GENDER AND MARRIAGE: Maggie Gallagher

[Brief excerpts from a letter to Commentary in response to Sam Schulman's piece]

Sam Schulman does the marriage debate a great service with his thoughtful and thought-provoking piece. ...

Nonetheless, for an intellectual, defining the essence of marriage as respecting women's freedom to choose fathers will not do. I think Sam is right that few men and most women feel unprotected in sexual intercourse outside of marriage (or rather love) and that this is one powerful impetus towards marriage. But it is impossible to survey the laws surrounding sexuality and marriage in a cross-cultural perspective and view them as intended to protect women's freedom of choice, or psychological well-being. Many societies both support marriage and radically degrade women. And many restrict marriage to the children they consider important enough to protect, while vast reservoirs of women and children remain unprotected from random male sexual desire: slaves and peasants need not apply.

The fundamental reasons for marriage, what Sam calls its essence, revolves around every society's need for babies, and around every baby's needs. The reason marriage is a universal human institution is that sex between men and women makes babies, that society needs babies to survive, and that babies need mothers and fathers. Is it because I am a woman I find this formulation rather more emotionally satisfying than Sam's?...
posted by Eve at 2:57 PM VOTE 0 comments

GENDER AND MARRIAGE: Richard Avery

Richard Avery works in logistics for the US
Army.

If male sexuality were so different from female sexuality, the men would simply compel women to do things the male way. We're much stronger than women are. Men get married because what men want sexually is in fact very similar to what women want. That is why husbands are the most satisfied sexually of all men. Check out the chapter on sex in "The Case for Marriage" by Waite and Gallagher.
posted by Eve at 10:29 AM VOTE 0 comments

CONSUMMATION: Maggie replies

Yes, only one of the partners has standing to claim lack of consummation as a reason for annulment. Who else would know? First fertility police, now consummation cops? Really.
posted by Eve at 10:19 AM VOTE 0 comments

MAINE COURT MAKES IT EASIER FOR SAME-SEX PARENTS TO BE CO-GUARDIANS: From the Portland Press Herald

The Maine Supreme Judicial Court issued an opinion Tuesday that gay and lesbian activists say will make it easier for same-sex couples to share full legal status as parents.

The court said that when considering whether any two people should be made co-guardians of a child, probate judges should look only at what is in the best interests of the child.

The opinion clarifies what had been a murky area of Maine law, and could set the stage for more members of lesbian and gay couples seeking to establish equal legal bonds with their partner's natural or adopted children.

"The decision can now be based on the child's best interest, and not on the identity of the parents," said Mary Bonauto, a lawyer with the Boston-based Gay & Lesbian Advocates and Defenders, who represented two
Kennebec County women seeking co-guardianship of a child. ...

...The Maine ruling should not have precedent in other states, because Maine has an unusually flexible law that define who can be a child's guardian, Bonauto said.
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[Eve says: I'm not able to tell, from this story, whether this judge ruled a) that there could, potentially, be some cases in which a particular child would be best off being raised by two particular people of the same sex, or

b) that there should be no preference for a mother and a father as vs. two mothers or two fathers. I agree with a) but not b), and it's pretty important to figure out which one the Maine judge relied on.]
posted by Eve at 10:10 AM VOTE 0 comments

CONSUMMATION: Gabriel Rosenberg replies to Michael Brazier

Michael suggests that the distinction between the marriage of a couple incapable of intercourse and that of a same-sex couple is that the former may intend to engage in "fertile intercourse," whereas the latter clearly has no intention of doing so.

It is unclear to me how someone could intend
to do the impossible. If a permanently impotent man can intend to have fertile intercourse with a woman, a woman could also intend to have fertile intercourse with a woman. The man did not choose to be impotent (although even if he were voluntarily castrated he would still be permitted to marry a woman). Nor did the lesbian woman choose to be a woman.

Maybe the difference is that the man is incapable of reproductive sex with anyone, whereas the woman is capable of it if she only chose the right partner. Of course, the impotent man is still not allowed to marry a
man. His choice of partner has nothing to do with his incapacity for intercourse.

