After reading the Massachusetts Supreme Court's "gay marriage" case I noticed something odd that no one was talking about -- the ruling doesn't exclude heterosexuals from same-sex civil marriage.
Let me be clear on what that means. I'm not saying that heterosexuals will be able to fool the civil government by claiming to be homosexual in order to qualify for a marriage license. I am saying that they're free to enter into a civil marriage with a member of the same-sex without having to renounce their heterosexuality.
The most obvious difference between homosexuals and heterosexuals is sexual preference. But the Court established that sex, whether gay or straight, has no bearing on marriage. Same-sex couples do not have to consummate the marriage (whatever that would mean) in order for it to be considered valid. The court acknowledges that:
"People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) ("The consummation of a marriage by coition is not necessary to its validity")."
This strips marriage of any sexual connotations and reduces it to a form of legally recognized companionship.
The media has been hailing this ruling as a victory for homosexual marriage. But we shouldn't overlook the implications of same-sex heterosexual marriage.
For example, Tyler Cown at The Volkh Conspiracy pointed out, "If one gay spouse had residence privileges in the United States, or citizenship, he or she could apply to bring over the other member of the couple as a spouse."
What he overlooks is that the "couple" does not have to be gay. A heterosexual same-sex couple could take advantage of the same process.
Another group that would be allowed to marry under this ruling is same-sex siblings.* The court has divested itself of any rational for preventing two sisters or two brothers from marrying:
"We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. This is so because constitutional protections extend to individuals and not to categories of people. Thus, when an individual desires to marry, but cannot marry his or her chosen partner because of the traditional opposite-sex restriction, a violation of art. 1 has occurred.
Opposite-sex incest carries many health-related concerns (most notably, birth defects) that allow it to be justifiably prohibited. But the same reasoning cannot be used to restrict same-sex incest. If two brothers decide to enter into a lifelong commitment, the ruling makes clear that they should have the right to do so. The Court has essentially stripped common law from any appeal to the "Ick factor."
But again, sex does not have to enter into the equation. Two elderly sisters could decide to take advantage of the benefits of a civil union by entering into a marriage with each other. They could remain completely celibate and would never even have to change their maiden names. And what would be the argument against it? Why should relatives be excluded from marriages of convenience? We have leaped down the slippery slope and find ourselves all the way at the bottom.
Initially the stigma of "gay marriage" might preclude heterosexuals from taking advantage of the loopholes in the law. In America, though, nothing remains taboo for long. Once the economic benefits become clear, more and more straight same-sex couples will be skipping down to the Justice of the Peace's office. They just won't be kissing the "bride."
*Update: It appears that Eugune Volkh beat me to this conclusion two day ago. I should have known to read everything he wrote on the subject before adding my own two cents. Oh well, I still found the same-sex straight marriage angle first. I think.
Update #2: Hugh Hewitt offers his typically apropos advice on how to deal with this ruling: "The decision is illegitimate, and the appropriate response will be to ignore it."
1
This is one good reason that a same-sex marriage ban is in no way "discriminatory against homosexuals," as they like to claim. It just so happens that heterosexuals would rather not exercise their "right" to marry a member of the same sex if that "right" was granted.
posted on 11.20.2003 11:16 PM2
It's a very interesting notion, and while some might consider it far-fetched, Professor Eugene Volokh's musings on the "slippery slope" arguments regarding the equal rights amendment and homosexual marriage suggest that if an argument can be made, it often will. Arguably, given the broad brush the court used, it may be difficult to defend statutory rape laws, minimum marriage ages, and a whole host of other things as well.
posted on 11.21.2003 12:12 AM3
There's an enormous difference between the ability of adults to choose or consent to a relationship, and the ability of minors to do the same. While it is possible to make the argument that minors can consent to sex or marriage, nobody's making it - certainly not the gay rights movement.
posted on 11.21.2003 11:13 AM