This topic has pervaded society in the last few decades, reaching the levels of local and international politics, religious organizations and statutory law. It has produced wide emotional responses from populations with assertive demand, dissension, anger and more.
And yet it seems that the seemingly obvious has been ignored and the solution lies right in front of the blind. In this century marriage has demonstrated itself to be a number of separate entities which, historically, had previously been wrapped into one package.
The historical reasons for this “wrapped package” were the expectation that marriage would invariably produce children. This assumption made the welfare of the family a societal concern. The many dimensions of the family unit lead to a single indivisible package of the behavioural expectation, labled “marriage”.
(A minority of marriages did not, of course, produce children. However the reasons for this were mysterious and not explored by society as a whole or by medical capacity specifically. [See “Musings on the Bell Curve”])
In the 20th century marriage and procreation separated. Further, capital accumulation resulted in an obvious polarization demonstrated in divorce proceedings. Divorce negotiations immediately devolve into two camps: (a) division of material assets in the breakup of a commercial partnership and (b) administration of the care of children.
The many lawyers to whom I have spoken denied this vehemently. But perhaps that is not unexpected. Lawyers, generically, benefit from the cloak of the mysterious. It is helpful for lawyers to the make the laymen believe that the complexities of law are beyond their ken. This allows lawyers, in a very literal sense, to “act on behalf of (and instead of) their client”. These lawyers assume the role of a superior wisdom. The client is induced to “leave it to the lawyers” often with no indicators as to how the legal debate, and even the parameters of that debate, are drawn up. At the end of the day the client is presented with a fait accompli. If there were ever a “God complex” within any profession, that ranks supreme in most legal dealings. That this should not, and need not, be so is addressed in another essay.
However, to revert to theme, this obvious distinction of the parts of a marriage is right there in the room.
There is also, for many, a third component, the concept of the spiritual unification and the maintenance of the spiritual power which overarches the marital union. However, once divorce is reached that spirituality fades forthwith.
Thus the current western concept of heterosexual marriage has two separate and distinct limbs embodied in one legal marriage contract. The partnership aspect can be addressed, agreed upon and negotiated similarly to all commercial partnerships. Quite separately the legal issues relating to the children of that marriage could and should be dealt with in its own right, legally, socially and materially.
Reproduction can be controlled at will. The material aspects of the marital construct are considered now to benefit, primarily, the adult partners of the marriage. These partners then claim, that they are entitled to retro-extract from the marriage the inputs each had provided with exact precision. Various bizarre interpretations of what each of the partners had contributed have been conjured by divorce lawyers on the premise that the more they can extract for their client the better for both the client and the lawyer.
There is no inevitability about the production of the children in gay marriage. Any contract entered into by “life partners” for public endorsement can take the well trodden route of commercial partnership law in exactly the same way as all other contractual partnerships. Therefore, there is no rationale for homosexual “marriage” in its historical sense.
Quite separate then become the issue of “gay parentage”. Unlike heterosexual marriage children are not the inevitable chance product. Instead a carefully constructed, planned and independently executed endeavour is necessary to produce the children destined for gay partnerships. This is under the decisive control of the individuals involved and planned in advance. Hence it is amenable, in advance, to legislation, legal contract and societal surveillance. It demands specific legal constructs relating to the welfare of those children, whether they are produced by artificial means or adopted into the gay partnership.
The spiritual recognition and the annealing of gay partnerships lies entirely and specifically within the realm of ecclesiasticism. It has no place in law.
Welfare. A small percentage of gay couples live in nations where benefits are offered to married couples, and heterosexual pairs in long-term relationships. Some of this welfare benefit is governmental but other examples are insurance and inheritance benefits. When this is the case gay couples might claim the benefits offered to heterosexuals. Should this precedent exist such claims by gay pairs becomes an administrative, not a “marital” issue.
Such a benefit is at a cost to some-one else. In the example of a tax reduction society is subsidising that benefit. Why has society been prepared to subsidise married couples in the past? This originated in society’s inclination (and perhaps mandate) to protect the married couple because that marriage presumes a procreative role. It was society’s way to stabilise marriage financially, with the ultimate aim of continuity of the marital partnership, ensuring a healthy next generation. [See “Who Owns Sex”].
Unfortunately, the concept has arisen that marriage for a gay couple is a “one-stop-fix-all” and that a single act (of marriage) will solve all the discontinuities between heterosexual and gay couples. This is an unmerited attempt at short-cut. In many respects it is simply laziness. Some partnership related benefits might be due to gay couples, but these should not be claimed under the cloak of “marriage”.
Should homosexuals wish contractual bondage, this can follow the well trodden paths of partnership law. Should they wish to accept responsibility for parenting, a different, additional contract, perhaps one as yet un-evolved, is necessary.
Should these individuals wish a spiritual construct that must be addressed by the religious order of their choice as an entirely different and separate agreement in a different social domain.