Jim, David, and the Supreme Court

 

I have this uncle, let’s call him Jim. He and David lived together for decades. They shared expenses, kept each other company, and generally looked out for each other. They were, in many ways, like an old married couple. But when David died, Jim had no right to receive spousal survivor benefits because he was never married to David. Why did they never marry? Because they were gay? No: because they were brothers.

Why shouldn’t Jim and David have married? They were consenting adults. They had a long-term committed relationship.  Granted, there was no physical union, but so what? The idea that a marriage must be consummated by a sexual act is surely a relic of a bygone era.

Today the Supreme Court heard oral argument in Obergefell v. Hodges, the case involving traditional marriage laws in Michigan, Ohio, Kentucky and Tennessee. If, as many expect, the Court declares same-sex marriage to be a constitutional right, it will not be long before siblings and old bachelor chums will demand the right to marry. And under the fast-evolving jurisprudence of SSM, it is difficult to see how such demands could be denied. Indeed, if marriage is redefined along the lines advocated by opponents of traditional laws, siblings, roommates, and 20-something buddies will find it exceedingly convenient to get married for the legal benefits while continuing to play the field for sexual partners.

Does anybody seriously doubt this? When marriage is a right belonging to any two adults who assert an emotional bond, there is no logical stopping point (indeed, there would be no reason to limit marriage to unions of just two adults).  In the new world, marriage is no longer a product of civilization, but becomes more akin to a Social Security card: it is a gateway to various taxpayer-subsidized benefits that any couple can lay claim to.

The precarious future of marriage is what happens when we forget first principles. The state does not create marriages; it recognizes marriages. The state may confer certain benefits on married couples for policy reasons, but that doesn’t mean that marriage owes its existence to the state. Similarly, in the US no state has “banned” gay marriage. Any clergyman can perform a same-sex wedding; gay couples have the right to live together, pool their income, and draft wills, powers of attorney, and health care proxies in each other’s favor. In most states, however, the electorate does not believe that such unions should be recognized by the state as marriages.

Only 11 states have decided to recognize same-sex marriages through democratic means. What is at issue today is whether the people of the other 39 states can weigh the pros and cons for themselves, or whether they will have same-sex marriage imposed upon them as a matter of judicial fiat.

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  1. Tim H. Member
    Tim H.
    @TimH

    You make an interesting point:  If same-sex marriage is recognized on the basis that it’s merely an outdated prejudice not to recognize it, then our incest taboos for same-sex couples (who can’t procreate with each other) are out the window, as well.  I can’t think of any legal prohibition on the “marriage” of brother with brother or father with son that could stand up, if things go this way.

    Who’s the first one who will say, “Well, so what?”

    • #1
  2. 1967mustangman Member
    1967mustangman
    @1967mustangman

    Oregon already grants domestic partnerships that would have covered your uncle and his brother.

    • #2
  3. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    This is all the result of Lord Hardwicke’s Marriage Act of 1753.

    Before that, government did not license marriage –  people coupled on their own either through a religious ceremony or simply holding themselves out as married.  The government didn’t license it at all.

    Until 1753.

    After that, and this is the real reason we are about to get SSM: Government started appending things to marriage that traditionally had nothing  to do with it like taxes, insurance, pensions, visitation rights, etc.

    I’ve maintained since early on in this debate that once government started giving out licenses that had coupled with it lots of other benefits, under the 14th Amendment equal protection clause they would have to start giving those licenses to any humans who asked and wanted those benefits.

    Marriage was traditionally oriented toward procreation.  When government grabbed the licensing, it became about other things too.

    Live by government power and die by it.

    Of course we will have close relations marry and then arguments toward polygamy.

    And we should!  Not because it’s a good thing.  We allowed societal values to leave the debate in 1753 with licensing.

    If you want to go back to the way it was, uncouple from marriage government rules that appended to it things like taxes, insurance, visitation, etc.

