I am grateful for the thoughts other contributors have made regarding marriage, relationships, and benefits. Today I shall respond to Rob’s post made earlier today [HERE]. I am grateful to him for presenting his interesting views.
So, let me begin with his reference to a “real-world” example of social reformation proposed by the organization BeyondMarriage. I have read their statement; moreover, I have studied the list of endorsers of the statement to which Rob gave us the link. I think it vital to our discussion that we take stock of the underlying current that has motivated the BeyondMarriage organization to craft the statement advocating the end of marriage. As they state in their own words,
In April 2006 a diverse group of nearly twenty LGBT and queer activists—some organizers, some scholars and educators, some funders, some writers and cultural workers—came together to discuss marriage and family politics as they exist in the United States today. We met over the course of two days for lively conversations in which there was often spirited disagreement. However, we do all stand in agreement with the statement entitled “Beyond Same Sex Marriage”. We offer this statement as a way to challenge ourselves and our allies working across race, class, gender and issue lines to frame and broaden community dialogues, to shape alternative policy solutions and to inform organizing strategies around marriage politics to include the broadest definitions of relationship and family.
The members of the BeyondMarriage organization assuredly have a stake in the outcome of the debate on same-sex marriage. By doing away with marriage, or by recognizing relationships as substitutes for marriage, the hurdles that stand in the way of the “equality” argument for SSM will be eliminated. The membership in this organization identifies with “LGBT” activism and their reasons for proposing an alternative to marriage likely emerge from the realization that same-sex relationships cannot be marriages. I do not see among its ranks representatives or activists for those relationships comprised of elderly siblings who care for one another in their old age, or of single or widowed children who care for elderly parents or grandparents or other elderly blood relatives who have no one to care for them. Before I recommend endorsement of some group advocating a political cause that will dramatically alter civil society in a fashion that contravenes Catholic principles, I believe that it is vital to understand what this group is about, and they have given me a good understanding of what they want, and implicit in this is why they want to go BeyondMarriage. Marriage is an institution that cannot be duplicated in the relationships they value most.
This brings me to a second point raised by Rob in his opposition to state-registered “friendships.” (I wonder, by the way, if the state would have some role in the dissolution of these friendships that the state would register, but I digress.) In his disagreement with the proposals for blunting advocacy for SSM with the state-registered friendship substitute, Rob states that, “Marriage should be privileged because of its channeling function: it calls us to a commitment… that is greater than our own cost-benefit maximizing episodic calculation.” I agree that marriage should be privileged but not for the reasons Rob tenders. Marriage as the world has known it (and surely as the United States has known it) is the foundation of the basic unit of society. It is the coming together in a special relationship between a man and a woman that ensures the posterity of our human race. It is a commitment, indeed, but a very particular commitment that is identified and fortified by the inexorable complementarity of man and woman. In this context, “marriage” between same-sex couples is impossible. The relationship of same-sex couples can be fueled by a sense of commitment, but it is a commitment of a very different sort that can never be the equal of marriage, which out of necessity requires the complementarity of the sexes.
This brings me to a third point that anticipates Rob’s potential objection to what I have just said. He mentions, “For those who oppose SSM, the challenge will be to articulate (in secularly accessible terms) a distinction between opposition to SSM and opposition to interracial marriage. The categorically procreative/biologically unitive argument is unlikely to do the trick.” I must disagree. First of all, reliance on Loving v. Virginia and analogizing opposition to SSM to the past opposition to interracial marriage does not withstand rational—secular or otherwise—scrutiny. The prohibition on interracial marriage was based on a superficial characteristic—skin pigmentation that had no bearing on the complementarity of the male and female. This prohibition paralleled the Nuremberg laws that prevented Jews from marrying Aryans because of another superficial feature. The anti-miscegenation statute in Loving and the racial purity laws of National Socialism could not deny the nature of the biology of the human person. The opposition to SSM is not the same as the opposition to interracial marriage. Advocates for SSM rely on the parallel but they astutely avoid making the critical distinction because it will not serve their objectives. The prohibition in Loving and the Nuremberg laws ignored human biology and the purposes for which man and woman were made; the prohibition to SSM does not.
I must respectfully disagree with Rob on the next point. The procreative/biological argument does do the “trick.” Moreover, it is not for the opponents to SSM to articulate the distinction because they have. The burden, in fact, is on the advocates for SSM. They shy from the scientific explanation that, “in secularly accessible terms”, provides the justification for opposition based on scientific fact. That is why the argument based on “commitment” becomes an attractive substitute, but it must and will fail. Its failure is inextricably linked to the reality that there are many relationships that have commitments—but commitments can be ignored. And when they are, what happens to the commitment so vital to the advocacy for SSM?
