It’s come up in conversation a few times in the past week about what marriage is, and is not.
Wikipedia makes a pretty solid attempt at describing it as, “Marriage (also called matrimony or wedlock) is a socially or ritually recognized union or legal contract between spouses that establishes rights and obligations between them, between them and their children, and between them and their in-laws. The definition of marriage varies according to different cultures, but it is principally an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged. In some cultures, marriage is recommended or considered to be compulsory before pursuing any sexual activity. When defined broadly, marriage is considered a cultural universal.”
In the last few months marriage has changed a lot. For me personally and within the confines of the nation and world in which I live. In Virginia a panel of judges is deciding the short-term fate of the LGBT access to civil marriage. One of the judges, a completely misguided conservative named Paul V. Niemeyer, alluded to the compulsory desire by the government to protect procreation and thus justify marriage as only being between one man and one woman. There are so many problems with this thought process it universally brought rebuke from within my circle of friends. They come from flyover states and the coasts. They come from major urban metropolises and small rural communities. They come from different races, ethnicity, religion, education levels, economic statuses and personal experiences with the only thing in common in some cases is knowing me.
Why were they pissed at this marriage = procreation idea?
It varied, just like they do. Some because they are single, unwed parents. Some because they are unable to have children. Some because they are married but have no wish to procreate. It was insulting to all of them.
Simply being insulting to people in-and-of itself isn’t necessarily a sound reason to reject an argument. However, the judiciary is on very shaky legal ground in many of our minds and during a recent online conversation I began to outline my view of it based on responses and perceptions of the group.
It began with a rebuttal to the procreation process to which five simple steps outline the fault of equating marriage and child bearing, so that no state or jurisdiction:
1) requires applicants for a marriage license to undergo fertility exams and prove their fertility before a marriage license will be issued.
2) requires applicants for a marriage license to sign an affidavit affirming their intent to procreate.
3) nullifies a marriage license if a child has not been produced by the married couple.
4) criminalizes, or even imposes punitive measures, against women who bear children out of wedlock.
5) requires expectant parents to marry if they are not already married.
Thus, the state’s interest in marriage cannot be viewed in related to procreation. If it were the ability to marry would be tied to your intent, or ability to produce children or the actuality thereof.
As for the ever common second excuse about the sanctity of marriage, which inevitably came up next, if that were a concern none of these would be the case:
1) There’s no pre-requisite for divorce. One can receive one just by requesting one to the courts in most cases. No state or providence requires a real and compelling reason for divorce. If neither party contests it, it is no-fault, no-waiting in 26 states and 15 more offer it with varying waiting. The rest have very lax rules for circumventing the marital responsibility without fault.
2) Apart from the waiting period in certain jurisdictions there are almost no other requirements for divorcing couples to undergo any kind of reconciliation or rehabilitation. The regulations as they exist do not require any kind of evaluation on the reasoning other than both parties agree (don’t contest). Contested divorces aren’t regulated as much as they are presented confrontationally before a judge in the judicial system where the judge determines via the facts presented how to proceed.
3) Alimony and child support are essentially the only two residual connections for divorced couples, should those obligations arise. Both of have varying success of being regulated by the legislature and enforced within the judicial system which demonstrates the lack of respect for the original marital contract itself by the legal system.
4) Of all the “fault” grounds for divorce the most popular remains the no-fault. Of all the other options only a small handful are criminal including domestic assault and rape. The criminal ones are rarely used, in part, because the burden usually falls onto the victim, re-victimizing them in the legal process. Domestic assault, spousal rape, etc. are not well prosecuted and seem to be rarely successful according to FBI records despite the number of accusations both made and inferred.
5) Divorce can be applied for and in many jurisdictions grated at any point after the marriage. There’s no minimum commitment, except in the states requiring a waiting peroid. One can be granted an annulment or divorce nearly immediately after the marriage is completed, and interestingly in some jurisdictions it can take longer to wait to get married than to complete a divorce.
The government treats marriage like any other contractual agreement. It proposes a framework for the agreement through the licensing process and allows for the disillusion of the agreement in a fairly simple manner using the same framework in place such as for businesses. Sanctity is not of the interest of the government in these cases, but rather, the orderly creation and termination of a contract. Modern marriage in this regard is fairly close to traditional marriage which was all about the arrangement of assets and familial responsibilities first, and foremost.
