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April 16, 2004

When Roommates Tie the Knot

Having gone a few rounds on the topic with Gabriel Rosenberg, I haven't entered into his exchange regarding same-sex marriage and parenthood on the Marriage Debate blog. However, a spun-off point from his latest contribution is too revealing not to note:

Even if they can't adopt, I think roommates should be permitted to marry. They already are permitted if the rooommates are opposite-sex and I don't believe we should forbid it solely because of the gender of the roommates. Whether roommates should marry depends on the circumstance. One should only enter marriage with the intention and the expectation that it will be permanent. So if roommates decide to marry they need to understand that they can't be dating other people, or expect to end the marriage when it no longer suits them. That being said I don't think they should jointly adopt unless they undertake this permanent commitment with all it entails.

Overall, this strikes me as further evidence that opponents and proponents of same-sex marriage really do agree on most of the particulars, merely approaching them with different priorities. Opponents argue that SSM would break down barriers further along the progression, and proponents say that it should. The former suggest that this would dilute marriage beyond utility, and the latter act as if this is irrelevant to the law.

I'm sure those who believe that marriage, as it stands, plays an important cultural role will be happy to find Prof. Rosenberg offering his non-binding personal opinion in place of the legal barrier, but they shouldn't be sufficiently satisfied as to acquiesce to his policy suggestion. The legal boundaries of marriage are the mechanism whereby society asserts what pairs of citizens should and shouldn't do. Ponder this sentence further:

So if roommates decide to marry they need to understand that they can't be dating other people, or expect to end the marriage when it no longer suits them.

Would Rosenberg support tighter divorce laws? Or how about guidelines that make it more difficult to remarry after having left a previous marriage for no socially compelling reason? Not likely. He may believe that roommates "need to understand" the rules, but based on previous exchanges, I don't think he sees that need as great enough to merit enforced consequences for breaking them. In a way of phrasing it, Rosenberg's argument is that those whom he seeks to persuade to change the law should trust that others will respect the reason that it was done and pass up benefits to which they would gain legal access... just because.

It may be that part of the reason for tepid response of marriage traditionalists that Chuck Colson finds inexplicable is a simple inability to compute the arguments of the other side. Married roommates "can't be dating other people"? But we all understand, by the word "roommates," that they're not dating each other. That's why it's brought up for the purpose of illustrating the potential perversions of SSM; it will extend the opportunity for benefits to relationships with absolutely none of the qualities that justify those benefits in the first place. In essence, Rosenberg is saying that roommates should be allowed to marry, but that they should only do so if they aren't really "roommates."

Aversion to the confusion of roles on which Rosenberg is relying to slip his point through is the very cultural force that discourages opposite-sex pairs who fit the definition of "roommates" from marrying, even thought they legally could do so. One can imagine the perplexed reactions when such a pair attempted to explain their arrangement to family, friends, and new acquaintances. Straight same-sex roommates would face no such interpersonal pressure to appropriately delineate their relationship because it would be implicitly understood that they are merely gaming the system. By virtue of their heterosexuality, the expectation of romantic intimacy is more easily dismissed.

Joe's admission evoked a curious look from the woman at the bar. "So you and your friend are married?"

"Yup."

Her eyebrows lowered as she laughed nervously. "Are you...," she said, finishing her sentence with the pantomime of a limp wrist.

"Nope." In a tone of practiced nonchalance, he explained that they just hadn't wanted his employment benefits to go to waste while John was partially unemployed and working toward his graduate degree. Joe sipped his beer and added, with a broad smile, "And our bedrooms are on opposite ends of the house."

She tittered again, but this time, the lowered eyebrows gave way to a deep blush.

Imagine the same scene if the woman had been the one attempting to explain that she was married to her "roommate" John for convenience. Professor Rosenberg may not see any reason that society shouldn't move toward gender-neutral cultural subtext, but to advocate as much is to dismiss notions of human nature and to discard endlessly subtle and integral roles that have developed over millennia.

