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January 20, 2005

When the Cynical Run the Clinic

Massachusetts lawyer David Fried spends about 400 words spinning a tapestry in which allowing same-sex marriage permits more discrimination against the unmarried, and his argument is worth addressing seriously... until he ends with the following parenthetical quip:

I think that this is exactly what will happen--and I'm in favor of it (if only because, as a straight divorced guy, I don't see why gay people should be exempt from the general misery!)

Here's a statistic I'd like to see: the percentage of heterosexual same-sex marriage supporters who have been divorced. I bet it would be very disproportionately high.

In Fried's case, I don't see how he could better have highlighted that his entire post fails to take seriously the purpose that traditionalists claim for marriage. Fried ignores the justifying intention of the discrimination in order to deliver his clever explanation for maximization of it.

One point that we who oppose same-sex marriage have made again and again is that allowing an expanded circle of relationships into the marital definition dilutes it from within. If, as Fried puts it, allowing same sex-marriage will make it "both permissible and a good idea to discriminate against those who claim societal recognition for their relationships without marrying," it will also make it more difficult to explain to other groups why their brand of relationship cannot cross the line.

Fried's point of view, specifically, is as an employment lawyer, so he couches his thinking in terms of the benefits that corporations offer to their employees. But what are those benefits for, beyond attracting and keeping workers? On what grounds would a corporation object to extending a one-person-only benefit package to an employee and his widowed mother? Surely, if companies have any interest in encouraging marriage beyond merely offering competitive compensation, it's not employees' sex lives, but their stability and access to daily mutual care and support.

Personally, I'm not sure that companies shouldn't offer certain benefits to encourage such things, but I definitely don't want the form that the "societal recognition" takes to be marriage. Rather, employers ought to reserve for that institution some of their influence in order to join the culture, the churches, and the government in securing the longer-term benefits that flow from traditional, lineal families.

Posted by Justin Katz at January 20, 2005 8:19 PM
Marriage & Family
Comments

"What are those benefits for, beyond attracting and keeping workers? On what grounds would a corporation object to extending a one-person-only benefit package to an employee and his widowed mother?"

The "widowed mother" probably has a hefty monthly survivorship check coming from Social Security, something a "Gay widowed spouse" is unlikely to qualify for anytime in the near future.

But that's beside the point. The real issue is simple fairness and a willingness to treat Gay and Straight employees with the same dignity and respect. The companies recognize that their Straight employees have the option to marry and qualify for the the roughly 1,400 federal and state financial and legal benefits that marriage confers. As a simple matter of fairness, many companies choose to offer benefits to the spouses of their Gay employees. I would certainly feel a deeper sense of loyalty to a company that took such a progressive stance.

Posted by: Chuck Anziulewicz at January 21, 2005 1:02 PM

Chuck,

Yes, but wouldn't a man "feel a deeper sense of loyalty to a company" that helped him to support his ailing mother? Furthermore, "simple fairness" leads some companies to extend domestic partner benefits to straights. I haven't researched these policies, but I think (1) they undermine your suggestion that companies are acting in response to the "no option to marry" aspect, and (2) they bring us right back to the questions of why companies offer benefits in the first place and why employees who've taken the "domestic partner" route because they cannot marry for other reasons than orientation should be excluded from marriage when their benefits disappear.

Posted by: Justin Katz at January 21, 2005 1:22 PM

Justin, you wonder "Wouldn't a man "feel a deeper sense of loyalty to a company" that helped him to support his ailing mother?"

I suppose any man would, yes. And if there are companies that afford to offer such support, well, more power to them. Still, what's your point? I suppose you might have a valid point in a case in which a company provides support for "ailing mothers" ONLY IF said mothers were biological, not adoptive, but I've never heard of such a thing. It's a red herring. You can do better than that.

Posted by: Chuck Anziulewicz at January 21, 2005 2:04 PM

Chuck,

My point is to step beyond your subjective view and my subjective view of circumstances as they stand and answer the question: "what are those benefits for, beyond attracting and keeping workers?" Even if we assume your "deeper sense of loyalty" to be sufficiently universal so as to present a net gain, it doesn't begin to answer the question, and your appeal to corporate "fairness" doesn't come close. What is the company buying with its investment in benefits?

We both agree that benefits can assist in employee retention. Presumably we'll agree that, as I put it in the post, employees' "stability and access to daily mutual care and support" are in their companies' interest to encourage. Nothing thus far is necessarily unique to intimate relationships. From a company's point of view (to keep the question bounded), what payoff covers homosexual relationships and heterosexual marriages, but nothing else?

