Same-Sex Marriage: It's Just One of the Many Challenges to an Old Institution
According to Nancy Cott, our concepts of marriage in the United States were heavily influence by the French Enlightenment philosopher, Baron de Montesquieu who in his Spirit of Laws emphasized marriage and the form of government as mirroring each other. Marriage was a voluntary union paralleling the new government.1 Marital relations were envisioned as a symetrical union of reciprocal rights and responsibilities. This idea was carried over into the various state laws which defined marriage, but while the ideal continued to exist, the reality often differed. It remained a function of the state until 1996 when the federal government entered the field in force with the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) which created block grants to states allowing them to spend welfare funds on marriage related programs for welfare and non-welfare recipients. It also included separate funding for states for abstinence-unless married programs. It is this federal entry which has complicated the question of what marriage is about.
It is important to emphasize that the reality of marriage in American history was often not in conformity with the ideals expressed. Though probably most marriages in settled areas took place in the churches, on the frontier, this was less likely to happen and many states adopted what came to be known as common law marriages, namely if people cohabited and had children for a certain specified time they could be regarded as married. Ideally marriage was assumed to last a lifetime, but in reality this did not always happen. Still divorce in many states was difficult, with states like New York only allowing it in the case of adultery. As marriage laws tightened in the twentieth century, Nevada rose to meet the occasion by granting divorces after a certain specified resident period. Other individuals went to Mexico or elsewhere for divorces and since marriages in one state were legal in another state, as were divorces, divorce became Nevada’s main industry for a time until divorce laws in most states were relaxed in the last part of the twentieth century.
Long before the twentieth century, however, there were rebellions against the tradtional view of marriage and family, many of them set in a religious context. John Humphrey Noyes established his religious colony in Oneida, N.Y. in 1848 to practice his idea of complex marriage where everyone in a community loved one another equally. This meant that men and women could have sexual relations with each other providing they practiced “male continence,” or what is now called coitus reservatus. Only when there was a mutual desire to have children was the practice ignored and Noyes himself fathered several children with different women. In nearby Palmyr, New York, Joseph Smith founded Mormonism in the 1830's and soon introduced the idea of polygamy as it had been practiced in the Jewish scriptures. When Americans objected, the Mormons migrated to Utah, where the U.S. government sent an army to keep an eye on them. The move was not particularly successful: in order to become a state, Utah had to make polygamy illegal and the Mormon Church abandoned it. Or rather the mainstream Mormons abandoned it, since there are a number of Mormon fundamentalist groups which still practice it and which are mostly left alone by the various states in which they live. Earlier in New York State, Mother Ann Lee established the Shakers (the formal name is the Society of Believers in Christ’s Second Appearing), a movement which denounced marriage as ungodly.
In the first part of the twentieth century there was a large movement emphasizing trial marriages. Many appeared in the 1960's, ranging from utopian schemes of some of the communal movements to those looking upon sexual activity as a form of recreation. Swinging, at first called wife swapping, a term dropped because it was clearly sexist, was a recreational oriented movement in which couples took part, organized parties, and had sex with other attendees. As some of the groups became more established, party houses and clubs developed, with hot tubs, pools, grottoes and unique bedroom settings, but they were open to only members who had to pass a membership screening to be admitted.
Another challenge to traditional marriage was group marriage, also called “multilateral marriage.” This involved a relationship in which three or more people formed an intimate relationship to participate in sexual activities. “Intimate friendship” group defined themselves as a traditional friendship group but one where “sexual intimacy was considered appropriate behavior.” A variant form is the “Sexually Open Marriage” which both partners were allowed to have sex with other partners, although this did not necessarily involve belonging to a group and was more of an individual enterprise. The sixties and seventies also saw a number of communal experiments in which non-exclusive sexuality was either openly practiced or tacitly allowed. Many of these had a religious justification. When AIDS appeared these “free love” groups suffered a decline in adherents. Still the national organizations which developed managed to survive and continue to function and now hold national conventions in places like Las Vegas in which sex parties are part of the agenda. In fact the whole idea of traditonal marriage has changed, best illustrated by the fact that over 50 percent of the people who were once married are now separated and divorced.
