Tuesday, May 24, 2011

What the Same-Sex Marriage Debate Is Really (not) All About PART II

My initial post in this series contained an assertion to the effect that marriage is no more than official state recognition of a public declaration of personal sentiment.

Almost immediately, I subtly but importantly modified the expression "no more than" to read "little more than" in another formulation.

"What real difference is there between no more and little more?" you ask: less, I confess, than an iota's worth, though still significant.

We might avoid the discussion altogether if we simply say that certain benefits are part and parcel of the official recognition. To name a few of the chief ones: rights of entail, inheritance and visitation; spousal privilege; powers of attorney and proxy; participation in a spouse's health plan.

These are not indifferent benefits.

If marriage is merely a temporary mutual ratification of sentiment, and yet one to which the state has attached and conditioned certain benefits, then the state's refusal to ratify the sentiments of a whole class of people is real discrimination - and real discrimination of a kind for which it is hard for this author to see a justification.

Yes, some discrimination is necessary and proper: we do not issue driver's licenses to blind people - and while sexual complementarity is a perfectly rational ground for discrimination when society holds that marriage is for the stability of society from generation to generation through the regulation and rearing of children within established and legitimate households, it simply will not do when marriage is a ratification of sentiment; then, it were tantamount to saying, "You shouldn't feel that way about each other."

Indeed, this was the ground the Massachusetts SJC discovered in Goodridge.

Against this, it can only be urged: that courts should show great deference to legislatures when dealing with questions of social policy; that the legislature's modification of much traditional marriage law was not meant and in any case cannot be construed - in the absence of explicit declarations in statute or as part of the legislative history of an act or body of acts - to have constituted abandonment or destruction of the rationale behind the legislation, i.e. the understanding of the basic structure and purpose of the institution for and about which they were legislating; that (in the Massachusetts case), the court mistakenly conflates marriage with the benefits accorded by the state to married couples.

More to this:

When Chief Justice Catherine Marshall writes, "Simply put, the state creates civil marriage," she makes a crucial error. Marriage, even on a positivistic, radical empiricist reading, pre-exists what passes for “civil society” in those schools. Native Americans, for example, who were considered not to live in civil or political society by the 17th and 18th and early 19th Century devotees of those schools (not to mention most Europeans in North America), entered into marital unions. Consider the following hypothesis: a Native American woman appealed to the spousal privilege in refusing to offer testimony against her husband, who was on trial for murder in a Massachusetts court, and the court ruled that the solicitor could not compel her testimony, on the grounds that she was married to the accused. I believe, though I am not sure, that the hypothesis is confirmed by case-law precedent. More to this, the Commonwealth does not require married couples to contract their marriage anew, when no record of their marriage exists, because the country in which they contracted the marriage does not keep such records. It is sufficient in such a case to swear an affidavit.

Still, Justice Marshall argues, the state creates the benefits of civil marriage, and places as condition of acceding to those benefits, the necessity of obtaining a marriage license. Justice Marshall cites Commonwealth v. Manson to the effect that, "'[T]he requisites of a valid marriage have been regulated by statutes of the Colony, Province and Commonwealth,' and surveying marriage statutes from 1639 through 1834." In 1639, however, there were no such benefits as those which Justice Marshall conflates with the institution of marriage, itself. Her conclusion of law is based in an erroneous finding of fact.

Her conclusion of law to the effect that, "In Massachusetts, civil marriage is, and since pre-colonial days has been just what its name implies: a wholly secular institution," is based in an erroneous finding of fact. Justice Marshall fails to consider that Massachusetts does not, nor has it ever required a separate civil marriage ceremony, but has always recognized that the religious minister of a marriage, in receiving the vows of the spouses, acts as an agent of the state. More to this, the fact that a religious minister legitimately acts as an agent of the state in receiving spouses’ vows implies that the religious ceremony does not contain anything explicitly contrary to the civil requirements. Further, For a good deal of the period mentioned by Justice Marshall, Catholics were not permitted to live in Massachusetts; it is reasonable to assume that Catholics were not permitted to contract marriages during that time; even after some relaxation of the anti-Catholic laws, for many years a citizen of Massachusetts who was not a Catholic was not permitted under Massachusetts law to enter into marriage with a Catholic person. In Massachusetts, then, marriage has not always been a wholly secular institution, except in the tautological sense that, granted the court’s premise according to which the state creates civil marriage by creating the benefits that constitute marriage and granting the license that allows couples to accede thereto, the benefits the state has seen fit to grant to married couples are granted to married couples by the secular power, or the irrelevant sense that a citizen who is a religious minister can and does also sometimes act as an agent of the state.

Such a response could continue at great length, though it is quite specific, and its usefulness will be mostly confined to cases of judicial impostion, i.e., when courts impose or try to impose same-sex marriage.

It says little about how a body politic ought to behave, when it has the question of same-sex marriage before it in the present day.


Clayton said...

Could you foresee a same-sex marriage advocate borrowing the logic for an opposite conclusion: that same-sex unions also existed before the state recognized them, that in fact that is the present situation in many places, and that the state has no right to explicitly not recognize them at present?

Lazy Disciple said...

I could see an advocate trying it.

I would respond, however, that the advocate has misunderstood my claim in two important respects:

1. it is not quite that marriages existed before the state recognized them; it is rather that the institution of marriage existed before the state did, and also without respect to the state.

2. same-sex unions have not existed alongside sex-complementary unions as their practical or pretended equivalents for very long, at all.

These two things do not foreclose the broader question, though I think they go a long way toward neutralizing that sort of approach.

Clayton said...

Sex-complementary unions. That's an interesting way to frame it. It does seem to describe it well.

Another foray into the question would be to ask what would constitute the marriage act in a union that was not sex-complementary. And whether the state has any vested interest in that sort of act.