March 08, 2004
Think outside the box!

Although I've been writing about the theology of sex a lot lately, I haven't commented on the whole gay-marriage debate that's been raging in civil (and uncivil) society. I respect the separation of church and state, so to me that's a different question. But I've been thinking of a possibility that, if it's been proposed anywhere else, I haven't seen.

This idea germinated sometime last summer during a discussion of marriage, when Joel said something to the effect that the legal purpose of marriage is to declare someone your family member. Turning people who aren't blood relations into relatives is an ancient and widespread practice, what anthropologists call "fictive kin." Though most of us have informal fictive kin, in the form of friends and mentors and whatnot, under the law there are only two ways to formalize it: 1) marriage and 2) legal adoption.

But other societies are not always so restrictive. Many had ways to create siblings, such as the Norse blood-brother ritual and the Eastern Orthodox brother- and sister-making ceremony. A recent book claimed that the latter was often a de facto gay marriage. That was controversial, but to me the more interesting point is that there was a way to create fictive kin that had nothing to do with procreation. Under current U.S. law, no such method exists. I gather you can do it piecemeal to fill some needs, through power of attorney and how you write your will and so on; but that generally requires a knowledge of the law that I don't have, and that few people do have. There's no simple, elegant way to do it, like marrying or adopting.

Why not? I can't think of a good reason. Probably just because the law traditionally assumed a basically kin-based society, where most of the important people in our lives would be related to us somehow. But today, of course, things have completely changed. My four-person family lives in four different states; I'm 32 and unmarried, and if I remain that way I could end up a single old lady with nobody left. So introducing a broader idea of fictive kinship seems like something I might have a vested interest in even though I'm straight.

After all, gay-marriage advocates argue convincingly that society should encourage commitment, whether or not it's procreative. Why, then, should we restrict formal commitment to sexual relationships at all? Shouldn't we encourage it in all its forms? An open next-of-kin option could cover a lot of different people -- friends, roommates, older couples past menopause, even groups of more than two (though it would make sense to restrict the number of people you could do it with).

With that non-procreative bond more clearly defined, the state could more narrowly define a body of law around couples who are actually procreating. Opponents of gay marriage generally argue that marriage law has traditionally been premised on the assumption of childbearing, not honoring a love match; and indeed, they're right. But legal marriage, even while still heterosexual, no longer maps very well to the people who are actually having babies. Many married couples don't have children, and many unmarried couples do.

But is the solution to strictly define marriage as procreative, or to define procreation as marriage? In his recent post about why he opposes the marriage amendment, Noah Millman made a point I hadn't thought of:

Second, I don't think there's been enough discussion of the implications of the amendment beyond the same-sex marriage debate. Let me give one example: common-law marriage. It's not a highly-regarded concept in these liberated days, but it has a long history and I daresay it might be due for a revival. I see no reason why a man who fathers children by a woman and then abandons her *shouldn't* be subject to the legal disciplines of marriage as well as fatherhood; he has, after all, done the woman injury, and this must somehow be made good. But if the Constitution *forbids* the extension of "legal incidents of marriage" to "unmarried couples," doesn't that imply that the Constitution *forbids* any statutory recognition of common-law marriage?

Obviously, not every act of procreation, like a one-night stand for instance, should make you "married." But in many societies with a less formal set of laws than our own, it would be impossible to live with and have children with somebody without being married. That is marriage. So in a weird way, the amendment agrees with people who say that they can have sex and have kids but unless they make a voluntary statement of commitment, they shouldn't be held to anything. That's really the opposite of what conservatives want, isn't it?

Clearly, there are a lot of details to work out here, which someone with an actual legal education would be better qualified to do. Also, this doesn't really settle the gay-marriage question in that gay couples with children would want to be classified as procreative rather than nonprocreative kin, which current SSM opponents surely wouldn't want. But I think that would at least put the question where it properly belongs. Right now we seem to be permanently mired in a dispute about what marriage is actually for -- procreation? benefits? commitment? official approval for a relationship? The reason we can't agree on that is that they are all locked up in only one legal institution. There was once a reason for that, but I don't think there is now.

Posted by Camassia at March 08, 2004 03:43 PM | TrackBack

There already are other legal forms of what you call "fictive kin"--civil unions and domestic partnerships. There are literally hundreds of jurisdictions in the U.S, including cities, counties and some states, that already legally formalize relationships in ways other than marriage and adoption. So the first point to make about your post is that your premise is incorrect.

And the second point is that, as you note yourself, the existence of such relationships does not resolve the gay marriage debate. Even a form of legal "civil union" that provided exactly the same package of legal benefits as marriage would not be equal to marriage as long as it was a separate legal category. Separate but equal is not equal.

Posted by: Ken on March 8, 2004 10:25 PM

I know there are civil unions and domestic partnerships in some places (though it's not very widespread, to my knowledge). But they're still based on the marriage template -- they're marriage in everything but name, or they're "marriage lite," easier to get out of, etc. Eventually, those sort of things may get to where I'm describing, but they still seem to be premised on a romantic relationship.

