06.29.04

Civil marriage is a contract

Posted in Gay rights, Politics at 6:59 pm by ducky

One thing that makes it hard for people to accept marriage for same-sex couples is that “marriage” is a word that has at least four distinct meanings.

• a personal commitment: two people each pledging to stick together for better or for worse, for richer or for poorer, in sickness and in health
• a community affirmation: the couple declaring to the people important to them, that this person is special to me and that I ask and expect you to treat this person as special to me
• a religious commitment: a pact between the couple and their god
• a legal contract (“civil marriage”): two people and the state entering into a multifaceted agreement defining various rights and responsibilities

The big issue at the moment involves only the fourth facet. Gay and lesbian couples already can (and do) make personal commitments, and can and do have community affirmations (sometimes called “commitment ceremonies”).

Changing the laws about who can get legally married will not change how churches interact with gay and lesbian couples, as churches already have the right to determine who they will and will not marry. (For example, my husband and I couldn’t get married in the Catholic church because we aren’t Catholic.) Furthermore, there are already churches who are quite happy to perform marriages (and even call them that!) of same-sex couples.

Weddings usually put the first three facets on display, but the fourth is usually somewhat hidden. In a clergy-officiated wedding, the officiant usually doesn’t point out that they are acting as an agent of the state. The actual legal ceremony happens afterwards when the officiant takes some set of the wedding party (in California, it’s one witness but not the couple) back into a back room where they sign the document and mail it in.

The legal aspects aren’t terribly obvious even to married couples (which is why some people question why they need “a piece of paper”). For the most part, laws relating to marriage only come into effect when the marriage ends (either by death or divorce) or some other bad thing happens. Such bad things include falling in love with someone who is not a citizen of your country, medical difficulties, being required to testify in court against your loved one, and paying taxes. (See, for example, the U.S. rights and responsibilities of marriage Since most people spend most of their waking hours not dealing with such tragedies, it’s easy to forget all the legal aspects of marriage.

I was surprised, when I explored marriage before my own nuptials, to find out just how callow it was. From the California Family Code:

300. Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

There is some stuff in the California code about who is allowed to marry (no aunts marrying nephews, for example), but nothing that said that Beloved Husband and I had to be sexually faithful to each other, that we had to commit to a lifetime together, not even that we had to love each other. Basically, all that was required was that we had to want to be married to each other.

Who can enter into contracts?

This is why there are so few restrictions on marriage. Murderers have the right to get married. Serial killers have the right to get married. Serial rapists have the right to get married. Even men who are still in prison for raping and killing multiple women have the right to get married, just as they have the right to enter into a contract to buy or sell a piece of property.

Convicted child abusers have the right to get married. Convicted child molesters have the right to get married. People convicted of molesting and killing multiple children have the right to get married.

Dennis Rodman and Carmen Electra had the right to go to Las Vegas get married. Britney Spears had the right to get married. 24-year-olds have the right to get married to 70-year-olds.

Just as we might think it foolish for someone to pay $2M for a dumpy house next to a steel mill, we might think it is foolish to marry a serial sexual predator and murderer, but as long as the people entering the contract are of sound mind and body, they are allowed to do that.

Who can’t get married?

Gay and lesbian people, however, are not allowed to enter into a marriage contract. It makes no sense to me that decent, loving people who happened to fall in love with people of the same sex are denied rights that even serial sexual predators and murderers are granted.

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