I was doing some thinking today about those who agree that same sex couples deserve equal treatment under the word law, but think that the term "marriage" should not be used. This is the idea that states would simply issue something called a civil union or some other new term. Let me share why that is an incredibly bad idea and almost certain to be expensive and nightmarish. I don't think that anyone has really thought this through.
Let me tell you about my friends Laurie and Janice. Laurie and Janice got a civil union in Vermont years ago, and now live in Pennsylvania. Do you know what Pennsylvania regards their relationship as? Absolutely nothing! As far as this this state is concerned, they are strangers.
A side note about the so-called Defense of Marriage Act that was passed in 1996. The folks who passed it didn't think about all of the ramifications, in my opinion. So, if states don't have to recognize marriages performed in other states, then that means that the 2 people are not in a valid relationship in at least some states. Pay attention! If you're not in a valid marriage, then that means that you are single, and thus free to enter into a new marriage without dissolving the existing one.
So therefore, there is nothing that bars Laurie and Janice, who are in a civil union from Vermont's perspective, but are single from Pennsylvania's perspective, from either or both marrying a man here in Pennsylvania. A same sex couple that had gotten married in Massachusetts could do the same thing. They would be committing bigamy in Massachusetts, but not here.
Do you see why DOMA creates the potential for legal chaos? One of the reasons that states have always recognized marriages in other states, even if they could not have been performed in that state, is that at least 2 people have the same legal relationship no matter where they are, and the questions of "who is my spouse?" and "what is my marital status?" do not vary based on geography. Married in one place is married everywhere. If you are of legal age in Ohio, but not Pennsylvania, but then get married in Ohio, Pennsylvania still counts you as being married, even though PA wouldn't have allowed you to get married in PA.
So, let's say that Vermont doesn't issue marriage licenses anymore, but just civil unions. That means that ALL couples, gay and straight, are stuck in the same legal limbo. Let's call this the Laurie and Janice Problem - "we have a relationship that is recognized in only some places, but not all." (Sorry to pick on you, ladies.)
This is the crux of the problem; when you create a new term/legal category for relationships, you open up the possibility of discord. Bear in mind that there are laws that deal with marital status throughout the federal government, all 50 states, DC and US territories, counties in all states, and municipalities in all of those counties in all of those states. If we come up with a new term, you basically have to do it simultaneously for ALL laws at ALL levels of government, or every couple, gay and straight, will inherit the Laurie and Janice Problem. It sounds like there will be a lot of legislators researching and voting on laws that don't add any new functionality, and therefore not working on other problems. Does this sound like an intelligent use of your tax dollars?
Now how about existing marriages? We would need to modify legislation (again, all levels of government, every law) to address both existing marriages and whatever the new term intended to replace it. This would be more of your tax dollars and legislators' time being spent.
Example: Mark's parents are married and living in New Jersey. New Jersey passes a law that everyone just gets something called a civil union as of January 1, 2010. Mark meets and falls in love with Alice in 2011, and they set the date for mid 2012. New Jersey is now calling everything a civil union. Mark and Alice thus have a civil union (from New Jersey, since New Jersey decided that we just wanted to use the new term - for everybody), but Mark's parents still have a marriage (and not a civil union - the term didn't exist when they got together.) So now, we have two straight couples, and also two different terms for their respective relationships, plus maybe conflicting or confusing laws covering those relationships. Did New Jersey and every county and municipality therein changed all of their laws to include civil unions? If not, Mark and Alice may be headed for problems. Did any law get changed that forgot to include married or did someone just change married to civil union? If any laws just use the new term, then Mark and Alice are okay, but Mark's parents might be in trouble. Multiply this by all federal and all laws in other states.
What about if some state slips up and uses a slightly different term than everyone else? Count the number of terms that would refer to something like a marriage. Right now, we have 2: civil union and marriage. This represents the number of spouse-like relationships you could enter into, provided that you entered into them in the correct order. And you have also opened it up to both opposite sex and same sex couples, because you are replacing the term for everyone in that state. In the example from above. Mark gets a civil union with Alice in New Jersey. Things fall apart and he moves to Pennsylvania. Let us say that civil unions haven't been implemented yet in Pennsylvania. Mark could marry Elizabeth, since he is not married, and civil unions are effectively treated as non-existent in Pennsylvania. Maybe Utah decided to use the term sacred bond or something else. That means Mark could stop off in Utah after getting the civil union with Alice in New Jersey, and before marrying Elizabeth in Pennsylvania, and possibly get a sacred bond or whatever the Utah term is there, since he would have a term that didn't mean anything under Utah law, and since he wasn't legally married.