    • #3
  4. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    In Alberta, in order to avoid having to recognize same-sex marriage, they brought in the option of an “Adult Interdependent Relationship” in 2003 to handle just this sort of case:

    It includes same-sex relationships, as well as two non-conjugal persons who live together in a relationship of interdependence. In some circumstances it could even include two members of the same family, or two friends who live together

    Seems like a perfect compromise to me, but of course it didn’t work. The Supreme Court struck down the definition of marriage as one-man-one-woman in 2004, and the federal government passed a same-sex marriage law in 2005.

    Still, even with same-sex marriage being legal, the idea of the Adult Interdependent Relationship still strikes me as a fairly decent idea.

    Source: http://en.wikipedia.org/wiki/Adult_interdependent_relationship_in_Alberta

    • #4
  5. Annefy Member
    Annefy
    @Annefy

    It’s pensions and SS that I keep thinking about. There are some sweet pensions out there; am wondering how long before a child marries their elderly long-retired fireman father to keep that pension coming.

    • #5
  6. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Annefy:It’s pensions and SS that I keep thinking about. There are some sweet pensions out there; am wondering how long before a child marries their elderly long-retired fireman father to keep that pension coming.

    And we deserve to have that happen to our society.

    For years we supported the government having the power to say who doesn’t get a license, knowing full well we risked having the next elected group use that same power to say who does get a license.

    We can’t put the toothpaste back in the tube now.

    Misthiocracy’s comment above was the answer all along.  Let people do what they will with government benefits by contract, away from marriage.  But we coupled it with marriage and now we are about to pay for that mistake.

    • #6
  7. 1967mustangman Member
    1967mustangman
    @1967mustangman

    Tommy De Seno:

    Annefy:It’s pensions and SS that I keep thinking about. There are some sweet pensions out there; am wondering how long before a child marries their elderly long-retired fireman father to keep that pension coming.

    And we deserve to have that happen to our society.

    For years we supported the government having the power to say who doesn’t get a license, knowing full well we risked having the next elected group use that same power to say who does get a license.

    We can’t put the toothpaste back in the tube now.

    Misthiocracy’s comment above was the answer all along. Let people do what they will with government benefits by contract, away from marriage. But we coupled it with marriage and now we are about to pay for that mistake.

    Might be a nice way to dodge the death tax.

    • #7
  8. Klaatu Member
    Klaatu
    @Klaatu

    There are plenty of young mothers raising children with the help of their own mothers.  If the grandmother in the relationship is on SS, it would be foolish for the two women not to get married so that the benefits continue after death.

    • #8
  9. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Tommy De Seno:This is all the result of Lord Hardwicke’s Marriage Act of 1753.

    Before that, government did not license marriage – people coupled on their own either through a religious ceremony or simply holding themselves out as married. The government didn’t license it at all.

    Until 1753.

    The British (or English) government may not have licensed marriage until 1753, but the idea that government had nothing to do with marriage before that is incorrect.  Marriage had many important consequences at common law, long before 1753, ranging from inheritance of property and titles, to duties to provide services and support, and (I think) to criminal prohibition on adultery, fornication and bigamy.

    It sounds as if the 1753 Act that you reference merely involved licensing as proof of marriage.  And I believe that even after 1753, “common law marriage” continued to be recognized when people “held themselves out” as married (though my knowledge of common law marriage is from cases in Texas, not jolly old England).

    I believe that marriage also carried major consequences in civil law systems derived from (and including) Roman Law — perhaps Richard Epstein or another expert could confirm this.

    Thus, I submit that the institution of marriage has had major legal consequences in our civilization for at least 2,000 years.

    • #9
  10. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Klaatu:There are plenty of young mothers raising children with the help of their own mothers. If the grandmother in the relationship is on SS, it would be foolish for the two women not to get married so that the benefits continue after death.

    You are exactly right.

    That’s why I maintain it was a mistake to put ancillary rights onto the marriage relationship.

    • #10
  11. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Arizona Patriot:

    Tommy De Seno:This is all the result of Lord Hardwicke’s Marriage Act of 1753.

    Before that, government did not license marriage – people coupled on their own either through a religious ceremony or simply holding themselves out as married. The government didn’t license it at all.

