Rethinking "Marriage"

Rethinking "Marriage"

especially gay couples

by Pam Green, © June 18, 2008

Introduction

Note about terminology.
As I wrote this I became increasingly unsatisfied with the available terminology. "Gay" and "straight" , "homosexual" and "heterosexual" inevitably seem to imply and ratify an "all or none" , "black or white", binary type of conceptualizing of human sexuality and relationships that is totally unrealistic in terms of what is really known about the subject. We have known, from as far back as the Kinsey Reports, that there is really a continuum of behavior and inclination from exclusively heterosexual to exclusively homosexual, with a great many people being somewhere in the middle range, ie a great many people are intrinsically more or less bisexual in inclination, though their overt behavior may be pushed further towards one extreme of the other by cultural factors and fear of criminal sanctions. However when one is talking about a couple relationship, consisting of two people , then clearly the two are either of the same sex or opposite sex. I have to say I don't really like the term "opposite sex" either as it implies that men and women are "opposite" , wheras in truth they are far more alike than they are different. I suppose I could really re-write the piece so I speak of "same sex couples" and "not-same sex couples" or perhaps "same sex" and "different sex". In any case, please understand that I am really talking about couples. It's even possible that someone currently in a same sex couple relationship might in past or future be in a not-same sex couple relationship and vice versa.
The issue I am really addressing and advocating is the legitimacy of same sex couples as being worthy of equal legal rights and equal social acceptance as our society curently bestows on not-same sex couples. It's really a simple matter of fairness.

(Update 2015: when I said that when one considers a couple of two people they would necessarily be either the same sex or opposite sex, I wasn't considering that one or both might be "transgender" people and might or might not be at any stage of transitioning. Thanks Caitlin, for reminding me. Also didn't consider that some infants are born with some degree of "intersex" , "hermaphrodite", but these are usually very soon subjected to "sex assignment" surgery to make their external apprearance fit into one or the other of our gender categories. I don't think these omissions really change my analysis.)

The question has been posed whether gay marriage or any long term gay couple relationship is likely to be more egalitarian than heterosexual marriage or long term heterosexual couple relationships. The question was further posed as to whether a more egalitarian example set by gay couples would result in a change towards greater egalitarianism in straight couples. Needless to say, so far no one has done any real research on the actual level of equality for gay couples, though there have been many studies of straight couples, all of which show the typical straight marriage to be far from an equal relationship, an inequality that rests on relgious propaganda, on legal inequality , and on economic inequality..

(Update 2015 : there actually have been studies of financial and household divisions in gay couples, and not surprisingly, gay couples are more equalitarian, with lesbian couples tending to be extremely so.)

Early American history

The English Common Law tradition, which has shaped most law regarding marriage in the USA (except to the extent that Spanish law has influenced the southwestern states and French law the state of Louisiana) very clearly puts the wife in a position far inferior to the husband. "Husband and wife become one and that one is the husband." said Blackstone The wife ceased to exist civally. She became an "unperson" as George Orwell would have put it.

At the time of the American Revolution and at the time of the first Women's Rights convention in Seneca Falls in 1848, the wife was in a desperately unequal position legally and economically. The wife could not own property : any property she had brought into the marriage became property of the husband, and likewise any earnings the wife earned by her own labor were property of the husband. She could not sue in her own name. She could obtain a divorce only with great difficulty, and she could not obtain custody of the children of the marriage, children she had brought into the world at considerable risk of her own life and health. And of course , merely because she was a woman, married or not, she could not vote and thus had essentially no hope of obtaining any legal reforms. A wife's legal position was little better than that of a slave, except that she could not be sold (neither to a worse master nor to a kinder one). Of course some women had the good luck to have kind hearted and compassionate husbands, but to say that that justifies gross legal helplessness is to say that the fact that some slave holders were kind hearted and treated their slaves well (as Thomas Jefferson is said to have done) justifies slavery.

Of course things began slowly slowly slowly to change for the better after 1848 as women began to rebell and to speak up demanding better laws. Eventually wives re-gained the right to own property, eventually some of the barriers to education and employment eased up.

Women finally got the vote in 1920.

