foolish to argue for marriage as a right. Their valid point is that denying it is discrimination over a genetically-specified tendency, as was (is) race.

    Sorry, but I think the writer you began with is as loopy as the right-wingers (e.g. Scalia) who think a modern society can be run on "natural law". But we needn't agree.

    I wish George Bernard Shaw was alive today to comment on modern notions of marriage. He'd have a field day with the illogic, inconsistency and hypocrisy about marriage that we see on all sides.

    I reply:

    Yes, Shaw's take on all this would be delightful. I'm sure Mark Twain would have a few choice comments as well.

    The "loopy" writer I began with is actually the California Supreme Court. In the 1940s they were one of the first to rule that race should not be a barrier to marriage. This ruling was echoed in the Loving v. Virginia law in 1967 which ended miscegenation laws. All of the other ideas on marriage I (and my fellow blogger) expressed are from the extensive explanations the Calif. Supremes used to justify gay marriage.

    As for gays and marriage… A straight couple in a public situation automatically works with certain assumptions. One can speak for the other at a hospital. Either can discuss their child's progress with the teacher. One can inherit from the other unimpeded. When one is ill the other is expected to care for the sick one. Society treats them as a family unit. Their relationship is respected and honored.

    Gay relationships don't get the same respect and honor. Not yet. Domestic Partnerships don't -- and can't -- provide the same amount of respect and honor. Only marriage can. New Jersey has civil unions and there are lots of websites that document how civil unions fall short in spite of the decree from the NJ Supremes that the law that creates CUs must make them equivalent to marriage. The Calif. ruling, which was about whether DPs can satisfy the equality demands of their Constitution, concluded that DPs cannot.

    Yes, marriage is a flawed institution. But a lot of couples continue to find something important in it or we wouldn't still be celebrating weddings. I'm glad we agree that as long as straights get something meaningful from marriage gays deserve to have it too.

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