    Until 1753.

    The British (or English) government may not have licensed marriage until 1753, but the idea that government had nothing to do with marriage before that is incorrect. Marriage had many important consequences at common law, long before 1753, ranging from inheritance of property and titles, to duties to provide services and support, and (I think) to criminal prohibition on adultery, fornication and bigamy.

    It sounds as if the 1753 Act that you reference merely involved licensing as proof of marriage. And I believe that even after 1753, “common law marriage” continued to be recognized when people “held themselves out” as married (though my knowledge of common law marriage is from cases in Texas, not jolly old England).

    I believe that marriage also carried major consequences in civil law systems derived from (and including) Roman Law — perhaps Richard Epstein or another expert could confirm this.

    Thus, I submit that the institution of marriage has had major legal consequences in our civilization for at least 2,000 years.

    I maintain my position.

    Marriage being a contract, government was the arbiter of rights on the dissolution of the contract, just like any other contract, as you rightly point out.

    What changed in 1753 was that government began to license the formation of the marriage contract (unlike other contracts).

    • #11
  12. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Tommy De Seno:We can’t put the toothpaste back in the tube now.

    Just an aside.  It seems to me that it is possible to put toothpaste back in a tube.  Somebody had to put it in there in the first place.  I bet that I could do it with a knife and a bit of epoxy.

    More seriously, this reminds me of C.S. Lewis’s statement about putting back the clock in Mere Christianity:

    First, as to putting the clock back. Would you think I was joking if I said that you can put a clock back, and that if the clock is wrong it is often a very sensible thing to do? But I would rather get away from the whole idea of clocks. We all want progress. But progress means getting nearer to the place where you want to be. And if you have taken a wrong turning, then to go forward does not get you any nearer. If you are on the wrong road, progress means doing an about-turn and walking back to the right road; and in that case the man who turns back soonest is the most progressive man.

    • #12
  13. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Arizona Patriot:

    Tommy De Seno:We can’t put the toothpaste back in the tube now.

    Just an aside. It seems to me that it is possible to put toothpaste back in a tube. Somebody had to put it in there in the first place. I bet that I could do it with a knife and a bit of epoxy.

    More seriously, this reminds me of C.S. Lewis’s statement about putting back the clock in Mere Christianity:

    First, as to putting the clock back. Would you think I was joking if I said that you can put a clock back, and that if the clock is wrong it is often a very sensible thing to do? But I would rather get away from the whole idea of clocks. We all want progress. But progress means getting nearer to the place where you want to be. And if you have taken a wrong turning, then to go forward does not get you any nearer. If you are on the wrong road, progress means doing an about-turn and walking back to the right road; and in that case the man who turns back soonest is the most progressive man.

    Interesting!

    • #13
  14. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Tommy De Seno:What changed in 1753 was that government began to license the formation of the marriage contract (unlike other contracts).

    Well, before 1753, whether a marriage was recognized was a matter of the common law, which means that it was up to unelected judges.  That doesn’t sound like an improvement over a legislative determination.

    Also, as I pointed out, since common law marriage continued to exist, the government licensing scheme was non-exclusive.  It sounds little different from modern recording rules for real property transactions and UCC liens.  In addition, if I recall correctly from law school, there were certain contracts that had to be “sealed” in order to be effective.

    • #14
  15. BThompson Member
    BThompson
    @BThompson

    Tommy De Seno:What changed in 1753 was that government began to license the formation of the marriage contract (unlike other contracts).

    Umm, no. You just elided the entire point with semantics. The government was already enforcing and favoring specific contracts around one man and one woman. The license merely made the enforcing it was already engaged in a simpler process.

    • #15
  16. Klaatu Member
    Klaatu
    @Klaatu

    Tommy De Seno:

    Arizona Patriot:

    Tommy De Seno:This is all the result of Lord Hardwicke’s Marriage Act of 1753.

    Before that, government did not license marriage – people coupled on their own either through a religious ceremony or simply holding themselves out as married. The government didn’t license it at all.