The second Women's Rights movement in the 1960s started another wave of reform. The Equal Pay Act of 1963 , the Civil Rights Act of 1964 and the Equal Employment Opportunities Act and Equal Credit Act were major legal reforms and created important legal tools. Women were still in a legally and economically second class position and had second class bargaining power with husbands. As of the late 1980s , many wives were working full time jobs outside the home, but they were still doing the great bulk of housework and childcare (see The Second Shift by Hochschild and Machung, 1989). And in most states, the husband still had more control of both their earnings and property than the wife had. In California , the husband was still the manager of the community property until 1/1/1975 when the law changed to "joint management" by husband and wife. However either of the two joint managers can make a lot of transactions without approval of the other , for example husband might sell wife's adored horse out from under her. (One reason I've never been willing to marry : "better dead than wed !") Some transactions (especially real estate) do requrie signatures of both.

here beginnith my essay on the topic :

Is opposite sex marriage still an unequal relationship

Yes, indeed, heterosexual marriage has always classically been "the process by which a man gains a useful unpaid servent and a woman becomes one." ( I had that figured out some years before hitting menarche and therefore decided that under no circumstance would I ever marry. When at about the time of my 40th birthday Newsweek declared that a woman of age 40 had a greater chance of probability of being killed by a terrorist than of getting married, I wrote in response that this was welcome news as I would find being killed by a terrorist the less dire fate. "Better dead than wed !")

So is same sex marriage better ?

Well there are three obvious advantages :

• One, there is absolutely NO RISK of an UNWANTED PREGNANCY (which, if not solved by Goddess' grace in granting a miscarriage, must result in either an unwanted child or an abortion).


• Two, the two partners have NOT be socialized to view each other as being alien in character, incomprehensible in mind, nor inherrently inferior or superior in talent or status.


• Three, there are no arguements about leaving the toilet seat up or down.

Quite seriously, the fact that a gay encounter cannot possibly result in an unwanted pregnancy is reason enough to make that type of relationship MORE honorable, more moral, than a heterosexual encounter. Those who deplore abortion should be encouraging gay sexuality. Perhaps we should all be bisexual enough that we use gay sex for pleasure and heterosex only when both parties are earnestly committed to begetting and rearing a child. Sure, that'll be the day. (Though there have been societies in which something like this has been the case.)

Quite seriously, when both partners are of the same gender, then gender ceases to be a mindless automatic way of pre-deciding who should be leader for this activity or that and who should undertake this bit of work or that. This opens the way for choosing how a given activity is done and who leads that activity by considering the actual interests and talents of the two parties. For example when it comes to cooking (surely one of the less disagreeable chores that must be done in any household), maybe one likes to cook and the other doesn't ; maybe they both like to and so take turns or do it together ; maybe neither one can do more than nuke a TV dinner, so they live out of the freezer or eat out a lot.

The rational way of dividing up the chores in a relationship where each partner is putting in roughly equal time and effort into earning money to sustain the household (or perhaps investing that time and effort into education likely to enhance future earning power) would be to make up a list of all the chores, then for each chore make an estimate of the frequency and time needed to do it, then have each partner assign a value from say minus ten to plus ten to reflect how much that person disliked or liked doing that chore. With that as the starting point, it would be possible to make a fair assignment of chores. With some luck, it could work out that by each one taking those chores that person enjoyed and sharing or taking turns at chores both enjoyed, the balance would be equal enough that then they could share or take turns at the chores both disliked. (Do notice that I said "putting in equal time and effort into earning money to sustain the household" rather than saying "earning roughly equal money", because unfortunately jobs requiring equal talent , equal responsibility, and equal effort may recieve grossly unequal pay.)

As for the toilet seat, well I think there is a real economic oppertunity awaiting someone. Since there already exist toilets that flush themselves when their infrared sensor tells them that the occupant has left, surely it would not take the genius of an Edison to design a toilet that puts its own seat down when the occupant has left.

Does the possibility that same sex couples set the example of a more egalitarian relationship mean that mixed sex couples are going to follow that example ?

Not necessarily. It might of course encourage young women who can find within themselves a potential for bisexuality to cultivate their gay side rather than their straight side. But the smart ones may already have figured that one out.

