Tuesday, February 05, 2008

Domestic Partnerships For All!

It's been at least four years since gay marriage first became a major issue, and only now does some state legislator propose the blindingly obvious solution to the impasse. I think I mentioned this on here before - replace the legal institution of marriage with a "domestic partnership" that's open to any two consenting adults, and leave marriage to the churches and communities. Gays get their legal rights, right-wingers get to deny marriage to gays unmolested by the government, and everyone's happy, right?

Of course, I'm sure someone will make up some bullshit about how this bill "threatens marriage" (presumably more than the stratospheric divorce rate). Well, if your relationship with your spouse requires the government's recognition as a "marriage" (as opposed to a "domestic partnership" with all the same benefits) to be meaningful, go find a relationship counselor, because you probably need it.


Ben said...

I'm too lazy to look at the article. Does the bill do anything besides change the name? (i.e. any tax consequences and so forth?)

-Dave said...

This raises an interesting question for me:

1) People seeking a state-codified or financial benefit from domestic partnerships (DP) don't get church-married (CM).

2) Some discrepancy in fidelity, divorce rates, etc arises between DP and CM people as a result of people self-selecting into one category or the other.

3) Some company (insurance, retirement, etc) notices the difference and offers more favorable rates to the group with superior fidelity (whether because it's a social end they'd like to promote, or because there's some financial reason).

What then? If there's a measurable between DP and CM people, then I wonder if the whole thing comes full circle - where legal benefits accruing to married couples led the state to co-opt and codify a social/religious custom.

Mike said...

I've only been arguing for this exact solution for about five years. The government has no place in marriage. Period.

Ben said...

That's an interesting thought, Dave. I'd be curious to hear Jeff and Mike's comments on it.

When I debated this very issue (an issue which I'm constantly flip-flopping on) with one of my law school roommates (not Kenny), he made that very argument. That is, he argued the reason that all these legal benefits accrue to couples who are married is because of stability, or something like that, which follows from heterosexual married couples....which factually aren't as prevalent, among, say homosexual couples. At least, that's his argument.

Mike said...

I'm not sure I see the problem with the scenario Dave describes (in the two seconds I thought about it). So a company decides to give more favorable rates to one group over another. So what? Happens all the time, just look at car insurance companies. If it does occur, it may lead people to get "church married".

Here's another interesting one for you: some churches (Methodist, Episcopal) have shown sympathy to gay rights issues. If these churches choose to allow gay people to get married, what then? Would the definition of "church married" have to change? Hell, what if they did it now? Would the government saying those aren't "marriages" violate the First Amendment?

-Dave said...

The problem, as I see it, was that it was actions like this that led the state to codify marriage (I think, though I may well be wrong on that point) - so that there was some legal definition behind the term, so that legal benefits including inheritance could follow.

If there begins to be a tangible difference between CM and DP folks, then what's to keep the state out of "marriage," even if it has a seperate DP law on the books? If CM gets any form of preference over DP, then I think the DP folks would be up in arms to try and win through the courts equal treatment... and we're right back where we are now (at least, in states with civil unions that grant the same benefits, but not the same title, as marriage).

If it's not for that possibility, I completely agree. The state has no interest in marriage beyond what is served by the DP.

Jeff said...


I guess I just don't buy your premise. Any couple of schmucks can call themselves married. People are really looking for the legal recognition, and if the legal recognition for straight married couples is no different from the legal recognition for gay married couples, there's no issue.

Sure, gay couples will be sore that many churches don't consider them married, but there's nothing the government can do about that (the whole church-state separation thing).

Kenny said...

First, let me say that it strikes me as probably unconstitutional on First Amendment grounds to prohibit gay people from getting married (or domestically partnered).

That said, my question is always ‘what happens if it turns out that some form or recognizing gay partnerships turns out to have measurable negative consequences on society?’ Or, put another way, what if the current bias against gay marriage/partnerships turns out to be rooted in an accurate intuition that they’re a bad thing.

Miguel said...