Posted by: Justin Katz at January 21, 2005 2:21 PM

"What payoff covers homosexual relationships and heterosexual marriages, but nothing else?"

Maybe I'm missing what you're getting at, Justin, but the benefits we are talking about usually have to do with health insurance. If a company offers employees some kind of group insurance plan, married spouse are often covered. Sometimes there are other benefits involved, such as use of company facilities by spouses and family members, etc. Since many companies recognize that their Gay employees who are in committed relationships nonetheless do not have the option to marry, much as they might like to, those companies provide comparable benefits to those couples. Many people, Gay and Straight, are proud to work for companies with such progressive policies.

Perhaps you are wondering whether I think such benefits ought to be extended to heterosexual couples who choose NOT to marry. My personal feeling is NO. With the exception of Massachusetts, Straight couples have the option to marry, whereas Gay couples do not. If a Straight couple is unwilling to take that plunge and make that commitment, that is their choice.

There are now companies in Massachusetts who USED to provide domestic partner benefits to their Gay employees, but are now suspending those benefits unless those Gay couples marry, and I think that I perfectly reasonable. If Gay couples in Massachusetts are unwilling to take that plunge and make that commitment, that is their choice.

Allow me to reprint something I said to a Gay friend of mine in Massachusetts. He and his partner are considering getting legally married, but now it seems he's getting cold feet. This is what I said:

"Both you and Glenn need to sit down and consider the following questions:
1: Are we willing to commit to each other's well-being for the rest of our lives, knowing full well that there will probably be fights and misfortunes in the future?
2: Do we understand that our love and friendship will undoubtedly change and evolve with time, that loving and being "in love" are somewhat different things?
3: Will we be able to work at our relationship, make compromises, even get professional counseling if necessary, as long as we know that the good of our relationship outweighs the bad?
4: Do we recognize that when the grass on the other side of the fence seems a bit greener, that this is usually just a fleeting illusion?

"If you and Glenn are partners, boyfriends, whatever ... all your friends and acquaintances will understand the two of you as such. But if you decide to take the plunge and get married, remember that you are aspiring to a higher standard. If you are just living together as a typical Gay male couple, that's one thing ... but there's a lot of ceremony involved with getting married, it means that you are formally declaring, before your friends and family members, your solemn promise to commit to one another's happiness and well-being FOREVER! And imagine the shame you'll feel if you decide to divorce five years later. Those same friends and family members will say to themselves, "Oh those two, they must have gotten married just because it was the trendy thing to do." "

Justin, would you consider my advice to my friend to be fairly conservative?

Posted by: Chuck Anziulewicz at January 21, 2005 2:50 PM

Chuck,

I'm running out of time, but I think part of our difficulty has been that I'm specifically responding to the points that David Fried made on Marriage Debate. You're addressing me as if I'm making sweeping points about something that I'd have to research before doing so would be reasonable.

As for the note to your friends, I'm wary of the significance that you'd ascribe to my agreeing that it's conservative. As a relative measure, yes, of course it's conservative. In fact, I consider it to indicate an exponentially preferable approach than others. And one of the many dispiriting things about the SSM debate is that it most affects those homosexuals with whom I've the most ideological sympathy. And although others of my readers object to this, I haven't ruled out the possibility that it might be beneficial — under specific circumstances — for society to encourage folks such as yourself to spiritually "outgrow" your homosexuality rather than to insist, stone-faced, that you reject it. (I know I'm being vague and perhaps somewhat condescending, but I'm trying to convey a general idea without requiring explanation, for which I lack time.)

But the necessary circumstances are not currently ours, and it is all therefore merely abstract theorizing.

Posted by: Justin Katz at January 21, 2005 3:21 PM

Scrolling up a bit into this discussion, both Fried and Chuck fall into the same little bit of dishonesty that i find so particularly infuriating.

You see, NO ONE is using marriage to discriminate based on sexual orientation. There are no marriage licenses (not even in massachusetts) which ask for the orientation of the applicants. And there are countless examples of gay people getting married -- often to other gay people -- just so long as they marry someone of the opposite sex. Therefore no one is preventing anyone from marrying under terms that are not perfectly equal to all people.

Equality sucks doesn't it Chuck? When it comes to marriage, nobody cares about your orientation, or lack thereof.

