1) Intimate human relationships exist prior to the government. I may personally judge some arrangements as inferior to others, but so long as they occur between consenting adults and stay off my lawn, I don’t think they are my public business in any respect.
2) The existence of government incentives/benefits in favor of certain such relationships is inherently discriminatory against citizens who would prefer other types of relationships, or who would prefer no formal relationship at all.
3) The existence of government incentives/benefits also has a corrosive effect on the favored relationships, as it narrows the range of acceptability within the favored set, bribes people into relationship arrangements they might not choose, and tends to make people in both favored and unfavored relationships believe that only the government-favored relationships are legitimate human relationships.
To correct this, I propose ending all government benefits for marriage as they currently exist. Equality comes not via the government extending benefits to additional human relationships, but by the government ceasing to offer any incentives for any intimate human relationships.
Now, on to the critiques…
There is a zero percent chance of this happening, likely ever, and certainly not in the next 10 years…you’re going to have the government standing behind polygamy contracts? There’s a chance that ever happens?
I concede that democratic public policy is unlikely to spontaneously adopt my ideas anytime soon. I suspect there’s a chance that the courts could box in the states such that might head my direction (more on this below), but I don’t think it’s particularly likely. So I concede that my ideas are not strategic advice to interest groups, but closer to political theory. But I stand by the claim that the gay marriage, if universally adopted, does little to get at the real issue at hand. It simply puts more human relationships into the “favored” category, while still fully discriminating against anyone who prefers an intimate human relationship outside the narrow bands prescribed by the state, including the growing number of Americans who are living just short of the favored lifestyle: long-term, monogamous heterosexual cohabitants. Should we really be treating them differently than married people?
On polygamy, I think John is wrong (in part). There’s very little you can say about polygamy’s chances in America that you couldn’t have said about homosexual marriage 25 years ago. So times can change. But one point I’ve been trying to stress in these posts is that Lawrence v. Texas got us 95% of the way there. As best I can tell, polygamy is back as far as the law is concerned. Under the terms of Lawrence, whatever intimate relationship goes on in the privacy of your own home is strictly immune from state punishment. So except for the selective government benefits, polygamy has already been re-legalized/decriminalized in the United States. I agree that the probability of the selective government benefits being offered to polygamists is zero, but that’s only an issue if you are thinking about this in the context of the contemporary gay marriage debate; my idea is to achieve equality by removing all the benefits. The polygamists continue to get nothing!
And sure, the state would have to enforce some odd marriage contracts, but we already do that, since the state already will enforce your prenup, as long as it doesn’t conflict with their one-size-fits-all contract. (This, by the way, is why I expect John’s concern about the judicial workload to be less problematic than he thinks; the courts already deal with a lot of private marriage contract stuff. And I agree with him that the state could offer a variety of basic contracts to make things easy — that would also reduce workload, as most people would probably just take a standard contract).
Second critique (I’ll paraphrase, hopefully fairly):
It would be wrong to continue to allow private marriage discrimination. Private companies should not be able to fire employees based on their choice of intimate human relationship.
This criticism is based on my tentative decision that, after decoupling marriage and the state, we should not bar private marriage discrimination. However, I think John misinterprets my meaning. I agree 100% with the second statement above — no way anyone should be discriminated against in employment, public accommodations, etc. based on their marital status — gay, straight, polygamist, single, or other. Hell, I’d add it right to Title V of the Civil Rights Act tomorrow.
What I was referring to was truly private discrimination — the kinds of things currently out the reach of the Civil Rights Act, like racial discrimination at private country clubs and gender discrimination in college fraternities — as well as the handing out of private selective benefits in tough cases. The former, I’m sure about. No country club should be forced to accept married homosexuals or polygamists against its will.
The latter I’m mixed about; in my original post I gave the example of a private college that received federal funds that had married student housing restricted to a definition of marriage of their choosing (say, straight-only). Under my plan, this would be clearly unacceptable for the government (or a state university) to do; they would either have to abolish the benefit of married student housing or come up with a selection criteria that was neutral as to intimate human relationships (“housing for any 2 students who wish to live together” or “housing for any families”). Whether I would force private colleges to follow suit and discontinue all selective marriage benefits is a close call, as I said, but I would probably allow it.
I assume you’d agree that, in the next 2 years, none of what you’ve proposed is likely to happen, and maybe you agree with me that it is unlikely to ever happen. So what do you want to see us actually do as a country, right now? If you were on the Supreme Court, would you uphold or overturn Schwarzenegger v. Perry? If you were a Senator, would you vote for a constitutional amendment banning gay marriage? Would you vote for a constitutional amendment specifically allowing gay marriage?
