The law, folks, is not in the business of deciding what “society” deems proper, but what the legal rights and responsibilities of parties subjecting itself to its procedures happen to be, based on a general concept of freedom modified by the need to interrelate in legitimate ways.
Suppose you want a candy bar, and I own a store which has candy bars on the shelf marked 79¢. So you walk up to the county with a candy bar and a dollar bill, hand them to me to ring up, and I take the dollar bill, put it in my cash drawer, say, “Thank you,” and put the candy bar back on the shelf. You would presumably be outraged.
Why? Because there is an implicit contract there. I’ve offered candy bars for sale for 79¢, and you’ve agreed to buy one for that price. (There’s an inference that you expect me to take your dollar bill and make change, but that’s to one side.) Why is this a valid contract? Because the law says so. Because your dollar bill is legal tender – I would not be obligated to take your personal check, or a printout of the Straight Dope FAQ, or some other piece of paper, in payment for that candy bar.
The law, whether you like it or not, uses the concept of “marriage” as a convenient way of describing the agreement made by two people to live together, share common goods and services, have a right to depend on each other according to a set of parameters embracing the usual customs of that state, provide for minor children that they may engender, adopt, or come in some other way into custody of (fosterage, guardianship, etc.), and dispose of the property they own, separately and together, according to another set of parameters. It does this because the majority of people find “marriage” a useful way to make and take the commitment they feel towards another into a legally binding, legally and socially accepted relationship.
That, Fenris, is why the law should be involved. Because no individual is going to be completely cognizant of every possible event that might befall him and make provision beforehand, and the majority of people need some trigger to cause them to make provision. I would venture to guess that no more than half this exceptionally thoughtful group (the Teeming Millions who follow Cecil Adams) have in place a will, a living will, a durable power of attorney, and a prospective assignment of custody for any minors that they may be in loco parentis to. I would guess that none of our teenage members, thoughtful as they are, have such documents in place, despite the fact that they are just as likely as any of the rest of us to need one of them.
Now, given this much, and raising the question of “marriage” as a civil institution, the next step is to determine why people might marry.
The answers are manifold, but they boil down to “because, in some way, I love this other person, and want him/her to be the person with legal rights over me if I am incapacitated and legal rights to what I own if I die.” Even the most hardhearted marriage of convenience is founded on some form of caring between the parties involved. (BTW, this need not necessarily mean romance. Apropos the “consanguinity” argument raised above, I’d like to nominate as a “good” marriage my aunt and uncle. They were first cousins, he having left his fundamentalist parents in his late teens and moved in with my grandparents, his aunt and uncle, who helped him find the work he retired from 40 years later and effectively became his “second parents.” The two, my mother’s cousin and her sister my aunt, lived together as, effectively, brother and sister for 40+ years, with my grandparents until their deaths and then by themselves after. She worked only sporadically, keeping house for my grandparents, and doing some in-home care after they died. When he came to retire, and was dealing with his estate, she was comfortable but not well-to-do, and he discovered he would leave her some paltry savings but no income, his pension covering only him and his hypothetical widow. He suggested they marry, she accepted, and they had a happy year as man and wife in their 70s before he died of a chronic illness – one day after her rights as his widow came into effect. (I will tick atheists off by suggesting God had a hand in protecting her by that timing, but I’m convinced He did.) (Note 2: In New York first cousins may marry, but only when children are not a potentiality – which applied for them.)
Were marriage solely for procreation, then it would be not only legal but mandatory for every man to divorce his wife at menopause and marry a nubile young woman who could continue to give him children. Older couples who persisted in remaining together out of “love” when they could no longer beget and bear children would be arrested and charged with fornication and maintenance of a public nuisance. Polygyny would be legalized since any one man can beget children on many women.
For some obscure reason, this argument does not sit well with those who feel that “marriage is for procreation” – especially those who think that God ordained it that way.
Marriage is a formalization of a commitment to continue loving. That is what it is, and what it should be.
Now, contemplate the difference between gay and straight people. The objects of sexual interest and love are the sole differentiating factor drawing that line – for a gay person, the sex object, and mostly the person with whom one falls in love, is of the same sex. For the straight person, he/she is of the opposite sex.
My conclusion is that gay persons should have the same civil right to marry the person they love as straight persons. (The old argument that gay people have the same rights as straight people – to marry someone of the opposite sex – needs to be put down. I think it was Voltaire who once commented that rich and poor people alike have the same right to eat moldy bread and sleep under bridges on winter nights, but only poor people take advantage of that right.)
I do not debate that “what society thinks” has a great deal to do with the law. But good law is founded, not on what society thinks is normal behavior, but on what society considers that each individual has the right to do. If I had the right to marry the woman I loved and to commit to spending the rest of my life with her, supporting her and being supported by her financially, emotionally, and so forth and so on, then gobear has the same right to marry the man he loves – if he’s prepared to make the same sort of commitment. Anything else is unjust.
And I’m 100% on the side of “separate but equal isn’t” – because it never is.
Barb and I can go anywhere in the country and have our marriage legally recognized, own property in any state in the expectation that it will pass to our spouse on our death, know that if I’m comatose from an accident in Mississippi she will have the legal right to act as my next of kin. George and Fred, Vermont residents with a civil union, do not have those rights, by (IMHO unconstitutional) Act of Congress. Separate but equal isn’t.
