Кто залюбопытствует - тому вышлю со сносками и кейсами, как положено.
5 urban legends about gay marriages, rebutted by Goodridge decision.
To Professor Charles Kindregan.
Brief introduction: according to the decision of Massachusetts Supreme Court in Goodridge vs. Department of Public Health (on which this article is heavily based) gay marriages will start being part of our life in less then three weeks. The new concept was heavily struggling (“heavily struggling” is not wrong, but unwieldy. “fighting its way”?) through the constitutional convention and lost; but it will take two separate constitutional conventions to change Massachusetts law one way or another. Accordingly, gay marriages will be valid in this state at least until 2006. That makes part of the population of Massachusetts almost as happy as it enrages the rest of it.
Legend #1. “The definition of marriage has not changed in 3000 years” , therefore gay marriage is an oxymoron.
The only way to evaluate this statement is probably to trace the idea of marriage throughout the history.
It appears that everybody agrees at least that marriage is a union – but was it really the same union everywhere, all the time? Muslim countries allowed (some still do) a man to have up to four wives, with whom he should live in mutual comfort and peace; King Solomon the Wise enjoyer three hundred. Egyptian Pharaohs happily married their own sisters, Babylonians enjoyed big core families in which it was not always possible to figure out the couples. Before palefaces came into this country it was a custom for Indians to marry the wife of the defeated foe as a remedy to his family; Eskimos were obliged to marry the widow of the elder brother to prevent her from starving, even if married already. Ancient Romans believed Socrates in that even one wife at a time could become a burden, but they placed no restrictions on the amount of “boys” living in the household and, according to the wills found, the latter were important and dear to the homeowner. Medieval Europeans would think that because marriages are made in heaven they should definitely be confirmed through the heaven’s representative on earth: they would not believe in a union of one man and one woman, unless yet another man peforms a sacrament on them. In Russia shortly after the February Revolution of 1917 the Anarchists came up with a curious decree “On communalizing of the women” in which they renounced the marriage of a couple providing that everyone belongs to everyone else. In 1960s people in Virginia didn’t believe in a possibility of a union of one man and one woman belonging to different races. To convince them it took Mr. Loving to be forced out of the state with the black woman he loved (even though, most Virginia judges were probably familiar with the works of Shakespeare, who had no problem with such marriages). Mormons, on the other hand, still believe that one should have as many wives as he can possibly feed. Now Utah is the only state that has a constitutional provision against polygamy; it took a strong state interference and an example of a scapegoat to overcome the trend – nevertheless, statistics still reports problems in the area.
Professor Kindregan, the most knowledgeable and respected specialist in family law, and my favorite teacher, smiled when I asked him if he knew a proper definition of the marriage that is commonly used by courts and that will be considered by legislators when they would decide the fate of gay marriages in this state. “I am not aware of such thing,” he said, “even though I have a whole book of these definitions right here.”
Apparently the understanding of marriage changes as we live. Isn’t gay marriage just another step in its evolution?
Legend #2. Gay marriages are wrong because they prevent otherwise healthy couples from having kids (which is the main reason, protected by the state as the state’s interest, why people marry).
Gay marriages contribute to such prevention probably less then distribution of the contraceptives, which at some point was considered dangerous. The Connecticut court decided that “sacred precincts of marital bedroom” cannot create a legitimate state interest – in Goodridge the judges called it “right for privacy in intimate decisions ”.
Having kids is certainly very advantageous, but for that you don’t have to be married, and, apparently no longer need to be heterosexual. Science nowadays manages to help all kinds of couples that cannot have children for natural reasons. Assisted reproductive technologies are available for infertile couples for almost 20 years now; a gay couple can have artificial insemination through anonymous donor or hire a surrogate mother; any couple can always adopt a child ; even death of one of the partners is no longer an obstacle to having children as long as the cells are properly stored in the bank and the widow or widower has access to them. All six couples, (no comma!) who were plaintiffs in Goodridge, had kids of their own, and most of them – more then one.
The State obviously favors marriage. Multiple benefits such as tax relief and insurance opportunities are connected with the marital status and many more – with childbirth; State clearly wants its citizens to marry and procreate. But testing both spouses for their ability to create a child is no a requirement for a marriage license. M.G.L. 207 contains no requirements for the spouses to demonstrate intention to conceive children in order to marry. Even though some time ago incurable impotence was a valid ground for divorce , I never heard of it being an obstacle to getting married. Moreover, two centuries ago Massachusetts court established that marriage could not be invalidated for failure or refusal to consummate , and the judges in Goodridge cited this statement as good law. Maybe the state is not as concerned with the birth of kids as it is with the general well-being of the citizens? That was at least the opinion of the judges in Goodridge, who said: “it is exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is sine qua non of civil marriage”. A married person tends to understand responsibilities, and be generally less violent and contribute more to society. This is a perfectly valid reason for the state to encourage and protect marriage. Any marriage…
Legend #3. Marriage and civil union give the same amount of rights to the partners and demonstrate the same degree of their devotion to each other; therefore if we absolutely need to have something for gay couples let us have a civil union and not compare apples to oranges.
