Tuesday, August 5, 2014

Event Horizon

Interesting article at Al Jazeera America about the Marriage front in the Culture War. It seems that opponents of same-sex marriage are hoping to push to the Supreme Court in hopes of a ruling that states can determine who is allowed to marry for themselves. As far as I can see, this is becoming more about who "owns" the definition of marriage, rather than precisely what that definition is. Because, in a secular society, can marriage have a definition that's designed to appeal specifically to a certain understanding of a particular sectarian concept of what modern marriage should be? Despite the many appeals to tradition in defense of limiting marriage to heterosexual couples, the understanding of an adult citizen having the legal right to intermingle certain personal and property considerations with any one, and only one, consenting adult of the opposite sex based solely on mutual choice, is a fairly new phenomenon.

In practice, the "traditional" definition of marriage is based less on a promotion of the particular form or matrimony common in the United States today - which, because it seems to be a carryover from Western Europe is contravened in several areas of Judeo-Christian scripture - and more on the idea that the Old Testament is overtly hostile to men having sex with men, which entails a status loss of one of the men.

Legally, I think, the debate over same-sex marriage is only tangentially related to marriage, per se. If we accept that the state has a compelling interest in promoting the health and welfare of children, something that the advocates for exclusively heterosexual marriage claim as their goal, then, based on other court cases that I've seen, the question may very well be this: Is open access to specific state-granted benefits to any heterosexual couple that wants them, regardless of their readiness, willingness or ability to create biological children, while, at the same time, categorically denying them to all homosexual couples, even those who are attempting to raise children, the least restrictive way of advancing that interest?

And that's where I think that the supporters of what they term "traditional" marriage are going to run into trouble. Jack and Jill can demand government benefits that are intended to make it easier to procreate, and yet chose, for instance to adopt a child from overseas. Jane and Sally, on the other hand, should be barred from requesting those same benefits to raise Jane's biological daughter - not because Sally in not the father - if Jane were to marry Tom or Harry, the fact that they are not the father would make no difference - so then, why?

And in the end, this becomes the problem. Arrangements that are allowable for heterosexual couples are to be banned for homosexual couples, simply because of that homosexuality. I think that this leads "traditional" marriage supports either down the path of more and more dubious research that seeks to privilege heterosexual couples as somehow always better for children, or, in effect, claiming an intellectual property right over the term "marriage." Either way, I think they lose in the end. Even if they win for now, I think that jurisprudence is beginning to move away from the idea that only applying commonly-understood legal principles when they make ideological sense is a valid principle.

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