The most recent of the organized groups say they are polyamorous, which has both religious and secular roots. The term was coined by Morning Glory Zell in an article in a low circulation movement publication to describe a lifestyle that embraces multiple, simultaneous, openly conducted, romantic relations which generally, but not always, included a sexual component. The term now describes a rapidly growing movement which distinguishes itself from swinging and some of the earlier movements in that it is not couple-centered, and from other free love groups in its emphasis on the emotional and romantic factors in love. It claims to be more than a physical sexual movement, insisting that it has a philosophical approach emphasizing that the members in their groups are part of a family. The movement is not confined to the United States but claims to have adherents in Europe and Australia, and is spreading elsewhere.
It is worthy of note that when the very institution of marriage seems to be in a crisis, with many states establishing domestic partnerships in lieu of marriage, many gays and lesbians want to be married.. It is not a new issue in the gay and lesbian community. Back in the late 1950's, One, the first regular homophile publication in the United States, devoted several issues to the topic. It was hotly debated, with many correspondents objecting to marriage because it would destroy what they thought was best about the gay lifestyle. The question that needs to be asked of those gays and lesbians agitating for marriage is whether they want it as a symbol or for the advantages it brings? Probably there are people on both sides of the issue.
What are the advatanges? A good place to start is with the death of an unmarried partner whose mate is not entitled to bereavement leave from work, to file wrongful death claims, to draw Social Security of the diseased, or to automatically inherit a shared home, assets or personal items in the the absence of a comprehensively drawn will. Nor can they technically get a divorce: if they break up there are no structures or guidelines for them to follow including how to handle shared property, child support, alimony, or protecting the weaker party and children. They are not covered by family leave, and as far as health policy, unmarried partners are usually not considered next of kin for hospital visitation or emergency medical decisions. They cannot include their families on their health plan without paying taxes on the coverage, nor are they eligibile for Medicare and Medicaid coverage through a partner. Unmarried couples of lesser means can be denied or discouraged in their applications for public housing. U.S. residency and family unification is not available to an unmarried partner from another country. Unmarried surviving partners do not automatically inherit property should their loved one die without a will, nor do they get legal protection for inheritance rights such as elective share or bypassing the hassles and expenses of probate court.
Unmarried partners cannot always sign up for joint home and auto insurance and are not able to be covered under their partner’s health insurance plans. There is no portability since domestic partnership and other alternative mechanisms only exist in a few states and countries. Unmarried couples are denied the automatic right to joint parenting, joint adoption, joint foster care, and other aspects of family life in most states. Unmarried couples are not protected from having to testify against each other in judicial proceedings. Unmarried couples are also excluded from special rules that permit married couples to buy and own property under favorable terms. In retirement they are denied access to share or spousal benefits through Social Security as well as coverage under Medicare and other programs. They are also denied withdrawal rights and protective tax treatment given to spouses with regards to IRA's and other retirement plans. Unmarried couples cannot file joint tax returns and are excluded from tax benefits and claims specific to marriage and they are denied the right to transfer property to one another without adverse tax consequences. If they have children they lack the economic benefits for children which the law provides for married couples.
Many of these defects have begun to be modified by domestic partner acts, and in states like California the benefits are approaching equality. It is not only gays and lesbians who benefit from these changes but large numbers of retired widows and widowers in California (and other states with such acts) who when they couple-up do so as domestic partners in order to to keep some of the benefits such as Social Security benefits they might have been eligible for from their previous spouses.
In sum, it is not gay marriage that is the only challenge to traditional marriage. Hopefully the result of the agitation for gay marriage will result in a rethinking of what marriage should involve. Such a revision is not a new thing and changes have been taking place piecemeal for the past century. Moreover the role and place of marriage in the past has undergone radical revision. One of these was the recognition of marriage as a sacrament in the Catholic Church in the twelfth century. Its meaning has changed as society has changed. It is an important institution, which has many advantages as well as disadvantages, but those like me who believe it should be preserved, recognized that each generation has to redefine what it means. Religious ideas of marriage have been interpreted and re interpreted in the past, and so has the legal boundaries of the institution. Divorce is perhaps the best example of this. There is no reason to assume that state views and religious views on what might constitute marriage should be the same. They are not today and they have often not been in the past.
1 Nancy Cott, A History of Marriage and the Nation (Harvard University Press, 2000).
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