Skragnon's Blog

Same sex marriage

November 4, 2009
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The first definition of marriage in the Random House Dictionary states “The social institution under which a man and a woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc.”.  It also defines marriage as “The formal declaration or contract by which act a man and a woman join in wedlock.”.  It is this latter definition, considered obsolete by Random House, and ignored by our society at large, that I contend is at the heart of the solution regarding the discomfort in our society today regarding same-sex marriage.  I propose to argue that same-sex marriage has been unintentionally restricted by the very movement attempting to “legalize” it, and that marriage itself has been incentivized by the government.

By its very definition marriage is a contract, yet one of a religious nature.  One that has a social standing widely known and understood amongst the populace at large, yet the fact that it is a contract is seemingly ignored by not only the people who wish to defend it, but also those who wish to change the culture of a nation and a world to have same-sex marriage be recognized at the same level as a traditional religious marriage.

The institution of marriage contains many psychological and physiological benefits, which have been hashed, rehashed, dissected, reviewed and just plain argued about since the pursuit of same-sex marriage came into the consciousness of the society at large.  None of these are intended to be discussed here.  People of much larger intellectual fortitude, faith and even legal bearing have weighed in on this controversial topic.

My belief is that same-sex marriage as a concept should not be restricted, however it is not marriage.  As a Catholic, I believe that marriage can only exist between a man and a woman.  It is nature’s divine manner to ensure not only the continuation of our species, but the harmony required for true happiness in both a man and a woman’s life.  Marriage is the foundation of the family, as nature intended for it to exist with male and female joining to give birth to a following generation.  Marriage is so vital for a good society that governments worldwide have incentivized marriage by providing tax breaks, and other special rights to those that are within the bounds of a traditional marriage.  Those same governments have developed legal protections for marriage, real or imagined, because of the solid rock foundation that marriage will give to the society at large.

Same-sex marriage goes against that intended purpose of marriage as put forth by God.  Yet I will not deny any couple the opportunity; no, not opportunity, for it is such a poor word in this situation; the right, to freely enter into a legally binding contract with all the rights and privileges that a traditional marriage would normally entail.  Government should not have imposed itself, in such a manner as I recently described, between two people willing to enter into a contract to simulate a marriage.  Our governments recognize the ability of one person to enter freely into a contract with another on such a vital question as to their right to live by the use of a power of attorney document.  It can be used to accept, or deny, medical care in a hospital, even if the question if someone should live or die.  However the understood social contract of a traditional marriage assumes that a power of attorney already exists.  Do doctors ask the wife of a husband who is brain dead on a respirator to get a piece of paper before they ask her to remove life support?  No, they merely ask her permission, and then proceed based on her response.  To be sure, a document might be signed prior to the execution of the decision, but that is to document that the wife made the decision of her own free will in order to protect the hospital afterwards.  So if a traditional marriage has this innate power, why not the same-sex marriage contract?  Why should it be required to go above and beyond the documentation required for a traditional marriage?  In both cases I believe it is government interference.  Both in stripping the power of the contract in this instance (by ignoring, or not enforcing those contracts that have been created), and in not providing the framework for an alternate structure that will allow people that do enter into a contract simulating marriage to have it recognized and enforced.

As for myself, I have reconciled with both my secular and religious selves the question of same-sex marriage.  It cannot be marriage, marriage is between a man and a woman.  Call it anything else: civil union, union contract, contract of the soul, etc.  Redefining marriage is to hot of an issue because it goes to the very foundation of how people view themselves through the lens of their religion.  However government needs to get out of the way of people living their lives, and it needs to become neutral in the discussion by removing the incentives for being married in the tax code.  Government should also not put in place disincentives towards either traditional marriage or a civil union.

Same-sex marriage advocates have hindered their own cause by demanding that their position, one of allowing a joining in matrimony between same members of the same gender, be referred to as marriage.  However, they are choosing to ignore the religious aspect of marriage.  Religion holds a deep sway in a person’s heart and mind.  It is not something that can be rationalized away for the sake of a perceived inequality on the part of another.  Yet if the religious can be separated from the equation, then I believe many people who currently oppose such action would be willing to accept a marriage equivalent in the same-sex community.  Operatively the intent would be the same.

Some would argue that what I propose is “separate, but equal”, in the tradition of segregation.  Yet is it not what religions currently believe?  My sister, when she married, did so with a justice of the peace.  The state considered her married, yet before she and her husband could get their child baptized, they were required to be married in the church as well.  Marriage in front of a judge, is not considered a true marriage, within the confines of the church.  In the eyes of the church, only a marriage performed before the eyes of God truly bonds.

The concept of marriage as a contract is not new.  In fact it has legal precedent as shown by a news article in Time Magazine in 1936.  A couple chose to pledge themselves in marriage via a contract, properly signed and notarized.  This is seemingly a radical concept in the United States, however apparently was quite common in Europe at the time.  (Contract Marriage 1936)  The new, yet oddly old, concept I have proposed as the most ethical solution to our society’s challenge to deal with an ever more vocal minority of our populace is to allow that minority to freely enter into a legally binding contract with all the same rights, benefits and privileges of a traditional marriage.

Ethically, allowing same-sex couples to contractually join is the most moral position.  Kant tells us that people should be treated as an ends, never merely as a means, as this promotes equality, and that all positions should be both universal, as well as reversible.  Should same-sex unions be allowed?  Of course, for I cannot deny one person the choice to bind themselves to another, and still retain the right to do so as I have done with my wife.  This stance satisfies both of Kant’s categorical imperatives regarding a moral position.

Utilitarianism demands that the moral worth of an action be determined by the utility it brings to society.    Utility in this instance could be perceived in the stability that such same-sex unions can bring to such a volatile portion of society by reducing promiscuity, limiting the spread of disease, and stabilizing the transitory nature of this minority.  These are instrumental values, whereas the intrinsic values of happiness and well being are equally satisfied.

At the outset of this paper I stated that the right of people to contract, to the ends of entering into a bond simulating marriage, should not be infringed.  However it is government interference into the right of contract that has impeded such progress.  Government has placed such heavy legal burdens on these contracts that they become unnecessarily overloaded with legal jargon that they become unintelligible to the average person, if they aren’t eventually invalidated by our own courts.  Even in situations where a will has been prepared with the intent to pass on the effects of one partner to another, they have been found to be invalid, and thus required extensive litigation to claim what would normally be passed immediately from one person to another in a traditional marriage. (Nishimoto n.d.)

In July of 2000 the Vermont legislature passed Act 91 which simply reads “Parties to a civil union shall have all the same benefits, protections and responsibilities under Vermont law, whether they derive from statute, policy, administrative or court rule, common law or any other source of civil law, as are granted to spouses in a marriage.”  (State 2008)

In reading these forty-four words all that I contend that is required are contained.  The law provides recognition that ultimately marriage is a contract between two people, and that such a contract should not be restricted as only being between men and women, but to be open to any pair of people wishing to bind their lives together.

At least one state government has made the move, by getting out of the way and allowing people to enter into a relationship with the force of contract, and without the mounds of paperwork that have so far been thrown into the fray.  All people are capable of love and caring.  All people are capable of commitment to another, well beyond their immediate needs for companionship.  All people should be able to use the power of the contract to enter into an agreement similar to marriage.


    The profundity continues …

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