Friday, November 12, 2004

Some Thoughts on Homosexual Marriage, the 14th Amendment, and Contracts. Plus a Dinosaur (not really).

Ok, so I've been discussing gay marriage a lot lately with a lot of people, (most of whom are vehement supporters), and I just want to put out a suggestion which I think makes a lot of sense, and which I'd like to hear some feedback on, if people are willing.

The primary argument for gay marriage is that the 14th Amendment guarantees equal protection of the law, and if there are legal rights and responsibilities attached to marriage then they should be available to anyone who wants them. Basically, homosexuals should have all of the same legal opportunities that heterosexuals have. While this in itself could be debated, I will for now assume it (because I essentially agree with it (particularly when we use the phrase 'legal opportunities', which I feel is much more accurate than 'rights')). When pressed on the specific legal opportunities that attach to marriage most people respond with a relatively short list - tax and insurance benefits, adoption, and visitation (This list could surely be expanded, but it is illustrative for purposes of this little essay, and so we'll leave it nice and concise). Everything on this list is the sort of legal creation which we could easily find a way to present to anyone. In fact, the ease of contracting these rights is exactly why they adhere so cleanly to the institution of marriage - the government says "you're getting married? Ok, sign this contract and you'll get these things." It's simple.

So I say, let's keep it simple. We don't need homosexual marriage in order to ensure that homosexuals can receive the same legal opportunities. All we have to do is allow them to contract for the same rights.

To illustrate, let's look at insurance benefits: This is the perfect example because many employers and insurance companies allow the simple naming of beneficiaries. The typical scenario is that a husband or wife gets insurance through work and it covers the other. The argument is that it is unfair that equally committed homosexuals cannot get the same coverage for their partners. The remedy is simple - a law which grants that insurance companies shall not discriminate in the application of their partner benefits. Of course, insurance companies will be dissatisfied with this, because then any set of individuals could just say they were partners and receive benefits. So you provide a contract solution - allow any individuals to contract to be insurance partners (I'm sure there would have to be a minimum term, and perhaps some other requirements which would provide assurances to the insurances (!) that they weren't being ripped off, but those would be easy enough to figure out). After all, when two people marry, in the government's eyes it is a contract to be partners, and because there is a legal commitment insurance companies recognize partners as such.

We could do this for each of those legal opportunities. I realize that some would be more difficult (tax, with all of its minutiae might be tedious, but certainly it would be doable), but ultimately we could contract out each of the legal opportunities that attach to marriage, and thus homosexuals would not be denied any of them.

I think one important thing about this approach is that it avoids institutionalizing homosexual partnerships. I am convinced that the danger of homosexual marriage is the damage it would do to the institution of marriage (I liken it to no-fault divorce). Notice though, that by contracting out these legal opportunities (and the obligations which would attach) individually we are not creating either a marriage or a civil union.

I'd like to address what I see as some potential criticisms. Some might say this is ridiculous, this means homosexuals will have to jump through extra hoops which is discrimination in itself, or that it is simply absurd to make them contract for each right individually when the normal course will be to want all of them. The response for both of these objections is essentially the same: the path of least resistance. I am confident that, like with most things, after only a short time the process would become extremely simple and painless - there will be no extra hoops, simply a form, no more demanding than a marriage license. Moreover, there could also be a simple form which put all of those legal opportunities and obligations together in a single package. I'm not suggesting that they cannot contract all of the rights at once, simply that there should be no institution; most contracts contain more than one provision, and so would this one.
I would expect that another common objection would be that this is all simply a legal fiction, and that these contracts are really no different from simply granting homosexual marriage, or at very least civil unions. I think the response to this is fairly simple - we simply do not perceive contracts as institutions. I do not have an institution with my operating software. Perhaps it would be observed that contracts sometimes create and delineate relationships. The response, of course, is that these are not relationships in the same sense that a marriage or civil union is a relationship. I doubt anyone feels the same way about their partner as they do about their apartment manager. Quite simply, if the government recognizes the contracts but does not accept homosexual marriage as an institution then there is a very real distinction.

The final argument that I perceive is that this distinction is still objectionable. That if heterosexual people can be married, then why can't homosexuals? If this is the objection, however, it is clear that we have passed beyond the 14th Amendment, for if every legal right has been extended equally then there isn't a Constitutional argument. Instead this is a cultural/moral argument, which says quite clearly that "homosexual marriage is acceptable." To those who would carry this banner, I point to a common argument now used in favor of homosexual marriage - who are you to push your beliefs on others? (I would probably also point to several other arguments against homosexual marriage, which I am specifically avoiding in this article because I want to keep the focus on the contract idea). The point here is simply that beyond the 14th Amendment arguments there is nothing more than a culture clash, and one way or another, we are legislating morality.