One should also look at it from the other direction. Let us consider the woman marrying the impotent man. She could have married another man instead. It is by her own free will that her conduct will not lead to fertility. Why is she still permitted to marry him? How is her decision to marry a man incapable of intercourse any different than her decision to marry a woman incapable of intercourse?

The only possible difference I see is that the woman marrying the impotent man is still conforming to her assigned gender role. Eve has written quite eloquently on the importance of these gender roles to society. I disagree with her as to whether this societal interest is more important than the interest we have in people being free to reject their gender roles. Still, it is a clear distinction and one worth discussing.
posted by Eve at 12:27 PM VOTE 0 comments

GENDER AND MARRIAGE: Michael Triplett

My sense is that we tend to overthink the origins of marriage. Marriage was designed to recognize the dominate social relationship of men and women. It is gendered in the sense that because most humans are attracted to people of the opposite sex and that attraction results in having children, then we need an institution to organize (or control) that attraction. It has grown into something much larger, but at its roots, marriage was about creating a social order.

I think marriage is gendered only in that it involves men and women. There is nothing unique to the marital concept of creating social order to relationships that requires a man and a woman, except that it has always been done that way. Unquestionably, marriage grew into a much more powerful institution where Victorian and Puritan concepts of monogamy
took root to what previously had been a relationship built on economics, social class, and social order. That marriages were created (and in some cultures, still created) as a means of securing property, estates, and social class undermines the more "romantic" concept that marriage is about love and "creating family" but instead was designed as a institution in which family was created as part of a larger social order.

Does marriage need gendered tension? Well, a more basic question may be, Does a romantic relationship need gendered tension? The answer to that is clearly no. While heterosexuals build realtionships based on gendered tension, same-sex couples build it based on other factors, often including age, race, social class, education. The larger propensity for mixed-race couples or couples with large age differences to appear in same-sex relationships may serve to explain how same-sex couples overcome gendered tension, they find some other source of "tension" to build the relationship upon.
posted by Eve at 12:19 PM VOTE 0 comments

CONSUMMATION: Gabriel Rosenberg replies to Maggie

"If you never have intercourse you can unilaterally get the state to declare you were never married at all. Call that valid, void, what you will, it is a pretty important point."

I agree that it is a pretty important point, but probably not for the same reasons as you.

The fact that only a party to the marriage can get the declaration--and even then only under certain situations--is quite telling.

If intercourse were essential to the marital relationship the state would be required to declare they were never married regardless of the wishes of the couple. This is the case, for example, with bigamous marriages precisely
because state interests are implicated then.

On the contrary, the state has no interest in what kind, how often, or even whether a married couple has intercourse. That is a private matter left properly to the couple. This
isn't just some recent Supreme Court mistaken view of marriage. This goes back at least as far as the 1830's.

We both agree that what the law is, is not necessarily the same as what it should be. I'm curious, though, as to what you think the law should be. Do you believe that intercourse should be required for a marriage? Do you
think a man incapable of sexual intercourse should be forbidden from marriage?
posted by Eve at 12:08 PM VOTE 0 comments

QUESTION OF THE WEEK: SAM SCHULMAN ON MARRIAGE AND GENDER--posted by Eve

In his piece in the current issue of Commentary, Sam Schulman relies heavily on three claims about gender: 1) Marriage is set up primarily to protect women by allowing us to control who gets access to our bodies and who is the father of our children. Marriage exists to protect women from concubinage, rape, and abandonment.

2) Men's sexuality is sharply different from women's--in fact, they're almost incompatible--and marriage serves to reconcile the sexes.

3) Therefore, since marriage is, fundamentally, about the reconciliation of the "opposite" sexes, "same-sex marriage" is a contradiction in terms.

I disagree with a decent chunk of his description of how gender and marriage intertwine, even though I agree that marriage is a necessarily gendered institution. So I thought it might be useful for us to discuss what role, if any, the gender differences between men and women play in shaping the institution of marriage: Did marriage develop as it has because men and women are very different? Does marriage make sense for relationships in which the gender differences aren't present? What's the content of those differences, anyway? (Obviously who gets pregnant and who doesn't is a big one, but that's far from the only difference we could discuss.) Where is Schulman right, where is he wrong, where is he half-right or right-but-irrelevant?

