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May 7, 2004

The Ellipsis of Love

Different worlds, indeed. I've been pondering all day how Andrew Sullivan can take this legal language:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

And assert this as undeniable fact (emphasis his):

...when a law is passed that bans even private contractual agreements between two gay people in a relationship...

...by making even a "partnership contract or other arrangement ... void and unenforceable," Virginia is denying gay couples any legal protections at all in as broad and vague a fashion as possible.

This is very much like the whole "incidents of marriage" thing that I've been over and over (here's one entrance to my writing on the topic), meaning that the relevant part of the text is what Sullivan elides: "purporting to bestow the privileges or obligations of marriage." The meaning of this law looks about as clear as laws can be, and although I look forward to reading the results of Ramesh Ponnuru's investigation, I'm not sure why he considers it at all vague. (That response, on Ponnuru's part, already gives Sullivan rhetorical leverage.)

Basically, whatever "privileges and obligations" the state of Virginia considers to be exclusively available to married couples will not be available to homosexual couples, whether through private contract or public registration in another state. In other words, any contracts enforceable between any two people — whether friends, family, business partners, or what have you — would remain available to homosexuals. In reverse, any contracts that are not valid between another pair would not become valid just because the parties draw up a contract calling themselves "married" or "partners" or some other term.

When someone as sharp and in line with my own position on this issue as Ponnuru has doubts, there's certainly reason to leave open the possibility of a blindspot. But barring language in the law that my brain just won't register, it seems to me that supporters of SSM — whether as a conscious device or conceptual error — presume a right to some sort of special recognition in their claims of bigotry and "persecution." This missing principle is at the heart of an email posted by Jonah Goldberg:

Sullivan's point is that he theorizes the mainstream Right is lying when they claim they only oppose same-sex marriage in the name of marriage and aren't anti gay. Even though the Virginia law may not be a fair test of Sullivan's thesis (Ponnuru's point), you sure gave credence to Sullivan's theory with your reaction.

Thus, by inexplicit definition, refusing to grant homosexual pairs additional rights and privileges that would be premised on their being homosexual amounts to being "anti gay." Put another way, it becomes "anti" simply to be something other than "pro." (I think this is along the lines of what Goldberg has been arguing.)

The emailer goes on to suggest that "a strong condemnation of the law under Sullivan's interpretation," at least, would be merited, but such condemnation, without rephrasing, would tacitly accept that equivalence is persecution. Sure, I would condemn a law that declared that "all contracts whatsoever between people who are homosexual are void," but that's not what Virginia is doing here.

Posted by Justin Katz at May 7, 2004 4:52 PM
Marriage & Family
Comments

It's almost clearer than the FMA.

Posted by: Joe Marier at May 7, 2004 11:25 PM

I really don't think the law is clear as to what kind of private contracts gay couples could or could not enter into.

The whole idea of banning gay marriage and civil union is to prohibit the state from granting privileges to gay couples, not to keep such couples from entering into private contracts concerning the details of their relationships.

The law would seem to mean that a gay couple might not be able to contract to mutually make end-of life care decisions if those decisions would normally go to a parent or sibling, for instance.

Posted by: Joel Thomas at May 8, 2004 1:26 AM

Joel,

Frankly, I just don't see that as true. Gay couples could contract any details of their relationships that any other unmarried pair could. Only contracts "purporting to bestow the privileges or obligations of marriage [are] prohibited."

So, for example, as long as Virginia law does not restrict end-of-life care decisions to married couples, homosexuals could grant the capability to each other. I'm inclined to sympathize with concerns that judges would distort the law, but that's a modern problem in every area.

If, on the other hand, Virginia law does restrict end-of-life care decisions to married couples (which would seem odd, since everybody dies, but not everybody is married), then that's a silly law and ought to be changed itself.

Posted by: Justin Katz at May 8, 2004 7:36 AM

It seems to me that it is impossible to take anything Sullivan says on this subject seriously. I'm a relative newcomer to blogdom, Sullivan's writing, and the marriage debate, but from what I've seen he routinely excoriates people who are against SSM, sometimes in a personal manner, without addressing their arguments. And when he does address the arguments, it's in a tendentious manner. But when it comes to defending SSM, he simply asserts that it is an inalienable right, and uses all kinds of emotional pleas. Yet he can call the 'theocons' "emotive":

http://www.andrewsullivan.com/index.php?dish_inc=archives/2004_05_02_dish_archive.html#108396203150251263

Posted by: Mike S. at May 10, 2004 12:10 PM

Mike,

Sullivan is absolutely not to be trusted on this (and related) issues. Unfortunately, people persist in taking him seriously, so it remains necessary to respond.

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Incidentally, to include links in comments, use the following html:

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Posted by: Justin Katz at May 10, 2004 12:25 PM