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The Marrying Kind

The Case for Same-Sex Marriage

by William N. Eskridge Jr.
Free Press, 296 pp., $25.00

Virtually Normal: An Argument About Homosexuality

by Andrew Sullivan
Knopf, 209 pp., $22.00

1.

For most Americans today, acquiring a spouse is the most important task in the years after high school. You are supposed to find someone you love and who loves you, to get to know each other and confirm that you are compatible, and then move into shared quarters and take up a common life. Ideally, you and your spouse then stay together, in the formula of the Book of Common Prayer, “so long as ye both shall live.”

If you want to start a family, your spouse is the person with whom you will have and raise children. This is one reason sex is important to marriage. But you may not want to raise children and (while this may distress your parents) that is your right. Sex still remains important. It is a natural and pleasurable expression of marital love; which is to say that marital love, at least as most of us now conceive of it, is largely erotic.

But your marital relationship will, of course, affect almost everything you do; it will be central—especially if it goes well—to the meaning of your whole life. As you grow old and look back, you will be looking back on a life lived together. Browning’s Rabbi Ben Ezra is so often quoted because he captures this promise so exactly:

Grow old along with me!
The best is yet to be,
The last of life, for which the first was made…

It is a vision expressed with a more prosaic eloquence by Genora Dancel, one of the lesbian partners in the suit against the limitation of marriage to heterosexual couples now pending before the Supreme Court of Hawaii: “I want to be able to say at the end of my life that I had loved somebody really well for a long time.”

This image of marriage belongs to a narrative of romance that has deep roots in Western culture, but it became a possibility for large numbers of men and women only with the emergence of a sizable middle class. Its ascendancy reflects the triumph of bourgeois romance, in which, like the horse and carriage of Sammy Cahn’s lyric, love provides the motive power and marriage the natural vehicle.

This narrative—with its emphasis on lifelong monogamy—is, for the many who believe in it, an ideal, not something they can be sure of sustaining. Half the marriages in America now end in divorce. Casual observation (reinforced by TV soaps and sociological surveys) confirms that one of the reasons for this is that the commitment to exclusivity—especially on the part of husbands—is difficult to maintain. But this ideal is not only at odds with reality; it is wildly at odds with most traditional conceptions of marriage.

First of all, in earlier Western societies—as in most societies everywhere else—marriage was the creation of a relationship not between individuals but between families, a fact still signified by the role of the father in “giving away” the bride in many forms of marriage rite. (There is a resonant Hebrew word for the relationship between the parents of one spouse and those of the other: they are mehatanim.) When our sisters and brothers or our children marry, we say that we have acquired “in-laws”; there is a name for this relationship or something like it in most languages.

These bonds were once important because they created socially underwritten obligations. Insofar as modern married couples recognize obligations to in-laws, by contrast, they are likely to see them either as expressions of love for their partner, or as growing out of the particular relationships that they develop with the family of a spouse. One asks a partner to do something for “my father”—stress on the “my”—not for “your father-in-law”; one says, “Come on, you know my mother always liked you,” not “You’re not behaving like a good son-in-law.”

A second difference is that marriage once had substantial ritual meaning. In the Middle Ages in Europe, it was a sacrament, one of the seven holiest rites of the church (along with the Eucharist, Baptism, Confirmation, Penance, Ordination, and Extreme Unction). According to the Book of Common Prayer, the marriage of man and wife signifies the mystical union between Christ and his Church. Even today, for devout Catholics and Jews, obtaining a “real” divorce requires appeal to religious authority.

Many people still marry in churches and synagogues, under the supervision of priests, pastors, and rabbis (who are authorized by the state to create—en passant, so to say—the civil bond as they solemnize the religious one). For many young couples a wedding still requires organ music and hymns as well as white dresses; and many rabbis and priests still insist on explaining the sacramental meaning of the wedding. But the solemnity of the occasion is a reflection, for most people, of the significance of the commitment to a life of love.

Central to these religious understandings—this is a third difference from the modern picture of marriage—is the begetting and raising of children. For Orthodox Jews, having and raising children within Jewish tradition is, where possible, a religious obligation; for Catholics, sex within marriage is permissible only if nothing “unnatural” is done to prevent conception; the different Protestant traditions and forms of service almost always mention marriage as the setting for bearing and raising children. The same Book of Common Prayer informs the congregation: “First, it was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord.”