The thing where I disagree with some people on both sides of this argument is that I don't see why the state should make some sort of public value judgment on people's sexual relationships to begin with -- saying straight ones are better than gay ones, or gay ones are just as good as straight ones, or that romantic relationships of any kind are better than platonic ones. Aside from the fact that it's inevitably controversial, it's been established legally from Griswold v. Connecticut through Lawrence v. Texas that someone's sex life is private so the state should be officially neutral on the matter. So the only rational basis for a distinction that I can see is between relationships with children and relationships without them. It's not a question of equality so much as the fact that children bring a different set of interests to the equation. If they didn't, I wouldn't see any reason for legally recognizing any kind of marriage at all, as distinct from any other human bond. (And indeed, some libertarians have argued just that.)

Posted by: Camassia on March 9, 2004 08:23 AM

I like your thoughts, and I would even take it a step further. Perhaps the most sensible approach would be to declare that "marriage" is undefined as a legal term. Because, as you point out, there is no legal justification for elevating heterosexual marriage over gay marriage, this implies to me that the law ought to recognize no marriages whatsoever, but rather *only* civil unions, leaving "marriage" where it really belongs anyway--in the church. I'm _legally_ married not because I participated in a marriage ceremony, but because an officiant signed my marriage license and turned it in. Who cares if it's a "marriage" license or a "civil union" license? As a Christian, my primary understanding of marriage is as a Christian blessing, not as a civil status. I don't really care what the state calls it as long as my benefits reflect my family situation.

But hey, I just want everyone to get along.

Posted by: Matthias on March 10, 2004 09:48 AM

Yeah, I've been thinking that the word 'marriage' itself is a lot of what's driving people bats. It's so imbued with mystical meaning, even for the nonreligious, and now the state has total control over conferring it on people. For 99% of human history, though, it was communities and/or churches that held that power. It might be time for them to reclaim it, so the state can just go back to worrying about things like inheritance and property rights.

Posted by: Camassia on March 10, 2004 02:52 PM

The problem is that many homosexuals don't simply want property rights and the like.

Andrew Sullivan, who seemed a likely bridge between gays and conservatives heterosexuals, famously said at the end of his book "Virtually Normal" that he considered gay marriage as a way to break down the monogamistic identity of marriage:

From this link --

"Conservatives are concerned that the more society broadens the definition of "marriage"- and some would argue that the definition has already been stretched to the breaking point-the less seriously it will be taken by everyone.

If "Virtually Normal" is any indication, this fear is warranted. When all is said and done, Sullivan is not just interested in admitting a new group of people to marriage (although that would be revolutionary enough). He wants to redefine marriage to accommodate a particular lifestyle. Sullivan's willingness to jettison the monogamous aspect of marriage (and what more important aspect is there?), and his suggestion that heterosexuals should rethink their own "moralistic" and "stifling" notions of marriage: these are the "social signals" that worry conservatives."

Posted by: tso on March 11, 2004 09:54 AM

Hm. I'd take some issue with the notion that the entire purpose of marriage is to create fictive kin. From what I've learned and just generally seen, the purpose of marriage is to determine property rights -- who the kid "belongs" to and whose stuff the kid gets when an older relative dies. Inheritance stuff. If you poke around from an anthro point of view, that's pretty much the biggie, and the main point of marriage -- determining inheritance lines.

I'm not trying to justify the government's interference in this -- I'm queer myself and I am definitely a supporter of gay marriage. But I think that if you're going to get the government the hell out of people's bedrooms, you need to take into account that, as long as they get to apply taxes, they will have a vested interest in that which determines inheritance and property rights. Marriage will always be at least partly a cvil institution as long as tax forms of any kind have "married/widowed" boxes to check or others that say "relationship to deceased." It'll never be purely a spiritual thing.

Posted by: Janis on March 11, 2004 02:20 PM

He wants to redefine marriage to accommodate a particular lifestyle. Sullivan's willingness to jettison the monogamous aspect of marriage (and what more important aspect is there?), and his suggestion that heterosexuals should rethink their own "moralistic" and "stifling" notions of marriage: these are the "social signals" that worry conservatives." Posted by: tso

Are you sure you mean what you say? This is the definition of "monogamous":

The practice or condition of having a single sexual partner during a period of time.

The practice or condition of being married to only one person at a time.
The practice of marrying only once in a lifetime.

Are you being ironic, or do you really mean to imply that gays would not be monogamous? Come clean now. From all accounts, many gays are monogamous, and many are just like we heteros (what about you?) -- they experiment before marriage but settle down to just one partner after marriage.

Possibly, just possibly, gay marriage could revitalize the institution of marriage in this country. With a 50% divorce rate going among hetero marriages, gay marriage might lower those statistics some.

Posted by: Patann on March 25, 2004 07:16 AM
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