Let’s Talk About . . . Gay Marriage

Dun dun dun. Just to begin, I expect there will be a handful of my acquaintances and friends from through the years who will read this, become disgusted or aggravated, and proceed to continue not speaking to me, but that’s okay. I invite you to leave your dogma at the door, as I’ve just mopped and no pets allowed, and really, it’s unhelpful to just say the same things over and over again.

Here’s the deal: marriage is a word with two meanings. On the one hand, it is a legally binding contract between you, a partner, and the State. On the other, it is a holy covenant between you, a partner, and God. But see, here’s the thing: your minister understands that there’s a difference between the two. In fact, he proclaims the difference every time he presides over a wedding. “By the power vested in me by God and <insert state here>. . .” That said, I do not intend to comment on the second, religious meaning of the word. To say they are inseparable is to admit that your government has control over your beliefs, and I think that’s a pretty contradictory statement from you conservatives out there.

In any event. Gay marriage. this handy chart outlining how each state defines marriage, which ones abide it, which ones ban it, and which ones have no legal stance on the matter. For those who don’t want to click and read, it breaks down this way:

37 states have defined marriage as being between one man and one woman. 32 of them have passed statutes to that effect, 5 have made “Defense of Marriage” amendments to their constitutions. **Note: their numbers say 33 and 4, but they haven’t updated with the new North Carolina amendment.**

So, you might say, 37 states have said “No Way!” That’s clearly more than the majority of states, and while that seems like pretty strong evidence that maybe they’re on to something, let’s not get caught up in the argumentum ad populum (shout out to Annie Olson. Fallacies, what what!) red herring. In fact, Jim Crow laws, which are (now) almost universally agreed upon as unethical and supremely misguided were enacted in a whopping 35 states.

These laws were enacted shortly after that little war we had in this country in the mid 1800s in response to the new-found freedoms of the African American population. Such laws prevented rights and privileges based on race and/or social class, requiring land, money, education, etc in order to vote, hold office, etc. They were enacted to prohibit African-Americans from becoming effective citizens, with full rights and privileges. But of course, even then they bothered to hawk them as “separate but equal.”

I don’t know anyone who really thinks the Jim Crow laws were a good idea. I mean, I do live in Texas, and I have no doubts that there are a good many people who /DO/ wish they’d come back, but they’re the same ones who would likely not pass muster on the literacy portions anyhow, so we’ll just assume they don’t count. But, fortunately, as part of the resolutions from the war, the Amendment XIV was passed, allowing (among other things) equal protection under the law, stating:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But here we are, in 2012, passing laws that are directly counter to this statement. But wait, you say! Marriage isn’t a right! It isn’t a law! Well, the “right to get married” doesn’t exist, BUT there are certain legal amenities it provides. While these are many and widely varied, I’m going to focus on one that I haven’t seen discussed before, but should anyone know where it has, I’d love to know.

The Federal Rules of Evidence provide, as a matter of course, privilege between spouses to not have “adverse testimony” against each other. This allows a spouse to refuse to be called as a witness by the state against an accused spouse in order to preserve “marital harmony.” This is considered a “privilege,” and protected under FRE Rule 501 (See Notes of Committee on the Judiciary, Senate Report No. 93–1277). In fact, Texas offers the privilege as well.

It’s important to note the term privilege used in both of these documents. Amendment XIV expressly forbids making a law which “shall abridge the privileges or immunities of citizens of the United States” (emphasis mine). So, I’m going to go ahead and assume that no one assumes that homosexuals born here or naturalized are NOT citizens of this country, so I fail to see how any statute or amendment is lawful with regard to the United States Constitution, which cannot be contradicted by any law of the many states.

But wait, you may say again: the spousal privilege is only for spouses! If they can’t be married, it doesn’t ever apply! Well, you’re correct there. And here’s the problem with that. The privilege does NOT extend to boyfriends/girlfriends, engaged couples, long-time friends, etc. So by default, a homosexual couple is precluded from this privilege. But there’s a fundamental, and important difference between those allowed the privilege and those who aren’t, even among the heterosexual population: the choice to become married.

Boyfriends/girlfriends, long-time friends (of any permutation of sex), etc have all CHOSEN NOT TO BE MARRIED. Should they wish to be married, they’re allowed, but only so long as they happen to be sexually attracted to people of the opposite sex. And really, that last part seems entirely irrelevant. If a homosexual couple chooses to be married, then why can they not receive the privileges and benefits (and pitfalls!) commensurate with the legal bond of marriage? In this case, the homosexual couple wishes to abide by the laws and regulations of the State and form a contract with all its rights and privileges, but are denied on arbitrary grounds. If a homosexual couple doesn’t wish to get married? Sure, fine, deny them spousal privilege, just like you do heterosexual couples who choose not to get married. But to deny a privilege allowed by our state legislation and our federal judiciary system based solely on whether or not the two people have the same set of genitals? That just seems kind of absurd, doesn’t it?