The only way for a pair's marital pronouncements to become the only relevant indication of their relationship is for cultural comprehension and expectations between men and women (or any combination) to be drained completely from society. That is simply not possible among human beings, even if it weren't undesirable. Universities may be pushing their campuses toward the androgyny represented by unisex bathrooms, but the country at large is much less amenable to such social engineering.

ADDENDUM:
It seems, based on discussion in the comments section to this post, that I was incorrect to infer that Prof. Rosenberg wouldn't support the tightening of some of the obligation-based marital laws, such as those around divorce and adultery. However, his position on such matters seems essentially independent from the question of same-sex marriage, which I find problematic in its own right. A significant portion of opposition to SSM derives from perception of the danger of further corrosion of marriage and the impossibility of comprehending the effects that erasing gender distinctions in such a central institution would have.

There are too many variables to people's handling of information in this debate — from completely different usage of terminology to the media's inclination to stuff all opposition into the religious corner — to propound on the reasons that people make the arguments that they do. I give the professor the benefit of the doubt on this count. However, I continue to find it worrying that even such fair and reasonable disputants as Prof. Rosenberg treat SSM as so entirely a matter of individual rights that strategies for mitigating potential corrodents are not integral to their larger propositions.

Posted by Justin Katz at April 16, 2004 9:53 AM
Marriage & Family
Comments

Would Rosenberg support tighter divorce laws? Or how about guidelines that make it more difficult to remarry after having left a previous marriage for no socially compelling reason? Not likely. He may believe that roommates "need to understand" the rules, but based on previous exchanges, I don't think he sees that need as great enough to merit enforced consequences for breaking them.

On the contrary, I would be likely to support tighter divorce laws and other guidelines to enforce these rules. I have not studied the issue of divorce in depth, and thus I have not heard all sides of the issue, but my initial reaction based on what I've read so far is that we do need to something to restore the permanence of marriage. In a past exchange I might have noted some of the problems that led to no-fault divorce, but that does not mean I oppose divorce reform. I just think it's a complicated issue that I know too little about.

In a way of phrasing it, Rosenberg's argument is that those whom he seeks to persuade to change the law should trust that others will respect the reason that it was done and pass up benefits to which they would gain legal access... just because.

Not quite. I would note that marriage is not just benefits it is also obligations. Also, that some people might marry for the wrong reason is a current problem unrelated to same-sex marriage. I'm not saying trust that nobody will get married for the wrong reasons. I'm saying people already do.

But we all understand, by the word "roommates," that they're not dating each other. That's why it's brought up for the purpose of illustrating the potential perversions of SSM; it will extend the opportunity for benefits to relationships with absolutely none of the qualities that justify those benefits in the first place. In essence, Rosenberg is saying that roommates should be allowed to marry, but that they should only do so if they aren't really "roommates."

Actually I had two roommates from college (opposite-sex) who subsequently married each other. My point is that roommates are not always of the same-sex. Again this a problem that exists today. But in general opposite-sex roommates who have no romantic interest don't get married, because it involves serious consequences. Likewise I don't forsee many same-sex roommates getting married for the same reasons. But also note that Ms. Catelli had raised the question of two roommates jointly adopting a child. This is certainly not a common situation. And I would say regardles of the sex of those roommates, they should only do so if they were to marry, and they should only marry if they are going to accept all that it entails.

In your scene at the bar, I don't see things going much differently if it an opposite-sex sham marriage. "Oh you're married?" "Not really, it's just a sham, opposite bedrooms, etc. etc." Again I think the solution to this problem is not to ban same-sex marraige which does nothing to prevent opposite-sex sham marriage and penalizes hundreds of thousands of same-sex couples, but to tighten adultery laws and take other effects to discourage and/or penalize sham marriages.

Posted by: Gabriel Rosenberg at April 16, 2004 10:34 AM

Well, Gabriel, I think the problem is that there is not a single proposal anywhere to actually institute what you're advocating. The question is rather in the absence of "tightened" divorce laws and so on whether you'd advocate SSM any way. I'm betting you would. So why bother pretending to care?

