Thursday, December 03, 2009

Same-Sex Marriage

I got home early from work, which gave me some daylight, so I took the dog for a romp. She liked getting out and so did I. Seems we both had some demons to exercise. Hers were far less sinister than my own, I should imagine.

Anyway, I pondered the subject of same-sex marriage for all the time I wasn't dodging traffic or minding the dog or picking up poop. I was trying to figure out what "equality" has to do with it.

Nothing was resolved.

So it goes.

5 comments:

Jason (the commenter) said...

I was trying to figure out what "equality" has to do with it.

It means same-sex and different-sex relationships are given the same legal standing.

Bissage said...

Thank you for responding, Jason. Yes, I’m asking for help with this.

I guess the problem I’m having is I don’t know what the “relationship” has to do with it. Rights inhere in individuals. Since when does a relationship have rights? A partnership is a juridical person -- singular. A corporation can have millions of owners but it is a singular juridical person. (Maybe a marriage is treated as a single entity for tax purposes – I really don’t know because I’m clueless when it comes to things like that.) Marriage is a condition precedent to property being held by the entireties but the “marriage” itself owns nothing. It is the individuals who have the rights. At present, there would be two of them.

When I think of equality, I think of a black person being forbidden from drinking from a white water fountain. Miscegenation statutes violated the principle of equality because a black person was excluded from marrying into the white mainstream. A white person who would marry a black person was a race traitor

Today, a gay person can marry a “straight” person. My sexual appetite runs predominantly heterosexual but the law treats me – for purposes of marriage -- exactly the same as a person who is 100% homosexual. If symmetry is equality, then the old marriage laws were equal. I haven’t read Plessy v. Ferguson since law school. Maybe I’m doing nothing more than arguing that its premise made sense, if not its outcome.

It seems to me that some same-sex marriage advocates start off by saying that there is inherent inequality in traditional marriage law so the burden should be to prove that there’s a good enough reason to allow the disparate treatment. In other words, equality rules, other things being equal. These are smart people and I respect that.

But to my mind, that proves too much. Why not say that incestuous relationships are equal and then assign the burden? After all, incestuous relationships are equal to “normal” relationships by the same logic. What about multiple-partner marriage and so on? Does every proposed relationship have due process rights to notice and an opportunity to be heard? Individuated adjudication? If not then why not?

FULL DISCLOSURE: I really couldn’t give a rat’s ass, personally. Yes, I’m married, but only because my wife wanted it to be official. I said to her, more or less: “Sure, why not? I’m not going anywhere. You want a license from the government? Then fine. Whatever.”

Jason (the commenter) said...

Today, a gay person can marry a “straight” person. My sexual appetite runs predominantly heterosexual but the law treats me – for purposes of marriage -- exactly the same as a person who is 100% homosexual.

I would agree that the law were treating you, a heterosexual male, the same as a homosexual if you were only allowed to marry someone of the same sex.

As it stands now, you're allowed to marry someone of a gender you like, while homosexuals are only allowed to marry people of a gender they don't.

This is not a minor detail. And it didn't end up this way by chance.

Bissage said...

Thank you Jason. I'll think about that off and on today.

I guess I do have a tentative, preliminary thought, though, and it is this: Marriage is no longer a license to have sex the way it used to be. Lawrence v. Texas hammered the last nail in that coffin.

Again, I'm not so sure that's where I'm at. I'll consider it all some more.

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