I believe that there are probably many out there who would move into this last argument that I described, and that these folks will simply be closed to my proposal. Those who honestly pursue the 14th Amendment argument for its own sake will be more open; I imagine that ultimately most of these would reject my idea for some reason or another, but hopefully it will at least get a fair hearing. I would also imagine that those who agree that homosexual marriage should not be permitted will be split into a couple of camps. There will be those who think homosexuals should have no rights, and will reject this as too liberal and expansive. There will probably also be those who think the system is fine as it is - why fix it when it isn't broken after all? And who knows, perhaps this will find a small foothold in some people - both those opposed to homosexual marriage and those in favor of it. It seems to me the best of both worlds - the institution of marriage is saved from further damage and homosexuals receive all of the same legal opportunities available to everyone else.


Krista said...

I'm once again impressed with your well-spoken, supported opinions. The fact that you are a young, open-minded male is such a breath of fresh air and gives me hope for our country's future. Bear and I moved recently, and we seem to be surrounded by neighbors with a pre-1920s mentality towards life and government. I enjoy your posts and have forwarded your site to many of my friends. THANK YOU!

Anonymous said...

Dear Matt,

Your reading of the 14th Amendment sounds oddly like the Jerry Falwell reading of the 1st. He contorts the establishment clause to argue that the state cannot tell him not to, say, pray in a public school. You twist equal protection to mean your personal prejudice, the completely unsubstantiated idea that gay marriage will hurt you, should not be threatened by removing an injustice from our society. Bigots both, you think the law is somehow going to protect you from a moral imperative.

Your contract idea is fundamentally mean, and fundamentally unnecessary. I could pull my forms book of the shelf right now and write the kind of contract you are talking about between any two people. You miss the point. Your contract plan argues that two people in a relationship should have to jump through hoops, hoops of any size, to legitimize something two other people can accomplish without discrimination. As if anybody had to ask your permission to institutionalize their relationship to begin with.

Get it straight. The law is our best attempt at morals; the Constitution, our best attempt to nail down our core beliefs. Our attempt may fall short--and has, many times in our history--but the law and ethics are not separate institutions. Kick and scream all you want, the law will change because people are getting smarter. There will be gay marriage, and soon, because our culture is learning to rise above your particular brand of pettiness.

Matthew B. Novak said...

Wow. Way to hide your angry "if you don't agree with me then you're bigot" comment behind a mask of annonyminity. Your guess at my motivation - "the unsubstantiated idea that gay marriage will hurt me" - is both vauge and itself unsubstantiated. My reasons for being opposed to same-sex marriage (which I purposely avoided discussing to focus on the 14th Amendment issue) are quite significant and your unfounded assertion to the contrary simply demonstrates your own sheer bigotry, and inability to differentiate. Essentially though, I think my very post - one suggesting a way that homosexuals would have the same rights made available to them - clearly demonstrates that mine is not a position of bigotry. In fact, you write that I "twist equal protection to mean [that] my personal prejudice... should not be threatened by removing an injustice from our society." Actually, however, I am recommending just the opposite - that we work to remove the injustice.
Now I see that your post essentially raises two of the objections which I predicted. First the "jump through hoops" idea - which I addressed clearly in the original post. Let me just say that ultimately the "hoop jumping" which same-sex couples will be subject to will be in essence no different than the hoop-jumping of people seeking a marriage license. The second objection isn't stated quite as clearly - basically you say that "the law is our best attempt to regulate morality." This I largely agree with. I think that same-sex marriage is immoral. I also think it is immoral to deny the same legal opportunities to homosexual couples. Hence my proposal - granting the opportunities while preserving the institution of marriage. (You can see that given my position this proposal is neither "mean" nor "unneccesary.") You ultimately disagree, however, over what is moral. You think that same-sex marriage in itself is no less moral than heterosexual marriage. This argument is not a 14th Amendment argument, which is what the post was about. Instead this is the predicted cultural/moral argument which simply says same-sex marriage is acceptable. You seem convinced that society will eventually "rise above [this] particular brand of pettiness." I would caution that more permissive does not mean more moral. Ultimately we are left to disagree about whether same-sex marriage is morally acceptable. And that's a post for a different day.

Anonymous said...


You don't get to write off criticisms because you predicted your argument would have critics.

Let's talk about the "idea that gay marriage will hurt you." I believe this to be your motivation only because you have told me that "the danger of homosexual marriage is the damage it would do to the institution of marriage." The idea is vague only to the extent that you lack any scientific evidence to back up the claim.

You want to call me a bigot because I will not distinguish between your legal compromise and your ethical underpinnings. I understand that this is how you make sense of the injustice you see in the law and the threat you feel to your worldview. Please understand that "separate but equal" was also legally enshrined in the 14th Amendment, what you would call "the path of least resistance." You may genuinely want to "remove the injustice." But your compromise grants little more than a little less discrimination, and that is unacceptable.