The constitutionality is kind of a moot point because state governments are the ones with the power to define marriage, not the federal government (religious conservatives are trying to change this with the Federal Marriage Amendment). Any federal benefits to marriage I think will apply as long as your state accepts the union in question (though I could be wrong)

States it seems can set any criteria they want as allowed per the state constitution in question. (Mass ruled for same sex marriage based on the state constitution if i wasn't mistaken).

Jeff said...

What happens if it turns out that some form or recognizing gay partnerships turns out to have measurable negative consequences on society?

Keep in mind that "negative consequences on society" are for the most part subjective, and there's no conceivable way that gay unions can impact society in such a way that it creates consequences that we can all agree are negative. Gay unions won't increase the violent crime rate, for example.

It would certainly be against the First Amendment to prevent gay people from calling themselves married, or to prevent churches from marrying gays. However, as Miguel points out, the legal protections are conferred by the states. You'd have a stronger argument if you used the Fourteenth - no state can deny the legal protections of marriage to a citizen because they're gay.

Matthew B. Novak said...

"The government has no business regulating marriage" is a quite common theme in the gay marriage debate, but I'm forced to wonder if maybe that's not backwards.

Here's my thinking (and I'm just throwing out thoughts that aren't fully formed, so I reserve my right to later deny everything I'm going to write here): humans, by our nature, are social animals. The whole concept of "an individual born into a state of nature" is at best a ridiculous fiction. We're communal beasts, born to a set of parents, immediate and extended family, school district, etc. Our births, weddings, deaths and so forth are news to those around us. When we welcome someone into our social spheer or shun someone out of it there is a direct effect on others. Our social and private relationships directly affect all of those around us, and vice versa. This is just human nature.

As such, if our relationships directly affect our society, then marriage would be the appropriate domain of governments. It makes sense for them to reward stability, to encourage parents to raise children jointly, to encourage spouses to split the economic and domestic burdens, to encourage people to make life-long commitments in which they agree they will work out their differences, etc. Presuming that marriage accomplishes these goals, it makes perfect sense for government to reward the marriage relationship with whatever benefits it deems appropriate.

That being said, any particular policy is going to have to turn on the empirical questions. If we ask, "should we have no fault divorce?" then we should answer that question by considering the effect that no fault divorce has on our society. I'm not a big fan, given that it tends to undercut the idea that marriages are stable. There aren't supposed to be "irreconcilable differences" in a marriage; you commit to working them out. (There are, of course, good reasons for divorce, and I'm not advocating that all couples should stay together per forma. I just have some trouble with the concept of no-fault, and the quite obvious effect that has on our society).

Likewise, we need to consider what effect same-sex marriage (or sibling marriage, or civil unions, or eliminating marriage, etc.) would have on our society. That being the case, a slightly modified version of Kenny's question seems directly appropriate, as does Jeff's response.

What if there are measurable consequences to social recognition of gay partnerships? Well, we need to consider whether or not we think those consequences will be overall good or overall bad, and if there are other ways of accomplishing the good consequences (if any) while minimizing the bad ones (if any).

But certainly this is exactly the kind of thing that would fall under the heading "Things that are the government's business".

Mike said...

Matt, the whole point is that stability, raising children jointly, splitting economic and domestic burdens, making life-long commitments, etc. - all of these things can (and frequently do) exist outside of a legal marriage. There's no sense in applying a single label to something that can exist under a variety of them, particularly a label that comes weighed down with so much religious meaning. Also, there's a difference between encouraging a practice and barring certain people from practicing it, not to mention an inherent contradiction.

I'm amazed no one has raised the adoption issue yet, so I'm going to. If we fail to differentiate between the various kinds of domestic partnerships (I'm sorry, call me immature, but I just can't use the abbreviation DP), then we will naturally have a situation where a gay couple will be allowed to adopt ahead of a straight couple (assuming it's a FIFO scheme, e.g.) and then all hell will break loose - I can see lawsuits and the whole shebang wherein we debate definitions, morality, etc. and are really right back where we started. There's no fear of kids being raised by gay couples becoming gay themselves (at least in my mind - others will naturally argue), but there's still the social burden on the kid being the one in elementary school with two mommies or two daddies (still better than going from foster home to foster home, but nonetheless unfair to the kid). In short, there are numerous and far-reaching consequences to fully recognizing gay partnerships, way more than can be fleshed out here. Of course, there were numerous consequences to, say, school integration (and hopefully we've learned to handle things less sloppily). But ultimately, I believe these consequences can be overcome.