And the “tradition” of marriage or the history of marriage as a reason to maintain it of course comes up next, to which:
1) Marriages were primarily arranged. Betrothal of women to men, even before birth was common. Couples selecting one another was rare in all classes in most all cultural traditions until very recently. Love was primarily an afterthought, achieved after being wedded, not as a precondition of.
2) Marital arrangements typically revolved around the selling of the woman to the man (or the man’s family), which is what the word wed originally alluded to. The Biblical definition of marriage follows this rather closely, including an explanation of the expect cost of buying a wife, her obligations to her husband and her position in society as a wife. Basically, women were property and carried no standing in the marital relationship.
3) Breaking the bonds of marriage carried extremely stiff penalties including death depending on the circumstances and who was perceived at fault. Typically, even when men committed an infidelity the blame would lie in the woman’s actions or inaction within wedlock that proved grounds for the infidelity.
4) Widowed wives could be taken by family members. Just because your husband died didn’t necessarily mean you were out of the wedded commitment as a woman.
5) One man, many women was considered quite common. Women were monogamous to men but not vice versa and having a harem of wives was not just a status symbol it was a cultural expectation in some cases. References in the Bible to many wives simultaneously are not uncommon.
5) There are a number of male-male bondings that appeared in history, fewer female-female ones but those are not devoid of historical reference. They existed at points in the Roman Catholic Church, in some Native American tribes. during several Chinese dynasties, in ancient Rome, Greece, Mesopotamia, with the Druids and the Huns among a select, small sampling. Cultural significance of marriage varies greatly, for example, the Roman Catholic Church didn’t elevate it to sacramental status until Augustine (354–430) and even then it wasn’t until the 1184 Council of Verona that it became established in doctrine and even that required The Council of Florence in 1439 to reiterate it. Similar questions about the role of marriage in religion and culture can be found with a little research as well.
The rebuttal then becomes, but those are very old examples. They continue to argue, traditional marriage refers to ‘modern’ Western culture that more directly influenced the ‘golden age’ of American society. So how old then is this tradition? Well, it varies depending on who you ask and how versed they are in actual history, but usually it seems from the American Colonial era. And, of course the golden age is the 1950s and 60s. Many of our “modern” traditions are much more modern than we realize, considerably younger even than our own young nation, and pretty much only came together as what we view a wedding as today in our own golden era, not before:
1) the white wedding dress: The tradition is commonly credited to Queen Victoria’s choice to wear a white wedding dress at her wedding to Prince Albert in 1840 breaking with the typical Victorian wares of the day. Upper classes began adopting the pristine, virgin white look but it was really the era of the Great Wars that homogenized the white dress into culture and created the modern vision of the western wedding. Several high profile weddings during the wars along with the advent of the television established the modern white dress.
2) diamond engagement ring: Although there are references to engagement bands in Greek and Egyptian culture it wasn’t until Archduke Maximilian of Austria betrothal to Mary of Burgundy in 1477 the diamond engagement ring really came into play and even after that it was an exclusive hallmark of the upper class in select circumstances. Tokens of engagement varied for commoners, if exchanged at all, through till 1938 when the diamond cartel De Beers launched their marketing campaign to normalize the exchange of diamonds by targeting specifically engaged couples.
3) And while we’re on rings, the wedding ring: Historically, the wedding ring was connected to the exchange of valuables at the moment of the wedding rather than a symbol of eternal love and devotion at a marriage ceremony. The ring was primarily an artifact worn by the woman. It wasn’t until the early 1900s in the United States that men began wearing wedding rings, in part due to aggressive marketing campaigns by jewelers as a result of De Beers influence and the burgeoning wedding industry of the time. Religious adoption of the ring ceremony was a reflection of the secular cultural influence more than it did it’s own matrimonial bonding traditions for couples.
4) the wedding industry: Previous to the 1900s grand ceremonies and receptions were reserved exclusively for the upper class who possessed the time, money and staff to produce such an affair. Bride’s Magazine was established in 1934 as a newspaper advertising insert called So You’re Going to Get Married! in a column titled To the Bride. It began pushing the idea of formal weddings for all, listing the services a bride-to-be should engage to produce a grand event. Modern Bride began publishing in 1949 further exposing the middle class to the former upper class luxury of weddings as events rather than simple vow exchanges.
