Is Marriage a Sacrament, a Civil Right, or Bull Crap?

“I’m here today about Adam and Eve.”

— Rep. Alfred Baldasaro, House Judicial Committee Hearing to overturn gay marriage in New Hampshire

Right now, America is enjoying its first case in a federal court to examine if state bans on same-sex marriage illegally discriminate against gay Americans. Before you refuse to read my next sentence, I’ll plead a Ron Paul clause here.

The Honorable Ron Paul is not a supporter of the Federal Marriage Amendment, which for years now has not garnered a majority to pass. He’s got a simple reason. He says the government has no role in regulating marriage. Amen, brother!

Well, he says the feds should have no role. The federal courts shouldn’t rule on it. Why that means state legislature and state courts should bother in it, I don’t see, either.

Maybe I’m blind, but there’s no article in the Constitution that says, expressly: States shall determine the Unions of its Citizens by legislative or judiciary Powers. What does come into play in Article IV is that “Full Faith and Credit shall be given in each State to public Acts, Records, and judicial Proceedings of every other State.” Further, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

To me this sounds like Tough titties, what is legal or illegal in one state must be respected by all states. But I’m no lawyer, and luckily, over the years, we’ve made a bunch of clarifying amendments to the thing. After all, maybe you don’t consider marriage a privilege.

Marriage As a Civil Right

Let’s go back to a 1967 trial for a minute. It challenged a Virginia law banning interracial marriage: Loving v. Virginia. It’s the hinge upon which the Prop 8 plaintiffs’ case works. Here’s what the chief justice for the majority Earl Warren had to say:

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

Warren’s language relies on that in the Declaration of Independence, but the decision centers on the resounding protection of the 14th Amendment — guaranteeing all citizens equal protection under the law. We saw this amendment invoked with success in Brown v. Board of Education. My civics teacher in my B-more public school crowned this case with glory. The triumph over the conundrum that “separate but equal” was inherently unequal. My teacher was black, and maybe I’d have heard something less emphatic had I lived in, hmmm, Georgia or Texas. She had a devil of a time finding us a great textbook with lots of firsthand sources.

Likewise, my high school was also a profound relief to the gay teens in my class. Now that those same friends are older, they’ve got partners who would be spouses, but very few states to marry in.

Marriage: A Sacrament

Such momentous challenges in American history should be televised (or at least posted on YouTube). Filtered only through reporters and not simply broadcast live, it can easily seem as though Satan himself appeared in the courtroom to sodomize innocent children.

If, hypothetically, your god thinks it’s a sin, just don’t join in. But two men holding a marriage certificate doesn’t cheapen your own marriage in the eyes of God, so it shouldn’t bother you either. You’ve got enough work to do just staying married to the spouse you’ve got. Give “civil union” all the legal, state, and nationally recognized rights and you’ll find far less threat to your sacred word.

Let’s run through the alleged threats to the institution of “marriage.”

I put this in quotes because divorce has rendered all points on the sanctity and permanence of said union utterly and patently false. How can something be sacred if — thanks to the state — abolishing it is only a lawyer away?

All that remains, statewise, are guarantees of property rights. A friend of mine recently split with a girlfriend of 10 years. They’d bought a house together. It occurs to me that a ring would have solved this dilemma. They’d have a bona fide legal path to tread for separation. It also occurs to me, however, if one or the other had actually mandated a ring in say, Year Two, maybe they’d have just split up right there. Marriage is as much a handy threat for discontinuing a union.

OK. OK. In a perfect world, everyone has never seen porn, waits until marriage and enjoys the bliss of commitment: hard-won toil of progressing in an institution that keeps you together long beyond the be-fruitful-and-multiply period. I’m not saying there aren’t socially strengthening benefits to be reaped from good marriages and good families.
But like a church, an institution is only as good as the people in it.

What, Me Kill Marriage?

The easiest solution (except as regards the Government Paperwork Elimination Act) is to just overturn the word “marriage” as a federal or state concept. We could do this two ways. We could cut out the regard for civic benefits in marriage entirely, which is messy. Or we could declare henceforth everyone form “domestic partnerships.” Not even your golden anniversary grandparents will be exempt from this “grandfathering” into the new thing: civil union.

What’s at stake with such a change? The definition of “citizenship.” At present, marriage confers citizenship. Marriage is a universally recognized global category that is portable between states in the union and nation-states alike. Insurance companies would be very annoyed. And state and fed employers would have even more citizens on the “gimme roster.”

