Archive for the ‘marriage’ Category

New York Times “Room for Debate” Post

January 20th, 2012 No comments

I was just plain delighted to have been invited to participate in one of the “Room for Debate” forums with the New York Times. The question we were asked to address:

“If more couples considered monogamy optional, would divorce and cheating be less common, and unmarried cohabitation less attractive?”

Here’s a link to the front page; here, you can find my individual entry, which looks at alternative forms of relationship recognition (such as civil unions) as a way to refresh the debate about expectations within relationships. But the whole debate is fascinating.

Marriage By Any Other Name

October 11th, 2011 1 comment

That was the title of the American Law Journal show that featured me and a couple of practicing lawyers. It aired yesterday and it now available on the web, here. Lots of interesting territory covered, I thought — better than the typical sound-bite-y news show. Reactions welcome (I think).

First Post on The New Civil Rights Movement Now Up

October 7th, 2011 No comments

It’s here. Please, trundle on over and see what you think. I’m responding to the argument from the left that marriage equality would be bad for the GLBT community. I get into how the denial of equality in marriage for women negatively affected not only married women, but all women.

Another Chapter in the History of Marriage: Slaves Couldn’t Marry

June 2nd, 2011 1 comment

Here’s the story of why this basic right was denied slaves, despite what religion would otherwise have indicated:

If further evidence is needed that marriage serves whatever the dominant political and social powers decree, consider this:

Slaves had no right to marry.

At first glance, this rule might seem counterproductive. Wouldn’t letting a slave couple marry be likely to lead to healthier kids, greater mutual commitment by the parents, and happier, more productive people in general?

Yes, and many slave couples did engage in informal wedding ceremonies that were often tolerated or even encouraged by the owners.

But formal marriages were not recognized, and the battle over abolition reached a zenith over the issue. And although analogies are always risky – same-sex couples are hardly seen as less-than-human (well, mostly) – there are some interesting parallels that grabbed my attention.

I’ll probably explore this further in a later column, but consider this: One of the most effective rhetorical arguments that abolitionists deployed against slavery was its assault on the family.  As Harvard history professor Nancy Cott writes in her excellent account of the history of marriage, Public Vows, abolitionists regarded the denial of marriage rights to slaves as “a human tragedy, and a crying affront to American pretensions to value the purity of family life.”

The argument had bite in part because of the squeeze it put on those who used religious arguments both to justify slavery and to demand marriage (at a time where many of modest means married only informally).  If marriage and family were so important, then how could these be denied to slaves?

The honest answer, of course, is that slave marriages had to denied because to have recognized slave families would have been more than inconvenient – it would have been much harder to sell away one half of a legally recognized couple.

But that’s not the answer that was usually given. Instead, there were ritual fulminations about the unsuitability of slaves for marriage, about God’s purpose in maintaining the institution of slavery as it existed, and so on.

The full post (this week’s 365gay column) is here.

Categories: marriage, Marriage Equality, slavery Tags:

Should We Boycott Straight Weddings?

May 26th, 2011 No comments

This issue has lately gotten a great deal of press. My take on it is here. It might surprise you. Hint: It’s important to separate the symbolic, commitment part of marriage from the legal incidents of it.

That Other Marriage Debate

March 31st, 2011 No comments

Marriage equality is often at the top of the LGBT rights check-list.

But what about the inequality inherent in the super-privileged status we accord marriage in the first place? This week’s 365gay column explores that very question.

The Further Misadventures of Warmed-Over Natural Law Arguments

September 25th, 2010 2 comments

I’ve spent some time going through the amicus appellate brief filed by Robert P. George et al. in the Prop 8 case. In a couple of pieces I posted a few months ago, I criticized George’s warmed-over natural law ideas, which amount to little more than convenient sophistry in defense of his preferred outcomes (including the exclusion of gay and lesbian couples from marriage.)

Nonetheless, this short and pointed amicus brief is clear and effective on its central point: We need a definition of marriage, and that definition has to be provided by the legislature (or, in the case of Prop 8, by the people). Without such a definition, everyone has a claim to be included, and there’s no legitimate basis for excluding other sorts of unions, including polygamous ones or relations between adult kin. And this definition inescapably takes in a moral dimension, as it inevitably must: What are we signaling with marriage? What is its normative, prescriptive content?

