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Monday, March 17, 2008
Gay couples demand marriage, not civil unions
Via the New York Times:
Eager to celebrate their partnership, Tracy and Katy Weber Tierney were among the first in line when Connecticut created civil unions three years ago as a way to formalize same-sex relationships without using the word “marriage.”
But when Tracy was giving birth to their son, Jake, five months ago, a hospital employee inquired whether she was “married, single, divorced or widowed.”
“I’m in a civil union,” she replied. When the employee checked “single,” Tracy protested. “I’m actually more married than single,” she said, leaving the employee flustered about how to proceed.
...
Though such arrangements [civil unions] were created, often under court mandate, with a promise of treating same-sex couples the same as opposite-sex couples, many gays and lesbians say they have not delivered and can never do so because separate institutions are inherently unequal. Many also resent being denied use of the word marriage, which they say carries intangible benefits, prestige and status.
According to the New York Times, eight same-sex couples have mounted a constitutional challenge to Connecticut's civil union law, "arguing that they were entitled to marry the person of their choice and that nothing less would do."
In response, the state has countered that these couples "have no case because they are free to marry, just not to someone of the same sex, and that there is no gender discrimination because men and women are equally constrained."
***
The New York Times article brings to my mind at least two questions:
First: Are civil unions constitutional? the equal protection clause of the 14th Amendment of the U.S. Constitution says that states may not "deny to any person within its jurisdiction the equal protection of the laws." In the famous Brown v. Board of Education case, the Supreme Court struck down racially-based segregation of public schools. In the opinion of the Court,
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.
Connecticut's civil union legislation promised same-sex couples all “rights, protections and responsibilities” the state gives to married couples. There is an argument to be made that "separate but equal" marriage law violates the equal protection clause in the same way "separate but equal" public schools violated it.
Applying the logic of the Supreme Court in Brown, one might say that it is simply impossible for the legislature to extend to same-sex couples all the benefits of marriage through the enactment of a separate institutional arrangement like civil unions. Civil unions will continue to be viewed as the inferior compared to marriage. This perception of inferiority will continue to affect the life prospects and well-being of those forced into the inferior institution because the state bars them from getting married.
The New York Times interviewed a lawyer challenging the Connecticut's law who put the point this way: “Being in a civil union is not the same as married,” he said. “If it was, they would call it marriage. I don’t know anybody who would give up their marriage for a civil union.”
Second: Do gays and straights have the same rights because both are allowed to marry whoever they wish, as long as it is someone of the opposite sex? This is a broader question, and it may seem the answer is obviously in the affirmative. But I'm not so sure.
It depends, surely, on what you think rights are for: I believe that rights, if they are anything, are tied into well-being. Rights protect the conditions necessary for the pursuit of well-being/fulfillment, and should be specified with reference to these conditions. The "right to marry" is therefore shorthand for something like "The right to have one's fulfilling, consensual relationship recognized in the law."
The state fails to uphold this right equally for all if it only recognizes opposite sex relationships.
Libertarians will argue that there is no "right to marry" and that the state ought to get out of the marriage business entirely. That may be true. But the state provides many services it has no right to provide. Suppose (for example) the state has no right to tax income. Nevertheless, in the real world, it does tax income. While it is wrong for the state to do this, it would be wrong on an additional level if whites were taxed more than blacks, merely for being white. If the state is going to impose some cost or provide some benefit, it ought not to arbitrarily discriminate in the way it goes about doing so.
Thus, as long as the state continues to be in the marriage business, I can see no reason on libertarian grounds to think the state ought only to recognize opposite sex relationships.
Posted by Terrence Watson on March 17, 2008 | Permalink
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Comments
Civil unions give gays everything they've always wanted--survivor benefits, legal recognition, everything. The only want it called "marriage" because they've been told it can't be. This whole thing really is rather childish--akin to crying to your mother that the kid in the next sandbox over has a bigger toy truck, why don't I???
Posted by: Shane Matthews | 2008-03-17 9:22:44 PM
The state should not be in the marriage licensing business in the first place.
Posted by: TM | 2008-03-17 9:35:04 PM
TM
Who should license marriage?
Posted by: dp | 2008-03-17 9:40:10 PM
dp,
Why should anyone? You tell me who.
Posted by: TM | 2008-03-17 9:47:42 PM
>"Who should license marriage?"
dp | 17-Mar-08 9:40:10 PM
Lotto Canada?
(betting the long odds)
St. John's Ambulance?
(till death do us part)
The Audubon Society?
(ducks)
Posted by: Speller | 2008-03-17 9:54:27 PM
Splane TM splane
You don't believe in marriage? What about all that commonlaw, property rights, parental responsibility, survivors benefits, stuff? Don't need any sort of contract for all that? Boy the first day of school is gonna be confusing.
