There has been a huge amount of focus this week on gay marriage, thanks to the Supreme Court reviewing two key cases related to the matter. I won’t discuss those. The reason this issue is so hot is that it blends marriage, sex, and sexual preference into one huge legal mess. I propose a very simple but radical solution.
As JD from the Facebook group Being Feminist[i] has pointed out, marriage is an outdated relic needed to support a patriarchal society. Yes, that makes sense; the only biological reason to have marriage in our culture is to (hopefully) identify the paternity of children, since there is generally no question about the maternity!
However under United States’ law, marriage is a lot more than presumptive paternity. Marriage is a special form of corporation; and we know how much the Supreme Court loves corporations! And with that special form of corporation called marriage we assign some 1138 documented rights under Federal law, ranging from health care, to probate, to taxes, to a zillion others someone else has described in detail.[ii] The uproar over the Citizens United Supreme Court case has led to a women trying to marry a corporation, and a corporation running for Congress.[iii]
As a result, the battle over marriage is far more significant than a token-but-nearly-meaningless piece of paper to certify a ‘civil union,’ because a civil union not only lacks the aforementioned 1138 rights, but isn’t even recognized by most other states.[iv]
Sex is defined usually as whether someone is male or female, hence traditional heteronormative marriage is defined by California’s Proposition 8 as being between a man and a woman; “only marriage between a man and a woman is valid or recognized in California.”[v]
The problem is, Mother Nature is not binary, especially when it comes to sex. There are dozens of intersex conditions that span the continuum between male and female[vi], with origins typically related to genes (chromosomes) and/or the timing, production quantity or usability of hormones in a person’s body.[vii]
About Sexual Preference
The issue of gay marriage has been presented solely in terms of monogamous couples who are either completely heterosexual or homosexual; Kinsey levels 0 or 6, if you will.[viii] This introduces three major assumptions for the scope of the issue that are misleading or inaccurate or incomplete.
- Monogamous – Many people have significant long term relationships but are not monogamous. Do we continue to pretend they legally do not exist?
- Couples – How do we deal with polygamous relationships? Bigamy laws exist in the United States because of a Supreme Court ruling in 1878,[ix] and it’s a felony in most states. And yet marriage triads (three people) and larger groups still exist. Is it right to legislate how many people one can marry, if marriage is nothing more legally than a corporation?
- Completely heterosexual or homosexual – The current framing of gay and straight marriage ignores the possibility of people being bisexual. What happens if I marry a woman this year, and later marry a man? Does it make sense that my rights and obligations under the law are wildly different between those two actions? And if so, under what justification?
Our legal decisions regarding gay marriage should reflect the overall goal of such laws.
- Religion – If the goal is to institutionalize a particular religious point of view, then we are wasting our time and should abolish marriage entirely. The first amendment to the Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[x] Abolishing marriage is not likely to happen, since a major part of our society revolves around the institution of marriage. More to the point, marriage is not a concept unique to any religion, so the existence of marriage is not an endorsement of any religion.
- Paternity – If our goal is to enforce paternity, then we are wasting our time and should abolish marriage entirely. Simple DNA testing could easily replace the pomp and circumstance of marriage, and would provide a lot of interesting information for many “fathers” about whose children are really theirs.
In addition, if this were our goal for marriage, then it would imply that elderly women should not be allowed to marry since they are past menopause, and any other infertile men or women would logically be banned from marriage. I’m guessing we don’t want to go down that road.
- Social order – I think the only plausible reason for requiring the concept of marriage to exist is to promote social order and encourage long term relationships. There must be some significant benefit to society for our Federal government to create 1138 reasons to marry.
Therefore in order to promote social order and fulfill my sense of equality and fairness, my laws for marriage would be simple and wildly radical compared to the current code of law.
- People of any sex may marry.
- Monogamy is not a legal requirement. It could be part of one’s marriage vows.
- Polygamy is legal. If a corporation is a person, then there is no reason to limit marriage to two people.
- Since a person’s sex was made irrelevant, so is the sexual preference of people in a marriage.