Tuesday, May 26, 2009

A Compromise on Same-Sex Marriage

When noted conservative thinker Cal Thomas suggests that it may time to give up the ghost on same-sex marriage, those on the right need to consider a compromise. As one who considers himself conservative on many of the great issues of the day, I feel we need to compromise and find a common ground. Those on the right need to provide solutions and not merely stand against the changing tide. This is not a fight they can win merely by saying, "don't do that." To begin to move forward, I propose what I will be calling the Vermont-Connecticut Plan. In both Vermont and Connecticut, same-sex marriage is on a clear path to legality. Yet, at the same time, traditional religious institutions which oppose same-sex marriage are being protected under the law. I shall explain.

Same-sex marriage is legalized, even if in name only, as an institution that can be performed by any justice of the peace. But, religious organizations which hold contrary beliefs and oppose same-sex marriage are protected and not required to perform such ceremonies. One may argue that this is unfair and allows for bigotry to flourish. I disagree. We do not require Roman Catholic hospitals to perform abortions and we do not require Jewish butchers to sell pork. Why then should we require Roman Catholic or Southern Baptist churches (for example) to perform marriage ceremonies that they diagree with. We do not intervene if a Roman Catholic church decides not to marry a couple because one of them had a divorce? Why then should the state intervene here? Vermont's religious clause is exactly the type of wording that would make sense and provide a solution that is the best for all parties. It will allow same-sex marriage to be legal, but would allow for traditional religious institutions to remain unaffected by the new requirements.

One of the fears of social conservatives with regards to same-sex marriage is potential harm it could have on the traditional family structure. I do not believe it poses a grave threat to the traditional family. I feel that if there were more prominent same-sex couples allowed to have traditional families with two parents and children, it may strengthen the American family and our State. The benefits of marriage include on average higher incomes, decreased cases of domestic violence, increased overall happiness, and it becomes less likely that their children will be involved with drugs and / or fail in school. These benefits extending into the homosexual community can only strengthen the family unit and the State as a whole. There are also increased tax revenue benefits, as discussed in a detailed study by New York City Comptroller William Thompson, but I digress.

To strengthen the American family unit, we need to focus more attention on prevention of familial collapse. How do we do this? One way is to make it all around more difficult to get a divorce. Maryland currently allows no-fault divorce. Removing these laws may deter some people from jumping into marriage to quickly and without thought. A waiting period for obtaining a marriage license may also help. A more practical approach may be through the institution of covenant marriage legislation. A covenant marriage is a stricter marriage where both parties agree that divorce can only be obtained for very few circumstances - primarily abuse, conviction of a felony with jailtime, or adultery. Allow both heterosexual and same-sex couples to participate and provide them with some added tax benefit to entering into such a contract. A marriage contract that has fewer means of termination would promote seeking marriage counseling before immediately giving up on a marriage.

Now, I cover a great number of topics - so allow me to summarize my thoughts. As a state we should grant legal recognition of same-sex marriage, but allow religious institutions to maintain independence and never force them to perform ceremonies. In addition, we should redouble our efforts to protect the family unit by allowing all couples to enter into covenant marriages if they so choose and considering a longer waiting period before a marriage license can be obtained / go into effect. As always, opinions are not only welcomed, but encouraged. I hope to spark debate and discussion on this topic so that we can move forward with compromise that is amenable to all groups.


The Only Sensible Man Alive said...

I don't feel as though changing divorce laws is really the way to improve familial relations.

When divorces are harder to obtain, it inflicts casualties on innocent people who enter into a marriage in good faith, only to find that their partner has not.

They may not wish to or reasonably be able to initiate fault proceedings, preferring a clean break over a messy and possibly expensive court case.

The facts of proving spousal abuse or infidelity may be difficult to obtain even when it is reasonable for one partner to determine they have occurred.

Whatever negative consequences one may divine from the existence of easily-acquired divorces, the freedom to leave a marriage at well is a boon to those who truly need it--and they are rarely aware that they will before the enter into the arrangement. Marriage casualties that occur as a result of this aren't a matter for governments to tackle, relationship success, even in the face of marriage, really should be a matter of personal responsibility. People do still, well and of their own volition, enter marriage counseling; while attempting to deter people from entering into a contract by the promise of difficulty escaping from it later is rarely an effective tactic.

Also, nobody taken seriously in the same-sex marriage debate honestly believes that any religious institution should be forced to perform any marriage. Greek Orthodox churches are not forced to wed heterosexual Roman Catholic couples; the suggestion that they would be forced to wed homosexual couples doesn't stand up to scrutiny.

Albany Lawyer said...

The sad truth is that most opponents of gay marriage are driven by hate, and perhaps irrational fear. The notion that my marriage is threatened by gays is ridiculous.

Try to find how their arguments differ from the arguments against interracial marriage.

M.R. Newman said...

It is not that I feel that churches would be forced to wed same-sex couples, it is that many on the right do. Making the letter of the law clear on that regard will only remove some of those fears and make them more receptive to the idea of legalized same-sex marriage. They may not support it in the end, but they would be less likely to fight it as harshly.

I agree with you on limiting the number of outs in a marriage - which is why I propose the institution of covenant marriages. And, instead of the usual route - I think covenant marriages should only be allowed to be entered into after at minimum 5 years of marriage. I also think all couples should be allowed to enter into them.

It's great to see this sparking discussion.

The Only Sensible Man Alive said...

I'm bolding section heads to make this easier to read. It got long.

Gay MarriageI don't feel like that's a concession that earnestly needs to be made. Explicit statutory language which is identical to protections already provided can confuse an issue which is already cut-and-dry.