I'll post my take on this by tomorrow morning, probably in a series of short posts.

I know I promised we'd discuss same-sex parenting next, but actually, this discussion seems like it would flow naturally into that one. What we say here may clarify what we say later about whether children need both a mother and a father (rather than two parents of the same sex) and how the law should respond to families that don't fit that form. So let's do this now, and same-sex couples raising children next....
posted by maggie at 10:37 AM VOTE 0 comments

THREE NPR SEGMENTS ON SAME-SEX MARRIAGE

Fascinating stuff. The first segment interviews three generations of the Panisch family: HAGERTY: A contract with specific roles: he [Saul Panisch, the grandfather] provided a roof over their heads; she [grandmother Sylvia] provided the meals and moral teachings for their four children. And in those days, it was an unbreakable contract. The next 30 years would bring changes that thousands of years had not, some reflected by his second daughter, Gigi.

GIGI: I never thought about anything religious or spiritual with respect to marriage.

HAGERTY: By the time Gigi married for the first time in 1976, the divorce revolution was in full force. For Gigi, marriage was not an unbreakable contract and less about roles than practicalities.

GIGI: It was just the next step. We lived together for a long time, then we got married. That way, you could buy a house and apply for a mortgage together or get on each other's health insurance, do whatever it was you needed to do.

HAGERTY: Gigi's first marriage ended amicably. Her second marriage, which is still strong, would introduce the family to a new kind of marriage revolution. ...In college, Eva met another woman, Jeanine Dunmire, and fell in love. They announced their engagement a few months later.

The second segment is more of a traditional back-and-forth roundtable discussion, including this comment from David Blankenhorn: For Blankenhorn, same-sex marriage is a deep conundrum. On the one hand, it could bring more people to view marriage as a crucial social institution, as well as give more children the protection of marriage. At the same time, he fears it will erode the belief which he holds strongly that a child needs a mother and a father, and that a man and a woman are two halves that make a whole that two persons do not. So Blankenhorn believes two goods are in deep conflict.

The third section focuses on a lesbian who went from radical opposition to marriage to proposing to another woman.

I'm not really sure how their website works, but if you go here you may be able to listen to the shows.
posted by maggie at 10:24 AM VOTE 0 comments

SSM AND THE REDEFINITION OF MARRIAGE: Mark Tardiff replies to Mark Miller

Replying to this post:

I certainly agree that the loosening of the connection between marriage and procreation predates the public discussion of SSM and I also agree that it has a lot to do with the availability of contraception. This change, combined with the changes in marriage laws, has contributed to a situation where we have at one extreme couples who get married with no intention of having children and at the other extreme women who have children with no intention of getting married.

This is a shift that took place among opposite-sex couples, but it is very significant for the position of SSM advocates. The advocate of SSM must sustain a disjunction between marriage and procreation if he is to argue that SSM should be accepted. The introduction of SSM would codify and thus promote this disjunction at the expense of other understandings of marriage. No doubt men and women would continue to marry each other and to have children, but in terms of the understanding promoted by the law there would no longer be any intrinsic connection between the two acts.

As far as the legal definition and the DOMA of 1996, I do not know if there were any earlier definitions of marriage as being between a man and a woman. However, the Defense of Marriage Act was called that precisely as a response to the advocacy of SSM. If there was no legal definition before, it was because none was needed, since the understanding of marriage as a union of a man and a woman was undisputed. Even if there was no legal definition, there was a social and cultural definition.

The relation between approval of same-sex relationships and approval of marriage is asymmetrical. One who is opposed to same-sex relationships cannot approve of SSM. But there are the 'pro-gay, anti-SSM' arguments to show that it does not necessarily work the other way, that approval of same sex relationships does not necessarily entail approval of SSM. There is a residue left over, which I would identify as the concern for the impact on society of promoting by law an understanding of marriage as society's seal on two adults' intimate sexual relationship, at the expense of the older understanding of an intimate link between marriage and procreation.
posted by maggie at 10:09 AM VOTE 0 comments

CONSUMMATION: Michael Brazier replies to Gabriel Rosenberg

Re Gabriel Rosenberg's question:

"Again, a good example to keep in mind is the veteran who is unable to have intercourse. Can he marry? Yes. Why? A less sympathetic example is the prisoner who is denied all conjugal visitation. Can he marry? Yes. Why?"

