So there seems to be some misunderstanding about my previous post. Specifically around what I mean when I say “social contract”, and “traditionally”. I’ll try to correct that here. I would also like to go officially on record and say it makes me giggle to no end that the opinion of some folks seems to be that because I support the legal status of marriage being extended to everyone for reasons other than those that the straight-white-guilt community is espousing, I’m still a horrible person. Let’s look at a smattering of some of the reasons why people are telling me I should form an opinion about the legal status of marriage and why I think they’re ridiculous.
What the marriage debate isn’t
I keep hearing that marriage is about “equal rights”. I would like to point out that if the benefits of marriage are indeed rights, then I’m currently being denied my rights. I’m being denied the legally supplied rights afforded to an individual with a married legal status for the rather arbitrary reason that I haven’t found someone else who would like to get the same legal status at the same time. You might be tempted to argue that I at least have the option of getting married but you’ll realize before you even say it that it’s tantamount to telling a woman she has the option of voting if she’ll simply have a little surgery. In other words, if the legal benefits of marriage are rights, the government is denying me from rights that are therefore by definition inalienable because I refuse or am unable to make life-altering, permanent changes. Slaves could always be free, they just had to buy their freedom.
I keep hearing that marriage is about “love”. I’m willing to accept that, although marrying for love is a relatively modern concept. We would have gone extinct long ago if it had been a requirement for marriage throughout history. If it is about “love” I’m very uncomfortable with the government being involved at all. I do not personally want a federal definition for “love” or a judicial test for “love”. I can completely buy that “love” is a great reason for committing to spend the rest of your life with someone, but we’re talking about a legal status, and “love” simply isn’t enough justification for a legal status of marriage any more than “charitable” could qualify you for tax-exemption. Simply put, “love” might be why you want it, but it’s not why society should give it to you.
I keep hearing that marriage is about “the biblical definition”. Now aside from the fact that I do not personally believe that the bible is a glossary, I can with reasonable confidence say that the one thing we as a society do not have is a biblical definition of marriage. Eve did not consent to be married to Adam, and mosaic law makes no provision or requirement for consent. I am not aware of a specified minimum age, and research suggests that in practice the minimum age was effectively puberty. Many of the old testament leaders were polygamists. Slaves were forced into marital duties; it wasn’t just about sex, they had to provide children. Marriages were often arranged, and in many cases the law specifically states that women were treated as property and details their equivalent monetary value. I can think of exactly one marriage for love and he was forced to marry her sister first and wait another seven years before he could marry her. Divorce was prohibited. Remarrying was forbidden. I honestly wish the Christians out there on the biblical definition bandwagon would just admit that they’re not trying to defend the biblical definition of marriage but the biblical definition of homosexuality, because it’s ridiculously hard to take them seriously as it is.
So if the legal status of marriage is about rights, then I am a subpar member of society, coincidentally reinforced by a married friend of mine who claims the government supports marriage because it makes citizens “happier, healthier, and more productive.” If the legal status of marriage is about love then we’re really asking the government to define love and not marriage. If the legal status of marriage is about requiring the government to support every social group’s definition of a recognized marriage under their brand of internal social law, or worse one particular social group’s definition of marriage… well, let’s just say I’m delighted to both be a man of faith and a citizen of a country with constitutionally protected separation of church and state. I’m personally hoping no one is seriously suggesting any of these options.
As a rational human being who is not swayed to form opinions on political policy simply because someone feels life is sooo hard and they really wish their slice of the pie included some pie from someone else’s slice of the pie, I want to understand what marriage is and historically has been, why the government has decided the appropriate way to be involved is to create a legal status, and what changing or extending that legal status means.
Marriage as a social contract
If you were the sort of person who went to prom in high school (clearly I’m not), then you understand there is a reasonable social expectation concerning asking a girl to prom; if she accepts then you must take her to prom. She has to make a sizable investment in the event; you have to buy a flower from the grocery store. If you ditch her at the last minute and take someone else instead, there is little in the way of legal implications to your actions. You’re a jackass, that much is certain, and you will almost certainly be punished according to the unwritten law of her social circles, but you won’t wind up in court. As an aside I personally feel it’s part of the rape culture that your social circle will in all likelihood not only avoid assessing any punishment but actually commend you for your jackass-ary. But that’s a topic for another time.
The point is, prom is a social contract. You don’t get a legal status change for taking someone to prom. You don’t get legal protections around the dissolution of the contract. It’s made within the social group according to the written and/or unwritten rules of the social group and punishment for breaking the contract stems from the social group all without any government interference as long as nothing illegal happens. This is why fathers can disown children for not acting in accordance with familial obligations. Churches can excommunicate for religions reasons. Sometimes it’s even more formal, almost to the point of a pseudo-legal structure, such as student judicial boards at private universities which assign penalties based on honor code infractions.
We have several of these types of social contracts which are not in any way given any legal merit. Marriage is a social contract. Historically it is an institution which is given great social significance, as almost every organized social group makes specific provisions and concessions for the status. Most social groups have a way of recognizing the marriage as valid within the social group, but very few define a way of forming the social contract. By and large, most of these social contracts are historically formed within the context of a religious social group, but to be fair this may be largely due to the fact that very early on we figured out that marrying your sister is a bad thing, if only because the children have a high likelihood of problems. So you have to have a social group larger than the family to maintain the enforcement of the social contract.