What happens if a state simply refuses to pass legislation throughout the state to adopt the new term? That means that ALL couples, gay and straight, are back to the Laurie and Janice problem, quite possibly for a long time. In the example above, Mark gets a civil union with Alice in New Jersey, moves to Pennsylvania, which refuses to change its laws. Mark and Alice live together happily for 40 years in Philadelphia. Mark dies and Alice is effectively a stranger, from a legal perspective, since they were in a civil union, not a marriage, and Pennsylvania never recognized that form of relationship.
How about all of those paper forms, computer software and everything else that refer to marital status? Those would all have to be modified. I work for a company that processes payrolls. We have folks running on 2 different versions of the same software. This would mean that we would just have to use "married" anyway, or modify/install software that reflects the new term or terms.
How about international law? If everyone in Vermont can only get a civil union, what does Canada, which doesn't even have that term, do if at least one member of the couple goes there or interacts with Canada? Congratulations! All couples, gay and straight, have just inherited the Janice and Laurie problem both domestically and internationally! Mark moves to Greenland, which has provisions that cover his legally married spouse. But Mark isn't legally married to Alice, he is just in a civil union. Greenland therefore could easily regard Mark and Alice as having no relationship at all. Just about all of the treaties that we have with other countries probably only deal with marriages. What happens when there are other legal relationships that are undefined in the other countries?
Basically, if you are a lawyer with a lot of time on your hands, or a print shop, or a computer programmer, creating a new legal term to refer to refer to what we now know as marriage means lots and lots of money.
Is anyone seriously trying to suggest that people in everyday usage won't use the term "married?" Straight folks are going to continue using the term "married" when referring to themselves, as will gay couples. Sure, you may feel that same-sex couples aren't equal to opposite sex married couples. Of course, you might also feel the same way about interracial or interfaith couples. Nothing stops you from looking down your nose at others, but nothing allows you to deny everyone equal protection under law.
In short, suggesting that we just have a new legal term that represents what we currently know as marriage is just about the most unworkable, ridiculous and expensive idea possible! People weren't comfortable with women and racial minorities being included in the electorate. Eventually we see that it only strengthens the political process by including everyone. It is intellectually dishonest to recognize that people deserve equality and then try to use some artificial term that screws over everybody.
Michael,
While I agree that the DOMA may bring the chaos out into the open, I think that the chaos itself is a result of states taking views of marriage which are too divergent to allow common recognition of all marriages.
Some differences about who can marry can be accomodated. For example, if one state says the age of consent should be 16, and the other says it should be 14, the law is just a matter of what people think is wise. There is no reason one state should recognize the marriage that is contracted in another state, even if the couple involved would have had to wait.
A difference such as marriage between first cousins (legal in some states, not legal in others) is bigger, but still manageable. The Bible permits first cousin marriages, and I don't think any other religious texts forbid it, so that restriction again appears to be a matter of prudence, not religion, and one state can recognize the marriage that is performed in another state.
However, if one state passed a law allowing a brother and sister to marry, other states will likely not recognize that marriage if the relevant facts come to light. Similarly, no state recognizes a polygamous marriage from another country, and if one state permitted polygamy, other states would not recognize those marriages.
So I think that the DOMA is not the cause of the problem; rather it is the symptom of the confusion that is caused now that there is an attempt to redefine marriage to include couples of the same sex.
In the end, I think that we will end up with two alternative visions in conflict. One one side, you will have "traditional, monogamous marriage."
One the other side, adding same sex unions will not be enough. Polygamy will logically have to be accepted (how can you logically stick to thenumber two once you have stopped insisting that a couple be male and female). After that, someone will ask why the basis of marriage must be sexual. For example, why can't a woman someone "marry" her sister? It's not about sex after all, she just wants the legal benefits that come with marriage, and she wants to get her sister on the medical plan that her job offers. At that point the whole idea of marriage will go entirely up in smoke.
Sorry, Ray. It has always been the law in the US that states regulates marriage, and that all states recognized each other's marriages. DOMA introduced that bit of non-discordance at the federal level, which had never been an issue before. Those issues were potential points of conflicts, but the "married in one state, married in all states" thing kept that in check. DOMA broke that.