I suggest this answer: because what makes a marriage is not the physical ability for fertile intercourse, but the intention of the spouses to engage in it. The veteran with damaged genitals may marry, because he did not choose to become impotent. A prisoner denied all conjugal visitation may marry because, again, his lack of opportunity for intercourse is not of his own making. And (an example not mentioned here) women past menopause may marry, and engage in intercourse with their husbands, even though they will never bear children again, because their infertility is the result of natural causes, not their own wills.

But a man may not marry another man, because while both the men are fertile, they cannot be fertile with each other. It is by their own wills that their sexual conduct does not lead to fertility -- not natural failure, not damage, not legal constraints, but their own free choice. Thus we the community know that homosexual lovers cannot intend fertility, whereas we do not know this for any of the other cases; and we allow marriages for the latter because the proper intention might be present, and deny it to the former because with them it certainly is not.
posted by maggie at 10:05 AM VOTE 0 comments

CA JUDGE DECLARES LESBIANS "NATURAL PARENTS": From the Sacramento Bee

In many important ways, Ellen and Lisha Karpay-Brody's relationship is as traditional as June and Ward Cleaver's fictional TV marriage.

They have been friends for 14 years and life partners for three. They share a last name and a commitment to be together forever. They own a home in a leafy Sacramento neighborhood.

When they decided to have a baby, the women wanted the child to be biologically and legally tied to both of them, as the offspring of heterosexual couples are bound to their parents.

Recently they realized their dream, thanks to medical technology and a legal system that is adapting to society's changing definition of families.

The result is 12-week-old Sadie Margaret Karpay-Brody, who was created from Lisha's egg and a donor's sperm, and carried and delivered by Ellen. A Superior Court judge has declared that both women are "natural" parents to the child, and Sadie's birth certificate will reflect that decision.

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posted by maggie at 9:56 AM VOTE 0 comments

MARRIAGE AND CONSUMMATION: Maggie Gallagher

There are a lot of really bad Supreme Court decisions on marriage dating from the 70s that reduce marriage to one sexual lifestyle out of many, equally protected by the penumbras of privacy. A particularly bad (or good) example is the one (Turner v. Safley) that suggests prisoners have a right to marry (although I believe the Court left standing an earlier decision that the state could rule out marriage for prisoners sentenced to life, which suggests delayed consummation is still the standard here. Always is some gap between the ceremony and the consummation, right?).

Another remarkably bad decision is Zablocki v. Redhail which gave a divorced man a right to abandon his children multiple times (not paying child support) and still marry and produce more children. In other words, marriage is not a set of obligations but just a rite that anyone has the right to go through.

These are part of the deconstruction of marriage, really, part of the idea that marriage is primarily expressive conduct and so an individual right. So yes, you could say that same-sex marriage fits somewhat comfortably into this line of legal thinking, dating back to around 1965, or the beginning of the divorce revolution and the collapse of marriage. Maybe they aren't such good ideas really.

But back to my point: If you never have intercourse you can unilaterally get the state to declare you were never married at all. Call that valid, void, what you will, it is a pretty important point. Fine points of legal thinking aside. . .
posted by maggie at 6:22 PM VOTE 0 comments

"GAY MARRIAGE--AND MARRIAGE": Sam Schulman in Commentary

...To me, what is at stake in this debate is not only the potential unhappiness of children, grave as that is; it is our ability to maintain the most basic components of our humanity. I believe, in fact, that we are at an "Antigone moment." Some of our fellow citizens wish to impose a radically new understanding upon laws and institutions that are both very old and fundamental to our organization as individuals and as a society. As Antigone said to Creon, we are being asked to tamper with "unwritten and unfailing laws, not of now, nor of yesterday; they always live, and no one knows their origin in time." ...