Matthew B. Novak said...

There's no sense in applying a single label to something that can exist under a variety of them.

I'm not clear - are you advocating that we allow domestic partnerships or civil unions for homosexuals but keep "marriage" for heterosexuals? Or something else?

There's a difference between encouraging a practice and barring certain people from practicing it.

Only in form, not in intent. Because the intent to encouraging marriage is "let's make society look like X" and the intent to barring certain people from practicing it is "let's keep society looking like X". All of the talk about whether or not we want to allow same-sex marriage, civil unions, sibling marriage, etc. needs to be focused on the effect that will have on our society. If we decide we want our society to look like X, then whether we're encouraging people to make it more like X or prohibitting people from making it more like Y is essentially a non-issue; they're both focused on the same goal of achieving X.

And, if someone wants to argue that it's wrong to prohibit people from making society more like Y, then they need to address the fact that this will move society away from being X. And that's all my point really is: people who think the government should just stay out of the issue are missing the fact that this isn't just a discussion about individuals, it is a discussion about the shape of our entire society.

Jeff said...

It is a discussion about the shape of our entire society

I think you're overstating things here, Matt. When it comes to these esoteric cultural issues, how do the government's actions have any impact on society at all? Isn't the societal impact of these culture-war issues produced by the citizens themselves? It's not the government that's fueling the gay-marriage debate but the right-wingers and the pro-gay activists. The consensus of the debate among these two camps and those in the middle will decide where society goes. Not government.

So no, this isn't a debate about where society goes, since no government fiat is going to dissolve all gay unions or force right-wingers to accept said unions. This is a debate about legal rights and whether one's legal rights ought to depend upon the cultural environment. I hold that they are not, and as such, that the legal institution of marriage ought to be disentangled from the cultural institution of the same name.

Matthew B. Novak said...

Two points:

1. Goverment is where the debate gets played out. It's the tool by which we shape society. Thus, even though right wingers and pro-gay activists are fueling the issue, it is necessarily in the government where this all gets sorted out. I can't even concieve of how this issue could possibly be worked out except in the government.

2. You can't disentangle the cultural and legal institutions of marriage. In some sort of highbrow conceptual way we can acknowledge that marriage has both aspects, but you can't actually make them seperate and distinct. They're both inherently tied up in marriage and can't be seperated. We might as well say that we should seperate the legal and cultural institutions of parenthood. The cultural aspects and the legal aspects directly impact one another. They shape our society. And as such, they are certainly the proper domain of the government.

If you want to take the position that a form of marriage that more expansively grants legal rights will have a minimal effect on the cultural aspects of marriage, that's fine, you can take that point of view. But that's an empirical question, and you'll need to back it up with empirical reasoning. I'm inclined to think that there's no empirical support for that position (since it runs contrary to common sense). Either way, it doesn't make sense to say "we should only address the legal issues, and leave the cultural ones alone" because that's impossible; you can't seperate them out. You necessarily address legal and cultural issues at the same time. I suppose you could take the position of "let's set the legal issues in X position and let the chips fall where they might for the cultural issues", but that too has an effect on the cultural aspects. Such is the nature of marriage; it is both a legal and cultural creature (and the fact that it is a cultural creature is exactly why it is also a legal creature).

If we legalize same-sex marriage (or sibling marriage, or civil unions, or polygamy, or whatever) that will change our society. It might be a good change, it might be a bad change, it might be a relatively small change, whatever. The point is, you're addressing both legal and cultural effects as the same time. And that's exactly the business of our government; it doesn't just regulate rights and responsibilities - it shapes our culture.

Kenny said...

Regarding constitutionality arguments, even though the states regulate marriage, such regulation could be found to violate the First Amendment if it didn't have a secular purpose, primarily advanced religion, or created unncessary entanglement between religion and government. So, to me, the reason prohibiting gay marriage seems to violate the constitution is that I don't see any secular purpose, it seems to flow primarily from various religious values.