Religious texts don't apply. Does that mean that opposite sex couples who are atheist or agnostic or don't have a particular affiliation also have no rules? Are they not allowed to be married because they don't have a house to worship to go to? That doesn't quite jibe.
Sigh. People made the same lame arguments about siblings, interspecies and other ridiculous straw man objections when interracial marriage was controversial. A marriage is a civil contract between 2 adult human beings. Inanimate objects, minors, and animals can't enter into contracts of any sort, which includes marriage.
The argument about polygamy is also specious. By the same ridiculous argument that same sex couples leads to polygamy, then if your argument is for males and females to procreate, then non-fertile women (like my Grandmother) can't be allowed to marry. If this is based on Biblical texts, then where does that leave non Christians, particularly those who are non-Jewish to boot?
Traditional monogamous marriage: So if heterosexual married couples choose to not be sexually monogamous (and I know a few who fall into that), are they no longer married?
How much less committed will you be to your wife if there are same sex couples? So, if you travel to Massachusetts or Connecticut, will you get divorced? Wow. You make it sound like straight couples pretty much follow a herd mentality. I find it odd that people arguing to keep special rights for opposite sex couples never seem to be able to find an actual example of these "fragile heterosexuals." The same folks who were clueless for decades about Lily Tomlin, as an example, are being impacted by people that they have never met and can't identify.
I certainly hope that you don't read too many murder mystery novels if that's the case.
Michael,
I think you may have read more into my post than what I wrote. Obviously I have written more elsewhere, and maybe that has colored your opinion of what I have written here.
Anyhow, here I am trying to step back and be objective, even though on many things we obviously disagree. I half agree with your assessment of the DOMA. I agree that it will contribute to chaos. Where we disagree is that I think it is more a symptom of pre-existing chaos than a cause of the chaos.
To put it simply, and I hope less controversially, as long as the differences in marriage laws are relatively minor, states are comfortable recognizing other states' (or nations') marriages. However, When the differences get bigger (i.e. polygamy; since neither of us is in favor of it, we should be able to discuss it cooly), some states will not want to recognize other states (or nation's) marriages, and there will be either chaos or conflict.
If Utah, for example, had been able to come into the union allowing polygamy, then other states would have had to deal with polygamous mariages whenever a Utahan moved to another state. I do not know if federal law REQUIRED that states recognize each others' marriages, but that has been customary. Utah threatened the ability of states to recognize each others' marraiges, and in the end, the Mormon Church renounced polygamy as the price of admission to statehood for Utah.
In a way this is parallel to Dred Scott, where a slave-holder decided to bring his slave with him to a free state. Abraham Lincoln observed the problem, and said that "a house divided against itself cannot stand." The USA would have to be either a free or slave-holding nation; it could not logically be both.
DOMA seems to be a way of keeping the conflict over the definiton of marriage from "going nuclear", as it would have if a polygamous Utah entered the Union, but as you note, it does have other problems. I think that in the end, the definition of marriage will have to be agreed upon in all 50 states, or we will end up in a chaotic situation like you describe, whether we have DOMA or some other law.
I am glad that we can agree on some things. The Federal law that requires states to recognize each other's marriages is Amendment 4 to the US Constitution, commonly known as the Full Faith and Credit Clause. It's not just a nicety the states recognize each other's legal contracts, laws and judgments - it's in our Constitution.
Please understand that when people bring up issues unrelated to equal marriage rights for same sex couples, like incestuous marriages or polygamous ones, it creates a false equivalency between those situations and the one that we are talking about. After all, if I were to opine that since Christians consume something in a religious setting that represents the body and blood of Christ, who knows how long it will be before they turn to actual cannibalism? That question is, of course, absurd and offensive. Having marriages of same sex couples mentioned in the same breath as the others you mentioned is equally as offensive.
Can I just point out the irony of bringing up polygamy as an issue when the Mormon church so heavily campaigned against equal marriage?
Still missing, however, is any concrete example of actual heterosexual couples willing to admit that their own marriage would suffer if same sex couples had equal rights.
Massachusetts has one of the lowest divorce rates in the nation. It had that before 2004 and it has maintained it since then. If equal marriage rights for same sex couples threatened opposite sex couples, shouldn't it be higher than average, as opposed to lower. Furthermore, those states that are the most opposed to equal marriage rights include those states with the highest divorce rates. The argument that equal marriage rights for same sex couples somehow harms the marriages of opposite sex couples is demonstrably false. Those sets of numbers would be reversed if that were true.