This brings me to a final point for today which relates to Rob’s contention that “The status quo will not hold.” He then offers a robust explanation why he thinks this is the case. But I must test his justification by presenting it word for word and merely delete the specific references to “gay,” “lesbian,” “homosexual,” and “homosexuality” and replace them with substitutes. When I do, the reason for maintaining the status quo in opposition to SSM should be all the more clear:
“_____ and _____ are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles. The shift in attitudes on _______ from my parents’ generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next. From what I have seen thus far, moral opposition to ______ relationships is just not conceivable to 98% of the law students I’ve taught.”
Allow me to make a Loving substitution that preserves Rob’s language but not his point:
“Blacks and whites are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles. The shift in attitudes on interracial relationships from my parents’ generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next. From what I have seen thus far, moral opposition to interracial relationships is just not conceivable to 98% of the law students I’ve taught.”
Same-sex marriage is not an option, but that does not mean the path our nation and our world should take is not evident. It is, and it is to stay the course. It may be that the status quo will not hold, but its failure to do so will not be because of any flaw in its justifying rationale that is based on objective reason. It will be due to the imposition of pure positivism and its recurrent ally, totalitarianism.
RJA sj
THE BOTTLE OF WINE
For all of us who are married, were married, wish
you
were married, or wish you weren't married, this
is something to smile
about the next time you see a
bottle of wine:
Sally was
driving home from one of her business
trips in Northern Arizona when she
saw an elderly
Navajo woman walking on the side of the road.
As the trip was a long and quiet one, she
stopped
the car and asked the Navajo woman if she would like a ride.
With a silent nod of thanks, the woman got into the car.
Resuming the journey, Sally tried in vain to make
a bit
of small talk with the Navajo woman. The old
woman just sat silently,
looking intently at
everything she saw, studying every
little detail,
until she noticed a brown bag on the seat next to Sally.
"What's in the bag?" asked the old woman.
Sally looked down at the brown bag and said, "It's
a
bottle of wine. I got it for my husband."
The Navajo woman was
silent for another moment or two.
Then speaking with the quiet
wisdom of an elder, she said:
"Good trade."
Elizabeth Brown’s answer to Susan’s question sums up my reasons eloquently. I am not necessarily advocating for an “Intimate Partnership Act,” but I do think there are good reasons for society to promote such bonds. When I said, it is "irrelevant to the state as to why someone would want to form such an association," what I had in mind was an analogy to the law of charitable deductions.
The charitable deduction imposes costs on society, including the cost of less tax revenue. The imposition of those costs is justified by the desire to promote a certain type of giving. But, it is irrelevant to the state why someone forms a non-profit organization or why someone gives to organization “A” rather than organization “B.” In short, the community has decided that promoting charitable giving by privileging such expenditures is in the common good. Employing principles of subsidiarity, the community allows individuals to form their own charitable organizations and to decide which, if any, organizations will receive their money. The same rationale could be employed with respect to state promotion of friendships; the state provides a broad form, leaving individuals free to decide whether to seek the benefits and burdens that this form of friendship entails.
Back in December, we discussed an op-ed
I wrote for the Washington Post suggesting that rising oil prices might be
having an impact on Americans' taste for exurban homes. At the time,
the data in support of this thesis was still very anecdotal. In the
six months since then, more data has been gathered,
and it points in the direction one would expect. The housing crisis,
while severe, is not being experienced the same way by all homeowners.
Owners of homes near urban centers and accessible to public transit are
finding that their homes are holding their values pretty well. On the
other hand, the largest declines in property values are being
experienced in more far-flung developments, where the only way to get
anything done is to hop into the car.
This makes good sense. In the debate over sprawl, proponents of the
status quo have argued that suburban development has delivered for
American homeowners a lot of home for very little money. Setting aside
questions of taste and focusing on square footage, there's a great deal
of truth to this. But when you factor in the cost of transportation,
the issue becomes far more complex. Housing that provides owners with
no alternative to the private car is more expensive than it at first
appears. That cost remained largely out of view when gas was $1.50 per
gallon, but with gas prices nearly tripling over the past five years,
and threatening to continue to increase for the foreseeable future,
that hidden cost has jumped out into the foreground. (The average
American family of four consumes roughly 1500 gallons of fuel per year,
so, barring a shift to more fuel-efficient vehicles, every $1 rise in
gas prices costs about $1500 per year, per family.) The people at the
Center for Neighborhood Technology have put together a great interactive map
that allows you to compare the cost of housing in different parts of
various metropolitan areas with the cost of housing+transportation.
The (predictable) consequence is that, when you factor in
transportation, housing far from urban centers becomes much more
expensive, and in many cases more expensive than housing in or near
downtown.
