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Homosexual Marriage Reply

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The above is an article that Chris posted regarding homosexual marriage. In it, Chris seems to miss the point of the debate. He claims:

At its most basic, marriage is a a set of reciprocal promises -- a contract. As such, it is made between two people and the rest of the community has nothing to do with it.

He then proceeds to analyze marriage as if it was a contract between two people that the government has little to no business interfering in. He then proceeds to claim that the issue is only one of making gays "happy", and points out that it is not the purpose of the government to ensure that all of its citizens are happy. This may be correct, but it misses the point.

Searching the US Code, the term marriage comes up 140 times, and spouse comes up at leas 700 times (the search seems limited).

These references in the law are not trivial. The second hit on "spouse" regards the distribution of pension pay (to a spouse) after a retired worker has died (if I read it right). The state of marriage has ramifications regarding inheritance, medical control, citizenship, tax payments, and many more areas in our legal system.

Indeed, Webster's 1913 (which Chris used to get the definition of "Pronunce" from in his entry) has the following definition of Marriage:

     1. The act of marrying, or the state of being married; legal
        union of a man and a woman for life, as husband and wife;
        wedlock; matrimony.

The second clause in the first entry declares that marriage is a legal union, not just a contract between people. The presence of absence of this legal union has great impact on the life of people, much of which is defined by law.

If we consider the legal aspects of being married, Chris's claim that "if the community at large does not approve of gay marriage, it does not prohibit gay marriage by doing so." is false. What is important in the gay marriage debate is the set of rights that come from being married. Common-law marriages aside, claims to being married do not provide the legal rights that a state-recognized marriage does. As far as I know (and I'm not a legal expert by any means) it's impossible to recreate all the rights given by marriage using simple contract law.

I'm not sure if allowing gay marriage is the right answer or not. I think I agree with Chris that marriage is fundamentally between the two parties concerned. A better approach to legalizing this may be to provide a way of establishing the (legal) spousal relationship between two people without involving marriage. Marriage would then be independent of spousal rights. (I'm not sure if this is an ideal situation, but I do think the government should generally be out of the business of deciding who may or may not get married.)

Update: After an email from Chris, I think I may have miswrote when I said "He then proceeds to claim that the issue is only one of making gays "happy", and points out that it is not the purpose of the government to ensure that all of its citizens are happy."

This misrepresents his point, which was that the happiness of gays is not enough of a reason to legalize gay marriage. I agree with this, but I also want to point out the obvious, that happiness is not a reason to oppose a position.

The examples that he uses of creationists and reverse-racists are both cases of a group whose happiness depends on the government extending them special rights. The creationists want the government to support the teaching of their (discredited) views, while the reverse-racists want special preference in hiring and school admission.

That makes them different from the gay marriage activists, who seem to only want equality with straights. I think that if that's the case, then the burden of proof should be on those who want to deny equality.

- Tom | permalink | changelog | Last updated: 2003-01-10 15:04

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