Moreover, most of the confusion about this comes from dishonest propaganda. If you've seen the NOM advert, there are references to the New Jersey case where a church which had set up a station on public land was revoked its right to use that public land for refusing to allow a gay couple to wed there. The issue at hand there was that the property they were renting on was public property, and that the church could not hold it for their purposes while denying use of it to certain members of the public for discriminatory reasons without losing their tax exemption for that particular use. In their private church, they were free to continue doing so without penalty, but operating that station on public land meant that it had to be equally open to all members of the public, or that the costs associated with it were taxable.

The other case commonly referred to is the "California doctor" case. The presentation of this, especially direct in the NOM advert, is that the doctor's right to practice is being somehow threatened by gay marriage.

But this particular citation gets really to the heart of the issue: discriminatory treatment. The reason it is not permissible for a doctor to refuse to provide standard treatment based on color, creed or sexual orientation is that it may be unreasonable to find another doctor capable of providing the same treatment, and the reason for refusal is not medical in nature.

Worries about individual liberty in this case are overruled by the ability of a single individual or a small group to run out a population by denying them basic services simply because they are disliked--thus effectively denying them the freedom to live where they choose. This would be the same issue if gay couples were denied power, or water. We would not stand for that, neither should we stand for this.

The reason this case hits especially hard is that it is presented as a case against gay marriage, and yet it has nothing to do with gay marriage. Medical treatment and diagnosis is not contingent on one's marital status, the two are independent. The heart of this campaign is this: We should be allowed to treat gay people differently because of religious freedom.As pertains to religious activities, I totally agree. Officiating a marriage? Baptizing? Confirming? Sure. If your religion says don't do it, don't do it. But religious freedom doesn't extend to everything. Denying people a valid marriage license contrary to law, refusing medical treatment, restricting educational opportunities (see the `homosexuality shouldn't be taught about in schools because it's against my religion and undermines my ability to teach my kid exclusively what I believe is right and no other view point` argument), and the list goes on.

On principle, I cannot in good conscience acquiesce to including unnecessary language which, in effect, cedes ground to blatantly dishonest propagandists. It is against my nature. If many on the right need to continue to try and stonewall until their position is so marginalized as to be untenable, that is really not my problem.

The Only Sensible Man Alive said...

Covenant Marriage
My feeling is that this suggestion of covenant marriage does not, really, ameliorate the concerns I have about access to divorce in general. Proving emotional abuse to legal standards can be difficult even in the face of a persistent pattern, proving adultery to legal standards can be quite difficult as well, and the need to pursue such a court avenue would tend to discourage abuse victims from seeking divorce. The ability to initiate and carry through divorce proceedings without a burden of proof is, as mentioned, a strong defense for those who truly need it, and modern jurisprudence and the American legal tradition is based upon the idea that protecting those who truly need protection significantly outweighs the concerns of abuse.

This is where the event of murderers walking on procedural problems comes from--we are steeped in the notion that it is more important to protect innocent people from procedural abuses than to successfully prosecute guilty people who have been procedurally abused.

I'm also not sure that covenant marriages address the problems you're looking to address. The dissolution of a marriage with a long history--a decade or so--behind it does not tend to be spontaneous or poorly thought-out, and rarely comes without attempts to reconcile or repair.

The great bulk of divorces also come from the 18-29 age range[1], and these are people who, on the whole, have generally not been married long enough to qualify for covenant marriage by your definition.

I'm also going to, briefly, restate my argument that I don't feel that a legal remedy, such as the institution of covenant marriage is a proper way to address concerns about building strong families.

There isn't consistent agreement on what produces a strong family, and the existence of a marriage, regardless of legal strength, does not provide per se strength of household. A couple who has entered into a covenant marriage who fight and swear at each other consistently around their children, and vent their frustrations and shortcomings upon their children in a way that does not quite meet a legal standard for abuse but do not seek divorce for legal difficulties are not likely to produce well-adjusted children, for example, or to be considered a strong family by any metric except length of marriage.

Conversely, parties who are not legally married (as polyamorous groups) but band together to form ad hoc families may and do in turn sometimes form very close, strong familial bonds and produce well-adjusted children, and engage in healthy, happy and long-lived relationships.

Handling such situations with legislation is generally infeasible, and unlikely to improve upon these scenarios. It is also generally the case that such incentives promote a particular style of family unit, while marginalizing and diminishing other potential family styles.

The longevity of the single-life-mate-based family is not evidence of its effectiveness or it being an optimal scenario. If we are concerned about ability to provide care and attention, the addition of extra wage-earning care-givers above two parents should improve situations, while having one or no parents should dramatically lower expectations.

This is clearly not a generalizable hypothesis. Counter-examples are abundant. The need to reinforce a particular family structure seems mostly derived from tradition, and whatever your personal feelings are on its optimality, it has not been demonstrated in rigorous fashion.

Repressive polygynous structures are not a suitable demonstrative point against poly-partner structures versus bi-partners in general, in particular, and the legal stratification of bi-partner structures tends to marginalize and exclude those who engage in such poly-partnerships--it provides that bi-partnerships are worthy of exaltation and incentives over singletons or polys.

The Only Sensible Man Alive said...

I suppose what I'm really driving at is that the sort of legal institutions you are driving at for two-partner families, by affording them special legal recognition, tend to raise them above alternate family modes that are also valid, and also provide blockades of exit to people who may come to genuinely need those routes to divorce that a "covenant marriage" would cut off. In a legal tradition that has a well-established foundational principle of protecting people's rights even if they may be the minority--even if it hasn't come through for us with gay marriage yet--such an institution is an unbidden can of worms.

Sorry, had to split that into three posts to make it all fit. @_@