...Like other critics of same-sex marriage, [Stanley] Kurtz has himself been vigorously criticized, especially by Sullivan. But he is almost certainly correct as to political and legal realities. ...

...Marriage can only concern my connection to a woman (and not to a man) because, as my reference to concubinage suggests, marriage is an institution that is built around female sexuality and female procreativity. (The very word "marriage" comes from the Latin word for mother, mater.) It exists for the gathering-in of a woman's sexuality under the protective net of the human or divine order, or both. ...

...For men, by contrast, the same phenomenon--needing to be married in order to feel safe and free in a sexual relationship--simply does not exist. Men may wish to marry, but for more particular reasons: because they want to have children, or because they want to make a woman they love happy, or because they fear they will otherwise lose the woman they love. But it is rare for a man to feel essentially incomplete, or unprotected, in a sexual relationship that has not been solemnized by marriage. In fact, a man desperate to marry is often considered to have something wrong with him--to be unusually controlling or needy. ...

Radical feminists were right, to an extent, in insisting that men's and women's sexuality is so different as to be inimical. Catharine MacKinnon has proclaimed that in a "patriarchal" society, all sexual intercourse is rape. Repellent as her view is, it is formed around a kernel of truth. There is something inherently violative about sexual intercourse--and there is something dangerous about being a woman in a sexual relationship with a man to whom she is not yet married. Among the now-aging feminists of my generation, no less than among their mothers, such a woman is commonly thought to be a victim.

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posted by maggie at 10:15 AM VOTE 0 comments

CONSUMMATION: Gabriel replies to Maggie

This is not just about words. It is simply not true that "no intercourse, no marriage, in the eyes of the law." See Franklin v. Franklin (154 Mass. 515) a Mass case from 1891 or even Turner v. Safley (482 U.S. 78) a US Supreme Court case from 1987. Yes, an annulment makes the marriage void ab initio. The marriage never existed. Impotence (but not sterility) is grounds for an annulment (at least in Massachusetts). There is a huge difference, though, between grounds for an annulment like impotence or a partner withholding some material knowledge and other grounds like bigamy or affinity which make the marriage according to a Mass. statute "void without a judgment of divorce or other legal process."

What is the difference? The former only implicate the interests of the parties to the marriage. If they are both amenable to the situation the marriage cannot be declared void. If a person marries with the knowledge that intercourse is impossible she cannot later change her mind and seek an annulment. A third party cannot challenge the marriage on the grounds that intercourse never took place, even if they could prove intercourse could never possibly have occurred. The latter grounds implicate interests of society. It does not matter whether both parties agree to the marriage, it is invalid.

Why is this difference so important for the same-sex marriage debate? Well, if, as you said, marriage is about coitus, then no coitus, no marriage. There wouldn't be much to debate. A same-sex couple cannot do it. Some opposite-sex couples cannot do it either, though, and they still marry. So it would seem coitus is not an absolute requirement for marriage and the law recognizes that. Obviously if a person hid his or her sex from their partner before the marriage, the spouse could get the marriage annulled. If both parties are aware of each other's sex, though, it would seem that they are aware that no coitus will take place and they agree to that.

Again, a good example to keep in mind is the veteran who is unable to have intercourse. Can he marry? Yes. Why? A less sympathetic example is the prisoner who is denied all conjugal visitation. Can he marry? Yes. Why? The short answer is that it would be unconstitutional to deny them the right to marry. A deeper answer is that their marriages still serve many purposes. In any case, the fact of the matter is that intercourse is not required for marriage under our civil laws. I urge you to correct your error.
posted by maggie at 9:51 AM VOTE 0 comments

"WHAT DO WE DO ABOUT GAYS?" Michael Brazier replies to Mike Pignatello

Michael Brazier is a graduate student at the University of Texas Pan American.

With regards to this post:

If I understand this correctly, Mr. Pignatello wishes to change the institution of marriage in a way without precedent in recorded history, because it will simplify the administration of health benefits. Or perhaps it's Andrew Sullivan who wants this, and Mr. Pignatello is just reporting Sullivan's argument.