    Until 1753.

    The British (or English) government may not have licensed marriage until 1753, but the idea that government had nothing to do with marriage before that is incorrect. Marriage had many important consequences at common law, long before 1753, ranging from inheritance of property and titles, to duties to provide services and support, and (I think) to criminal prohibition on adultery, fornication and bigamy.

    It sounds as if the 1753 Act that you reference merely involved licensing as proof of marriage. And I believe that even after 1753, “common law marriage” continued to be recognized when people “held themselves out” as married (though my knowledge of common law marriage is from cases in Texas, not jolly old England).

    I believe that marriage also carried major consequences in civil law systems derived from (and including) Roman Law — perhaps Richard Epstein or another expert could confirm this.

    Thus, I submit that the institution of marriage has had major legal consequences in our civilization for at least 2,000 years.

    I maintain my position.

    Marriage being a contract, government was the arbiter of rights on the dissolution of the contract, just like any other contract, as you rightly point out.

    What changed in 1753 was that government began to license the formation of the marriage contract (unlike other contracts).

    This is where I disagree.  Marriage is not the contract or agreement between the two individuals but rather the recognition of that agreement by their religious and/or civil community.  You are not married because you say you are, you are married when an agent of your community says you are.

    • #16
  17. Lucy Pevensie Member
    Lucy Pevensie
    @LucyPevensie

    Misthiocracy:In Alberta, in order to avoid having to recognize same-sex marriage, they brought in the option of an “Adult Interdependent Relationship” in 2003 to handle just this sort of case:

    It includes same-sex relationships, as well as two non-conjugal persons who live together in a relationship of interdependence. In some circumstances it could even include two members of the same family, or two friends who live together

    Seems like a perfect compromise to me, but of course it didn’t work. The Supreme Court struck down the definition of marriage as one-man-one-woman in 2004, and the federal government passed a same-sex marriage law in 2005.

    Still, even with same-sex marriage being legal, the idea of the Adult Interdependent Relationship still strikes me as a fairly decent idea.

    Source: http://en.wikipedia.org/wiki/Adult_interdependent_relationship_in_Alberta

    There have been people putting forward this same solution in the US for years, but the idea simply never got traction.  It’s a shame.  Oddly enough, when I suggested the idea on a thread on SSM once, years ago, another Ricochet member was highly offended. I never understood why.  It seems like the perfect solution to me.

    • #17
  18. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Tommy De Seno:This is all the result of Lord Hardwicke’s Marriage Act of 1753.

    I have a historical question for you.  To what extend did the 1753 Marriage Act have to do with the state substituting its licensing for prior ecclesiastical authority?

    If I recall my English history correctly, England had an established church for hundreds of years prior to 1753 — first the Catholic Church and then the Church of England.  I think that there were ecclesiastical laws that were enforced by ecclesiastical courts.

    So it may have been more a matter of the civil government taking over a function that was previously handled by the church.

    My impressions are supported by the Wikipedia entry for the Act, though I know this is not a perfect authority.

    • #18
  19. user_86050 Member
    user_86050
    @KCMulville

    Adam Freedman:In most states, however, the electorate does not believe that such unions should be recognized by the state as marriages.

    Only 11 states have decided to recognize same-sex marriages through democratic means. What is at issue today is whether the people of the other 39 states can weigh the pros and cons for themselves, or whether they will have same-sex marriage imposed upon them as a matter of judicial fiat.

    Gays argue that the state has no choice; states must recognize their marriages as equal, because they are equally citizens.

    As it is, no law outlaws homosexuality. Gays have as much right to live together as anyone else. What’s different here is that they insist that society also recognize their marriage as equal … even though (as Adam shows) to do that, you have to strip the definition of marriage of any restrictions at all … which reduces it to nothing more than living together anyway.

    You’ve destroyed marriage in order to have it.

    • #19
  20. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    BThompson:

    Tommy De Seno:What changed in 1753 was that government began to license the formation of the marriage contract (unlike other contracts).

