Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, May 17, 2006

More On Georgia

I baldy asserted in the last post that anti-gay marriage laws are stupid. This post offers a few reasons for that view.

Number one is the thinking behind these amendments. Here is a typical activist discussing yesterday's ruling:

"It's very disappointing that once again a court has stepped in to overrule and overturn the rule of the people," said Sadie Fields, chairman of the state Christian Coalition. "We will be back, and we will ensure that marriage in the state of Georgia is defined biblically as being between a man and a woman."

(Update: The AJC changed the story so that it no longer includes the quote, but you can still read the important part of it here.)

The problem for Ms. Fields is that not everyone accepts the Bible as authoritative. Her argument has no persuasive power over anyone who rejects the Bible. Hence, for those folks, Ms. Fields' proposed law is nothing but a fiat. It is one person's personal preferences imposed on everyone else.

I'm not saying it is wrong for Ms. Fields to be motivated by her religion. I am saying she needs to provide some reason for the ban other than her religious beliefs. Why should someone who does not accept the Bible as authoritative want to ban gay marriage? We are all adults, we ought to be governed by reason.

Which leads me to point two. I do not think there is any valid reason to deny gay people the same benefits provided to straight people.

Cries about how it will undermine marriage are just silly. Leaving aside the lack of any proof for that assertion, if we applied that criteria evenly, think of all the new crimes we would have. Ladies, no more short skirts. We don't want hubby's eyes straying. Guys, no more stopping for a beer after work, wifey needs you at the house. No more divorces. Out of town business trips? Forget about it. T.V. shows like Friends that glorify single people. Uh-Uh.

The procreation argument is also over-inclusive. Why do we let post-menopausal women get married? Or sterile people? Why do we continue providing marital benefits even when people are in their eighties? (Unless its that terror of property law, the fertile octogenarian). Encouraging procreation may be a reason the state provides benefits to married people, but the ability to procreate is not a requirement for the benefits.

Oh, but it is morally wrong, a great evil, wicked in the extreme. And? Lots of stuff is wrong, but we still let people who do that stuff get married. Even felons can get married. People in jail can get married.

And making gay marriage legal certainly does not mean churches will have to perform ceremonies for gay people. They could if they want to, but they do not have to. What we are talking about is the mundane issue of whether or not the state is going to extend the same secular benefits to gay couples as it does to heterosexual couples. That's it.

Point three, it bugs me to see such a large amount of people get amped up about punishing a group of folks whose only "sin" is their sexual status. Fine, I'll grant that homosexuality is wrong. But why? What harm does it cause? Gay people I know seem perfectly happy and no more likely to be law breakers than anyone else. Even if being gay is wrong, the reaction to it is way out of proportion to whatever harm it may cause.

Point four, these laws deny gay people a lot of benefits. In Baker v. State, the Vermont Supreme Court held that excluding gay people from marital benefits violated that state's constitution. The court included this list of benefits typically provided to married people:

While the laws relating to marriage have undergone many changes during the last century, largely toward the goal of equalizing the status of husbands and wives, the benefits of marriage have not diminished in value. On the contrary, the benefits and protections incident to a marriage license under Vermont law have never been greater. They include, for example, the right to receive a portion of the estate of a spouse who dies intestate and protection against disinheritance through elective share provisions, under 14 V.S.A. § 401-404, 551; preference in being appointed as the personal representative of a spouse who dies intestate, under 14 V.S.A. § 903; the right to bring a lawsuit for the wrongful death of a spouse, under 14 V.S.A. § 1492; the right to bring an action for loss of consortium, under 12 V.S.A. § 5431; the right to workers' compensation survivor benefits under 21 V.S.A. § 632; the right to spousal benefits statutorily guaranteed to public employees, including health, life, disability, and accident insurance, under 3 V.S.A. § 631; the opportunity to be covered as a spouse under group life insurance policies issued to an employee, under 8 V.S.A. § 3811; the opportunity to be covered as the insured's spouse under an individual health insurance policy, under 8
V.S.A. § 4063; the right to claim an evidentiary privilege for marital communications, under V.R.E. 504; homestead rights and protections, under 27 V.S.A. §§ 105-108, 141-142; the presumption of joint ownership of property and the concomitant right of survivorship, under 27 V.S.A. § 2; hospital visitation and other rights incident to the medical treatment of a family member, under 18 V.S.A. § 1852; and the right to receive, and the obligation to provide, spousal support, maintenance, and property division in the event of separation or divorce, under 15 V.S.A. §§ 751-752. Other courts and commentators have noted the collection of rights, powers, privileges, and responsibilities triggered by marriage. See generally Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993); D. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L.Rev. 447, passim; J. Robbenolt & M. Johnson, Legal Planning for UnmarriedCommitted Parties: Empirical Lessons for a Preventive and Therapeutic Approach, 41 Ariz. L. Rev. 417, passim (1999); J. Trosino, American Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U.L. Rev. 93, 96 (1993).

While other statutes could be added to this list, the point is clear. The legal benefits and protections flowing from a marriage license are of such significance that any statutory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency, and authority that the justice of the deprivation cannot seriously be questioned.

The concerns of the anti-gay marriage crowd are of no weight, cogency, and non-religous authority. They serve no purpose other than to tell a large segment of society that they are unwelcome for no reason other than that the majority thinks the excluded members are gross. Imho, these laws are unjust and stupid.