5) honeymoon: the English was hony moone was recorded as early as 1546 as a reference to newly weds spending time alone together to get to know one another intimately, primarily as an antidote to the lack of familiarity with one another during the betrothal process. It doesn’t become established culturally until voyage à la façon anglaise gains popularity in France from the 1820s on, primarily for the upper class, and La Belle Époque finally introduces mass tourism in the late 1800s when resorts in Italy and along the French Riveria began to attract those below the exclusively affluent to go on holiday. As a part of weddings, the modern honeymoon took hold during the roaring twenties and re-established itself post-WWII as a requisite of the American image of marriage and consumerism.
And, lets not even get into how modern the idea of marrying for love is, marrying outside of one’s social status / economic class, marrying those of a different ethnicity or race, marrying those of a different religion, etc. These elements so engraved in our perception of marriage is now and yet are relatively new and recently adopted into the ever changing definition of what marriage is.
The conversation immediately turns to how if you love someone then all of this other stuff, including the piece of paper, is meaningless. The emphasis on it being just a piece of paper. The implication being either it’s not necessary or any piece of paper, including a Civil Union or Domestic Partnership, should be enough.
What does a “piece of paper” give you?
1) on the Federal level 1,138 federal statutory provisions in the United States Code provide protections and responsibilities to married couples, many of which are not covered through any other contractual arrangement.
2) a State level, an example is 1,324 New York state statutes and regulations that confer a right or duty on married individuals in New York State — most of which cannot be obtained by any other way but through marriage.
3) on a Jurisdictional level on a town/city or county level there may be additional protections and responsibilities conferred upon married couples some of which are most likely exclusively available to married couples. For New York City, it can include up to 900 additional rights and responsibilities related to the municipality.
4) these contractual and regulatory guidelines inherent to marriage dictate how the government, corporations and other individuals interact with you and how you as a couple are able to interact with one another, including custodial issues in medical decisions, adoption, and property ownership, the assessment of taxes, the disbursement inheritance, the accrual of debt and much more.
5) without a drastic change in the law in every legal US jurisdiction only marriage can confer those rights and responsibilities to a couple. Simply creating Civil Unions or Domestic Partnerships as a paper alternative or having a couple create individual contracts for each of these issues between themselves has yet to prove an effective means for guaranteeing the same rights and responsibilities. New Jersey’s Civil Unions or New York’s Domestic Partnerships and recent examples of contractual relationships in Pennsylvania all failed in providing those protections at the same level of marriages. Although, for example, in NYC DP continues to exist for couples both gay and straight, it’s widely understood to be a different level of contractual commitment because it lacks the same judicial and regulatory standing.
Ultimately, the conversation turned on the legal ramifications and introduced the dreaded slippery slope argument. What if LGBT marriage becomes the norm, what next? Will other kinds of marriage suddenly gain legal ground too?
Let’s dissect some of the typical non-traditional marriages thrown around on the slippery slope by first remembering one vitally important fact: the universal pre-reqs for modern civil marriage in the US is “consent.” There’s a very well defined and established legal definition of what consent means in contract law and that’s not going to suddenly change because consent is not at issue in LGBT relationships:
1) children – generally, under a certain age (which varies from state to state), children are unable to provide legal consent to enter into marriage (or more generally, into any contract). Because they inherently lack standing though both regulatory and judicial prescient they can’t get married. There’s no compelling reason to change consent law in specific or in general laws relating to the mental capacity of minors which would need to occur to allow this.
2) animals – they are unable to give consent they are unable to partake in the contract of marriage. Even if we were able to speak there’s a similar situation to that of children in that they wouldn’t lack standing based primarily on mental capacity to enter into the contractual relationship.
3) inanimate objects – also unable to give consent and thus unable to marry. Short of dealing with virtual reality, artificial intelligence or cybernetic situations in the future which blur the lines between alive and inanimate, purely inanimate like a pet rock or a car would be impossible as they lack the inherent capacity to provide consent.
4) Artificial intelligence – since we mentioned it, the technology doesn’t exist for self-awareness within AI thus the current level of AI is unable to provide consent, and at best, it would probably be classed in with children and animals in it’s processing ability for providing consent anyway. Should AI achieve self-awareness at some point in the future this would be addressed then in the context of its time and legal framework, not based on theoretical hyjinks comparing it to today’s LGBT adults.
Any attempt at eliminating the consent clause from marriage laws would result in the possibility of marital enslavement which would not be in the best interest of a governing body or society as a whole.
