Comments Elsewhere

Jason:

This reply surprised me, as I had understood you to favor a full privatization of marriage. If you do favor this option, then it seems you are forced to concede my point, and to admit that government acts at best to protect, never to create, a marriage.

Well, my position is that the concept of a marriage analytically includes recognition within a community; a purely private marriage is no marriage at all. But “private” and “community” can mean different things in different contexts, and “marriage” has at least two, and probably three distinct (though related) meanings: (1) a legal construct counting the spouses as under a single household in the eyes of the government, (2) a religious sacrament sanctifying a romantic and sexual union, and probably (3) some kind of more generalized form of union, recognized within civil society, that underlies (1) and (2). I think that marriage-1 ought to be abolished, marriage-2 is purely a matter for the churches (and has no meaning at all outside of the kinds of sanctifying rituals that churches are or aren’t doctrinally open to), and I don’t have very strong opinions about marriage-3, for a variety of reasons.

I would find this strategy [of striking “marriage” ought of the law books and punting the issue to case-by-case decisions in family court] both impractical and disingenuous. I want a set of rights and obligations that are basically identical to those of married heterosexual couples; as such, I feel I should be up-front and honest about this desire. I also mistrust a patchwork or piecemeal solution for two reasons: 1) Many of the most important rights — including immigration protection — will almost certainly never be obtained short of full civil marriage, and 2) A patchwork of rights and protections is both substantially less convenient for those seeking to obtain them — and substantially easier to revoke than an actual marriage. Notice how in Massachusetts, even those seeking to repeal same-sex marriage are not proposing to nullify the marriages that have already been contracted.

(1) Careful with the language here: if you think that gay marriage already exists even without government recognition, then you already do have a set of rights and obligations basically identical to those of married heterosexual couples; the government just fails to recognize the rights and obligations that you really do have. So what you want is for the government to respect your rights and recognize your obligations, not for you to get those rights and obligations.

(2) I don’t understand why you think that the strategy of punting the issue to case-by-case family law is disingenuous. I’m not proposing that gay marriage advocates conceal what they are about; what I am suggesting is appealing to people’s better natures, and their likelihood to understand the issue better when it’s a matter of understanding particular situations in real people’s lives than when it’s a matter of a cultural-religious turf war to be debated and legislated on. If folks tend to get it better at the level of particulars than at the level of universals, then dialectic should start with the particulars; but that’s a matter of seeking better understanding, not a matter of sidestepping understanding.

(3) I think that “many of the most important rights” discussed in these debates actually ought to have nothing to do with marriage at all in the first place. Exemptions from immigration restrictions are a chief example: the solution is an open border policy, not fiddling with marriage law. You might say that gay marriage has a better shot than open borders at political success in the near future. Fine, but so what? The best direction for political conversation isn’t always determined by the easiest option.

(4) I don’t know whether “a patchwork of rights and protections” is an apt phrase to describe what I’m advocating. What I’m advocating is a common law approach to the issue instead of the ex ante statutory approach that the entire contemporary debate over gay marriage presupposes. Part of the reason that I advocate that approach is practical: I think it will work better, will make it easier to make marginal gains rather than praying for the one decisive blow, and it will minimize the damage in cases where it fails. But part of it is also that I think that the current notion of “marriage,” as recognized in law, is itself a patchwork of a number of things that do not essentially belong together, and including a number of things that shouldn’t exist at all. It’s not that I’m advocating a patchwork; it’s that I think we already have an ugly, motley thing and I’m suggesting we unravel it.