Homosexuals do not need "the same rights made available to them" by your scheme or any other. They have those rights already.

Matthew B. Novak said...

Look, whoever you are... please identify yourself. I'm guessing that I know you, but with the mask on, it is a bit of an uneven playing field.

Anyways, to address...
I don't dismiss your criticisms because I predicted them - I still deal with them.

Second of all there is a significant difference between the idea that "gay marriage will hurt me" and the idea that "same-sex marriage will damage the institution of marriage." And there is plenty of evidence that same-sex marriage will affect the institution of marriage. I'll address that in some other post sometime in the future. If that's what you want to debate, approach me personally, and I'll discuss it with you.

Third, I'm not asking you to distinguish between my legal compromise and my ethical underpinnings - they're one and the same. I demonstrated that in the last post. I think it is ethical that we give homosexuals the same legal opportunities, and I think it is ethical that we not permit same-sex marriage. The legal compromise is a function of those ethical underpinnings. You, however, want to challenge my ethical underpinnings as bigoted and narrowminded. They aren't. The fact that I propose what I do is precisely evidence of this fact. This is why I want to call you a bigot - because you refuse to differentiate between my position and the position of others who are truly small-minded. Thus, you conclude that I am small-minded. Without saying it you've proclaimed that anyone who disagrees with you is small minded.

Also, you presume to know what my worldview is, without ever having actually heard it out. Your presumptions, the gal that you even presume, is your barrier. You need to get around that. Then maybe we can have an honest discussion.

Finally, you confuse an argument - the path of least resistance has nothing to do with the movement as a whole - so your comparisions to "seperate but equal" are innappropriate. The "path of least resistance" refers only to the fact that hoop jumping wouldn't exist. I should also say here that any comparisions to race discrimination are innapropriate. Race is a negligible difference in any realm. Gender in regard to marriage is not negligible.

Anyways, ultimately it seems to me you are exactly the type of person that wouldn't be convinced by this argument - you are convinced that same-sex marriage is just as moral as heterosexual marriage - and you don't plan on stopping short of the legality of same-sex marriage.
So, I guess what I'm saying is, there isn't anything left for us to debate with regard to my proposal. For you it will never be enough, and for me it is exactly appropriate. We can debate the underlying issues - whether same-sex marriage would damage the institution of marriage - but let us do that in a different forum.
And, for future reference, please don't presume to know the worldviews of others - especially since they are normally more nuanced than you could percieve.

Anonymous said...

You know anonymous, if you were a little more openminded to what matt is suggesting you would understand that it is taking what two groups of people want and and finding a middle. This is called a compromise and if you have any idea of your country's history you would know that the whole constitution is a series of compromises. You would also know that compromises satisfied neither group of people in anyway because it means giving a little on what you think is right. Sometimes people need to give a little to reach a place that is best for the country and the group in question.
The group in question here would be homosexuals. This like all other topics will never be solved to any one persons wants. What Matt was suggesting was essentially a compromise that would try and make people "give up" their morals and belifs as little as possible. It also would fit under the constitution and the 14th amendment.
Which brings me to the point of when reading someone else's opinion you need to be open minded to what they are saying and try to see things from their point of view. Then if you have seen things from someone else's viewpoint and you have something to say, you should respond in a reasonable manner with less of an angry nature. And finally you should have enough courage to sign your name after you have said what you feel about the person's opinion. When you don't sign your name it shows that you either don't feel confident it what you believe or you are too afraid of what someone will say about your opinion. This is all i would like to mention.

Anonymous said...


My chosen profession requires me to be familiar with the history of our country. Some compromises, like Roger Sherman's proposal for a bicameral legislature, strike a balance between two powerful factions and help to give American government its distinct flavor. Others, like the three-fifths compromise proposed by the same man at the same convention, strike a balance between the powerful at the expense of the disenfranchised.

I can accept that treating a particular group of people as less-than-citizens has historical precedence. But the genius of our American history, dear Maria, is the slow but certain rejection of Matt's kind of "compromise."

Joel said...

While "Anonymous" is a great deal more eloquent than I am, I do want to address a couple of points that you raise here, Matt.

I like your idea of letting gay people sign a contract that confers the rights that heterosexual spouses already enjoy. But why not just extend it to all couples? Why not make marriage the purview of churches and other such religious NGOs and simply insist that all people who wish to contract into a permanent, committed partnership in the eyes of the state must do so through a civil union of the sort you're suggesting? That seems a great deal more like the equality that the 14th Amendment purports to offer.

And it's also the only way I can see homosexual marriages at all damaging the institution of marriage as we currently know it. Otherwise, I'm at a loss to see how the two really relate to one another. Surely you're not concerned that heterosexuals all across America are suddenly going to "turn gay" and divorce their spouses, are you? I'm really quite curious as to how gay marriage devalues the relationships that other couples enjoy.