You can say all day that SSM is a good idea, allowing for five thousand qualifications that stand no chance of being part of the deal. That just strikes me as disingenuous, though. The question is whether we can actually institute the exceedingly complex vision you've got in mind overnight, or whether we ought to rely on a gradual evolution of marriage over time.

This second option is what we've always done, until recently, when we allowed sweeping changes in the entire social order to bluntly be foisted upon us by our black-robed betters. The kind of arrangement you're putting forward would have to be supported by a massive web of legal reforms that could never be implemented. If you concede this much, you have to recognize that your idea is totally unimplementable, whereas the traditional idea isn't--we know it isn't because it's traditional.

The odds that a massive overhaul in the family court system will take exactly the direction necessary to simultaneously mitigate the familial anarchy that could result are so slim as to be beneath consideration.

Posted by: Sage at April 16, 2004 4:47 PM

Prof. Rosenberg,

I think Sage makes the central point: you, and perhaps some other supporters of same-sex marriage (although I haven't come across them), might be open to tightened divorce and adultery laws, but even you haven't tied them to your argument for SSM. The necessary change is unimplementable largely because of the methods and thinking of those pushing to change the institution of marriage. The logic of the thing doesn't match the perceivable emotional drive.

As I've argued before, the entire issue of marriage is complicated, and of such extensive subtlety that nobody can really "know much about" it, in the sense of being competent to make structural changes according to a concocted plan. Rather, change must come with discrete tweaks in reaction to social experience.

Of course, I agree with you that "marriage is not just benefits it is also obligations," with those obligations being enforced socially and legally. Those pushing for change haven't spent much time talking about the obligations of marriage or any methods of enforcing them.

As for those who marry for the wrong reasons, erasing the gender requirement will, at the bare minimum, double the potential. My view is that it would do much worse, because of the cultural distinctions between same-sex and opposite-sex relationships. The experience of your two roommates shows this to be true. The cultural meaning of marriage will not adhere to the sham matrimony of straight same-sex roommates because of the fundamental disconnect from potential romantic development.

It seems we inhabit two distinct cultures, you and I. To my experience, people are generally discomfited by opposite-sex living arrangements of boyfriends/girlfriends. (For one thing, there's the justified suspicion, as with your friends, that there might be something developing, manifest or subconscious, between the roommates.) Perhaps the only valid matter to dispute is whose culture is more prevalent among the general public, and I have to say that I don't believe it to be much of a contest.

I'd argue that this is just another instance of a cultural elite seeking to structure society according to their own experience, where the distinction for the rest of the nation is such that the change would be detrimental. (Of course, I'd also argue that the elite are perpetuating an untenable fantasy among themselves, but that's a longer, less concrete debate.) Even on your side of the debate, I think you'll have to concede that yours is the minority view, overwhelmed by the human natures of your allies.

Posted by: Justin Katz at April 17, 2004 9:18 AM

I'm dumbfounded. Ms. Catelli asked me a question of whether roommates who jointly adopt a child should be permitted to marry. I answered her question, by noting (1) roommates are already permitted to marry if they are opposite-sex (2) so I would not change this rule for same-sex roommates, (3) a distinct question is whether roommates should marry, (4) the answer to that question depends on many things especially the nature of the relationship, but the fact that thier jointly adopted a child is an indication that they should marry and more importantly make the commitment of marriage. (5) Ultimately what is important, though, is that regardless of their reasons for marrying, everyone who marries must follow the laws which govern marriage.

Mr. Katz then objected to me drawing the distinction in number (3). This is in itself rather confusing because I doubt Mr. Katz would support prohibiting everything he thinks people should not do. For example, I would hope that Mr. Katz would agree that people should not make racist hate speeches, but my understanding is he would join me in arguing that such speech should not be prohibited by law. Part of the reason I wouldn't want such speech prohibited is I don't want the government making the determination of what is "hate speech". Likewise I wouldn't want the government of making the determination of whether people are marrying for the "right reasons". In any case, in the process Mr. Katz made an incorrect assumption concerning my views on tightening divorce laws. I corrected this mistake as I didn't want his readers to have an incorrect belief as to my views. And now I'm accused of being disingenuous because there's not a strong push for tightening divorce laws especially among SSM proponents. I have also been accused of pretending to care, and criticized for not tying my arguments for SSM to tightened divorce laws.