I suppose this is the follow-up to the first critique about my ideas not being realistic. I’ll take the last question first: I would never vote for a constitutional amendment that either barred or allowed gay marriage. That’s the antithesis of my long-term goal for this policy: it would be the most permanent possible entrenchment of the favored vs. not-favored government approach to marriage. I want the government out of choosing between different intimate human relationships. Here’s a Constitutional amendment I’d propose as Senator:
Neither the federal government, nor any state, shall provide any benefit on account of marital status.
It would never pass. And my chances of being Senator are about as good as polygamy becoming accepted by the public (and are going down with each paragraph I write in this post!).
If I were on the Court (again, nil, especially after this post), and I knew that my opinion would end up being the Opinion of the Court, I would probably write an opinion in Perry that tried to box in the states such that my idea would have to be accepted. It would be a sweeping tour-de-dicta (not unlike Dred Scot, ugh) that went way beyond the question at hand. But here’s what I’d do: I’d uphold Walker’s decision (but not all of his logic), and go even further. I’d say that the 14th amendment compels the states not to discriminate between intimate human relationships, and that if California wants to keep offering selective benefits to monogamous heterosexual couples, then they have to offer those benefits to any and all “marriages,” as defined by the marriage partners. This would basically force the state into a box: either start printing polygamy marriage licenses, or….wait for it!….abolish all selective government benefits for marriage.
Now, that would be me on the Court. I don’t actually think, as an observer, that the U.S. Constitution can be read that way. I accept, as much as I hate it, that I’m making a public policy argument and not a Constitutional one. I do not actually think that the Constitution requires states to treat all human relationships equally. And even if it was ruled to require that, there’d be a Constitutional amendment declaring marriage to be the union of exactly two people faster than the ink could dry on the decision.
As a second-best alternative, I’m in favor of gay marriage. While I don’t think it would solve the discriminatory nature of the state marriage racket particularly well (especially as it concerns unmarried couples and single people), it would probably create significantly more aggregate happiness at this point than not doing it. As for the means of doing it, I’m still a federalist first and a believer that democratic solutions are best, so my preferred ordering of means to accomplish the result would be something like this:
1) State legislatures or referendums adopt gay marriage, one by one; DOMA repealed or found unconstitutional
2) State supreme courts rule on unconstitutionality of gay marriage bans, one by one; DOMA repealed or found unconstitutional
3) Supreme Court finds gay marriage bans unconstitutional
4) Congress federalizes marriage in favor of gay marriage equality; repeals DOMA
These, of course, are the product of static results-oriented thinking. If I thought about it dynamically, I don’t think it’s particularly safe for the SCOTUS to declare gay marriage bans unconstitutional; it could very well trigger a Constitutional amendment, particularly a DOMA amendment that didn’t ban gay marriage at the state level. For instance, I could see this passing after a SCOTUS ruling:
Defining marriage is exclusively reserved to the several states. No state, nor the federal government, is required to recognize any marriage from another state except those marriages between one man and one woman.
Now, that’s not a dangerous ruling long-term, since it would still allow the development of gay marriage state by state. But I think it could retard the general progress, especially on the overturning of the statutory DOMA as it regards the feds: I don’t think we’re but 10 years from federal benefits for same-sex marriages. Which of course I’m against (the benefits, that is), but in favor of as a second-best solution.
As to the results-oriented thinking, I honestly don’t know how I feel about the issue in a Constitutional vacuum. I certainly don’t think the 14th amendment was meant to create gay-marriage equality. (Hell, it wasn’t intended to create voting rights for blacks; proof: they passed the 15th amendment shortly afterwords). And — using the analogy closest to my heart — I don’t think the 14th amendment requires the states to have left-handed desks in the high schools or left-handed baseball gloves in the equipment sheds. I’m pretty sure there’s a rational basis argument for everyone being righty (ease of teaching penmanship, efficiency gains through conformity, driving out demons(!)). But being lefty isn’t being gay, so it’s clearly not a perfect analogy (although it’s damn close, when you think about it). So I don’t know. It wouldn’t take me much effort to write the basic brief for either side. Stay tuned, perhaps I will.
But hey — if the GOP wants to try to alter the first clause of the 14th amendment (overruling Dred Scot and creating universal birth citizenship), maybe it’s time to open the whole damn thing up and write down exactly what it does mean…