As for using the Fourteenth Amendment, you really need to get gays qualified as some sort of protected class, which current constitutional law doesn't grant. Without some sort of protected status, all a law needs is a "rational basis" in order not to violate equal protection. Rational basis is by far the easiest level of scrutiny for a law to meet, so until gays can get a different protected statuts, equal protection probably won't serve to invalidate anti-gay marriage law.

Matthew B. Novak said...

Kenny -

I don't think the Constitutional mandate that "Congress shall make no law respecting the establishment of religion" sets a strict limit on the types of values that can be used to justify laws. We use "religious" values to make laws almost all the time. Every single vice law would probably qualify. Heck, some of our tax policies are supported by religious values. Where the values come from isn't the relevant question when considering whether something is an unconstitional establishment of religion. What matters is the result: does the law promote a religion over others (or religion over absence of religion)?

As for same-sex marriage, the answer has to be "no". There is nothing about allowing or prohibiting same-sex marriage itself that promotes religion. Yes, a prohibition happens to align with frequently held religious beliefs, but so does a prohibition on murder or prostitution, and those aren't unconstitional establishment of religion. And, given that some churches approve of same-sex marriage, you'd probably have a pretty significant "six of one, half-dozen of the other" issue there.

-Dave said...

"I guess I just don't buy your premise. Any couple of schmucks can call themselves married..."

Unless, of course, church-married folks establish some sort of independent criteria/codification for their marriages, which I can imagine people doing. Not everyone, but enough that it could become a seperate group, like Colorado's (?) "covenant marriage."

It seems weird to me, but it flows from why society ever decided to make marriage a legally binding contract to begin with, instead of simple oaths before family, friends, and God. I think the societal recognition of marriage followed a public need (for matters of estate, etc) to have a system where any two schmucks "couldn't" just call themselves married.

It's just a thought, not an objection. Speculative "I wonder if." I think there are benefits to the church not being so tied to the secular definition of marriage, so from that angle I'm all for a D.P. rule.

Mike said...

And therein we fundamentally differ, Matt. I do not believe it is the government's responsibility to shape our culture (I seem to recall an earlier argument on your blog about legislating morality, which directly parallels this). I believe the culture shapes the government. It seems like we're caught in a chicken-or-egg conundrum here.

As for my comment on labels, I'm simply saying the government shouldn't be in the business of labeling period. To me, marriage is a purely religious institution which should never have gotten tangled up in any sort of government involvement. Shockingly, people were getting married and forming lifelong commitments long before the government said "we approve". And they would have continued to do so without the government ever stepping in.

Matthew B. Novak said...

Mike -

I think our chicken-vs.-egg issue may have a quite obvious resolution, which you hint to in your second paragraph: people getting married existed long before governments ever stepped in to say they approved. As such, marriages were part of our culture. You've said our culture shapes our government. Wouldn't it follow that our culture direct our government to reward marriage (specifically marriage that takes on a culturally approved form)?

In saying that our government shapes our culture what I'm really saying is that the two are inseperable, and it is the nature of government to reflect and promote the culture that sustains the government. They're inseperable, and as such it doesn't really make sense to say "well, that's cultural, therefore not appropriate for the government to deal with." Saying "government should get out of regulating marriage" is nothing more than a less outrageous way of saying "government shouldn't encourage people to raise children jointly, make life-long commitments, split economic and domestic burdents, etc." And that's fine, but we should acknowledge that it's a policy position on the subject; it's your attempt to tell the government what position it should take on the matter, which is no different than someone else arguing that government should keep things the way they are now or allow same-sex marriage, or any other position.

Marriage is a question for government. Your answer just happens to be "laissez faire".

Mike said...

Fair enough - taking no position at all is equivalent to taking the "no-position" position. Or (begin shameless self-promotion) as I once put it in a song lyric (end shameless self-promotion), "belief in nothing is belief in something".

Anyway, as you've probably noticed, my answer to almost any question for government is "laissez faire" :)

This is why I love democracy: the government doesn't get to tell us what to do, we get to tell the government what to do. It's an amazing power trip, isn't it?

Jeff said...