I never conditioned my support for same-sex marriage upon tighter divorce laws or for that matter upon any change in the laws which govern marriage. On the contrary, I have argued that as the marriage laws in many states are now egalitarian, no change is necessary and same-sex marriage is actually a natural next step. So it is just not true that I said SSM is a good idea, allowing for five thousand qualifications. I have said it is a good idea without qualification. The problems of no-fault divorce and abandonment or relaxed enforcement of adultery are separate problems that occur with or without SSM. (And I don't believe sham marriages are the primary problems with either of these).

Yes we could have a discussion about whether more sham marriages would occur if SSM were legal, and what should be done about the problem of sham marriages, but there is no need for anyone to accuse me of dishonesty for failing to address this concern which was first raised in this post. The more I think about it, the less your bar scenario makes sense to me. How would the lady at the bar even know that Joe is married? I suppose it was because he volunteered the information, boasting of the fact that he were in a sham marriage. I would agree that the problem of people publicly boasting of being in a sham marriage is probably worse than the occurrence of the marriage itself. I would gather a woman in the same situation would not boast of the fact. This is a generalization that men are generally more boastful than woman. We can alter the scenario, though, to a case where Joe is boasting that he's in a sham marriage with Jonah. I still don't see the scene as going any differently. (It's also worthwhile noting that a couple does need to cohabit in order to enter into a sham marriage).

I will concede that the more couples that are allowed to marry, the more possibilities there are for sham marriages. One can also ask how gender will be relevant in determining the prevalance of sham marriages. I can see two possibilities for thinking there would a higher prevalence. One is that men are more likely to enter in sham marriage than women. In that case since currently a sham marriage requires a woman, there would be a higher prevalence of sham marriages. The other possibility is that people will be more inclined to enter into same-sex sham marriages since the majority is heterosexual and, for them, the complications of possible sexual involvement would occur in an opposite-sex sham, but not a same-sex one. Against this we could say that a same-sex sham is perhaps less likely because heterosexuals (especially men) won't want it known that they were ever in a same-sex marriage for fear the "gay" label will persist despite protestations. In any case, I don't believe same-sex marriage will significantly exacerbate the sham marriage problem, and certainly not enough to justify the continued exclusion of same-sex couples from marriage. (By the way, my friends were already romantically involved when we all became roommates. That being said I am aware that a number of people, especially from the prior generation, thought it odd that I had roommates of the opposite sex.)

Finally I think you significantly underestimate the number of supporters of SSM who believe marriage is about obligations as well as benefits. I do not concede that I'm in the minority in this regards. [If you were referring, instead, specifically to the view that no-fault divoce is problematic, then yes I concede I'm probably in the minority]. In particular, what should be quite relevant is the briefs of the plaintiffs and amici in the Goodridge case. They referred repeatedly to the obligations of marriage. On my site I just posted about the amicus brief of the BBA which went into detail about many of those obligations. Part of the confusion may be that the ability to take on obligations and have the government recognize those obligations is itself a benefit. Even if I were in the minority in this regards, though, I would not like for an individual to be denied the protections of marriage because of the beliefs of the majority of a group to which they belong.

Posted by: Gabriel Rosenberg at April 17, 2004 7:07 PM

Prof. Rosenberg,

To the extent that I contributed to your dumbfoundedness, I apologize. Most significantly, I should have noted that I don't believe you, individually, to be disingenuous, although I think the point could apply to others and, therefore, can understand Sage's putting it that way. But I should have voiced the distinction. Beyond that, it seems that part of the problem is an inherent disconnect with regard to what we use terms to mean.

