In Go Forth and Multiply I looked at the reasons why marriage laws exist. I discovered that the personal qualities assessed by authorities to determine whether a couple is qualified to be married do little to ensure the integrity of the nuclear family unit, despite proponents of traditional marriage claiming that this is the purpose of these laws. The real point seems to be to ensure that the individuals entering into the marriage are actually capable of making the decision to marry and that no one is being coerced or taken advantage of through the union.
There is another important qualification that I failed to mention – that neither of the individuals is married to anyone else. This is actually a mandate from the federal government, rather than the state. From what I gather, this is the only marriage law regulated at the federal level and it originates in the Morrill Anti-Bigamy Act in 1862. This made it a criminal offense to have more than one spouse at the same time. However, the logic behind this decision wasn’t based on a moral standing or designed to protect children; it was in response to the growing property portfolio and power of the Church of Jesus Christ of Latter Day Saints as a result of pluralist marriages (the law also placed a financial limit on church and non-profit ownership).
So...is the government’s interest in marriage actually more about regulating power and money than it is about imposing traditional moral objectives?
Let’s take a look at exactly what same-sex couples are actually being excluded from by examining the aspects of civil marriage.
Civil marriage is a single legal contract that instantaneously confers a number of benefits, rights and privileges between spouses. After DOMA passed, The United States Government Accountability Office identified 1,049 federal benefits, rights and privileges that are contingent on marital status. By 2004 this number had increased to 1,138. This is further compounded at the state level where, for example, Illinois has a further 648 benefits, rights and privileges that are contingent on marital status.
Feel free to read through them all in detail, especially if you are having trouble sleeping. Alternatively, you can trust me in saying that they pretty much all whittle down to death and taxes by:
· defining how the couple is treated with regards to employment benefits and taxation (including 179 provisions at the federal level alone) while they are married;
· establishing rights and responsibilities for dissolving the marriage, including obligations for child and spousal support; and
· defaulting the surviving spouse as next of kin upon being widowed, which means they are entitled to receive financial benefits (e.g. pensions), transfer of property, etc.
Some of the federal laws defer to the state definition of marriage, so if the state government legally recognises same-sex marriage then the couple will receive equal legal rights and protection. However, it is important to recognise that only 5 states and the District of Columbia are currently marriage-equal. Other states that recognise ‘domestic partnerships’ or ‘civil unions’ present a complex legal landscape that still significantly limits rights and protections for same-sex couples.
Some of the provisions can be accessed through other routes. For example, most provisions relating to criminal issues (e.g. domestic violence and sexual assault) include the terminology ‘spouse or intimate partner’, recognising the reality that alternative forms of family exist. Provisions relating to employment can be supplement where employers implement their own policies to extend benefits to same-sex couples. Many private companies choose to do this even though they are not legally obligated because they recognise and value staff diversity.
In spite of all that, there are still some incredibly disparaging issues. I take particular offence to these:
· Federal health and welfare programmes – these are primarily designed to assist disadvantaged individuals and families. Marital status is normally significant in determining whether a family qualifies for support and what level of support they receive. This excludes disadvantaged same-sex couples from receiving adequate levels of support and all same-sex couples from receiving benefits in the event of their partners’ death.
· Child and spousal support – these laws exist to ensure children receive adequate support in the event of divorce by obliging absent parents to provide appropriate funds to the spouse with whom the child lives. A partner left to raise children after a same-sex relationship has broken up has no legal recourse to seek child support. Equally, a parent can be left without legal recourse to gain access to a child.
Obama extended federal benefits to same-sex couples last year and, with the repeal of DADT, this will likely be extend to include military personnel and veterans. However, immigration remains exclusive as a direct result of the definition of marriage in DOMA.
The reason I can’t come home with my partner comes down to how marriage is defined...by DOMA.
If you asked 100 married couples to define marriage, I guarantee you will get 200 different answers. Ask them again in 10 years and you’ll get another 200 answers, all different from the first. What makes a marriage is unique to the individuals in it; how they conduct their relationship depends on their needs and circumstances which are constantly changing.
Marriage laws and the legal provisions extended to married couples have nothing to do with how marriage is defined to individuals and everything to do with legally defining the couple as a financially interdependent unit. The evidence required to prove the validity of a marriage for immigration purposes underlines this, by requiring couples to submit documentation showing joint ownership or property and/or documentation showing the co-mingling of financial resources.
I absolutely love the point Cynthia Nixon makes here, so I’m going to say it again:
Marriage equality will not re-define marriage any more than allowing women the right to vote in 1920 re-defined ‘voting’ or integrating diners in the 1960s re-defined ‘eating out.’ It will simply mean everyone has a right to sit at the same table.
The more I watch the debates on same-sex marriage and speak with people about this issue, the more I realise how little most Americans know about how and why the government regulates marriage. This realisation is what compelled me to write this blog in the first place and the comments I have received here and through private communications have confirmed this message needs to get out...
No comments:
Post a Comment