    Umm, no. You just elided the entire point with semantics. The government was already enforcing and favoring specific contracts around one man and one woman. The license merely made the enforcing it was already engaged in a simpler process.

    No you missed my point, and I’ll blame myself for not being clear.

    It was after the licensing that government took the liberty of appending ancillary rights to the marriage, because they took ownership of the process of formation in 1753.  It was theirs to tinker with at that point.

    Once they appended those other matters to it, naturally it was going to be on a collision course with the 14th Amendment when passed, which insists government protected rights and benefits be doled out evenly.

    • #20
  21. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    KC Mulville:

    Adam Freedman:In most states, however, the electorate does not believe that such unions should be recognized by the state as marriages.

    Only 11 states have decided to recognize same-sex marriages through democratic means. What is at issue today is whether the people of the other 39 states can weigh the pros and cons for themselves, or whether they will have same-sex marriage imposed upon them as a matter of judicial fiat.

    Gays argue that the state has no choice; states must recognize their marriages as equal, because they are equally citizens.

    As it is, no law outlaws homosexuality. Gays have as much right to live together as anyone else. What’s different here is that they insist that society also recognize their marriage as equal … even though (as Adam shows) to do that, you have to strip the definition of marriage of any restrictions at all … which reduces it to nothing more than living together anyway.

    You’ve destroyed marriage in order to have it.

    Agreed.  But it wasn’t gays that did that to marriage.  It was those who reveled in the government power over licensing.

    Live by government power and die by it.

    • #21
  22. user_519396 Member
    user_519396
    @

    The stated aim of Marriage Act of 1753 was to end the practice of clandestine marriage, i.e., valid marriages performed by clergy in secret, without either publishing of banns or securing a marriage license from the ecclesiastical authorities, both being public acts. Licenses were issued by church authorities as early as the 14th Century. The practical effect of the Marriage Act was to write the canon law requirements into civil law, essentially giving the state supremacy over the definition of what constituted a valid marriage and procedures surrounding same. You can draw a line between that and today’s events.

    • #22
  23. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Paul Wilson:The stated aim of Marriage Act of 1753 was to end the practice of clandestine marriage, i.e., valid marriages performed by clergy in secret, without either publishing of banns or securing a marriage license from the ecclesiastical authorities, both being public acts. Licenses were issued by church authorities as early as the 14th Century. The practical effect of the Marriage Act was to write the canon law requirements into civil law, essentially giving the state supremacy over the definition of what constituted a valid marriage and procedures surrounding same. You can draw a line between that and today’s events.

    Exactly right.

    • #23
  24. Klaatu Member
    Klaatu
    @Klaatu

    KC Mulville:

    Adam Freedman:In most states, however, the electorate does not believe that such unions should be recognized by the state as marriages.

    Only 11 states have decided to recognize same-sex marriages through democratic means. What is at issue today is whether the people of the other 39 states can weigh the pros and cons for themselves, or whether they will have same-sex marriage imposed upon them as a matter of judicial fiat.

    Gays argue that the state has no choice; states must recognize their marriages as equal, because they are equally citizens.

    As it is, no law outlaws homosexuality. Gays have as much right to live together as anyone else. What’s different here is that they insist that society also recognize their marriage as equal … even though (as Adam shows) to do that, you have to strip the definition of marriage of any restrictions at all … which reduces it to nothing more than living together anyway.

    You’ve destroyed marriage in order to have it.

    I cannot “Like” this enough KC.  The only caveat I would have is what homosexuals want is for their preferred type of relationship to be deemed equal, not their marriage.

    • #24
  25. BThompson Member
    BThompson
    @BThompson

    KC Mulville:You’ve destroyed marriage in order to have it.

    Well, not entirely, you’ve just granted a whole new system of benefits and entitlements to a huge portion of society. Marriage will still be something, it will just be a ruinous institution for society. You wouldn’t have destroyed marriage in order to have it, you may have destroyed liberal democracy in order to have it, though.

