RISKS OF BARRING SSM: David Fried

You said:

"Rauch and others argue that failing to enact same-sex marriage will teach children that cohabitation (by gay couples) is a-okay, and that sex and marriage can rightfully be separated. They predict that some, maybe even many, heterosexual couples will shun marriage as a discriminatory club. (Some people already do this.) And they predict that without same-sex marriage we won't just have marriage and not-marriage; we'll have a bewildering array of quasi- and pseudo- and kinda-sorta-not-really-marriages, like domestic partnerships and civil unions and 'well, we had a commitment ceremony at our synagogue, but obviously we're not married' and individualized contractual arrangements."

I would take this argument much further. The enactment of same-sex marriage is the single most indispensable step toward strengthening marriage in general. When I put it cynically, I say only then will the state be able to encourage marriage, within the bounds of fairness, by discriminating against the unmarried.

The oddest mistake made by the Supreme Court in the 'sixties and 'seventies was its conclusion that marital status is a "suspect category," meaning that the state cannot discriminate on the basis of marital status except for the most compelling reasons. In other words, state encouragement of marriage is generally an unconstitutional violation of civil rights. This principle was rapidly extended into a positive ban on private discrimination against the unmarried, so that landlords and hotels, for example, cannot exclude unmarried couples living together. In other words, neither the state or private individuals may treat marriage as normative and act accordingly.

But the principle that one cannot discriminate against the unmarried gets further support from the increasing reluctance of, e.g., corporations, to discriminate against gays. Once you extend domestic partnership benefits to same-sex couples living together you must do so to opposite-sex couples living together, or you're impermissibly discriminating.

When Massachusetts allowed same-sex marriage, every employment lawyer in the state (and I'm an employment lawyer in Mass.) immediately had the same thought: Their clients could now permissibly withdraw partnership benefits such as health insurance from all unmarried employees, both straight and gay. If marriage is available to all, then it is perfectly permissible to discriminate against those who choose not to formalize their relationships. All straight couples who have been saying "We don't need a piece of paper to show our commitment to one another," suddenly discover that they do need that piece of paper to get health insurance for the unemployed partner.

The question is whether you think this is good or bad. I think it's great, myself. When marriage is available to all, it is both permissible and a good idea to discriminate against those who claim societal recognition for their relationships without marrying. In the real world, that's an excellent way to encourage marriage.

Is it really possible that the hordes of people who believe that SSM will destroy straight marriage haven't thought of this? Until you brought it up, I have seen this argument expressed only in the negative, by gay people who prefer the freedom of the current state of affairs and fear that SSM will result in pressure on them to get married. I think that this is exactly what will happen--and I'm in favor of it (if only because, as a straight divorced guy, I don't see why gay people should be exempt from the general misery!)
posted by Eve at 2:36 AM | link

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