I am reminded of one of Chesterton's essays, "The Man Who Thinks Backwards." We are to accept radical changes in a central institution of society, to correct a minor inequity in the dispensing of medical care? Isn't this inordinate? Isn't marriage more important than medicine?
posted by maggie at 9:48 AM VOTE 0 comments

"WHAT DO WE DO ABOUT GAYS?": Mark Miller responds to Andrew Berman and Mark Tardiff

Responding to Andrew Berman's post:
I agree that whether the state should care if you're a committed life partner or not is a legitimate question. But that is not the main issue in this debate.

Ultimately, the question is -- why should the state 'sanction' opposite sex relationships but not same-sex relationships ? Or as you put it, what is the 'net benefit' to the state of a heterosexual relationship and why cannot the same be said for a homosexual relationship ? Furthermore, you referred to this as a heterosexual versus homosexual relationship issue but that is not the case. As Maggie has pointed out, a gay man can marry a lesbian women and the state will 'sanction' that relationship.

Responding to Mark Tardiff:
I am aware of the arguments from those who describe themselves as 'pro-gay anti-SSM' and I concede many of their arguments which basically support civil unions or some other legal sanction for their relationships but not called or equal to marriage. While I do ultimately support SSM, I understand and respect the traditional approach to 'marriage' as long as there is some legal acceptance of same-sex relationships. What I do not support is the arguments against SSM or any legal recognition of same-sex relationships in the name of 'protecting marriage'. Or at least I haven't yet seen an argument which makes any sense to me on legal or moral grounds.

In response to your point about the "shift in the definition of marriage in the minds of many and the consequences of this shift being a significant loosening of the connection between marriage and procreation," I understand and agree with everything you said except where you basically said that SSM would mean the codification of this shift which would then aggravate the current trends of family disintegration and social chaos.

The loosening of the connection between marriage and procreation predates SSM. The trend of families with fewer children has existed for over a century. And I think I can say that this trend has more to do with the availability of contraception than anything else. I see no connection between SSM and this trend. Finally, why is SSM a 'redefinition' of marriage? Was the legalization of interracial person to marry a 'redefinition' ? Marriage has never been 'defined' as having to mean opposite-sex partners only -- unless you are referring to DOMA. If so, then yes, marriage has been defined as 'man and woman' since 1996. This is not about 'redefining' marriage or harming the institution. It is about granting the same rights to all people.
posted by maggie at 9:42 AM VOTE 0 comments

WHAT DO POLLS ABOUT SSM MEAN? Dale Carpenter's column for the Texas Triangle:

Nationally, support for gay marriage now stands at about 40 percent. Opposition has dropped to somewhere in the low- to mid-50s. Some polls in individual states, like Massachusetts, actually show that a slight majority supports it. Even ten years ago none of this would have been imaginable.

So all this means we'll thwart any attempt to amend the Constitution to ban gay marriages, right? Amending the Constitution would require a super-majority that opponents of gay marriage no longer have, after all. And soon we'll get a state legislature somewhere, Massachusetts perhaps, to adopt full-fledged gay marriages.

Don't count on it. Polls can be deceiving and by themselves are an unreliable base for political power. In this case they are probably both. ...

The biggest problem in polling on gay marriage is answer bias. Time after time, experience shows that polls underestimate the voting public's opposition to gay marriage.

A textbook example of this is California's experience in 2000 with an initiative to ban gay marriage. On the eve of the vote, a poll showed only 51 percent of Californians opposed gay marriage. In the actual vote, 61 percent opposed it. And this was in a relatively gay-friendly state.

What happened? It appears citizens told pollsters what they thought they should say, not what they actually believed. Nobody wants to be thought a bigot. But get them in the privacy of the ballot box and inhibitions are lost. Whatever the polls say, actual public feeling on gay marriage is likely to be more hostile.