    • #25
  26. Julia PA Member
    Julia PA
    @JulesPA

    Annefy:It’s pensions and SS that I keep thinking about. There are some sweet pensions out there; am wondering how long before a child marries their elderly long-retired fireman father to keep that pension coming.

    Many, (maybe most?) Pensions recalculate survivor benefits, based on the age of the survivor.

    Upon retirement, should I designate my 2 year old niece as my surviving beneficiary, my current and long-term pension payout will be adjusted accordingly.

    I don’t know about SS.

    • #26
  27. user_3130 Member
    user_3130
    @RobertELee

    I’ve always thought that government should not be involved with marriage at all.  It’s a religious practice.  Governments should observe legal unions for legal purposes and let marriage be the sacrament between people it should be.  Doing it this way should remove all the weeping and wailing about someone, somewhere, might be having fun you don’t approve of and it would provide the legal protections that folks desire and need when they form a  household.

    • #27
  28. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Robert E. Lee:I’ve always thought that government should not be involved with marriage at all. It’s a religious practice. Governments should observe legal unions for legal purposes and let marriage be the sacrament between people it should be. Doing it this way should remove all the weeping and wailing about someone, somewhere, might be having fun you don’t approve of and it would provide the legal protections that folks desire and need when they form a household.

    Do you think that marriage should have no effect on income or estate taxes?  What about Social Security benefits — should a stay-at-home mom get no SS qualification based on her husband’s work history?

    These are tricky questions.  If you make a rule, for example, that a wife gets no SS benefits based on her husband’s contributions, this is going to have a major effect on work decisions made by couples, and on raising their children.

    What about inheritance laws?  In most states, a spouse is a beneficiary if one dies without a will, and in many states the spouse gets an elective share.

    What about medical decision-making?  In most states, a spouse is first on the list for a person who doesn’t have a living will or healthcare POA.

    What about decisions about raising children, ranging from where the child lives, to what school he attends, etc?

    I think it is unrealistic to “divorce” these issues from the reality of marriage.

    • #28
  29. Sabrdance Member
    Sabrdance
    @Sabrdance

    Re: ancillary benefits.  Maybe, maybe not.  We want to treat people the same for tax purposes.  Thus, two people living together and two people married should be treated the same (aguendo).  However, if the people living together and the people married have the same aggregate income but different splits -that is, in one relationship both make $50k, in the other one makes 100k, the progressive income tax will not treat them the same.  It taxes the second couple more heavily.

    However, we also don’t want a single person making 100k to take in a random free-boarder just to alter his tax structure.

    Thus, a valid marriage becomes an important marker for determining how to treat like people like.

    Once that marker becomes necessary, then we have to define what types of relationships create a single unit for purposes of taxation.  From which follows policy choices.  Repeat for any of a dozen issues in which the state actually cares about whether someone is married or not -from implied powers of attorney to inheritance to alimony.

    None of this requires the state to be “giving benefits” to married people -they are all an account of the state recognizing that normal people aren’t entirely atomized.  And yes, public records, like marriage licenses, matter for that.

    Now, if you want to ditch the income tax, implied powers of attorney, inheritance, and alimony, I think there’s arguments for that -but only then could the state become disinterested in identifying valid marriages.

    • #29
  30. gts109 Member
    gts109
    @gts109

    Tommy, I think your theory needs work. I’ll assume for purposes of argument that 1753 marked the first time the “state,” as we understand it today, recognized marriage. But, before then, and even then, Church and State were not separate things, so the law you cite more likely marks the emergence of the state as the dominant force in civil society. Or even more specifically, it marks the emergence of the codification of law by legislatures, rather than the more hap-hazard recognition of rights granted by the common law.

    State recognition of marriage, however, is not what took us on this course. It is the rejection of the traditional basis for marriage–that one man and one woman ought to raise their children together–that set us on this path. That rejection has happened in the last 10 years or so, and is much more closely tied to the near universal acceptance of late 1960s era sexual mores and the success of gay groups in convincing Americans that they are the natural successor to the civil rights movement in the expansion of individual rights.

    • #30

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