By this I don’t mean that I think it’s a hard call whether or not the institution of marriage should be opened up to same sex couples. I think it should, simply because the only justification for limiting legal marriage to different sex couples is homophobia, or a virulent form of heterosexism.
What I think is hard is what to do once same sex couples can get married. Winning the right to marry doesn’t necessarily entail strong support for marriage itself. Sure there’s a problem with the way the military discriminates against gay men and lesbians, but our opposition to “Don’t Ask Don’t Tell” (DADT) doesn’t necessarily entail a commitment to enlist should they lift the ban – does it? We can both condemn the homophobia that underwrites DADT and have principled reasons for why we wouldn’t want to serve in the military, don’t support the wars the U.S. is now fighting, and/or have a full stop commitment to pacifism. These views aren’t necessarily inconsistent.
Now that same sex couples who had their marriages solemnized in California or Massachusetts will have their marriages recognized in New York State, is the decision to marry for committed couples an easy one? Putting romance aside for a moment, there are substantial financial benefits to marrying. Say you’re not married to your partner and you make out a will that devises some or all of your estate to that person. In all likelihood, you will have to pay tens, if not hundreds, of thousands of dollars in estate taxes (depending on the size of your estate) – taxes that you would avoid if you were married. Similarly, if you’re not married and you devise some or all of your estate to your partner your executor may have to track down family members with whom you have had no contact for years – even family members you didn’t know existed – before the will can be probated because your “next of kin” have a statutory right as “heirs at law” to contest the bequest to your partner and not to them. Your estate wouldn’t have to take the time and considerable expense to track them down if you had left your estate to your legal spouse.
So, as a friend of mine recently said: why shouldn’t we take advantage of the favorable tax treatment married people receive? (So much for the marriage penalty.) Even if you have a political critique of the institution of marriage, why should you be denied the opportunity to give those assets to a charity of your choosing rather than being forced to give it to the public charity called the department of defense?
This is a hard question, and I think different people will answer it differently for themselves. What it suggests to me is that winning the right for same sex couples to marry only starts the work we have to do, not ends it. Once the sexual orientation-based discrimination is removed from marriage, it gives us the opportunity to look at other marriage-related issues that are desperately in need of reform: the arcane legal structure that grants narrowly defined legal heirs a stake in your estate, whether you want them to or not; the preferences that married people gain that are denied unmarried people (extra vacation time at work for a honeymoon, the ability to name your spouse and not your mother or your sister or your best friend on your health plan, etc). Nancy Polikoff’s new book Beyond (Straight and Gay) Marriage is the best thing out there that moves the debate to the next level of thinking beyond marriage itself. Check out Polikoff’s Blog for more discussion.
If I were weighing the costs and benefits of marriage I’d come out on the side of not doing it – I find the institution too problematic. After all, we make decisions all the time that amount to living our values at a cost – for example, we invest our retirement savings in socially responsible funds rather than Halliburton, and give up some investment return as a result. I’m ok with that.
But I think those of us who care about marriage equality ought to push the issue to the next level, now that we can get married in a few states. Just because we can, doesn’t entail that we should. It’s a hard question that deserves more thought and debate than the marriage equality movement is now giving it. When you think hard about this issue, the injustice of denying same-sex couples the right to marry is the low-hanging fruit. Confronting the harder issues of the privileges married people enjoy is a much more complex task.
This issue is not difficult. Is there any physical/natural purpose — answer no. Implication it is wrong. Case closed. Quit making the simple difficult.
In a highly imperfect context, compromise and trade-offs are inevitable. In order to vote in the US, I became a US citizen, even though I had several misgivings about exiting the category of resident foreigner in the midst of an immigration policy that ruthlessly excludes the disadvantaged. Similarly, I have heterosexual friends who got married even though they thoroughly oppose the exclusion of same-sex couples from legal marriage because they could not reasonably afford to forgo health care coverage. In this light, we could approach this question of same-sex marriage as a gateway into a much broader discussion about social change. What transformations are needed such that legal marriage would become increasingly irrelevant? For example, if we had a radical redistributive policy, which entailed aggressive estate taxes, inheritance would be reduced to the transfer of symbolic goods, rather than capital. Blood ties would no longer matter that much in this regard, and resistance to the redefinition of kinship would probably be reduced.