But it’s a long way from asking those vital questions to getting the answers that George et al. hope the appellate court to reach, and the argument simply doesn’t hold together. First, it’s too simple to state, as the authors do, that we have a clear definition of marriage to start (“logically prior,” as they say) and that we can then raise constitutional issues only in the context of that agreed-upon definition.

By that clinical way of considering the issue, we’d rarely be able to declare the exclusion of any group unconstitutional. So if marriage really is tied to procreation and the best interests of children (as the authors state, but in a more sophisticated way than usual), then it presumably would be constitutionally permissible to exclude women over a certain age (say, 65 for women; by the logic of this argument, we wouldn’t care about the sex discrimination involved). The authors attempt to avoid this conclusion by pointing to the natural-law-heavy assertion that men and women unite in a unique way, but why is that union important to marriage if it can’t produce children (since marriage is, again, mostly about children)? In the end, George’s natural law biases return to their moorings.

No, it’s more complicated than that: The meanings (not meaning, singular) of marriage are complex,  and subject to constant reconstruction and challenge, especially at certain watershed moments. We’re in one now. And it’s fair to say, as the authors do, that the political process has a role to play in this on-going definitional process; to that extent, the marriage equality debate has been useful to a collective consideration of the broader questions about the purposes and meanings of marriage.

But that doesn’t mean that the courts have no role to play in ensuring that those definitions are not crafted in a way that ensures the unequal treatment of certain groups of people. And, as it turns, out, the supposed clarity that George et al. find in the purpose of marriage is really just a convenient way to fence out same-sex couples. It’s obvious from what they don’t say. For example, they overlook the inconvenient fact that adult friends can marry, as long as they’re of the opposite sex. But surely such non-procreative, non-sexual unions are inimical to the purposes of marriage, as they’ve defined them. Why don’t they “weaken the links between marriage and procreation,” which the authors fear that sanctioning same-sex marriages would do?

This brief is better than most on the anti-equality side, principally because it clinically eviscerates the argument that the state should stay out of morality in creating marriage laws. Doing so would be impossible, perhaps even incoherent. But its own positive arguments for morality stand revealed as just another way to define marriage to exclude same-sex couples only – not the old, the infertile, or the non-sexual.

I’m not done. The authors also simply assert that extending marriage to same-sex couples would “convey that marriage is fundamentally about adults’ emotional unions – not bodily union or children….”

Really? As for “bodily unions,” we can see the natural law argument peeking through – and this same argument would, by the way, exclude deliberately non-procreative sexual relations between opposite-sex, married people, as well as all sex between a “whole” and a seriously disabled person (who lacks not only procreative capacity but the “equipment” needed for the task); the latter, according to their theory, shouldn’t be allowed to marry, either. But don’t expect to hear them arguing against such unions – unless the couple also happens to be gay.

As for children, we have yet another case of the anti-equality forces completely overlooking the welfare of the children in families headed by same-sex couples. But these authors go further, and overlook the very existence of these children – after all, the union of their parents is about their “emotions,” not about their kids. It’s quite apparent that none of the authors has spent any time around our families.

In short, there’s no principled way of excluding only our unions from the right to marry. It’s precisely for that reason that courts have come to recognize that what really lies at the bottom of the opposition is a kind of natural law argument that, on the most basic level, reduces to: “Ick!”

The Long View on the Malawi Pardon

May 31st, 2010 No comments

My instinctive reaction on hearing about the pardoning of the two men (one of whom identified as a woman) sentenced to fourteen years of hard labor for having the temerity to hold a public commitment ceremony was the obvious one: Thank God.

And when it comes to those two men themselves, that’s still my reaction. The thought of them spending the most vigorous years of their lives at hard labor, separated, was too much to bear. But there’s another, more sober way to look at this.

Although President Mutharika succumbed to pressure this time, there’s no guarantee that he, or any successors, will do so in the future. The law stands and can be enforced arbitrarily. Gay men and women and — perhaps especially — transgendered people will continue to fear the harsh application of this colonial law, thereby potentially setting back the whole movement. (There’s evidence to the contrary, it should be said.)

What might have happened without the pardon? The couple were going to appeal. Knowing precisely nothing about the Malawi judiciary, it’s  hard for me to conjecture about what would have happened, but one possibility is that the law would have been thrown out, or that at least the state’s method of producing “evidence” of the couple’s homosexuality — requiring them to submit to a physical examination — went too far. In either case, some good, pro-LGBT law would have been made.