Not being married to a person of any gender, I am not qualified to talk about the degree of devotion. But I daresay the part regarding rights is definitely wrong. For one thing, how many states do you know that recognize civil unions? Vermont, the creator of the term, and California (only they call it registered domestic partnerships); and as we know the Federal Defense Marriage Act allows other states not to give full faith and credit to a non-heterosexual union. States tend to take such permissions seriously: recently a Massachusetts resident who underwent a transsexual operation and had the birth certificate reissued tried to make Ohio recognize it. The state refused: under its law gender is established at the time of birth and is under no circumstances subject to change .
The main problem with civil unions is that in each state they are whatever legislators of this state happen to define them to be. There is no appeal to the US Constitution if one partnership is treated differently from another only because the latter is domiciled in Los Angeles.
I consider it important that gay couples from our state that recognized neither form of union consistently ask for a valid marriage. They are the people who meet the problem face to face so they would know. I spoke with one of the activists who tried to eliminate civil unions from the Massachusetts constitutions. She claimed that the intention was to make the definition “so terribly wrong that every grandmother in hundred years would look at it and say – oh, this is ridiculous! We want it out of the Constitution, we want a marriage.”
And they have a good reason for it because another important thing to consider is that marriage brings with it a whole bunch of rights coming from legal areas different from domestic legislation: joint tax filing in Massachusetts, tenancy by entirety, the whole variety of inheritance rights, entitlement to wages of a received employee, eligibility to continue business of a deceased spouse, benefits of certain Massachusetts medical programs, right to bring a wrongful death claim . As for domestic relations: alimony, equitable division of marital property and, most importantly, the right that concerns the most vulnerable category - child support. Since the Congress issued in 1982 the Child Support amendment to Social Security Act, each and every state under the pain of losing social security contribution is obliged to give full faith and credit to child support orders and chase the debtor all over its territory. This is protection that divorced gay custodial parent are not deprived of - as the court in Goodridge stated: “it cannot be rational under our laws, and indeed it is not so permitted, to penalize children… because the State disapproves of their parents’ sexual orientation ”
Under the same Defense Marriage Act, states are free to disregard another state’s gay marriage in the same way as they wouldn’t recognize a civil union. 38 states said they won’t, but there are 12 that will, and there may be more. A marriage will be helpful for gay couples overseas - many European countries recognize same-sex marriages but would be puzzled by what a civil union is, and how they should treat it.
Legend # 4. Calling a bond between gay couples a marriage would cause tremendous legal confusion because the judges would have to apply to it the existing domestic precedents originally created for a different set of circumstances.
Well, according to most proponents of the gay marriage, this is not the least part of the bargain. Spousal share, intestate inheritance, guardianship over the kids, eligibility to live in family-restricted areas, and the legal ways to deal with problems sprouting thereof, come with marriage only. One thing in common between the Highest Judge and the respectable gentleman behind the bench at East Boston Probate and Family court is that for both Word is the only instrument available for creation. It is absolutely necessary to call something a marriage in order to apply to it the existing laws, statutes and precedents regarding domestic relations.
Law has to be responsive to society, otherwise you have a revolution. And the judges would face the necessity to come up with monstrous contra-logical concepts like “parents by estoppel” when discussing domestic disputes between same-sex partners. Out of multiple similar decisions (seldom reaching the appellate stage) I picked Alison D. vs. Virginia M , a New York case decided some 10 years ago, to illustrate why gay couples may want to be married. In this case two lesbian partners obtained a child through artificial insemination; later the relationship broke up and the alienated partner demanded visitation through the court. The majority could not help her in any way: a parent’s absolute right to choose who would visit her child does not concern the other parent - and a third party has no legal standing whatsoever. Alienated parent in similar situations not only has right for visitation but is oftentimes even granted joint custody over the child.
Massachusetts (small surprise) decided a recent case with a similar fact pattern to the contrary. Helpless Massachusetts judges who lacked instruments to do justice summoned for this purpose a stillborn construction of a de-facto parent. De-facto parent, also known as parent by intent, is the person who induced appearance of the child into this world and promised to support it and its parent . This person shall not be confused with natural parent - the real parent of a child born out of wedlock, with biological parent - non-anonymous donor of male or female cells in artificial insemination , with in loco parentis – someone who has rights and obligations as if he were a parent (usually a guardian), etc.
I doubt that leaving these Frankenstein cadavers walking around is more likely to prevent confusion than calling a lifetime union of two gays a marriage.
Legend #5. Federal law does not recognize gay marriages. That makes gay couples ineligible to file federal joint tax returns, claim certain social security benefits, bring their spouses into this country using the immediate privilege under c.203 of the Immigration Code, and enjoy other state protection married couples have. Even if a gay couple gets married in Massachusetts it will not be considered married under federal laws.
This legend, for a change, is absolutely true. This barrier will not be overcome on the level of law anytime soon. Apparently the only way for gay couples to deal with it on personal level is to remember “there is still hope ”.
...as suggested by the judges in Goodridge at 343-344, 969-970, and Liv Tyler in “Lord of the Rings -II”.