What legal bearing does a set of genitals give? Certainly none in differentiating between the two since other legislation was passed barring the discrimination based on such genital difference. So why then, do genitals suddenly matter when it comes to a legal contract between two consenting adults? There isn’t an answer beyond a great many people presuming that unlikeness equates to moral turpitude.

But therein lies the problem. It seems a great many of the American people have conflated the legal and religious meanings of marriage, and assume they should be the same thing. If you’re going to do that, why not ban any marriages performed by a mullah or imam? By a satanist? By a Catholic or a Baptist or a guru? Their set of marital standards may be considerably different, but all that seems to matter are the ones you can see: whether it’s two people of the same sex or not.

Any way you slice it, the rule is exceedingly arbitrary. I don’t grudge anyone who, because of his or her religious beliefs, will not marry someone of his or her same sex. If that’s what your belief system says is the moral thing, great. But how can you have the audacity to say that your religious beliefs trump a legal contract between some other people and the State? Baptists don’t think drinking is moral, but there aren’t nation-wide campaigns saying we should bring prohibition back because beer is violating the sanctity of our grocery stores. It may not be moral to be gluttonous, but all-you-can-eat buffets still exist without provocation.

Let’s get it together, and use our brains a little bit, and realize that at the end of the day, that gay couple next door who can’t bind themselves together legally are still going to have sex tonight. They’re still going to make their mortgage payment, and they’re not going to eat your children, burn your bibles, or shoot your dog. Step back and ask yourself: In the real grand scheme of things, what difference does this make? And you can even extend that as far as you want. Does a gay married couple affect your relationship with God, your view of heaven? Hell? Life? Love? If it does, you are weak-willed and unsure of either yourself or that in which you believe. If it doesn’t, then why not just love and let love?

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4 Responses to “Let’s Talk About . . . Gay Marriage”

  1. Emi May 9, 2012 at 8:45 pm #

    This is a great post. I had never thought about testifying against your spouse but that’s a great point. I’m really glad that even with all the craziness going on there are still rational, sane people out there who can have an actual conversation without it devolving into insults and name calling.

  2. Ashley July 9, 2012 at 6:17 am #

    So many people share this viewpoint with you, Tyler, and sharing your opinion in the affable manner you do isn’t offensive at all.
    In the matter of gay marriage, I always say those that are against it {without solid reasoning} have never had a set of gay friends who are in love and want to be married. If they had, they might see things more clearly.

  3. Bill October 6, 2012 at 9:49 pm #

    You are missing the boat, Tyler.

    Domestic partnership laws give gay couples the ability to “abide by the laws and regulations of the State and form a contract with all its rights and privileges.” Well, ok, almost all.

    The exceptions that seem to apply to domestic partnerships are all economic. Historically, marriage is all about forming a family that ultimately propagates the species and ensures its survival. As a result of fulfilling that duty, there are certain economic incentives such as, perhaps, preferential tax status and the ability to help your spouse immigrate to the US.

    Homosexual “marriages” provide no benefit to the society in the same way as traditional marriage does. Perhaps that is why the vast majority of people do not want to give our tax money to them.

    • admin October 6, 2012 at 10:16 pm #

      “Well, ok almost all. The exceptions that seem to apply to domestic partnerships are all economic.” Do you presume to say that homosexual couples–within the confines of a legally binding marriage–should not also benefit from the economic gains? Indeed it seems not, since you say they aren’t “fulfilling that duty” of species propagation which you assert is a historical reason for marriage.

      Well, historically, marriage was a political means to bind families together to reduce the possibilities of war. Indeed, a good many babies have been made without marriage, and in fact, our species fortunately figured out what to do well before anyone thought up the idea of marriage. Of course, I don’t have a source for that, but seeing as we’re here, and we have a long history before written history, I think it’s a safe enough assumption. In any event, marriage for a good portion of recorded history has been a means of payment or convenience. See the lines of almost all of the European lineages, or in fact look no further than the biblical story of Ruth. That marriage was to reduce trouble for her people. Not to keep the species alive.

      Your conceit “marriage is all about forming a family that ultimately propagates the species and ensures its survival” is painfully naive, and treads perilously close to choosing legislation or law based on a genetic propagation of useful or desirable traits. What of those who choose to get married and have no children? I am in one such marriage. Should I, then, not receive tax or economic benefits because I’m not working towards the survival of our species? Should my marriage be annulled and relegated to mere “domestic partnership” so I can only receive “almost all” of the rights and privileges afforded by a legal marriage?

      No, sir, I believe I have caught the boat. This boat is moving toward a unified and forward thinking humanity. Where travels yours?

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