For the next generation , there may be more influence for change. As young people see more and more of gay couples socially and see such couples functioning in a more egalitarian fashion, this may have an influence. Probably a greater influence on girls and women than on men and boys because equality would be a gain for women but is perceived as a loss for men.

I think a far greater pressure towards equality in marriage between opposite sexed couples will come from the now far more equal economic status of women. The woman who can get a good education and a good job can support herself and support herself well enough that she does not have to sell herself to any man, neither temporarily by the night nor longer term in marriage. The ability to choose whether or not to become pregnant or to let an unintended pregnancy saddle her with a child to support is also a huge factor in economic independence. The woman who is economically independent has the "walk away power" to leave a relationship that is disrespectful to her or that does not recognize her as an equal. That's why the Rabid Right, for whom "traditional family values" is code for "women submissive and subordinant to men", is so vehemently opposed to contraception, abortion choice, equal pay, and equal education.

Note that same sex couples vary as to equality of earning power equality between themselves. Some are essentially equal, some are quite unequal, and some are somewhere in between. I'd love to see a Second Shift type of study done on gay couples.

In straight couples , the Second Shift research finding was that even when the wife is earning considerably more than the husband, the wife is still doing more of the housework and childcare than he is, and he considers that he is owed that extra leisure time as a compensation for his not complaining or resenting that she is earning more than he is. So just earning more money is not enough to give the wife equal bargaining power unless she also recognizes and gets hubby to recognize that this gives her "walk away power" , which might even have to include the power (willingness) to leave the children behind for hubby to have to take care of.

"Marriage" vs "Civil Union" :r e-thinking separation of Church and State.

Get government out of the marriage business

One way out of the arguements about "marriage" would be for the State (ie government, whether on a state level or a federal level) to get out of the marriage business altogether. Let's have a TRUE separation of church and state on this issue.

Let the State offer ONLY CIVIL UNION, ie a civil contract with civil court enforcement, for EVERYONE, straight or gay. The civil contract would set out the civil responsibilities and rights between the partners. Within some limits they could choose their own terms. Certain essential choices should be specified. For example, the couple should have to specify if they are going to hold all property earned during the marriage as community property or as separate property or as some other arrangement spelled out by contract (as is currently available by prenuptual contract). An essential clause would be whether or not both parties agree that they want children (and perhaps whether this is limited to natually conceived children, or whether it would include assisted reproduction or adoption), refuse to have children (and perhaps also specifying accepted means for dealing with an accidental conception if the couple is at risk for same, ie male-female couples), or whether they will take whatever may happen in regards to children or will decide at a later time. If one of the parties is to remain at home as a "house-partner", some specification for setting aside a portion of the other's earnings as pay for house-keeping should be specified. The terms would be limited only by fairness, but I think specification of property rights and child intentions are essential ----- and are things that any couple contemplating union of marriage under current laws should be talking about very seriously before making a commitment in any case.

Let's further make the very important distinction , as suggested by Margaret Mead at least 40 years ago, between childless unions, which we might term "companionship unions" , versus unions that have created or adopted a child, which we might term "child-rearing unions".

For couples without children, the range of civil contract terms allowed would be limited only by concepts of fairness and equitableness. Civil Dissolution could be quite easy, like our current "no fault divorce", with State interference only to see to the fairness of property division.

But once a child has entered the picture, the contract terms should require both parties to have very substantial and unbreakable responsibilities towards that child. The State does have a legitimate interest , indeed an over-riding interest, in requiring those who produce children to be responsible for rearing them to become acceptable citizens. (And in my opinion , the State has a legitimate interest in preventing those unwilling or unable to fulfil such responsibility from producing children. At a bare minimum, the State should make it as easy as possible for those unwilling to rear children to avoid having any in the first place.) Support obligations of both parties towards the child must be absolutly mandatory, both during the union and after dissolution of that union. The custodial parent would NOT have any right to waive support, because support is a right of the child (to be supported) rather than a right of the parent (to receive assistance in supporting the child). Civil Dissolution might be made more difficult for unions that include a child; perhaps such dissolution would require some showing of cause. It might be required that some portion of the couple's property go into a trust for the child's future educational or special medical needs.