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I sent this reponse to Fried's peice to MarriageDebate, but since they're unlikely to print it -- and since Justin came to some of the same conclusions, I'll paste it here FWIW. (thanks for your indulgence Justin, fine work lately my boy!)
--------------

David Fried exposes many interesting questions in his
analysis, all worthy of deeper discussion. I would
merely like to point out the unstable foundation that
supports his general premise: "If marriage is
available to all, then it is perfectly permissible to
discriminate against those who choose not to formalize
their relationships."

I say unstable because marriage IS available to all,
without regard to sexual orientation or any other
category, aside from consanguinity. To say that gay
people cannot marry is simply dishonest: they
choose not to marry under the same terms as
everyone else in our society, terms that make no
distinction nor discrimination regarding sexual
orientation. By his own logic then, there is no
problem discriminating against persons who choose not
to marry someone of the opposite sex.

But suppose we accepted his premise as workable, what
then? If marriage is available to all couples without
the troublesome opposite-sex requirement, then will it
really be perfectly permissible to discriminate
against those who still are not legally able to
formalize their relationships -- namely consanguineous
or polygamous relationships? On what basis could
denial of partnership and health-care benefits to
these relationships be deemed fair and equal
treatment? (anticipating a response here, how are
those reasons any less 'arbitrary and capricious' than
the current opposite sex restriction?) And if it were
permissible to discriminate against the unmarried,
then who in their right mind would choose to remain
single? Why would anyone object to a short-term
marriage between platonic roommates merely to secure
benefits? And on what basis could anyone object to
two brothers doing likewise, if marriage were really
available to all?

Posted by: Marty at January 21, 2005 3:45 PM

"I haven't ruled out the possibility that it might be beneficial for society to encourage folks such as yourself to spiritually "outgrow" your homosexuality rather than to insist, stone-faced, that you reject it."

Hmmm, sounds not unlike one of President Bush's "faith-based initiatives." Forgive me for being skeptical, but what you are suggesting seems to be just kinder, gentler way of telling me I'll go to Hell for being Gay ... condemnation with a smile, if you will. I can see Dr. James Dobson applying for federal funding.

Posted by: Chuck Anziulewicz at January 21, 2005 4:50 PM

Well, look, Chuck, I don't know what you expect. I can't very well go much further than I have (except in specificity) without by necessity repudiating much broader, much more significant, and much more important aspects of my religion — aspects that I believe through faith and thought to be true. My faith does not revolve around homosexuality, but it does require it to be addressed within a limited range of acceptance.

Posted by: Justin Katz at January 21, 2005 4:58 PM

Justin, you could address a devout Muslim or Hindu the same way as you've addressed me, if that's what your faith demands. And who knows, perhaps YOUR faith (which I assume is Christian) will ultimately take precedence over all others in the arena of public policy. But is that really what you want?

Posted by: Chuck Anziulewicz at January 21, 2005 5:10 PM

Why must this discussion so often feel like the argumentative equivalent of trying to catch a grasshopper? You posed a question in terms of the social/cultural/political category of "conservative." I gave you an answer in that vein. Next you introduced religion. I gave you an answer in that vein. Now you're attempting to disqualify my religious/cultural answer to a religious/cultural question on the basis of public policy?

Is this a trick or an emotional writhe?

Posted by: Justin Katz at January 21, 2005 5:24 PM

There are no marriage licenses (not even in massachusetts) which ask for the orientation of the applicants. And there are countless examples of gay people getting married -- often to other gay people -- just so long as they marry someone of the opposite sex. Therefore no one is preventing anyone from marrying under terms that are not perfectly equal to all people.

Oh Marty, this is so unbelievably offensive. Unbelievably. There may be an equality on paper but it's not a real equality. It's like the government promising public transportation for all but saying that if you want to ride the bus, you can't stand; you have to sit in a seat. But the seats have overhangs on them so that they can only comfortably fit people smaller than 6ft. Sure a 7ft person could sit in the seat but who would want to? It would be ridiculously uncomfortable and impractical and more trouble than its worth. So bus travel would be effectively prohibited for that tall person, even though you would maintain that everything is equal.

Besides, then you'd just get situations like McGreevey. Sure the gays can get married to members of the opposite sex and it can never be a unitive relationship but too bad. All's fair!

This attitude is so callous and unbelievably rude to gays and the values of their relationships and to the value of marriage itself. I usually don't swear when I'm the guest in someone else's house, and I apologize in advance to Justin, but Marty, you can go f*** yourself.

