Thursday, November 27, 2008

What is Marriage?

On an earlier post, I asked what justified denying committed homosexual couples the legal benefits and privileges of the civil marriage contract.

Basically the answer I got was because Homosexual relationships are fundamentally different and that the traditional concept of marriage was exclusively heterosexual.

At the time, I tried to focus the discussion on the simply legal issue. Those opposed to Gay Marriage kept coming back to their view of the traditional definition of marriage.

So what is marriage?

There is no argument that no society has defined marriage to include an exclusively single sex couple.

But that being said, the "Traditional" definition of marriage that the opponents of gay marriage is not that old.

Plural marriages, where a single husband had multiple wives, were common in the old testament, and polygamy was practiced in this country, mostly by Mormons, as recently as the 19 century. Polygamy is still practiced in many countries, particularly in some Muslim nations.

But even marriages between two and only two people have changed dramatically over time. We are not that far away, in our society, from arranged marriages, where the daughter was given in marriage by her father without ever having met her husband. We are not that far in time from legal structures where women were barely more than chattel in a marriage.

The "Traditional" definition of marriage that Gay Marriage opponents refer to was a reflection of the times. The status of women has changed dramatically changed over time. The availability of divorce has changed over time. The availability of marriages as civil contracts that were not consecrated before a cleric in an religious setting is relatively new as well.

Marriage is not an institution that has a fixed and immutable history or definition.

And Society has changed. Millions of committed gay couples live together with all the emotional commitments of hetero couples. They share lives, raise kids, and grow old together. Society accepts gays as fully capable and responsible members of society in ways that it never has before.

So why should the definition of marriage not change to reflect that change in society in the same way that the definition has changed over time as the status of women has changes?


The Coach said...

Walt -

I think to suggest that the definition of marriage has changed as the status of women or polygamy has changed is a non sequitur.

The status of women in society has certainly changed, but not all women were subject to arranged marriages in all circumstances.

Certainly, there have been polygamist (polygamous?) marriages in many societies, but those are the exception and not the rule, particularly as their identification as polygamy belies the fact that they are exceptional rather than regular.

I do not argue that society's view of women has not changed. I do not argue that society's view of homosexuals is unchanged.

I'm suggesting that your contention that the advances in respect for women's autonomy in marriage choice and the addition and elimination of polygamy by different groups has changed the definition of marriage is false and unrelated to the homosexual issue.

Even as society becomes more accepting of the ways that polygamist couples "share lives, raise kids, and grow old together," it does not follow that we would redefine marriage to include more than two consenting adults.

Uncle Walt said...

No suprise, I disagree, but I don't have anything resembling proof.

I still contend that marriage has undergone fundamental changes as the status of women has changed.

But even without a linkage to the status of women, the institution of marriage has undeniably changed over time. Divorce is perhaps the most profound of those changes. The equalization of access to divorce, the simplification of civil divorce, divorce without having to prove fault constitute a fundamental change to marriage as an institution.

Even without linkage, marriage is not an institution with a fixed definition.

Many predominately Christian nations are already recognize marriage between two people of the same gender.

Which I guess defines the discussion.

Who defines marriage?

And is my definition better or worse or more right or less right than yours?

secret word:terfull

The Coach said...

I suppose that becomes another paradox in the concept of the constitutionality of exclusion and the American Experiment.

If no definition is necessarily better than another, and the people get to define the laws of the land, then the majority of Californians who chose to define marriage with Prop 8 had authority to do so.

Here's a question: can the courts overturn a constitutional amendment by saying its unconstitutional? Isn't that the right of the people - to define the constitution?

Uncle Walt said...

I don't know that there is a paradox in the concept of the constitutionality of exclusion.

The Equal Protections Clause forbids exclusion without cause. If a state can show a justification for the exclusion, then it can be acceptable. But a simple dissagrement over the definition of the term marriage is not sufficient justification for exclusion under the Equal Protections Clause.

So yes, Federal Courts can overturn a state constitutional amendment if the amendment is found to be in violation of the US Constitution.

In the California case, as I understand it, they allow the state Constitution to be AMENDED by simple majority vote. They also allow REVISIONS to their Constitution based on super-majority (60% I think). The lawsuit filed after Amendment 8 passed claims that an exclusive definition of marriage is a REVISION, not an AMENDMENT. I don't understand the difference in California law enough to have any clue if the case has merit.

But the larger issue is the US Constitution and the Equal Protections Clause and whether there is justification for exclusion based on a definition that has changed over time and does not even have a universally accepted definition today.

As an aside, the people directly, do not have a vote in amending or approving the US Constitution.

secret word: rerns

The Coach said...

Ah, yes - a direct vote on the U.S. Constitution would not really be that good of a thing.

I think, really, we can agree to disagree on the definition of marriage here, and wonder about Revisions vs. Amendments - and what they really mean.

I'm with you that you can't exclude people without cause - Perhaps what I really want is to not have the name "marriage" applied to something that the religious definition that term has does not allow it to belong to (don't worry - as an English teacher, I am distraught at that sentence's length, order, and confusion, but I know what I mean).

I'm not against civil "unions" as it were. I think the reality that people should be allowed to have an assumed heir or have automatic access as family during medical crises. I'm for allowing people to have the same tax benefits (though if I had my way, a flat tax - unenforceable but not more unenforceable as the current system - would be the way to go).

I am cautious (slippery slope fallacy ahead) of the government outright condoning behavior that is (again, religious opinion here) immoral and dangerous (if not inherently dangerous bodily, certainly spiritually).

Secret word: oxics

Uncle Walt said...

This all started in California when the California Supreme Court struck down a law that gave all the state benefits of marriage to Civil Unions while restricting the term Marriage to hetero sexual couples.

The State Supremes ruled that creating a legal distinction between Civil Unions and Marriages had the affect of discriminating against homosexual couples and violated the California Constitution.

I think giving the same rights to Civil Unions and Marriages at the State and Federal levels might be a way to achieve legal equality, titles aside.

(That was a pretty tortured sentence, but I understood what you meant as well).

Personally I would prefer a solution where its called Marriage if it involves a religious ceremony in front of a cleric of some sort and its called Civil Union if its done by a Justice of the Peace or a Ships Captain or something like that. That takes the state out of defining Marriage, if you can get a priest to marry you, then its a marriage, if you do it at the court house then its a Civil Union and those two institutions are legally equivalent at both the State and Federal level.

Matty said...

I've already done my arguing on the last SSM post but I need to comment in order to get further comments emailed. I love reading your thoughts as reasonable and CIVIL debaters.

word ver. spity