And had the appeal failed, the pardon might still have issued. So what looks like unalloyed good news turns out to be more complicated.

Pawlenty and Malawi

May 20th, 2010 No comments

Malawi x290 (Reuters) I

Over at, you can find my just-published column tearing into Minnesota Gov. Tim Pawlenty for vetoing a bill that would simply have recognized the humanity of the LGBT citizens of his state, by allowing aggrieved partners to decide what’s to be done with their deceased spouses’ remains, and to have same basic right to call the defendant who caused the death to account (through a wrongful death suit, allowed to legally married, opposite-sex couples).

Then, this morning I read about the sentencing of the gay Malawi couple who had engaged in a formal commitment ceremony to fourteen years of hard labor. Here’s what a Presidential spokeswoman had to say:

Betsy Chirambo, an adviser to President Bingu wa Mutharika, expressed concern over calls by some activists for the West to withdraw aid to Malawi because of the case. Up to 40 percent of Malawi’s development budget comes from foreign donors.

“It is not our culture for a man to marry a man,” Chirambo said this week. “That is not even in our constitution. Some of these rights are not good for our culture.”

The men engaged in a commitment ceremony — they didn’t “marry,” because legally, they can’t.

I’d start by threatening to cut aid in half, immediately, unless the men are released. That would get their attention.

That’s not going to happen, though. Instead, the State Department issued this toothless condemnation:

The United States is deeply disappointed in [the] conviction of same-sex couple Tiwonge Chimbalanga and Steven Monjeza in Malawi. We view the criminalization of sexual orientation and gender identity as a step backward in the protection of human rights in Malawi. The government of Malawi must respect the human rights of all of its citizens. The United States views the decriminalization of sexual orientation and gender identity as integral to the protection of human rights in Malawi and elsewhere in the world. (emphasis added)

“The government of Malawi must respect the human rights of all of its citizens.” That statement sounds a bit hollow coming from a government that still hasn’t managed to protect its LGBT citizens from workplace discrimination. And it brought to mind Pawlenty’s unsaying of gay relationships — even in death, your relationship means nothing and won’t be recognized in any way.

I’m not equating fourteen years of hard labor to what the LGBT community experiences in the U.S., although being fired from one’s job just for being, say, a lesbian, is devastating enough. I am saying that our actions and our high-minded rhetoric are often, and sadly, at odds.

Does Marriage Make You Happy?

March 30th, 2010 No comments

Who knows? I’m starting to think that the way one answers the question is as close to a Rorschach test as there is in the social sciences. After David Brooks opined that social happiness is more important than material gain (after a certain level of subsistence is attained) and used the example of “successful” marriages to make his point, Andrew Sullivan agreed with him, and Bella DePaulo took exception to Brooks’s conclusions.

It may not have escaped you that reactions fell along predictable lines here. That’s not surprising, because trying to tease out the social benefit of marriage is especially difficult, so that everyone can feel some justification for their conclusions. Even if we try to correct for the selection bias (happier, more successful folks are the ones who tend to marry), in a sense the problem is intractable. We would need to study a control group of Doppelgangers who didn’t have marriage available as an option, and see whether their happiness mirrored that of their real-life counterparts (married and not married). This isn’t likely, except perhaps in a joint venture between the SciFi Network and some dreary public access cable station.

The weight of the social science evidence does suggest that marriage produces social good, but all I’m able to get from that is:

(1) To the extent that marriage leads to longer, happier lives, that’s likely true for gay and lesbian couples as well. (Maggie Gallagher mostly forgets to mention that her co-author on “The Case for Marriage” — Linda Waite, who, unlike Gallagher, is an actual social scientist — favors marriage equality.) We’ll soon have some preliminary data to support that conclusion, but we already know, from one study of couples in Vermont, that those who entered into civil unions stayed together longer than couples who didn’t.

(2) Legal and social support for marriage isn’t justified to the extent that it hoards all of the benefits for married couples and overlooks the needs of other families and living arrangements. Even if some gentle coercion in the direction of marriage is desirable social policy (a highly contestable proposition), that’s no excuse for the embarrassment of government-conferred benefits and riches (to an extent copied by the private sector, as in the case of health benefits) from which other couples are completely excluded.

As James Joyner points out, popularizing social science research may be fun for everyone concerned, but it’s risky business.