A college classmate recently posted on Facebook about gay marriage. And when I found myself weighing in, I offered a response a bit longer than I had anticipated. It’s organized as are most of my post, more in the form of random thoughts, but since I took some time crafting it, I thought I would share with with you, slightly amended with links added:
As perhaps the only gay person on this thread, I must note that I have long been decidedly ambivalent on gay marriage, in part because many gay marriage advocates seem more interested in winning the culture wars than in promoting the institution and in part because of my studies of myth, psychology and anthropology and the longstanding human recognition of the importance of sex difference. And marriage rituals of every culture (see van Gennep) are based upon bringing together individuals from different groups.
In my grad school paper for my Native American class, I researched the legends of the berdache, or two-spirit. Many cite the berdacge tradition as an example of cultures which accept and embrace homosexuality and same-sex relationships. And while many American Indian tribes recognized same-sex marriages, they all required one partner in such a union to live in the guise of the other sex. Thus, if one man married another man, one would wear men’s clothes and go hunting with the “braves” while the other would have to wear women’s clothes and live as a “squaw.” The one who lived as a woman could not go hunting with his same-sex peers nor could he participate in activities, rituals etc reserved for his biological sex.
Sex difference in short has long been inherent to the notion of marriage.
That said, I believe, states should — at minimum — recognize gay relationships as civil unions. And perhaps the ideal would be for the state to simply call monogamous relationships “civil unions” (for all people) and let churches, synagogues, private individuals, etc. call them marriage — or whatever they want.
It doesn’t bother me that the state doesn’t call same-sex unions marriages. What does bother me is cases like Edie Windsor the woman who brought the DOMA challenge. Because that law prevents the federal government from recognizing her marriage, she, unless the court finds in her favor, would have to pay over $300,000 in taxes on her late wife’s estate. Had the state recognized the union, that estate would pass to her without penalty as the surviving widow. (Side note: we wouldn’t have this issue if we didn’t have estate taxes, but that is another matter.) It’s ridiculous that she should have to pay that amount on what was essentially her own estate.
Now, back to my point about sex difference and the meaning of marriage. Over time, the notion of marriage has evolved. And we should allow it to continue to do so. Constitutional amendments interfere with organic processes; they prevented elected legislatures from addressing the issue. And oftentimes, they (i.e., legislatures) do a good job of recognizing the concerns of opponents — and seeing the issue in a broader cultural context.
In New Hampshire, for example, then-Governor Lynch vetoed a bill passed by the legislature recognizing same-sex unions in his state. He was personally opposed to gay marriage. After the veto, responsible voices reached out to him and helped craft a religious liberty clause to tack on to the legislation. With that amendment in place, the legislature voted again; the governor signed the new law. Same-sex couples would get the benefits of marriage. And religious groups had a guarantee that they could continue to define marriage in accordance with the dictates of their faith.
The example of the Granite State seems to be the best way to go. Some states like New Jersey may call the unions something else, but at least they recognize them. It’s unfortunate that in 2009 when they had the votes, the Democratic Congress didn’t move to repeal DOMA and pass federal civil unions. Nor did Obama prod his fellow partisans to do so.
I’d like to see the Supreme Court rule in favor of Ms. Windsor and overturn section 3 of DOMA (I believe that’s the entirety of the issue before the court). The Clinton-era law seems to violate the Tenth Amendment. That said, it does trouble me that a court would resolve this important issue. It will make opponents of gay marriage feel they have been left out of the process.
Which brings me back to New Hampshire.
In 2012, the Republican leadership of the state legislature moved to repeal the state’s recognition of same-sex marriages. The move failed, with numerous Republicans joining Democrats in voting against repeal. The mere fact that the legislature moved repeal helped secure the legitimacy of the initial legislation. An elected legislature voted on the recognition. After that vote, all members of the state House of Representatives were up for election. And then, the new legislature in place, it voted again. Between the two votes, the people had had a chance to weigh in.
On the whole the debate on gay marriage has been pretty pathetic, with one side crying for rights and calling its adversaries “haters” and the other saying (without any evidence) that gay marriage would destroy the institution. It would be nice to see more talk about the meaning of this ancient and honorable institution. Many of the gay couples I know have shown an understanding of that meaning, caring for spouses in sickness, helping them through difficult times, becoming part of each other’s families — and forging their own.
Maybe the consensus has been moving in favor of gay marriage because of people’s experience with those kinds of couples.