It is true that the Jewish tradition, early on, saw marital sexuality as an expression of the conjugal relation-ship and not merely as procreative; Luther and Calvin also grasped this idea. For Catholics, such an understanding has (notoriously) emerged only in more recent years. But most of the religious traditions we inherit here in America—and since much of our moral thinking about sex is religious, this means most of the moral traditions—have had a hard time accepting sex outside marriage. (Bishop William Waitland, the Anglican Bishop of Eau Claire, Wisconsin, said recently, apropos his church’s attitude to homosexuality, “there’s not a single support in Scripture for adultery, fornication, or incest,” reflecting his church’s historic view that all sexual relations between two unmarried people must fall under at least one of these unwholesome labels.)1

With the triumph of the narrative of bourgeois romance, these three elements—the alliance between families, the sacramental meaning, and the centrality of procreation—have lost their force for many even here in America, the Western country with the highest proportion of its population still nominally committed to religion. The end of a marriage strikes many as a terrible thing: but this is neither because it is the betrayal of a union between families nor because it is the breaking of a sacred bond. And a marriage that is childless by choice is not ipso facto a failure. Conversely, for many couples children enrich a marriage, but they are not its central meaning; and the success of a marriage is now celebrated, in the end, neither as the bonding of families, nor as the fulfillment of a sacred covenant, but as the loving confluence of two lives.

The ideal of the marital relationship I have been describing can be embedded, for heterosexual couples, in a vast web of laws. To invoke these laws in some states, you must go through a formal ceremony; in others—the common-law marriage states—you can end up legally entangled even if you deliberately and explicitly refuse both ceremony and legal license.2 But however marriage gets established, its legal consequences are enormous.

In The Case for Same-Sex Marriage, William Eskridge (co-counsel in Dean v. District of Columbia, a recent federal case about gay marriage) lists a host of rights that both members of married couples have in Washington, D.C., which, he says, is “representative of other jurisdictions.”3 They include: rights to support and alimony; the ability to act for an incapacitated spouse; the guarantee of benefits in insurance; visitation rights in hospital and in prison; “an evidentiary privilege for marital communications”; rights to inherit property; and various other survivor’s benefits. While others may adopt children in some jurisdictions, married couples have the right—subject to some conditions—to do so everywhere. Mr. Eskridge lists the “modest ‘marriage penalty”’ in income taxes for two-income families among the disadvantages of marriage, but being treated as a single household for tax purposes is often an advantage: an unemployed spouse can be claimed as a dependent, and no gift taxes have to be paid on transfers between spouses.

These legal rights (and their correlative obligations) are justified by three fundamentally distinct sorts of consideration.

The “evidentiary privilege for marital communications” reflects the distinctive obligations of the marital relationship. I can no more be asked to provide evidence that will convict my spouse than I can be forced to testify against myself. These are the rights of marital relationship—among the most important of which is the exclusion of the government from the regulation of our (consensual) sexual life.

A second set of rights—rights of trusteeship—reflects the recognition that I am my spouse’s natural representative because I know him, his character, and his desires, because I care for him and have his interests at heart. It is as if each spouse acquires in marriage the rights (and correlative duties) to act for each other that their parents once had.

The final class of rights derives from a recognition of the household as an economic unit, where transfers between members do not count as public economic events. This reality is captured in the prayer-book formula: “with all my worldly goods I thee endow.” Such are the rights of economic identity.

Many of the rights of trusteeship that married people automatically have can be created by special legal arrangements: you can give your partner a permanent power-of-attorney and explicitly instruct medical authorities to recognize him as your representative if you become incapacitated. Some of the rights of economic identity can be recreated, too: you can write wills; you can create contractual obligations of support to come into effect if you cease to live together. (In some cities couples can acquire some rights through registering as “domestic partners.”)

In short, with a good lawyer—and at less cost than the average wedding—you can cobble together a bundle of legal rights of economic identity and trusteeship similar to those of married couples. Outside of marriage, however, some of the rights of economic identity will remain unavailable: you cannot claim the tax advantages (or disadvantages) of married people; you cannot benefit from the other’s Social Security or veteran’s benefits; what rights to insurance you have depend on your employers. And, so far as I can see, the rights of marital relationship—including the right to sexual privacy that the Supreme Court, in its decision in Bowers v. Hardwick, explicitly denied to homosexuals—cannot be acquired by any sort of legal agreement.

  1. 1

    The New York Times Magazine, April 7, 1996, p. 40. Of course, that homosexual relations constitute fornication is a consequence of the denial of marriage to homosexual couples; the Bishop’s answer here seems somewhat to beg the question.

  2. 2

    I am grateful to my student Madeleine Blot for conversations about ceremonial and common-law marriage during our tutorials in the fall of 1995 for her senior thesis.

  3. 3

    Mr. Dean’s own reflections can be found in Craig R. Dean, “Gay Marriage: A Civil Right,” in Timothy F. Murphy, editor, Gay Ethics: Controversies in Outing, Civil Rights and Sexual Science (Harrington Park Press, 1994), pp. 11-115.

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