Gaily We Move Along

Now, I'll state from the outset that I am a supporter of civil rights for gay couples. This means I believe that any rights and responsibilities I have gained by being a citizen and a married man should also accrue to gay individuals and couples. This does not mean special rights - it just means the same rights as me. As far as individual rights are concerned (with the notable exception of military service) the rights of homosexuals are fairly well protected by the fourteenth amendment. There may be issues with enforcing access to these rights, but the rights are pretty well defined. The rights that are not as well defined are the rights associated with gay couples. Heterosexual couples have long had a set of rights that accrues to them when they become married. These include things like joint filing of tax returns, rights of survivorship and the right to jointly carry insurance. These rights are denied gay couples. I have heard two arguments behind this. The first is a moral argument, based in literal interpretation of biblical text. The second is a question of legal process.

I am no biblical scholar. I believe my essay on Christian Fundamentalism makes that clear. I think that essay also makes it pretty clear that literal interpretations of what constitutes a sin does not fly with me. So, when I hear the outcry over various homosexuality related issues is primarily based on biblical injunctions against the behavior, I tend to tune out pretty quickly. For my reasoning along those lines, please refer to my earlier posting. I'll say that if someone is willing to accept every biblical decree at face value and without question, then they need to review the legal standing of women and the modern abolition of slavery as examples of how this literal interpretation has fallen to the social evolution of man. Regardless of my belief in social evolution and the rightness of my belief in equal protection and rights, I do recognize that churches are separate entities from government, a fact I am very grateful for. Recognizing that the church should not meddle in affairs of the state comes with the acceptance that the state should not meddle in affairs of the church whenever possible. Thus, if the various religions wish to prohibit the marriage of gays, there is little the state can (or should) do to force them to do so.

As for the second argument, the debate pretty much comes down to probabilities and "drawing a line somewhere" as a good friend and member of the bar told me. The reasoning is that every set of two people who live together is not necessarily a couple deserving of joint rights under law. For example, two people who are roommates should not have rights of inheritance, rights to visit in the hospital, the ability to be jointly insured and so on. These are rights reserved for people who are couples. The issue comes in when we try to define what is a "couple". In an effort to solve that problem, we have created the concept of marriage, which is the religious blessing of a couple. Among its other benefits, marriage bestows the rights attached to being a legally recognized couple. In addition to the religious acknowledgment of this status, there are rules regarding common law marriage, which basically recognizes that a man and woman who have spent a certain time together are granted the legal rights associated with marriage. Since I have earlier accepted the notion that the state cannot force religions to perform marriages of gays, I then turn to the ideal of some sort of civil partnership law. Here is where it gets sticky, according to my (former) lawyer friend (former lawyer that is, always my friend). Basically, the argument is that if two people are living together and they are opposite sexes, the odds are better that they are couple (as legally defined for purposes of various joint rights) than if they are two members of the same sex. This difference in probability is what causes the problem. In the absence of any objective test of "couplehood" the state has to use what objective tests it can to limit those seeking these joint rights.

Here is my objection to that test. As it stands now, marriage for heterosexual couples is little bar if any to those seeking to exploit the joint rights available to married couples. From the drive-up wedding chapels in Las Vegas, to quickie no-fault divorces, a man and woman can become a legally recognized couple pretty much at a whim, and dissolve that couple without much more effort. Thus, it is difficult for me to accept the idea that somehow these joinings are somehow more legally valid than just about anything else. I'm not saying that marriage isn't a special and sacred thing to those who enter it with good intentions, love and strength. I am saying that it is so ridiculously easy to marry and divorce in this country that to confer some special status on marriage is an ill-considered belief that all those who marry are doing so with the best of intentions.

The state has no way of determining who are deserving of status as a couple, either for heterosexual or homosexual partners. It is merely playing the odds when it says that couples of opposite sexes are more likely to be legitimate than couples of the same sex. It is playing those odds, it says, to avoid fraudulent claims of couplehood. Yet it accepts a claim of couplehood from two people who coughed up a few bucks in Vegas to have an overweight Elvis impersonator declare them husband and wife. If that is considered legitimate, I fail to see why some other legally binding status cannot be conferred to gay couples without stretching concerns over fraud any further than they are already stretched.