Even in the circumstances of adoption, I took Ms. Catelli's use of "roommates" as indicative of a relationship that has none of the markers of a marriage-type relationship except the shared household. My reaction (and, I'm guessing, Sage's) is to the fact that you wrote around acknowledging that meaning. If it was, in fact, the case that you weren't taking the use of "roommate" to be an effort to indicate relationships that would not develop into what we see as matrimony, I think some of the confusion ought to clear up, now. The question of whether "roommates" should marry, under those circumstances, is clearly an odd question — exacerbated by the fact that you didn't mention sexual orientation and affection.

Despite my apologies for confusion, however, I continue to think it a valid "accusation" (as you've termed it) that you haven't tied strategies for handling potential problems (very likely, I'd say) with your proposed policy change. That, at least, furthers the impression that SSM advocacy is a step or two removed from whatever community good we wish marriage to accomplish.

The notion that tightening divorce and adultery laws ought to be part of the broader discussion isn't new to this post, and I'm almost positive that it's come up in our exchanges, specifically. I may be, again, guilty of presuming a train of thought that I find obvious to be so for everybody; I've always held sham marriages to be among the problems of SSM, and that's among the reasons I've thought divorce and/or remarriage laws to require fortification.

The only way that I can see the increased gaming of the system among same-sex straights as a question that can be overlooked is if one truly takes the androgynous view seriously, which raises further problems that I've noted above. Men and women are different in ways relevant to this discussion, and it has nothing to do with boastfulness. Perhaps it might clarify my view, a bit, to suggest that I'd expect a woman to be suspicious of a sham marriage between a man and his female roommate. In contrast, I wouldn't expect a man to be as concerned about a woman's sham marriage to a female roommate.

As you've noted, though, the opposite-sex variation is already permitted, legally; as I meant to note, there are cultural barriers to it that wouldn't exist for same-sex shams. I don't think I'd go so far as to predict that "sham marriages" would be more common among men than women. Although I find it curious that you suggest mild bigotry as a reason that straight men wouldn't marry each other for benefits, I'll agree that it would play a role. To the degree that it did so, marriages of convenience would be more common among women. It's important to note that these marriages wouldn't be seen as "shams" as the practice became more pervasive. Rather, they'd be more like "first marriages" or "sexless marriages" or somesuch. And among my larger concerns, in this area, is that it will become cultural practice to marry roommates with standard prenuptial agreements, and then dissolve the marriage along with the lease agreement. For one thing, I just don't see there being a stigma for either the marriage or the divorce, because its purpose would be clear.

Let me close by saying that I, as well, "would not like for an individual to be denied the protections of marriage because of the beliefs of the majority of a group to which they belong." However, if that majority group is likely to diminish the value of marriage, such individuals need first to turn to them.

Posted by: Justin Katz at April 17, 2004 8:21 PM

Aghh. I just lost a long comment. The short of it was there are a lot of issues here, and I just want to focus now on those concerning my integrity. I appreciate your apology, and while I note that the accusation of disingenuity came from Sage I was surprised that you praised his comment without a word in my defense. As I said I appreciate your correction. The tone of your orignial post also left much to be desired.

For the "roommate" I would note that context is important. Ms. Catelli had in the past implied there was no difference between roommates and same-sex couples except the latter had sex. A number of other people on both MD.com and elsewhere have made similar suggestions to the effect that same-sex couples shouldn't get anything just because they happen to have sex. In fact at one point there was a suggestion that the FMA be worded so as to allow benefits to couples (same-sex or opposite-sex) as long as they weren't predicated on sex. In a related note I don't see sex as the primary way same-sex couples seeking marriage are like opposite-sex couples who marry, nor do I see sex as the sine qua non of marriage. Thus I focused on the distinction I felt was important, that of making a permanent commitment and taking on all the obligations of marriage. What makes a relationship "matrimonial" is a difficult question, and for me to say roommates shouldn't marry with the understanding that by roommates I meant those that shouldn't marry would have been a useless tautology. I also think the distinction between believing people should not do something, and believing it should be prohibited is an important one to keep in mind. Again I was suprised at your mocking tone for what I thought was a distinction that you would agree needs to be made at times. You wouldn't say "we should have free speech, just trust me that nobody will use it to promote hatred and bigotry".

