July 20, 2011
The lone Democrat in the New York State Senate to vote against the Marriage Equality Act on June 24 is from the South Bronx. Ruben Diaz, Sr. — Pentecostal minister, hot-headed demagogue, one of those colorful characters once common in New York politics, and in the still-common dynastic tradition, father of the current Bronx Borough President — took his parting shot during the floor debate before the vote: “God, not Albany, has settled the definition of marriage a long time ago.”
There were surely other legislators who secretly agreed with his premise, if not his rhetoric, and yet finally voted the other way, persuaded by the powerful gay-rights lobby, promises of political pull by the popular governor Andrew Cuomo, and the emotional pull of homosexual family members and friends. Brooklyn Democratic Senator Carl Kruger, for example, was ostracized by the gay nephew of his girlfriend for voting against a similar same-sex marriage bill two years ago. According to the New York Times, his colleague, Democratic Majority Leader John Sampson, told him, “When everything else is gone, all you have left is family.” This time he voted yes.
“I don’t need this,” Kruger told him. “It has gotten personal now.”
Personal indeed, and it goes right to the top. President Obama, long an advocate of civil unions and a critic of the Defense of Marriage Act, which prohibits federal benefits to same-sex couples, continues to hold the belief that the word “marriage” means a man-woman union. He now says that his views are “evolving,” though he refuses to explain how and why.
I think I can understand his dilemma; it is a conflict between the public and the personal. Like the president, I support the complete equality afforded by measures such as California’s domestic partnership law, and yet, presumably like the president, I personally believe that marriage connotes a heterosexual union. What I don’t support is what amounts to an official endorsement of any particular life-style, either opposite-sex or same-sex, the public approbation of an essentially private activity.
That’s why I’m in favor of disestablishing marriage, just as the First Amendment disestablished religion. A pioneering state like California could replace civil marriage with a universal domestic partnership contract open to any two consenting adults without regard to gender and without the implication of sexual relations. The question of what marriage is and who may participate in it would thus be left to individuals, religious bodies, and other social groups. The state’s only concerns would be the witnessing and disposition of the contract and the protection and encouragement of stable family relationships, however they are configured, through the rights and benefits secured by the contract.
Over the last fifty years, government’s involvement — intrusion, really — in the realm of personal relationships have steadily waned. As courts identified and refined the right to privacy, laws prohibiting all manner of consensual sexual relations both within and outside of marriage were struck down, the adverse legal consequences of out-of-wedlock birth were eliminated, the exemption for spousal rape was removed, and non-consummation as grounds for nullity was obviated by no-fault divorce.
Changing social mores have compelled states to accord varying degrees of legal status to forms of family configurations other than marriage. Depending on the jurisdiction, unmarried parents are now held to the same responsibilities of child support as married couples, adoption has been extended to single people and same-sex couples, and privileges similar or identical to those formerly reserved to the married are given to cohabiting widowed persons over age 62 (to preserve survivorship benefits), and even blood-relatives.
Today, the preferential legal status of marriage, however the term is construed, is de facto being done away with by modern family law; marriage now is widely treated as one form of protectable family relationship among others. So why not take the next step?
A state like California could easily become marriage-neutral by abolishing its marriage statutes and folding heterosexual unions into its existing domestic partnership law.
The advantages to this approach are many. First, it would make clear by terminology that government’s fundamental interest lies not in the presumed sexual activity of the partners but in nurturing and strengthening stable personal and family relationships. Second, it would obviate the valid argument made by gay-marriage advocates that equal but separate marriage and “civil union” laws create implicit class distinctions. Third, it would terminate government’s entanglement in the problems of definition. Finally, these contracts could also be opened to a wider range of committed couples, such as two celibate friends or unmarried siblings who share their lives and property and deserve the privileges of any married couple, gay or straight, but who would never want to be considered “married.”
In 1765 — simpler times, indeed — the English legal scholar William Blackstone wrote: “Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to ecclesiastical law.”
In a closed-door meeting before the New York Senate vote, Governor Cuomo reportedly convinced wavering key Republicans with the exhortation, “Their love is worth the same as your love.”
Diaz based his argument on God; Cuomo, on love. I side with Blackstone. Neither legislatures nor courts should meddle in those holy realms.