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posted by maggie at 9:28 AM VOTE 0 comments

BISHOPS OPPOSE SAME-SEX COUPLES BENEFITS; "DON'T BELIEVE THE HEADLINES": From the Associated Press

[Massachusetts] Roman Catholic bishops reaffirmed their opposition to gay marriage and benefits for same-sex couples Thursday, saying the media misinterpreted comments Worcester Bishop Daniel P. Reilly made at a legislative hearing on a gay marriage bill.
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posted by maggie at 9:25 AM VOTE 0 comments

"WHAT DO WE DO ABOUT GAYS?" Mike Pignatello replies to Andrew Berman

Committed life partners don't need to be "blessed" (Andrew's word) by the state. I did say that same sex couples "...need the State, as guarantor of civil rights and economic privileges, to participate in [the marriage] process." The economic and social benefits of marriage don't spring from the state's "blessing" -- they come from legislation that expressly confers those benefits. U.S. state governments clearly don't care who is in a committed relationship and who isn't when they confer marriage certificates - been to Vegas lately? -- but somehow, when it comes to SSM, gays have to prove that they're worth the state's time, that they offer a "benefit" for the state, and that their social needs are valid. These things are not asked of opposite sex couples.

There is no mystery that the state supports heterosexual marriage, but we have to be careful making assumptions about how "marriage," "the state," and "society" have benefited historically. Andrew suggests we can know that the State has benefited this by observing that "...all states in history have 'blessed' long-term committed heterosexual relationships." In Andrew's tautology, the result proves the point: because the state supports OSM, it must certainly have some current benefit for the state and also must have historically had a benefit. Let's take a closer look at U.S. history with a critical eye.

Married women and their children in the U.S. (until about the mid-19th century) were the legal property of their husbands within a marriage contract, some communities excepted. Wives had restricted rights: no vote, no property (certainly not without her husband's permission). Generally, married U.S. women had few opportunities in employment and property ownership, in some cases fewer even than single women had. So how exactly did the state benefit by enforcing these arrangements? And what exactly is the benchmark for determining that the state has, throughout history, positively benefited from marriage? Past and present benefits and disadvantages of marriage might be starkly different; it's best to avoid historical simplifications.
posted by maggie at 9:23 AM VOTE 0 comments

CONSUMMATION: Maggie replies to Gabriel

We are arguing about words here, Gabriel. To say that a marriage is annullable is to say that in legal principle the marriage was not valid and no divorce is required to end the marriage. When or whether the law discovers this is of course a different matter.

Marriage can be invalid for multiple reasons: Like: they took place between same-sex partners. Or between relatives forbidden to marry. Or one partner withheld some material knowledge (like a sexually transmitted disease). Or you never ever had intercourse.

No intercourse, no marriage, in the eyes of the law, no matter how long you cohabit or how many orgasms you have together or separately.
posted by maggie at 9:14 AM VOTE 0 comments

CONSUMMATION: Gabriel Rosenberg replies to Maggie

Maggie writes, "Under our marriage law, if you choose to engage entirely in non-coital sex your marriage is not valid." That is simply wrong (as far as civil marriage). You later get it correct when you write "your civil marriage is annullable." There is a big difference between the two.

Marriages can be invalid for a number of reasons. For example, one partner was already in a legal marriage at the time, one partner was under legal age, the partners are too closely related, etc. For these marriages it does not matter whether both people agree to the marriage anyway. Any third party or the state could contest the marriage at any point and it would not be recognized for any legal purpose.

A marriage being annullable means that one party (of the marriage) can get an annulment as opposed to a divorce. The marriage may not be contested by any other party, including relatives who would otherwise stand to inherit.

The issue here is not a matter of the state not finding out about it unless one person snitches. You could have two dozen sworn affidavits that the couple was 100% incapable of ever having coital sex, yet the state would still recognize the marriage. In fact, if both parties know going into the marriage that coital sex is impossible the marriage is probably not annullable either. As you correctly point out, the reason the marriage is annullable is not because of the lack of baby-making potential, but because of fraud.

Suppose a man was incapable of coital sex because of a war injury. Is he forbidden from marriage? Should he be? Is there no point to his marriage? If a married man has oral sex with a woman other than his wife, has he committed adultery? The legal purpose of marriage is not geared around any kind of sex. It is geared around obligations and responsibilities. Just go through every legal incident of marriage (there are hundreds) and ask yourself, Is the reason for this sex, or is the reason for this some responsibility?
posted by maggie at 9:13 AM VOTE 0 comments