MARRIAGE AND EQUAL PROTECTION: Gabriel Rosenberg replies to David Barnes

David Barnes writes, "In other words, if homosexual couples are being unjustly denied the benefits of marriage, why aren't cohabiters raising children being unfairly denied benefits just because they don't want to get married?"

Consider two couples. Alice and Betty would like to get married, but are not allowed. Cathy
and Doug have no desire to get married, but would like to get some "benefits of marriage." Here are two major differences:

1) What is being asked for? Alice wants the state to recognize Betty as her spouse for all legal purposes. Cathy wants Doug to be considered her spouse for some purposes, but not others. If instead we assumed that Cathy
wanted Doug to be considered her spouse for all legal purposes, then it would seem that Cathy did want to marry Doug, but she objects to the process by which they were to get married. Alice objects to there not being a
process by which she can marry Betty.

2) On what basis are they denied? The state won't allow Alice to marry Betty because of her sex. The state will allow Cathy to marry Doug.
She's being denied the "benefits" of marriage because she chooses not to marry Doug.

Hold on, though. David points out that Alice can get married, too. She can marry Bob. She just doesn't want to do so, just like Cathy
doesn't want to marry Doug. Of course the problem with David's argument was pointed out by the California Supreme Court in 1948. It would make people "as interchangeable as trains." That is, it would say there is no real
difference between marrying Betty or marrying Bob.

If Cathy married Doug she would be able to get what she seeks. Doug would be considered her spouse. If Alice marries Bob, it does not make Betty her spouse. The "benefits of marriage" do not flow from being able to check "married" instead of "single." They stem from having a particular person recognized as one's spouse.
posted by Eve at 1:39 AM | link

0 Comments:

Post a Comment

<< Home