Posted by: Michael at January 21, 2005 7:06 PM

Michael,
That is just so unbelievably offensive. Unbelievably. To equate a moral choice with a physical attribute is unconscionably rude. You've just insulted everybody that is too tall to ride a bus by suggesting that they should want to sit down even though the seats are too small or that they should want the bus modified to fit them. Your attitude is so callous and insensitive toward people that have physical limitations they did not choose.

Justin is right. You should grow up.

Posted by: smmtheory at January 22, 2005 12:18 AM

Thanks for the kind words Michael, I've obviously struck a nerve here.

Not pretending to have all the answers beforehand, however, I am willing to explore your example deeper, to see where it leads us.

Our 7 foot bus rider clearly feels discriminated against by the no-standing rule, so it is not inconceivable that we would make certain accommodations for his special circumstance. So, shall we say that riders over 6 feet tall are allowed to stand, or -- more closely aligned to the SSM argument -- shall we dispense with the no-standing rule altogether and allow anyone to stand regardless of height? The former solution takes into account the special needs of the party that feels discriminated against, while (for the most part) preserving the perfectly valid rule of "no-standing" for everyone else. The latter solution may solve the issue for tall riders, but at the expense of a good rule that was designed to protect all riders on the bus. So which should it be in your opinion Michael? Everyone is allowed to stand, or only riders over 6 feet tall?

A more realistic example would be handicapped drivers and parking spaces. A person in a wheelchair has special needs that society has chosen to accordant by way of designated parking for handicapped people. In the interest of fairness then, shouldn't those parking places be available to everyone? Or should we require some sort of proof that a person is indeed handicapped? Clearly we do the latter, and fine anyone who violates the rule. Proof is given, and special permits are issued, allowing certain individuals to use special parking places under clearly defined circumstances. So going back to our tall bus riders, yes, we would not allow everyone to stand on the bus, but only those who were taller than a well-defined threshold.

What does this have to do with same-sex marriage? Since no one is testing for sexual orientation, and marriage is currently only between opposite-sex couples, we can liken it to the "no-standing regardless of height" bus rule, or to a parking lot with no specially designated spots for handicapped persons. So, given that society is being asked to accommodate certain individuals who clearly have special needs in this area, it would make sense to ask some objective questions about their condition. But no one is asking, and no one is even saying that we should be asking.

Which is like tossing out the no-standing rule for all bus riders, or designating certain handicapped parking spaces and then letting anyone who wants to park there. One would think that if we were to allow same-sex marriage to accommodate the special needs of gay people, then there would at least be some burden of proof that you were indeed gay.

But of course, that's the taboo question at hand here -- because even though we know and have seen many people who have changed their sexual preference over time (unlike 7-footers, who do not shrink, and unlike handicapped people who -- when they recover -- are no longer allowed to use the special parking place they've grown accustomed to), we are still being told that it is inborn and unchangeable. Is it really so much to ask for a simple objective test, before we toss out a 5000 year old "no standing" rule?

Where is the test? What objective standard can we use to accommodate the special needs of gay people, without having to change the time--honored rule for everyone else? Surely you would not be opposed to such an idea, right?

As i said, i don't pretend to have all the answers. I'm just asking.

Posted by: Marty at January 22, 2005 11:47 AM

Correction: in p4, "accordant" should read "accomodate". Silly spellcheckers...

Posted by: Marty at January 22, 2005 11:52 AM
Besides, then you'd just get situations like McGreevey. Sure the gays can get married to members of the opposite sex and it can never be a unitive relationship but too bad. All's fair!

Fallacy: that people cannot control their sexual activity, and that not acting on ones sexual impulses (i.e. "repressing" them) is more damaging then acting on them. Poor McGreevey, he had no choice but to have an extramarital affair with a man (and then give this man a high-paying government job for which he was obviously unqualified)! All that you are saying is that people attracted to members of the same gender cannot receive sexual gratification in a marriage with a member of the opposite sex. Guess what, many heterosexuals have the same problem! Surely, you aren't claiming that everyone has some sort of inherent right to be sexually gratified in their marriage?

This attitude is so callous and unbelievably rude to gays and the values of their relationships and to the value of marriage itself. I usually don't swear when I'm the guest in someone else's house, and I apologize in advance to Justin, but Marty, you can go f*** yourself.

Yet again, we have an emotional response to an intellectual challenge (see Chuck's response to Nadine Strossen's comment in the post "What Slippery Slohhhhh...") It's hard to take someone seriously when they can't be bothered to address the argument and simply walk off in a huff (so to speak).

Posted by: Mike S. at January 22, 2005 3:39 PM