Same-Sex Marriage Debate

The last year or so the debate on same-sex marriage has become more and more prominent, especially due to the Massachusetts’s Supreme Court. It’s particularly loaded because of all the different balls that are floating in the air. Marriage has obvious religious meaning, but is also just another form of state licensing, similar to driver’s and liquor licenses, at its base. (Expandable Post)

My argument is that the state should get out of the “marriage” business altogether and just issue civil union licenses, which you and your church can call whatever you want. This has the semantic advantage of not carrying all the weight that marriage has and avoiding equal protection issues (amongst others).

For many, if not most, marriage is much more than a driver’s license. The union touches upon the deepest emotions and spiritual notions that are well beyond my ability to discuss here. So I will focus on what marriage means from a legal standpoint. By marrying, a couple is the beneficiary of several, default legal rules. They include property rights, inheritance rights, the ability to make decisions on behalf of the union in the event of incompetence and death (burial v. cremations, etc.), sexual monopoly, insurance and taxation. It is noteworthy that many of these benefits can be contracted (property and inheritance), but many cannot, like insurance and taxation.

So now that marriage has been described very roughly, the next question is why? This is where much of legal debate has centered. For proponents of keeping marriage the same, the central reason is procreation. Marriage and its benefits are bestowed by the government in order to facilitate the production and rearing of children. Keeping the union solely inter-gender acts as a gatekeeper; it’s imperfect from the perspective that infertile marriages are possible. However, it doesn’t have to be perfect to pass constitutional muster.

There are many responses to the procreation rationale. The first, as hinted at above, is the reality of infertile, heterosexual coupling, which captures the elderly and younger couples who, for whatever reasons, aren’t capable of producing children. A second is that, since marriage is perhaps just another licensing law, there is not a rationale state interest in locking some of the population out. Finally, proponents argue that even if it is conceded that marriage is all about procreation, same-sex couples can still produce and rear children.

Aside from which arguments you may find satisfying, I hope that you can see that there is an element of both sides, not talking at each other per se, but speaking different languages. Since the civil and spiritual notions of marriage of become so intertwined, that is right for traditionalists to want defend their turf. At the same time, it is more than reasonable for homosexuals to want some sort of legal protection. That is where civil unions come into play.

Under my plan, all couples will apply for civil union licenses. In just about every way, they will be the same as marriages. The difference will be that the spiritual notion of the coupling will be taken out of the state’s end. In that sense, it will nearer to any other license that the state may issue. It also has the benefit of not affecting any religious element. It may be semantics, but I believe the distinction is important.

My plan is far from flawless. I still don’t know how to weigh same-sex unions in adoption cases. There is a relative paucity of information on the effects of children being raised in same-sex households, so that is an area where a decision should be made later rather than sooner.

I’m sure that I’ve missed something and I’d welcome any thoughts that any of you might have on the issue. This is a rich issue and I think that it presents a great opportunity for debate.