Posted by: dp | 2008-03-17 9:54:37 PM
dp,
I am socially conservative, and I sense you are too. If so, we are probably on the same page on many things. But why should government have to be involved with licensing marriage? All the things you refer to could easily be agreed to by consenting adults.
Posted by: TM | 2008-03-17 10:05:36 PM
TM, the government is involved in licensing marriage for several reasons. One, to ensure that close relatives do not marry (In a traditional religious wedding, the ecclesiastical authorities handled this). Two, a married couple is taxed differently than two singles and receives several government benefits singles don't. Three, with the advent of the welfare state and survival benefits, this stuff needed to be on the record. And the government does this because not everyone gets a religious wedding.
Posted by: Shane Matthews | 2008-03-17 10:17:29 PM
Shane,
Please forgive me ahead of time for any sarcasm.
1) Thank goodness the government is htere to protect us from our own stupidity.
2) OK. I don't want any breaks. But if I wanted one, and could get it by registering my non-state licensed marriage license, I could do so at my option.
3) Charity has always handled this role. The fewer records of yours and mine the government has the better.
4) Thank goodness the governemnt is there to rescue the people who are too naieve to get a religious wedding. There is no reason why all the benefits could not be achieved without the state being involved.
Posted by: TM | 2008-03-17 10:27:35 PM
It's certainly become a balancing act. Trying not to offend religious groups, while ensuring the proper criteria is observed.
My ex-wife used to issue marriage licenses. Most applicants were shocked by the questions she was required to ask. Then the blood tests. Like Shane says, a church might be inclined to overlook a lot of things to keep bloodlines pure.
If you're willing to go through all that, then go through the religious ceremony, which may include parental education, you will probably expect to be held in higher standing than a same-sex civil union.
But what do I know. I'm a failure.
Posted by: dp | 2008-03-17 10:37:26 PM
Shane,
"Civil unions give gays everything they've always wanted--survivor benefits, legal recognition, everything."
The NYT's article does talk about how gay couples can end up paying more in taxes than an equivalent straight couple would. That seems unfair.
But the argument some seem to be making is that if you have separate but parallel institutions, one is and always will be considered inferior, and "less than marriage" even if the two institutions are legally equivalent. It doesn't seem implausible that the general perception of inferiority would have far-reaching negative impact on those who have no choice, under the law, but to deal with the inferior institution.
This is basically the argument made against "separate but equal" public schools in Brown v. Board of Education. I don't see why it can't apply here, although one would have to show that participating in the parallel institution (i.e. civil unions) has a negative, stigmatizing effect on same-sex couples, regardless of its legal equivalence to marriage.
More generally, same-sex couples are barred from getting married, but opposite-sex couples are not barred from having a civil union. Doesn't this almost inherently mark same-sex relationships as inferior to opposite-sex ones?
Posted by: Terrence Watson | 2008-03-17 10:46:40 PM
dp,
I think I know where you are coming from, and basically I like it. But I have little faith in the government doing anything well. Nothing you or I want to happen, has to involve the government. If I am smart enough to know that I shoudl check my blood lines, I can do so without the government.
And why would I want to submit myself to the questions you refer to? Because the state is there to save me from peril if I don't?
The more we abdicate to the state, the more we reply on them.
Nobody actually needs the state's wisdom, permission, guidance, or anything else regarding marriage.
By the way, the blood tests and questions are not required any more. At least they weren't when I was married.
Posted by: TM | 2008-03-17 10:49:58 PM
It matters not what clear thinking Canadians think, Dion and his clown act have just won three out of four by elections.
Look forward to more Toronto (Canadian values) shoved down your throat.
What a total embarrassment of a county.
Posted by: deepblue | 2008-03-17 10:52:19 PM
The answer to the dilemna might be to have all couples go through a civil ceremony.
That would cover the need for a contract to protect property and the rights of children that are born or adopted as a result of the relationship. After that, those who wish to have their relationship sanctified by a religion will be free to find one that will "marry" them. Common law arrangements will still be there for those who want them.
Posted by: DML | 2008-03-18 12:07:11 AM
Terrence Watson wrote: “The NYT's article does talk about how gay couples can end up paying more in taxes than an equivalent straight couple would. That seems unfair.”
If, in certain instances, the taxation on a civil union is different than the taxation on a marriage, the discrepancies should be erased, immediately. Unless someone can give a good reason why there should be one?
Terrence Watson wrote: “But the argument some seem to be making is that if you have separate but parallel institutions, one is and always will be considered inferior, and "less than marriage" even if the two institutions are legally equivalent. It doesn't seem implausible that the general perception of inferiority would have far-reaching negative impact on those who have no choice, under the law, but to deal with the inferior institution.”
This is an emotional concern and goes back to my sandbox argument. Laws are to be based on justice and need, not hurt feelings.