Matt- your argument seems a bit trivial to me. Of course we can say that anything is an issue for the government to deal with. Purple water balloons are an issue for the government. Doesn't mean they should regulate purple water balloons.

The government, in my view, ought not to interfere with cultural trends. I think there are only four main reasons why the government should get involved in anything: 1) to provide a safety net for those in need, 2) to protect citizens from being jerked around by those who are more powerful, 3) to enforce lawful contracts made between consenting adults, and 4) to keep people from harming one another. Preventing gay marriage (or insert your favorite cultural trend that will Cause the Downfall of Western Civilization here) serves none of these purposes. Furthermore, decoupling the legal institution of marriage from the cultural one makes 3) much, much easier.

You say that government should step in to interfere with any cultural trend that has negative consequences. That's simply not feasible. Even if you accept the dubious premise that lasting homosexual relationships will nuke our society, the government can't stop them from happening, at least not constitutionally.

It's an amazing power trip, isn't it?

I suddenly want to try to pass a bill requiring all members of Congress to walk like an Egyptian between the hours of 12 and 2 PM on Tuesdays.

Me? Power-drunk? Never.

Matthew B. Novak said...

Jeff -

My goal from the outset was to debunk the claim that "governments have no business regulating marriage." I took that statement to mean "government should not have a position on marriage", and have attempted to show that government should have a position on marriage. Others (Mike and yourself) are arguing that government's position should be laissez faire. That's fine; I'm not arguing the particular policy position. I just want to make sure there's a distinction being made between "cultural issues aren't something the government can regulate" and "the government's policy on cultural issues should be laissez faire". The reason for the distinction can be seen quite obviously when you consider an appropriate rebuttal to the two statements. The first requires a discussion about the nature of government, culture, and power. The later requires a discussion about policy, priorities, and efficency.

To say "the government shouldn't have a policy position on marriage" is a statement that can be backed up by mere philosophical ruminations on the role of government. To say "the government's policy should be laissez faire" is a statement that needs substantially more support. You need to explain why laissez faire is better than what we have now, how people will or won't be affected, etc. In order to support the second statement, you need empirical evidence, not just philosophical platitudes. That's a lot harder. And therein lies my goal: I'm trying to get you laissez faire folks to commit to the harder road. Tell me, what would be better about the government having a laissez faire attitude towards marriage?

Jeff said...

Shouldn't the burden of providing evidence be placed upon those who wish to regulate behavior? I don't have to demonstrate that making gay marriage legal will not cause any societal ill effects. Those who wish to keep it illegal must prove that legalized gay marriage will cause harm to people. Otherwise, there is no basis for the law other than tradition - and "just because we've always done it that way" is a shitty basis for law.

And the "laissez-faire" approach to cultural issues has its roots in the philosophical underpinnings of our government. Much of our Constitution and jurisprudence has the tenor of "if you're going to make something illegal, you better have a damn good reason for doing it." And "it gives me the willies" - which appears to be the only reason with any basis in fact anyone presents for gay marriage being illegal - doesn't count as a good reason.

Matthew B. Novak said...

I don't think we can fairly make this a burden of proof issue. Both sides are proposing policy positions, as such, they're both equally taken to task for supporting those policies. As such, here's some potential reasons for regulating marriage: giving benefits to married couples encourages people to build lasting relationships, work out differences, procreate, raise children together, share domestic and economic duties, and just generally be happier people. I take it that you'll disagree, but you'll have to do so on the basis of whether or not regulation achieves these results (and/or the harms it produces as well).

And while a liassez-faire approach certainly has philosophical underpinnings, we're not debating it in the abstract. You could come up with all the philosophical underpinnings you wanted, but if a laissez-faire approach ended up "nuking our society" the empirical evidence would probably outweigh all that philosophy.

I'd also say that you can't really debate the role of government issue without dealing with the real world. So even the philosophical underpinnings need some real world grounding. (As an aside... maybe this is where my great distaste for a "laissez-faire" approach comes in. Historically, unless you're a rich/well-educated white male, "laissez-faire" does not make for a better society. And isn't that the function of government?). Perhaps more to come on the philosophical underpinnings of government over at my blog... we'll see how much time I can scrounge up.