But what about incest and polygamy? What about them? Incest there are compelling medical reasons to bar as we’ve learned a lot about the degenerative effects of “blue bloods” over thousands of years. Polygamy might not be as straight forward but there are over-aching psychological reasons to question it as well as historical data demonstrating the legal framework around it being on uneasy ground within contract law (since its a series mutually exclusive-but-inherently interrelated contracts). If either one were to challenge the norms of marital law they would do so on the backs on not LGBT rights alone but that of all previous changes in marital law combined and would face the same burden of proof hurdles that have always existed, be it for inter-class/casts, inter-religious, inter-racial or now single gender marriages.
But, couldn’t the state then say there’s compelling medical evidence against same sex marriage? Sure, if there was actually such evidence. Typically, it goes down a list like this which are fairly easy to rebut
1) LGBT community has a higher rate of sexually transmitted diseases, including HIV/AIDS than the general population. While this might be true, it’s also true according to the CDC that among monogamous gay and lesbian couples STDs drop below the average and are in line or lower than other segments of the population in similar relationships. Therefore it stands to reason that making monogamous commitment more available to the LGBT community could lower their overall exposure and infection rate. Furthermore, there’s no test for hetersexual, cysgendere pre-marriage to determine if they free of STD so why should LGBT be held to a different standard.
2) LGBT have greater emotional instability, including self-harm and suicide rates, as well as drug and alcohol abuse, several times the average. While this might be true again, according to the APA this is directly impacted by the social acceptance the individuals have achieved. For those closeted, or out and rejected, their rates are way higher, while for those who are in committed relationships while having the support of friends and family and are granted the legal protections their rates are in line or lower than that of other segments of the population in similar social situations. Therefore, again, it stands to reason that providing the framework for monogamous commitment and allowing for additional legal protections (such as with housing and employment) it should lower these instances. And, again, there’s no mental health test required for hetero-cys monogamy or to get a marriage license or maintain a marriage so why should LGBT be held to a different standard.
3) LGBT as parents could “damage” the kids. There are a number of peer-reviewed, large sample size, extended time period research studies providing a foundation of knowledge regarding same-sex parenting and what they found is there’s no discernible difference between a same-sex couple and a heterosexual couple raising a child. There isn’t much research yet on Trans. There are several discredited and rescinded studies repeatedly erroneously cited claiming to have shown harm done to children. Bad science is not a foundation for decision making. The more research that’s being done, the more the junk science should be trashed. And, also again, there’s no test of parenting abilities given to straight married couples, or furthermore, to any parent-to-be at all, so why again should LGBT be held to a different standard in parenting rights.
4) But being gay is a lifestyle choice, it’s unnatural. The state has a compelling interest in the natural order. Does it? Does it really? The majority of chemical compounds in food and medicine are synthetic at this point and we’re genetically modifying our food supply as well, yet that’s supposedly ok despite it being unnatural. There’s plenty of other unnatural stuff that permeates daily life that we take for granted. Secondly, there’s substantial evidence against being gay or lesbian or bisexual as being a choice. Although pin-pointing the exact bio-chemical circumstances which give birth to sexual preference has yet to occur it’s fairly clear in the research thus far it’s not simply a “lifestyle choice” in any way to become straight or gay, or bi or even trans. Furthermore, there are thousands of examples throughout the animal kingdom of LGB and transgendered animals demonstrating this is not a completely unique human trait but something shared with the normal experience of species variance.
5) LGBT’s can’t procreate though – doesn’t the state have a vested interest in ensuring procreation? Wait, didn’t we start with this? First, Bi can procreate depending on the sexual preference of their partners, so can Trans depending on the gender identities involved, it really only related to gays and lesbians… and, again, since when is procreation a prerequisite for marriage?
At this point, I bailed out of the conversation. It had gone on too long and began retreading issues, because that’s all there is to do. When reality is presented in such a thorough and factual manner the only course of action is to merry-go-round until the facts become so tired and worn out that the bigot can feel they’ve won, not because they were right but because their truth has gotten to the point of being so silly there’s no such response but to walk away.
For me, a marriage is an interpersonal commitment bound in social obligation and legal framework to both act in a certain way and be treated in a certain way within the context of life. The marital commitment I chose reflects my religious and spiritual beliefs as well as my citizenship in the State of New York and country of the United States and I believe everyone who is within the ability to consent to a similar self-determined relationship should have equal access to and protection of such a contractual commitment, particularly within the legal framework. It seems self-evident that this should be a universal viewpoint for a country so set on liberty and justice for all, and yet, in 2014 there are still those, including some like Paul V. Niemeyer who should specifically know better, who put erroneous truthiness driven conclusions together against acting against their fellow citizens by creating communities of exclusion and repression.