Terrence Watson wrote: “This is basically the argument made against "separate but equal" public schools in Brown v. Board of Education. I don't see why it can't apply here, although one would have to show that participating in the parallel institution (i.e. civil unions) has a negative, stigmatizing effect on same-sex couples, regardless of its legal equivalence to marriage.”
Actually, the argument made against segregated schools was that the non-white schools would be measurably and objectively poorer in standards. But that’s just another way of saying that the black public doesn’t trust black leaders and teachers to give their kids a good education.
Terrence Watson wrote: “More generally, same-sex couples are barred from getting married, but opposite-sex couples are not barred from having a civil union. Doesn't this almost inherently mark same-sex relationships as inferior to opposite-sex ones?”
No, it doesn’t. Throughout history marriage has been defined as the union between a man and a woman, and until this century virtually the sole preserve of religious institutions. I see no need to call a spade something other than spade simply to accommodate a gay subculture that, in its current, familiar incarnation, is barely four decades old. The fact that activists continue to push even though offered an equivalent institution with virtually identical benefits proves that they want the symbolic victory, rather than the actual one. And like rebellious teens, they want it not because they need or deserve it, but because they’ve been told they can’t have it.
NEVER base policy on emotion.
Posted by: Shane Matthews | 2008-03-18 8:31:44 AM
Don't be so downhearted, Deepblue. Look at it this way--we gained a seat we did not have before today. And the Vancouver race was surprisingly close, the outcome decided by less than 200 votes in a district that has long favoured the Liberals.
While many Canadians are still reluctant to abandon the Liberal brand, they're clearly less than enchanted with the current Liberal leader, who has offered a clumsy policy of scorching rhetoric backed up by mass abstentions, and party infighting shows no signs of abating.
Posted by: Shane Matthews | 2008-03-18 8:37:00 AM
To answer another of your points, Terrence, rights are for the protection of the security of your person and goods. It doesn't amount to a legal guarantee to get what you want out of life. That is up to you, not the state.
Posted by: Shane Matthews | 2008-03-18 8:52:03 AM
Shane,
After further reflection this morning more can be taken out of these by elections than first appeared.
I still find it depressing though that so many fellow Canadians can in any way support the dog, pony, and clown show, that represents the modern Liberal party.
It shows such a lack of clear though, or of even the most common sense thinking and lack of any value system.
Sadly I wonder about the future of any country with such a lack of clear, insightful thinking, replaced instead with a preponderance of stupidity.
Posted by: deepblue | 2008-03-18 9:03:57 AM
"While many Canadians are still reluctant to abandon the Liberal brand,"
Interesting that the 13% who did dump the brand seem to have gone in two directions, Green and Conservative, but mostly Green. The liberal 06/08 change was -13.1%, with +6.6% for the conservatives and +8.4% for the greens. If those votes were "migrations" it's interesting that social conservatism didn't win as much as fiscal/environmental conservatism did.
In absolute vote count almost every party was down significantly, Liberals down 18,500 from 2006, Tories down 6,840 from 2006. Meanwhile the Greens were up 818 votes. Whatever statisticonomicaletric term that deserves, it's a 19,300 lead in it over the Liberals and a 7,658 lead over the Conservatives.
Just looking at the numbers, it's almost like the Liberals should sell Dion as the only leader who could implement the Green's dreams, and the Conservatives should sell gay marriage as bad for the salmon.
Posted by: Pattern Recognition | 2008-03-18 9:30:53 AM
Conservatives hold onto that which is good and works in order to provide the greatest freedom and protection of freedoms for society.
Homosexual mental illness is not a good thing and no one wishes it upon another (other than one who is so afflicted and seeks to exploit another as an object of their lust or as a member of their Totalitarian mob).
Libertarians are essentially a group detached from Faith in God and detached from all societal traditions, who now wish to codify (normalize) that detachment.
In this desire to "normalize" the abnormal detachment from traditional society-culture, Libertarians are quite similar to Homosexuals.
Both Libertarians and Homosexuals are mainly venial self-seeking self-centered individuals.
My experience with, and observations of, both Libertarians and Homosexuals is fairly extensive, though Libertarians are fairly new to me (perhaps thirty years).
As this Libertarian form of "Conservativism" grows in society, the Liberal and Conservative labling becomes muddled and a voting choice between Hillary and McCain is merely a matter of choosing between the truthful one (Hillary) or the deceitful "alternative."
Posted by: Conrad-USA | 2008-03-18 9:45:06 AM
Pattern Recognition wrote: “Interesting that the 13% who did dump the brand seem to have gone in two directions, Green and Conservative, but mostly Green. The liberal 06/08 change was -13.1%, with +6.6% for the conservatives and +8.4% for the greens. If those votes were "migrations" it's interesting that social conservatism didn't win as much as fiscal/environmental conservatism did.”