Keep this in mind. One nation had to be the first to outlaw slavery. (Today’s citizens fight over whose country was really first.) Saint-Domingue (which today we call Haiti) certainly was in the head of the pack. Vermont was the first state to do so. England and Denmark followed suit. But to redefine citizenship and freemen is a process that takes, oh, several hundred years. Guess we won’t rush it with this marriage thing.

Why Do We Marry Anyway?

As I can make out, the three main things marriage concerns: procreation, property rights and fear. Of the three, civic marriage concerns itself only with the first two. We make contractual agreements in business because we assume the other party is going to protect his or her own interests insofar as he or she is able and to renege as it suits. In hostile or friendly M&As alike, the suitor usually puts in place a multimillion-dollar fee in case the company chooses a different suitor.

Just so in marriage, we like strong barriers to exit. Women like it when men have to stay when they have babies. Fathers like it because their daughters cost enough to support to maturity. Men like it because they can reap the rewards of their loins and don’t have to stay in fighting lion pride form to receive favors. God likes it because he has a bigger church that actually takes time to say “hi” and “thanks” on occasion.

How about that baby making? The defense for Prop 8 plan to argue that marriage demands the ability to make babies. However, this is stupid, as barren men and women get married all the time. They spend their free time doing things other than wiping up puke and snuffly noses and nobody gets mad at them.

Also, as Sarah Palin’s daughter handily illustrates, procreation is achieved with or without the institution of marriage (unless you’d want to bring in old legal laws now off the books about “breech of promise”). Sure, many successful men and women of past ages were bastards; among that number are a pope and a cardinal. There’s Alexander Hamilton, Billie Holiday, Leonardo da Vinci, Eva Peron and William the Conqueror. So perhaps you could safely say that a marriage doth not child make. But wouldn’t we rather two loving parents for each child, instead of the old ruse: loveless marriages for the sake of children?

Give me my property rights. When we endure the stupidity (and genius) of a spouse, when we bear his young, we’d hope to keep living in our house after he is dead. It’s only nice and natural. Besides, the kids need a place to live too. And if we’ve got a farm with cattle, sheep, goats, fields of wheat, acres of corn, we want that food and the income it produces.

Of course, thanks to government carrots like Medicare, Medicaid, and Social Security, the definition of property rights has broadened. We want our spouse’s benefits to transfer. That’s not just anyone’s free money. It’s my free money. That’s the least the government can do when my spouse dies.

Fear: We don’t want to toil alone. Believe it or no, not all gays want to marry. The more radical leftists and queer scholars are direly opposed to same-sex marriage too.

They see marriage as an instrument of domination meant to keep people content so that they don’t revolt. They see marriage as an institution correlated to capitalist structures of subordination.

But I think most people want to marry — unconsciously — because A) They are not alpha males and shemales and B) because it exhausts precious resources to “always be on the market,” e.g,. exhausts heart, bank account, beer fund, gas mileage, etc.

To get back to the core of the matter, God gave Adam a “helpmate,” as Eve is called, because it was not “good for him to be alone.” Anyone you meet on the street will agree that it is not good to be always alone.

All They Really Want: Equal Protection

For gay partners, some days, what the argument boils down to is homophobic doctors and nurses standing in the way.

On the average day, this all might seem like a question of semantics. But when you say to someone who is trying to keep you from seeing your life partner, “But we are civil partners,” it’s not the same as saying, “He is my husband and I have a federal and state right to see him, and if you stand in my way, I will sue your ass.”

According to the Government Accountability Office, there are at least 1,049 legal protections that come with marriage. Even simple things are thus far denied to folks in civil unions — where they have civil unions — like the right to take off work to care for your sick partner.

So you can ignore much of what I wrote above. The case against Prop 8 is actually far less ambitious, as can be seen in plaintiff lawyer Ted Olson’s opening statement:

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics, and political science will prove three fundamental points:

First — Marriage is vitally important in American society.

Second — By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third — Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

As I edit this, the evidence and testimony just wrapped up. Expect Judge Vaughn R. Walker to hear closing arguments come March or April. For the record, Massachusetts has had gay marriage (as granted by Massachusetts court) since 2003.

Massachusetts still boasts the lowest divorce rate in the union. In fact, its average is near the American norm circa the heyday of 1940s morality.

The difficulty with a civil union is that you can’t take it with you. It’s not portable, it’s like getting a Holy Grail you can’t take beyond the Great Seal. One lesbian blogger touched my heart with her simple request. “As Marilyn Monroe put it, ‘Let them be miserable just like the rest of us.’”

Samantha Buker

January 29, 2010