The Right Coast

January 16, 2005
Marriage, Schmarriage, Part II
By Gail Heriot

My friend and soon-to-be-colleague David McGowan wrote to me about my previous post:

"I don't quite grasp the significance you see in the idea that a
same-sex couple could declare themselves married. That is true, but
what follows from it? To me it would be a frivolous act, akin to
declaring yourself a senator, which you could do so long as you did
not defraud anyone. Perhaps some would see it as an act of protest.
Either way, it would be a legally hollow statement."

I don't consider it frivolous at all (and I'm surprised a libertarian like David does). A couple is married when they have promised to love each, spend their lives together, and order their lives for the benefit of the two of them, and that promise has been made publicly. If the state were to get out of the marriage business (or even outlaw marriage!!), you can bet there would still be marriages. Unlike the office of Senator, the institution of marriage is by no means simply a creature of the state.

Current law does not forbid same-sex couples from making marriage promises to each other or from even holding themselves out as a married couple. It simply denies legal recognition to that marriage. They won't get the benefit of court intervention, applying certain one-size-fits-all dissolution rules if things don't work out. They won't get the marital deduction on their income tax. It may be true that a marriage that isn't recognized by law is "legally" hollow as David suggests, but so what? That doesn't make it actually hollow. It is filled with whatever meaning the parties to that mutual promise bring to it.

How many brides and grooms walk down the aisle thinking about the protection of the divorce law or the tax code? I hope none; most are too busy thinking about the promises of love and faithfulness (and occasionally about whether the caterers and photgraphers have arrived on time). And if you were to tell the happy couple before the wedding that state was going to change its marriage code to make exit easier or to get rid of the favorable tax treatment or even to get out of the marriage business altogether, how many marriages would be called off? Not many, I don't suppose. Why do they do it? They do it for that promise. They do it because marriage is not just a promise whispered in the night, but a public declaration, and thus more likely to be kept. The State of California and indeed the United States of America can dry up and blow away, and the couple will still be married. Until death.

David analogizes the case to Bradwell v. Illinois (1873), but I think the comparison is inapt. In Bradwell, Illinois prohibited women from practicing law. Had Myra Bradwell insisted on doing so anyway, she would have been thrown in the pokey. That's not the case here. A same sex couple can do as it pleases with no such fear. And at least under California law, the civil union laws guarantee that the couple that (if they go through the motions of the civil union) they will get the equivalent legal protections available to married couples through the back door.

Sure, right or wrongly, many people will disapprove. But as I suggested before, neither same-sex couples nor anyone else is entitled to approval.

David made some other interesting comments too that I hope to get to soon. Right now, I must grade some more exams.