Not interesting at all. Baby boomers constitute a plurality of voters and baby boomers can’t very well admit that their anti-establishment, anti-religious beliefs were wrong, not after a lifetime of banging cymbals in their name. When it became plain that the Liberals were on the brink of complete dysfunction, they went with the Leftist alternative, not because they figured the Greens could form workable policy, but to save face.
Pattern Recognition wrote: “In absolute vote count almost every party was down significantly, Liberals down 18,500 from 2006, Tories down 6,840 from 2006. Meanwhile the Greens were up 818 votes. Whatever statisticonomicaletric term that deserves, it's a 19,300 lead in it over the Liberals and a 7,658 lead over the Conservatives.”
The Greens have yet to win a single seat, so I wouldn’t read too much into those numbers. Even if they do start sending MPs to Ottawa, they’ll have to show the Canadian polity they’re not a one-issue party before they’ll be entrusted with a government.
Pattern Recognition wrote: “Just looking at the numbers, it's almost like the Liberals should sell Dion as the only leader who could implement the Green's dreams, and the Conservatives should sell gay marriage as bad for the salmon.”
Now you’re being ridiculous.
Posted by: Shane Matthews | 2008-03-18 11:12:47 AM
I wrote:
“But the argument some seem to be making is that if you have separate but parallel institutions, one is and always will be considered inferior, and "less than marriage" even if the two institutions are legally equivalent."
Shane, you can't just dismiss this as merely "emotion." I'm talking about human well-being. As our well-being is tied into our emotional state, but the argument that I made is not reducible to just an "emotional concern."
How others perceive is us inherently tied into how we perceive ourselves, and both are tied into quality of life.
Shane wrote, "Actually, the argument made against segregated schools was that the non-white schools would be measurably and objectively poorer in standards."
Agreed, in part. And one of the objective standards was the impact segregation itself had on the well-being of children. The Court said this:
"To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."
In addition, the Court approvingly cited psychological studies that demonstrated the negative impact segregation could have on black children. It wasn't just that black schools tended to have inferior facilities: according to the Court, separate is _inherently_ unequal. It unavoidably has a negative impact on the life prospects of black students.
Now, arguably -- although we would need similar empirical evidence in order to make the case -- civil unions, while legally equivalent to marriage, have an unavoidable negative impact on the well-being (not just the feelings) on those who have no choice but to make use of them, if they want their relationship recognized by the state at all.
In addition, your statement that justice should have nothing to do with human well-being seems like mere stipulation. Certainly, many would disagree (just about all theorists of justice I know about, anyway.)
Regards,
Terrence
Posted by: Terrence Watson | 2008-03-18 5:23:36 PM
Terrence wrote: “Shane, you can't just dismiss this as merely "emotion." I'm talking about human well-being. As our well-being is tied into our emotional state, but the argument that I made is not reducible to just an "emotional concern."”
I can, and I am, and it is. People decide what attitude they’re going to take to life; how well they do in life is up to them, not society. You have control over both your emotions and your life that no one else has. Exercise it.
Terrence wrote: “How others perceive is us inherently tied into how we perceive ourselves, and both are tied into quality of life.”
And how others perceive you is influenced more by what they observe than by what you tell them they ought to see.
Terrence wrote: “Agreed, in part. And one of the objective standards was the impact segregation itself had on the well-being of children. The Court said this: "To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." In addition…according to the Court, separate is INHERENTLY unequal. It unavoidably has a negative impact on the life prospects of black students.”
Religious parents send their children to separate schools all the time, and sometimes they’re not even co-ed. They don’t come out crushed and embittered. In fact, their education and the resulting outcome has been statistically proven BETTER.
Terrence wrote: “Now, arguably -- although we would need similar empirical evidence in order to make the case -- civil unions, while legally equivalent to marriage, have an unavoidable negative impact on the well-being (not just the feelings) on those who have no choice but to make use of them, if they want their relationship recognized by the state at all.
You are not owed a happy life, Terrence. Not by the state, not by your fellow man, not by anyone. No one is obliged to mouth magic words pre-determined by yourself as the only ones that will make you happy. If you want a healthy sense of well-being, you’re going to have to make it yourself with the resources available to you.
Terrence wrote: “In addition, your statement that justice should have nothing to do with human well-being seems like mere stipulation. Certainly, many would disagree (just about all theorists of justice I know about, anyway.)”
I did not say that justice has nothing to do with human well-being; I said that laws are to be based on justice and need, not hurt feelings. Justice is reward for virtue and punishment for wrong. At no point do feelings enter the picture, and the fact that you think they should is irrelevant.
I'm sorry, but your feelings just aren’t that important. If it’s any consolation, neither are mine. That's why I argue with facts and logic. The fact that you are unable or unwilling to do so bodes ill for your cause.
Posted by: Shane Matthews | 2008-03-19 11:20:53 AM
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