Monday, February 19, 2007

With This Kid, I Thee Wed

Just what is the definition of marriage?

Conservatives have made a lot of hay over the so-called attempt to “re-define” marriage. Marriage between a man and a woman has always been the law of our country, they argue. (Then of course they discovered that wasn’t technically true, which is why 37 states had to pass same-sex marriage bans and why they want to amend the Constitution.) But when pressed to actually define marriage, conservatives ran into trouble.

In Washington State last year, the top court ruled that the state’s ban on same-sex marriage was constitutional because “the legislature was entitled to believe that providing that only opposite-sex couples may marry will encourage procreation and child-rearing in a “traditional” nuclear family where children tend to thrive.” They rejected lower court arguments that procreation was not the central, defining element of civil marriage, saying, “marriage is traditionally linked to procreation and survival of the human race.”

Now an enterprising group of Washingtonians, calling themselves the Defense of Marriage Alliance, are attempting to tar conservatives with their own stick by putting an initiative on the ballot to legislate the court’s rulings.

The initiative, which has been accepted by the Washington Secretary of State, would make “procreation a requirement for valid marriage” in the state. It would also “add the phrase, “who are capable of having children with one another” to the legal definition of marriage; require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled; require that couples married out of state file proof of procreation within three years of the date of marriage or have their marriage classed as “unrecognized;” establish a process for filing proof of procreation; and make it a criminal act for people in an unrecognized marriage to receive marriage benefits.”

All of these requirements have been advanced either as reasons why same-sex couples are not entitled to marriage or as ways to disadvantage them. They can be found, verbatim, in laws and court rulings from one end of the country to the other. So far, however, they have only been used against same-sex couples, and no one has ever before attempted to hold heterosexuals to their own impossible standards. The hope is that, should the initiatives pass, the Washington court will have to review its own assumptions about what constitutes a civil marriage and strike down the law as unconstitutional. At the very least, the effort will provoke further discussion about what marriage means and create additional awareness of the hardships and indignities faced by committed same-sex couples.


Jade said...

I think anybody in their right mind who reads this will see the light of how idiotic Andersen Vs. King County really is. I wish I could help gather signatures... with Dan's leg in a brace I have to be his driver for another couple months, but maybe I could just get people I know around here to sign? It wouldn't be a lot, but it would be some at least.

kr said...

Snerk ;). Good for them.

I for one am all for this societal discussion.

We need to examine which rights and responsibilities go with different types of commitments--and a commitment planning on raising children is very different from a commitment planning on not raising children. More different, I think, than the hetero/homo difference--although that also needs to be addressed, for the simple reason that babies happen accidentally to hetero couples and not to homo couples. Non-sterile hetero couples need more responsibilities built into their commitment.

As a starter, I think medical decision rights should be a stated (not an assumed) part of a partenrship contract--and a part that is revisable. Ditto inheritance. (Imagine the lessening of inheritance court-battles if folks had to write out and sign a document as a standard part of the civil partnering process.) Thence birth family vs partner (vs whoever) would be clear, to all the parties.

Kids and government benefits (child-related or other welfare) get very confused very quickly, though--anything that goes beyond two consenting adults.

Kids should have their own well-considered protections. This does lead to some very undeserving adults receiving government and social benefits.

Perhaps we need to rework the laws to make the kids the clear legal focus, and add more accountability measures ... but then we can wander quickly into questions of removing kids/problems in the foster care systems, and even questions as serious as social/government pressure for sterilization/abortion, not to mention the quagmire of figuring out what "we" currently think are parents' rights and what "we" currently think are parents' responsibilities. Who "we" is is also an interesting question--perhaps these debates, if we launch them successfully, will rope more Americans into voting more often. (Compulsory schooling, especially public, enforced childhood vaccination schedules, and the "safety" of prenatal ultrasounds are three major grassroots fights at the top of my list regarding child/parent rights and responsibilities in America right now.)

This is all going to be a mess, working out a new balance of societal expecations and values.

But at least it will be an open, worked on mess, and not a swept-under-the-rug mess.

May you live in interesting times, eh?

: P.

The Law Fairy said...

Go Washington. About time straight couples were forced to acknowledge how unfairly good they have it :P