Thursday, October 26, 2006

About marriage, gay or straight

I am both proud and ashamed of my home state. As it is (literally) yesterday's news, I don't need to remind you that the Supreme Court of New Jersey held that gays are entitled to the same rights straights enjoy. That is the part the makes me proud. The part that shames me is that the Court punted and did not come out in favor of marriage, but rather directed the Legislature to do something about it within six months, whether that means marriage or civil unions or whatever.

Naturally the decision was met with glee, outrage, disappointment, or optimism- sometimes all at once. Those who favor "protecting" marriage accused the Court of acting as a superlegislature; of judicial activism; of simple wrongheadedness. Those who think the decision didn't go far enough (like me) are calling it cowardice, pure and simple. And there are hundreds of shades of gray in between.

Marriage is legally a set of rights and responsibilities, and these have shifted over time as our understanding of the nature of humanity has changed. It was not too long ago that husbands were required on penalty of incarceration to provide for their wives; however, the wife sublimated her legal existence to that of her husband's. A married woman lost all right to transfer or acquire property- in fact, if a woman had owned property before marrying, she lost all power to dispose of it once she married. As Blackstone put it:

By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.
This is no longer the case. As our understanding of the nature of men and women changed, marriage changed with it. This, in turn, changed our understanding of marriage. Divorce, once granted only for cause, is now granted without any fault at all. The law now recognizes unmarried couples and children born out of wedlock. Times change, and slowly but surely the law changes with them. The common law practically demands it.

If law and understanding were immutable, locked forever in the attitudes of an ancient time, then gay marriage might seem like a major leap forward. Instead, it is only the next increment. Our understanding of sex, gender, and sexuality (all very different things) has changed. As we continue to evolve in our understanding, such distinctions seem arbitrary, and it seems equally arbitrary to deny a significant class of people something so basic based on an understanding of human nature that is no longer entirely valid.

Remember that in the eyes of the law, marriage is not a sacred covenant- Blackstone remains completely correct to this day: "OUR law considers marriage in no other light than as a civil contract."

The religious nature of a marriage is completely out of the jurisdiction of the courts. When faced with a claim of unequal protection, the Court cannot consider whether a church would object to it. Recognition of same sex couples would have absolutely no effect on any church. The Catholics would continue to disavow these marriages, just as Unitarians would continue to affirm them (as they have done so for some time now). Married people enjoy certain benefits that unmarried people do not- is it legal to deny those rights to a particular class based on their orientation?

I venture that it is not.