With the State no longer in the "marriage" business, those people who view marriage as some kind of religious sacrament would be free to "marry" within whatever religious organization (church, temple, mosque, etc) they wish to. Such a marriage would have NO LEGAL STANDING but only religious standing. Such a marriage (and possible divorce) would be bound by the rules of that particular religion. (Anti-gay bigots should note that there are already some religions that are perfectly comfortable with blessing gay marriages, just as some are comfortable with gay clergy. But the religions that hold gay people or gay couples to be anathema could go on refusing to bless them or include them.)

Does this separation of "marriage" from "civil union" mean that one could be civilly united without also being married or married without being civilly united ? Yes. But we already have that. The obvious example is the Catholic marriage, in which divorce is not available : those married in the Catholic Church can be civilly divorced and civilly re-married to someone else, but in the eyes of the Church they are still married to one another ; the civil tax laws and the inheritance laws follow the civil divorce and re-marriage, not the religious ones. (And maybe someone can fill me in on the Mormon view of divorce ? Since the Mormon marriage ceremony declares the couple married "for Time and Eternity": that sounds to me like they cannot end the relationship even after death, thus that divorce would not be recognized.)

End discrimination favoring married couples over non-married couples or singles.

Alternatively we could eliminate all laws that discriminate between married and non married persons. Let everyone pay the same taxes. Let the same inheritance taxes apply to everyone. Let everyone obtain their own insurance (and be required to obtain insurance for their minor children). Let everyone have the right to specify who gets to visit them in the hospital if they are consious and let everyone specify in advance (by Durable Power of Attorny for Health Care) who makes health decisions for them if they should be unconsious or incompetent. We would of course retain laws that require all persons who bear or beget a child to be responsible for that child's support. Those laws should not discriminate between married and non married parents, as the child has just as much need of and right to support regardless. The right to child support is the right of the child, not the right of the custodial parent. Child support should be imposed on a non-custodial parent whether or not the custodial parent seeks it. In unmarried cases, DNA testing to determine paternity should be mandatory for every live-born child and the imposition of support duties should immediately be imposed. If the sire does not have a job, he should be assigned one so that he can pay support, which should be deducted from his pay automatically.

does allowing gay couples to "marry" constitute "re-defining marriage" ?

One of the complaints of the anti-gay marriage crowd is that to allow gay couples to "marry" rather than to have a legally recognized "domestic partnership" or "civil union" with a similar set of rights and obligations would be to "re-define marrage" . Somehow such a re-definition is supposed to destroy the meaning of marriage or to damage the institution irrepairably.

Well I have shocking news for everyone : we (American society) have been re-defining marriage for the past couple of centuries, with much more dramatic changes than merely whether one's spouse is of the same sex or different sex. Nor do all segments of our contemporary American society share one universal definition, no not even ignoring the gay issue altogether.

Actually human societies throughout the world have different definitions of "marriage" and many of those societies have altered their definitions over the past centuries many times. But for this article , I think I will stick to the Anglo-American traditions and legal definitions. No need to discuss polyandry in Thibet.

At the time of the American Revolution and during the century preceding it, the laws of "marriage" in America followed those of English Common Law. Upon marriage the wife became "civilly dead" and her identity and legal rights were gobbled up by those of her husband. Any property she owned prior to marriage became property of her husband. Any earnings she earned by her paid labor instantly belonged to her husband. ( Of course her unpaid domestic labor was also the property of her husband. ) The children she produced were the property of her husband and he inevitably retained ownership of them in the (rare) event of divorce. A wife could not make a contract. She was subject to physical punishment at the husband's will or whim, though there were some limitations on the stick of the stick he could use to beat her with. The wife had an obligation to submit to all sexual demands of the husband ; her consent was not necessary, thus the concept of marital rape was impossible. Upon marriage the wife became an UNPERSON. She became a SLAVE in all but name, with the single exeption that she could not be sold. Divorce was not impossible but was hard for a wife to obtain and a required specific and serious grounds..

Over the years, the laws changed. Changed laws become changed definition.