Historically many of these social groups don’t require consent, restrict based on age or relation, or limit the number of people involved in a marriage. They nearly all require at least one man, at least one woman, and a commitment for life. Historically some social groups have not recognized the marriages formed by other social groups. Many social groups at least have rituals and traditions around recognizing marriages formed outside the group.
Marriage as a legal status
So if marriage is just a social contract, why is the government involved? Why don’t the Hindus get to define marriage conditions, expectations and punishment for dissolution within the Hindu community? Why do they need to agree with the Catholics, or the Californians, or the Hell’s Angels? Can’t all social groups define marriage to be whatever they want, and recognize it within their social group however they want, and permit the formation and dissolution however they want as long as it is not illegal?
Absolutely. They absolutely can. There is absolutely nothing preventing your social circle from deciding that for a marriage to be recognized the couple needs to perform the Hokey Pokey and the Chicken Dance for 3 hours while family and friends get sloshed on cheep domestic beer. If you need those things to feel like the social contract has a fighting chance to succeed within your social group, then by all means, slosh away.
Many social groups have had additional legal contracts around the social contract such as pre-nuptual agreements, dowries, and divorce, but these are by and large outside and in addition to the social contract. Even without the legal contracts, there are aspects to every marriage that extend outside of the context of the social group into the legal realm, namely assets and children. And when these social contracts dissolve there is suddenly a legal issue surrounding the assets and the children; within the context of the law there is a need to settle the debate around who owns what and is responsible for whom. This is a responsibility which for thousands of years civilizations have handed over to the judicial branch of government and taken from the hands of the social group that originally handled the formation of the social contract. The social group often imposes additional consequences, but allocating assets and children are the domain of the government.
So, because the government has to be involved in the distribution of assets and children in the unfortunate cases of death and divorce, the government has instituted certain provisions, assumptions, requirements, definitions and all manner of whatnot to help ease the burden of dividing the spoils among the living non-victors. These things generally only help ease the burden of managing the end of the marriage if the government is aware of the marriage as early as possible. Specific benefits are granted to married folks as early in the relationship as possible to encourage the registration and tracking of the marriage in the support of arbitrating the eventual dissolution.
Many of these benefits are in the form of subsidies. And when I say subsidy I really mean subsidy. I don’t mean “subsidy”. I don’t mean easing a tax burden. I mean that spouses can get social security, medicare and various other forms of federal, state, and local tax-funded assistance simply by virtue of being or having been married to someone qualified to receive it. And it is a subsidy, not just a benefit. “A subsidy is an assistance to a business or economic sector for producers.” For millennia society has considered these spouses as producers, children as commodities and has granted them assistance with the intention of keeping the child market saturated, even if in particular instances the subsidy is ineffective. We as a society benefit hugely from the advent of new children, and it’s worth assisting the possibility.
So, if this was all the government did with respect to marriage, namely track assets and children during the course of the marriage for tax and redistribution on dissolution purposes, provide reasonable benefits and subsidies for being classified as a potential child producer, and decide on fair and equitable ways of dividing assets on divorce or death, then I don’t think there would be any real need for the debate on gay marriage. These days most of the asset division is handled by pre-nups in many straight marriages; if there’s no children the only thing gay marriage-as-a-social-contract would lose out on is a few tax breaks and government assistance programs, which I am continually reminded they have no desire to claim by the supporters of gay marriage reform. At the very least, denying the subsidies could constitute material difference and not qualify as arbitrary discrimination.
I do think that there could very easily still be a debate on the legal status of polygamy, as they clearly fall within the scope of this responsibility and denying them the legal status of marriage forces them to not register their marriage or register it incorrectly, increasing the judicial burden of redistributing children and assets on dissolution.
However, the legal status of marriage has become so heavily encumbered with laws, regulations, provisions, and benefits that are difficult or impossible to obtain without that legal status that it is now hopeless to both maintain the current privilege of the legal status of marriage and deny it to people on the basis of gender. In other words, if two straight men want to enjoy the legal benefits of marriage and the sexual benefits of the Swedish Bikini Team, the government is in little position to oppose the union. We’ve simply abused the legal status to the point where Americans are actually being denied access to expected goods, services, privileges and benefits which have been arbitrarily associated with marriage.
It has nothing to do with being gay. It has nothing to do with being in love. It has nothing to do with religious definition. It has everything to do with acknowledging that the lines have been crossed by such absurd lengths that we can no longer pretend with a straight face that marriage as a legal status has anything to do with marriage as a social contract.
We do still have a lot to talk about. We have to be particularly sensitive to the new definition of marriage as a legal status. We’re now claiming it is not a social contract but a civil one. Under this new mindset it is now a right of any two people to enter jointly into a legal status that provides extensive tax relief, asset transfer and sharing, legal protections, immigration rights, survivor benefits, medical benefits, veteran and military benefits, and comes with a whole slew of state and local benefits too numerous to even start to detail.
Keep in mind that corporations are protected under the 14th amendment and are free to make and enforce contracts. So you could really be married to your job. Or a polygamist could form a corporation around his current marriage and that corporation could marry another spouse. The possibilities are as exciting as they are endless.
Man, it’s hard to look at this and think it’s going to be free. I’m assured by some pretty smart people that there’s no “cost” to me for gay marriage, so I’m probably wrong to think that it’s going to be expensive. Even if there is a cost, I’m willing to pay it just so anyone who wants to get all the legal benefits of marriage can without having to be burdened by silly social contracts. I might even go set up a sole proprietor LLC right now in the hopes that I can one day marry myself. It’s a dream come true.
Posted with : Bare with Me