Continue
reading
In response to the thoughtful observations/questions by Elizabeth and Michael, my concern with the push to recognize friendships legally is not so much focused on the good-faith desire to remedy a particular case of injustice, say where a friend cannot gain hospital visitation privileges; my concern derives from the extent to which the push is part of a broader effort to end the law's "privileging" of marriage. Here's a quote from Laura Rosenbury's paper, Friends with Benefits:
"[A] more radical aspect of this type of proposal would be its rejection of private contracting to readjust the current consequences of marriage determined by the state. Instead, some or all of the benefits, obligations, and default rules currently reserved for spouses would be available alike to spouses, friends, or the other individuals designated. Such a proposal would therefore allow all individuals, not just married couples, to decide how they would like the state to support their personal relationships, if at all. Unlike the current state of the law, marriage or a marriage-like relationship would not be a prerequisite for taking on the packages of benefits, obligations, and default rules provided by federal, state and local governments. Instead, individuals could choose to apply those packages to other types of personal relationships without engaging in private contracting."
For a real-world example of the movement's vision, read the "Beyond Same-Sex Marriage" statement from 2006.
Participating in a state-registered marriage entitles you automatically to certain benefits and privileges. In my view, participating in a state-registered friendship should not. I support the possibility of allowing individuals to contract with each other or with third parties to attain some of the benefits that automatically flow to married couples. Such contracts do not require the state to elevate friendship as a relationship of equal importance to marriage -- indeed, they do not require the state to do anything except to refrain from invalidating the contracts. I oppose the suggestion that groups of friends should be able to register their relationships and receive a certain set of benefits by operation of law (as opposed to the operation of the agreements they reach on a case by case basis). Marriage should be privileged because of its channeling function: it calls us to a commitment (or at least should call us to a commitment) that is greater than our own cost-benefit maximizing episodic calculation.
Michael also asks why I assert that "It is difficult to imagine marriage maintaining its privileged status (as I believe it should) twenty years from now if a significant portion of the population is ineligible." Our society is on the path toward extending full citizenship to gays and lesbians, and I do not think there is anything that can knock us off that path at this point. I have not seen compelling arguments as to how full citizenship can be maintained without extending the same rights and privileges as heterosexuals enjoy in terms of the state's support of their intimate relationships. (I'm talking about as a matter of politically persuasive justification, not as a matter of constitutional right.) For those who oppose SSM, the challenge will be to articulate (in secularly accessible terms) a distinction between opposition to SSM and opposition to interracial marriage. The categorically procreative / biologically unitive argument is unlikely to do the trick. If the compromise position becomes civil unions for same-sex couples, my fear is that civil unions will become the non-discriminatory norm, and that the state will eventually get out of the marriage business entirely, leaving it as a relic of "illiberal" religious communities. For some, maybe that's the "least bad" choice, but to me, that would be a shame.
The status quo will not hold. Gays and lesbians are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles. The shift in attitudes on homosexuality from my parents' generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next. From what I've seen thus far, moral opposition to homosexual relationships is just not conceivable to 98% of the law students I've taught. I don't think a two-tier system is a long-term solution: eventually the most inclusive form of state-sanctioned commitment will win out, either because citizens vote with their feet or because the state decides that it no longer has a legitimate justification for maintaining the two-tier status. My question is, what do we want marriage to look like 20 or 50 years from now, and what is the most likely path by which it will even remotely approximate that vision? If same-sex marriage is not an option, what path should we take?
Monday, June 9, 2008
With respect to the conversation initiated by Rob's post on Friends with Benefits, my colleague Elizabeth Brown suggests that part of the reason the state may choose to recognize such relationships "may be because the type of benefits that society gains are not tied to only very limited forms of relations (e.g., marriage, sexually-oriented relationships)." She states:
"Businesses and the federal and state governments, which provide healthcare to individuals, already have a financial incentive to promotion friendship and other social relationships. Research shows that not staying connected to other people through friendships and other relationships poses the same risk to your health as high blood pressure, obesity and even smoking. As staggering as that is, a trend toward smaller social networks and fewer close confidants is growing. 'More Americans in the last 20 years say that they have fewer close friends or people in their lives with whom they can discuss important matters,' says Duke University sociologist Lynn Smith-Lovin. 'What ties to a close-knit group of people does is create a safety net,' she adds.
"Doctors agree, and say that a good chat or regular girls' night out can do even more. 'Feeling cared for and supported within a social network is particularly important for women in fostering self-care,' says Todd Jackson, PhD, author of a study published this year linking high levels of social support and community involvement with healthier diet, exercise and sleep habits, among other positive effects. As a result, people who enjoy high levels of social support would cost businesses and federal and state government less money than those who fail to form and maintain such relationships.
"These benefits are not connected solely with marriage or sexual relationships. If society benefits from the formation of these social networks, then it has an interest in promoting them and preventing their current decline."
Regarding Michael S.'s response to Rob's post, I don't understand why Michael says it is "irrelvant to the state as to why someone would want to form such an association." The state is being asked here to provide privileges to these nonmarital friendship relationships, some of which privileges will impose costs on some third parties that deal with this new unit (e.g., employers). Doesn't that mean the state should have to articulate an interest in promoting such relationships before it provides these privileges?
