What is This Thing Called Marriage?

Well over one thousand legal issues change when you change your marital status – just within the realm of the U.S. government. Who knew!

For that matter, why would I know?

Shortly after our early November election, affiliation logos started popping up on Facebook friends’ pages for something called “Overturn Prop 8.”

Just in case this slipped passed you, dear reader, the recent election included a ballot initiative for Californians, calling for the addition of these words to that state’s constitution: “Only marriage between a man and a woman is valid or recognize in California.” Surprising to many including yours truly, the initiative, referred to as ‘Prop 8,’ was successful.

I have long been a casual supporter of same sex marriage or at least the equivalent. So my inclination was to sign on and add that logo to my Facebook page. But first, I said to myself, perhaps I should think about my position more carefully and try to understand the opposition. That’s just good editorial behavior, right?

I myself regard a marriage as a rather complex contractual relationship between two people, quite apart from any rights and obligations a government attaches to the deal. I know a marriage is a personal, emotional, social and legal relationship; for many, it also involves a religious sacrament.

Two adults marry to create a home, insure companionship, probably establish exclusivity in sexual relations and, likely, make a nest for nurturing offspring. Nowadays, partners may actually discuss how they will divvy up tasks like making a living and making the beds.

And the state recognizes these contracts, giving them a lot of legal support. The state doesn’t require that the two people have children. The state doesn’t even require evidence that the two people wish to or can have children. So, on the face of it, it doesn’t appear that the existence or potential existence of offspring accounts for the state smiling on marrying couples. (Note I said, ‘doesn’t appear.’)

So if we can hold aside the sex and kid issues for a moment, we are talking about two people partnering up to share the adult tasks of making a living and making a home.

Frankly, that’s a pretty good arrangement. It improves the social and financial stability of the partners. Good for both partners, good for the society as a whole.

On the other hand, it would seem that two people could partner up pretty successfully without the legal bonds of marriage.

So, we actually face two questions: Why do same sex couples feel the desire to have their relationships defined legally as marriages? What’s the big deal?

And, then again, why does anyone object?

It’s all about that whole host of legal rights, privileges, responsibilities and obligations that accrue when two people marry. Many of those rights have to do with what the two partners owe each other; many could plausibly be established by a private contract between the partners. Many others, however, involve rights and benefits provided by governments or enforced on third parties for the benefit of the marital partners.

In the second category, for example: a spouse surviving the death of his or her partner has numerous survivorship rights which the spouse who earned the benefit cannot assign to a non-spouse. In the absence of a surviving spouse, the benefit simply disappears. Most pension survivorship benefits operate this way. Similarly, an employer who provides health insurance for employee and spouse must, by law, provide for continuation of coverage for a surviving spouse if the employee passes away.

That’s not the whole story, but it is plenty to explain why any pair-bond, any couple, would want the advantages of legal marriage.

And why does anyone object?

This is trickier to explain and often gets reduced to things that sound like nonsense to many of us: protecting marriage, protecting the concept of marriage. Huh? Occasionally the arguments slip-slide into pronouncements that “Heather has Two Mommies” will become required reading in public school second grade classes everywhere. Oh, please; easily addressed!

Here’s what I think is really going on: many of those rights and privileges were enacted into law to support not marriage per se but to support the bearing and rearing of children. At any one point in time, most adults are married but most are not in the active phase of bearing and rearing children. Politically, you can enact legislation supporting people who bear and rear children a lot easier if you simply attach the support to marriage. (I could even make the argument that, given the opportunity costs associated with raising children, it is fair and reasonable to create rights for potential and actual parents that span a lifetime – but I’d rather finish this post than write a book.)

So, the fact is, as our society works its way through the haystack of legalities associated with marriage, we’ll be forced to do a lot of work! We’ll have to revisit and clarify what responsibilities and benefits correctly arise from the fact that two adults have supported and cared for one another for years and what ones more correctly arise from the fact that a person parented children.

I’m good with that. Let’s go.

[A few of dings I’d like to head off: I do know that marriages are made by states, Federal law currently will not recognize same sex marriages even if a state endorses them, only two states currently allow for same sex marriage and Illinois (my state, where I hear some of my neighbors saying very disparaging things about Californians for supporting Prop 8) cannot even get a bill out of committee if it concerns the legal status of same sex pair bonds.]