"CONJUGAL MODELS" OF MARRIAGE: Gabriel Rosenberg

[Too long to excerpt.... --Eve]

...Here the dichotomy could best be said to be between a "functional model" of marriage and a "rite based model" of marriage. In the former whether a relationship is treated like a marriage is determined on a case-by-case basis with flexible factors asking whether it "functions" like a marriage. In the latter a relationship is treated as a marriage if and only if the couple went through the proper ceremony. It is essentially the same argument as to whether common law marriages should be recognized. On this point, the report is at its strongest. The ALI report and the LCC report both advocate moving in the direction of the "functional model" (although in Canada the approach is at least 25 years old) and Cere responds with many valid and strong criticisms backed by research showing that cohabitation does not do the same thing as marriage. ...

The last two statements demonstrate part of the problem in lumping same-sex couples in with cohabiters. They are willing to make a marriage commitment and thus it would be unjust to treat them as if they had not done so. It would be unwise because in arguing against same-sex couples being able to marry when they are raising children, the state is forced to argue that marital status makes no difference for the well being of the couple or their children. Finally we note that when states refuse to allow same-sex couples to marry it leads states, local governments, and private corporations and unions to develop "domestic partnership" registries or other alternatives that get treated like marriage. Marriage maintains its heterosexual status, but at the cost of its normative status.

The second possible outcome discussed is redefining marriage as couple-centered. What Cere really means is redefining it as gender neutral, but he believes this is inherently couple-centered and the opposite-sex requirement is absolutely necessary for the "child-centered" view to hold. If you don't buy that equivalence ("same-sex permitted=couple-centered" "opposite-sex exclusive=child-centered) this whole section of the report makes no sense. ...

Of course none of the judges in the same-sex marriage cases are arguing that a child-centered view of marriage is discriminatory or the idea that marriage is crucial for children is discriminatory. They just fail to see how restricting marriage to a man-woman union does anything to help the children of opposite-sex couples and it seems to hurt the children of same-sex couples, precisely because marriage is so important for children. Of course, this concern is one advantage of having the legislature initiate same-sex marriage while emphasizing the great value it would have for children. The government would not be making a statement about the legitimacy of views that people should only marry someone of the opposite-sex, or that children do better in such marriages. Just as the current laws which allow interfaith couples to marry do not mean that those who think such marriages are a bad idea, and those who worry about the children of such marriages are discriminatory.

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posted by Eve at 4:02 PM VOTE

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