Today throughout the US, the laws and practice of marriage is far different from that of 1776. Today a married woman c an retain her own property if she has the wit to avoid co-mingling it with any Community Property in those states (none of the original 13) that follow the Spanish concept of community property. In non-community property states, the wife's earnings are her own property ; in community property states the wife's earnings and the husband's earnings are both community property, ie owned equally by both. Until fairly recently in California, the husband was the "sole manager" of all the community property, which gave him almost as much power as if her actually owned it. Finally California law now recognizes husband and wife as joint owners of community property. Husbands no longer have the right to beat their wives, though as we all know, this still occurs all too often. Husbands no longer have the right to rape their wives, though this too occurs all too often. Divorce is easily obtained in most states and no grounds are required (well the statutes usually say "irreconcilable diffferences" but that can mean anything at all that one or both consider worth separating over).(Note : for Catholics, a religious divorce is still as unobtainable as it was in the time of Henry VIII, but civil divorce and the right to marry someone else is just as obtainable for Catholics as for anyone else.) Wives are at least as likely to obtain custody of children as are husbands. (Note : obtaining custody is not necessarily to her advantage since enforcement of child support is still rather poor, so often the obtaining of custody simply means instant and lasting poverty for ex-wife and the children. ) Today the married woman is legally as much an individual as the unmarried one , though legally she still has fewer rights than the male, married or not.

Does today's definition of "marriage" sound very much like the definition that was standard in 1776 ? The only thing that hasn't changed is the idea that (except in California and Massachusetts) the couple must be of opposite sexes. But isn't the change from the wife as utterly subordinate to and virtually property of her husband to her status as legally equal to him a much greater change than that between "mixed doubles" pairing and "same sex " pairing ??? After all , life is not a game of tennis.

Does God(dess) care if gay couples marry ?

Meanwhile I should note that it is now more than 24 hours past the time at which California has begun celebrating gay marriages and Goddess has in Her wisdom NOT seen fit to smite the cities of Sacramento and San Francisco, nor has She seen fit to smite the Justices of the California Supreme Court. Maybe She has more important things to worry about.

(UPDATE 8/31/08 : Goddess has still not smitten California. As to whether the hurricanes aimed at Florida and Texas should be regarded as expressions of Her wrath, I have no opinion, but I would point out that these are states not known to be particularly friendly to gay persons or gay couples.)

Update 10/07/08 : still no fire, earthquake , or other "smiting" of San Francisco or Sacramento.

Update 7/23/09)

Unfortunately the people of California by a very small margin ( and influenced by massive political spending and campaigning by religious organizations whom the tax code forbids from such activities under section 501(c)3) passed Proposition 8 in the November 2008 elections , providing that only marriages between a man and a woman would be recognized in California. To my surprise and disgust, the California Supreme Court later declared this to be a proper ammendment to the state constitution, while at the same time declaring that the roughly 18,000 same sex couple marriages that had been legally performed prior to passage of Prop 8 were valid and would remain valid.

There will of course be another proposition on the 2010 ballot to reverse Prop 8. And no doubt whichever way that vote goes, the losing side will have another proposition on the 2012 ballot. And so on until the tide in favor of accepting gay unions as worthy of equal dignity and respect finally becomes undeniable and irreversable.

Meanwhile several more states have legalized gay marriages, and the federal Defense of Marriage Act is coming under US Constitutional challenge.

The one thing that is certain is that "marriage", like every other human cultural and legal institution, will continue to change and evolve.

• California Wedding cards : cards for gay couples.
• California Supreme Court decision "in re Marriage Cases" establishing in California the rights of gay couples to "marriage", not simply "domestic partnership" or "civil union".
• UPDATE : I've found book"What is Marriage For?", by EJ.Graff, covers the topic of the history of "marrage" much more thoroughly. dated 1999 and 2004.
• www.scotusblog.com/case-files/cases/obergefell-v-hodges/ The Supreme Court ruled in June 2015 in OBERGEFELL ET AL v HODGES that the 14th Amendment requires that same-sex marriage must be allowed in all states and that all states must give full faith and credit to marriages legally contracted in other states.