When my parents got married--way back, and in India--there was no concept of marriage license, or registering the relationship with the state. It was a family and a community affair. The publicly celebrated event, conducted literally in the middle of the street, as was the practice in villages and small towns across India, made sure that everybody in the community knew who was getting married and to whom. That was it. It did not involve the state.
The state really has no business whatsoever in being an authority to bless a marriage. How did the state ever end up in such a powerful position? I suppose it is all because of taxes. For whatever reason, when it comes to income taxes, married people are treated differently from unmarried ones. Children also become "tax write-offs" so to speak. Which means that the tax collector has to certify these relationships and, presto, the state becomes the marriage license broker. From taxes, it slowly spread to all other benefits that married people get from the state or employers.
But, the role of the state is to merely ensure that contracts are implemented and not violated.
Thus, for instance, the state could intervene against polygamy or polyandry on the grounds of contractual violations. Similarly, if a marriage contract breaks down, then the state is the enforcer of the contract to ensure that nobody is unfairly treated. Without such laws in place in the bad old days, many women have been financially screwed by their husbands. As a neutral enforcer of contracts, yes, the state is a wonderful system democracies have in place. Much better than the old village systems where favoritism almost always skewed unfair the judicial balance.
But, the state is not the arbiter of morality. Yet, that is exactly what governments seem to be doing by denying homosexual contracts. Of course, the state does that because, otherwise, all those tax issues have to be dealt with, along with all the other rights. While a hospital visitation right, for instance, is something a state can even duck away from, taxes it can't.
Thus, as far as I am concerned, what needs to be debated is not the right of gays to marry but the right of the state to somehow be the ultimate regulatory body on who can marry whom.
In my world, even heterosexuals would only be able to register their legal unions, as much as homosexuals ought to be able to. Two people entering into such a contract then makes possible for a clear enforcement of that contract should disputes arise. That is where the role of the state begins and ends.
Mezels, France, 2011
If people prefer religious ceremonies, and if their religions do not allow that, the state and the taxpayer cannot and should not be bothered about that. It is none of my business if a Hindu priest or a Catholic priest doesn't want to preside over a gay wedding. It is up to the believers to work that out.
I suppose this will be a minority position for a while. And for now, I can only rely on much bigger guns and influential voices like Martha Nussbaum (ht):
Should the state be in the business of dignifying certain unions? The answer would be no. If we were starting over again, we'd want to go back and look at the privileges associated with marriage--tax benefits, immigration status, etc.-- and ask, Who do we want to give those benefits to? What do we want to do? That kind of thorough rethinking would be ideal, but it's also not likely to actually happen. How do we get from where we are to there? In the short run, I think the best thing is just to push on the equality issue and say, So long as marriage is offered by the state, it should be offered with an even hand.Until we reach that point, well, the law is a ass--a idiot :)
2 comments:
Oh - I don't see that all so clearly. I have very mixed emotions about this.
I don't think its all about taxes at all. That's a very peculiar American quirk - in India taxes do not depend whether you are married or not. And that's how it should be.
My problem with legalising gay marriage is not contractual. Any two people can enter into any contract, live together and not need a marriage at all. If they decide to cancel their contract or if one violates it, civil legal recourse exists even today.
The problem with sanctioning marriage has to do with children. I have no problem with gays living together - married or otherwise. But I have a problem if they adopt children. A child is a defenceless person which the force of law has to protect. Its unacceptable that a child is necessarily forced to live in a certain sexual environment without exercising his or her free will which he or she cannot do until turning 18. A heterosexual environment is biologically the environment for children. I am very uncomfortable with imposing any other environment on a child. Which is why I believe the state has a right to agonise on gay marriage as is happening in the US.
Ultimately each society shall decide. I would respect each society's decision, but myself uncomfortable purely on the grounds of children. So, not an easy or clear position to take, my friend.
The contention "A heterosexual environment is biologically the environment for children" is that all important issue that society, the courts, and the legislatures are trying to resolve, I would think.
It wasn't a long time ago that blacks and whites couldn't marry and one of the objections came from the potential harmful impacts on their children. Divorces were objected to on the grounds of the potential harmful impacts on children. Single-parent households are even now faulted for the harmful impacts on children. My point is that we have always had worries whenever there was deviation from that model of a heterosexual two-parent family. Society, by and large, does not favor disruptions to the status quo, which has been a consistent trait throughout history.
If we look at it from an argument of "a child is a defenceless person" we can also think of many, many situations in which we find that children are being raised in atrocious situations. Alcoholic parents. Parents who smoke. Physically abusive parents. The list is long. How much would we want to interfere in every one of these situations in order to provide a better and protected environment for those children?
Further, the "a child is a defenceless person" doesn't hold up when we look at scientific analyses. Studies do not seem to have anything to show that a child raised in a homosexual family is raised in a harsh environment. And when grown-up children of gay parents testify, they seem no different from grown-up children of heterosexual parents.
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