The Magazine

Massachusetts vs. Marriage

From the December 1, 2003 issue: How to save an institution.

Dec 1, 2003, Vol. 9, No. 12 • By MAGGIE GALLAGHER
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"Writing discrimination into the U.S. Constitution is about as un-American as you can get," David Smith, spokesman for the Human Rights Campaign, told the San Francisco Chronicle in September. "The senators who are supporting this amendment are in fact denying children raised in gay and lesbian households the security and the safety net that civil marriage provides. . . . That's just evil."

In the same vein, Josh Friedes, advocacy director for the Freedom to Marry Coalition of Massachusetts, told USA Today, "Marriage is a gateway to over 1,000 federal protections, [such as] Social Security survivor's benefits, health care, and pension benefits." Most such rhetoric relies on a 1997 GAO report that described 1,049 consequences of marriage in federal law.

Plaintively summing up the case for legal benefits, a full-page New York Times ad by the Human Rights Campaign on October 17 asserted: "Because the government won't give them legal protections, Jo and Teresa's children don't qualify for full Social Security survivor benefits if one of them dies, even after a lifetime of paying into the system. And if one of the kids gets sick, in some states they could even be denied the right to visit them in the hospital because they aren't 'family.' And Jo and Teresa aren't eligible for COBRA health coverage for each other or for family medical leave to care for a sick loved one."

For many same-sex-marriage advocates, marriage is basically a legal ceremony that confers legal benefits, a rite that gives rise to rights. In this spirit, the majority in Goodridge describes marriage as if it were a creature of the state: "Simply put, the government creates civil marriage," which is a "wholly secular institution." This reductionist vision of marriage also drives other advocates of family diversity, like the authors of the American Law Institute's "Principles of Family Dissolution," who call marriage merely "the sum of its legal incidents." "From the point of view of family law," they say, "the distinction between a full-blown domestic partnership, like Vermont's domestic unions, and a lawful marriage is merely symbolic." Similarly, two scholars from the University of California at Los Angeles argued in the New York Times on November 20 that states offering civil unions "have already begun the experiment of gay marriage."

Surprisingly, many supporters of marriage seem to agree with this framing of the matter, constructed by opponents of marriage: Marriage is a legal arrangement giving rise to legal "benefits." Therefore, giving same-sex couples the "benefits" is giving them marriage itself.

WHAT IS WRONG with this analysis? First, there is "the myth of benefits." The idea that the law sustains marriage primarily by dispensing legal bonuses to reward or even "incentivize" wedlock is just not true. Most of the legal "benefits" of marriage are indeed more properly described as "incidents"--ways in which the law treats you differently if you are married. Relatively few of these are unalloyed advantages. Some are benefits to one spouse and burdens to the other. Some are benefits in some circumstances but penalties in others. Moreover, some of the longstanding legal benefits of marriage are under serious legal attack. And those mentioned most often by gay-marriage proponents could probably be secured by other means.

Take hospital decision-making. Gay-rights advocates say that unless they are married, gay partners can't visit each other in the hospital or make end-of-life decisions about each other's care. Under ordinary circumstances, pretty much anyone can go into a hospital room, and patients can see whoever they choose. In life-and-death situations where there is dissent among key family members, many hospitals apparently enforce medical power of attorney poorly. Will gay marriage solve this problem? The Terry Schiavo case (her husband has spent five years trying to disconnect her feeding and hydration tubes against her parents' wishes) suggests that when families disagree, marriage is no panacea. Liability, not moral scruples, probably explains any lack of responsiveness among hospital staff. Most Americans think it a scandal if sick people can't designate whoever they want to make end-of-life decisions. Surely there are ways to strengthen medical power of attorney without recasting our most basic social institution.