Finally for reasons I have explained I did not think Ms. Catelli was alluding to sham marriages, which is an interesting topic in its own right. Please feel free to post on that subject, but there is no need to mischaracterize my views to do so.

By the way, it might interest you to note that I also am opposed to prenuptial agreements and its close relative the cohabitation agreement. Although, as before, my support for SSM is not conditioned on reform on these matters. I do believe, however, that allowing SSM will make it easier to do away with cohabitation agreements. That is another discussion, though.

Posted by: Gabriel Rosenberg at April 17, 2004 10:15 PM

A number of other people on both MD.com and elsewhere have made similar suggestions to the effect that same-sex couples shouldn't get anything just because they happen to have sex.
— Well, this opens up another area of debate. The reason most people, myself included, have made these suggestions is that, if the argument for SSM is that homosexuals can fulfill certain of the defining aspects of marriage (which are another area of dispute), such as mutual care, then there's no reason to bar others who can do the same. The main unaired difference in understanding, with that topic, seems to be that opponents of SSM don't see civil unions as necessarily "marriage lite," but as legal packages with specific benefits to correct difficulties in the law that homosexuals tend to come across at a higher rate. As a debating point, the question raised is what, precisely, the government interest in SSM would be — certainly not gay sex.

for me to say roommates shouldn't marry with the understanding that by roommates I meant those that shouldn't marry would have been a useless tautology
— That's part of my point. Using my definition of "roommates," what you wrote sounded as if you were saying that roommates can marry, but with the understanding that their relationship ceases to be that of "roommates."

Again I was suprised at your mocking tone for what I thought was a distinction that you would agree needs to be made at times.
— It does need to be made at times, but it's not always adequate of itself. In your free speech example, the comparison is to somebody who's already objected that it will be used to further hatred; you have to address that point. Thus, when you say that roommates shouldn't abuse marriage law in a debate in which abuse and dilution of marriage is a major concern, it would be prudent, at least, to include a reason or mechanism that the abuse will not follow.

Posted by: Justin Katz at April 18, 2004 12:14 AM

As you said the issues of the governmental issue in same-sex marriage and domestic partnership legislation is anothter discussion.

Keep in mind I was drawing a distinction between can and should marry. So in the should, you are correct that I was saying they should marry if their relationship ceases to be one of roommates, but what "ceases to be" means is going to vary according to the reader. Thus I thought it better to go directly to the relevant characteristics. I stand by this decision.

Thus, when you say that roommates shouldn't abuse marriage law in a debate in which abuse and dilution of marriage is a major concern, it would be prudent, at least, to include a reason or mechanism that the abuse will not follow.

But I never claimed that abuse will not follow. As I've pointed out the discussion with Ms. Catelli was about whether same-sex marriage would help same-sex parents as well as whether it would hurt the idea that parents ought to be married. It was not about sham marriages. So there was no reason for me to address that issue at that point. Nor am I claiming that abuse will not follow (and I certainly wasn't claiming it there). When I argue for free speech I'm not claiming people won't abuse speech. Rather I'm claiming that the abuse of free speech is better than the alternative of no free speech. So when you raise the issue of sham marriages, my response is I think the problem is independent of allowing SSM, and what increase there is in people marrying for the wrong reason is better than the government trying to determine who is marrying for the "right" reasons, especially when that test would be a pretty poor test (including those that it shouldn't include and exluding those that it shouldn't exclude) and esepcially when the test involves gender based classifications. There was no reason for me to believe such an issue needed to be addressed in my response to Ms. Catelli.

Posted by: Gabriel Rosenberg at April 18, 2004 12:58 AM

Thank you, your addendum does more accurately reflect my views.

Posted by: Gabriel Rosenberg at April 18, 2004 1:03 AM

Thus I thought it better to go directly to the relevant characteristics.
— The only thing that continues to nag at me — in a vague way — is that you didn't offer characteristics of the relationship, but of the ostensible obligations. In other words, you didn't suggest that they ought to be "dating" in the first place. I sense something there, but I'm not interested in chasing it at this time.

Posted by: Justin Katz at April 18, 2004 11:27 PM