The American Spectator

Another Perspective

Love and Marriage...Discrimination

By James M. Thunder on 10.9.07 @ 12:08AM

One would expect that an article about homosexuality and discrimination would discuss discrimination against gay or lesbian people. This article is about discrimination in favor of gay and lesbian couples.

In the past few years, a few legislatures and courts have been persuaded to cull from the entire universe of human relationships one form of relationship, that of two gay men or two lesbian women, and grant the parties the right to marry (or enter into domestic partnerships or civil unions) and grant them the benefits of marriage. Furthermore, many private and public employers have been persuaded to extend employee benefits to domestic partners. These legislatures, courts and employers have been persuaded to discriminate in favor of gay and lesbian couples to the exclusion of all other possible parties who would benefit from marriage, civil unions, or domestic partnerships. There is, however, no principled basis for them to favor gay and lesbian couples to the exclusion of others.

Upon what basis do gay and lesbian couples seek to marry and to obtain the benefits of marriage? Their legal argument refers to "equal protection" and "due process." At bottom, they claim they are like heterosexual married couples in all important respects except for the refusal of the private sector or the government to recognize their relationship as a marriage. How are they married except in name only? They respond: They love each other and are intimate with each other. They live together. They are committed to loving each other and living with each other forever. They share responsibilities and financial resources for caring for each other, for children, for parents. For example, New Jersey's Civil Union Law refers to individuals who "live together in committed relationships," California's Family Code defines "domestic partners" as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring," the Massachusetts court in Goodridge v. Dep't of Public Health (2003) recited the life situations of seven plaintiff couples, and the September 18 Maryland decision, Conaway v. Deane, described "committed same-sex couples" who love each other.

Yet, the law of marriage does not require these attributes (Point 1). Furthermore, if the law of marriage did require these attributes, many people not eligible to marry under current law, not only gay and lesbian couples, could demonstrate them (Point 2). So, allowing gay and lesbian couples to marry (or become domestic partners) without allowing these others to marry (or become domestic partners) is discrimination.

Point 1: The Law of Marriage Does Not Require Love, Intimacy, Common Residence, Sharing of Resources, Having Children, or Commitment

The law governing who can enter marriage and the law governing married persons, does not require love, intimacy, common residence, sharing of resources, having children, or commitment. I speak of the law of marriage, not the customs of our ethnic and religious cultures associated with marriage. Thus:

Love
The law of marriage does not require that the spouses love each other in order to marry or to remain married. For example, arranged marriages, so long as there is consent, are lawful. Marriages entered into by a woman (or a man) primarily to obtain protection or financial support are lawful. Couples who were once in love but "fall out of love" may remain married. The law simply does not inquire into the motives of the parties contracting marriage or their motives for remaining married. The one body of law that does inquire into the motives of the parties is immigration law to ensure that the marriage is not entered into to evade the otherwise applicable requirements of immigration.

Intimacy
The law of marriage does not require that the spouses be intimate with each other. The requirement of consummation for the validity of a marriage no longer exists (with the exception that male impotence is a ground for annulment or divorce). Married men and women may abstain from sexual intercourse for any number of reasons, for any duration, and remain married. Not only are they not required to be intimate with each other, they may be intimate with third parties. The law of marriage does not require exclusivity of sexual relations. There may be laws prohibiting adultery still on the books, and adultery has long been grounds for divorce, but adultery does not dissolve a marriage. Married men and women are free, in this sense, to have sexual intercourse with others.

Common Residence
The law of marriage does not require that the spouses live together, either at the outset of their marriage or at any time during the marriage. Bicoastal marriages, for example, are valid. And, of course, that a couple enters into a separation agreement does not dissolve their marriage.

Sharing Resources
The law of marriage does not require that the spouses have the financial wherewithal to care for each other, either at the outset of marriage or during the marriage. If one abandons the other, the marriage remains. If one physically attacks the other, the marriage remains. Of course, abandonment or spousal abuse may be grounds for divorce, but they do not dissolve the marriage. There are laws concerning the financial responsibility of one spouse for the "necessaries" of another, but failure to support a spouse financially does not terminate the marriage. Furthermore, only nine states have "community property" laws whereby the financial resources are, by law, shared by the spouses. In any case, these laws, and other laws concerning a married couple's property, allow spouses to alter their provisions through prenuptial agreements.

Having Children
The law of marriage does not require that both spouses be heterosexual. The law of marriage does not require that the spouses have children or, if they do have children, to love them. If they do have children, they must simply not abuse them or neglect their "necessaries," medical care, education. The law of marriage does not require the spouses to take care of any other person, whether related by blood or marriage or not, including siblings or parents, except natural and adopted children.

Commitment
The law of marriage, or more properly the law of divorce, does not require a permanent commitment to each other. The law of marriage does not dictate that any particular vows, or any vows at all, be exchanged at the commencement of the marriage. Any vows are purely aspirational. No court can enforce them and the vows can be broken with impunity. The spouses have the option, of course, to remain married until one dies since marriage, unlike other contracts with specific terms, is of indefinite duration. At the same time, they may freely, at their bilateral or unilateral option, dissolve the marriage. (Covenant marriage laws in a few states allow spouses to restrict the causes for divorce.)

The only laws that are available to enforce a particular marriage are criminal laws against bigamy and civil laws, in about 10 states, retaining the historical torts of "criminal conversation" and "alienation of affections," that is, grounds for a lawsuit against a third party for interfering with a marriage. Indeed, if the parties meet the minimal grounds for divorce, courts cannot deny a request for a divorce -- even where a spouse seeks to avoid financial responsibility for an ailing spouse. (Some estate planners suggest that a spouse divorce an ailing spouse, even where their love perdures, in order to conserve the family assets.)

If a Martian studied the current law of marriage in the United States, without knowing how marriage is lived, the Martian would know practically nothing. As we have just discerned, the law governing who can enter into marriage is extremely minimal. The law has just six requirements: that (1) two (2) adults (with exceptions) (3) of opposite gender (heretofore implicit) (4) not related by blood (5) consent to marry, and (6) are not currently married to someone else. The law governing the termination of the marriage is equally bare. Whether the divorce is unilateral or bilateral, a court must grant it. No governmental body may initiate the termination of a marriage; (by comparison, the government may initiate the termination of a parental relationship with a child). And the grounds for divorce are minimal and easy to satisfy.

When our focus is solely on the law of marriage, gay and lesbian couples are simply two men or two women who meet the minimal requirements of the law for marriage (number, age, lack of kinship) who wish to marry. It is incorrect to state, as does the plurality opinion in Goodridge, that "same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another," since civil marriage -- the only type of marriage at issue in Goodridge and other cases on same-sex marriage -- does not require this. Civil marriage has no obligations, no commitments, solemn or otherwise. By the law of marriage, almost everyone is eligible to marry and to remain married. They may marry for any reason for any length of time and under any living arrangements.

Letter to the Editor

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