In addition to the impossible problem of Iraq, Bush now
faces another impossible problem -- this time not of his own making.
Same-sex marriage is now legal in England and in most of western Europe
(I think) but now it looks as though the courts are going to have to push
this through in America in the interests of the individual versus the
state -- in this case a state which is currently headed by a man who
avers that he is a fundamentalist Christian.
Most of the problem -- in fact, all of the problem -- is due to
the fact that the whole notion of marriage has been obscured and
complicated by the intrusion of both the church and the state into
private affairs.
What is marriage? It is nothing more and nothing less than a
publicly-witnessed business contract. I am not well-versed enough to go
back in history to the beginnings of marriage thousands of years ago (of
quite different sorts in different cultures) but we can clearly see the
practice of western marriage in its essentials in medieval England when
it was a matter of ensuring that the intended wife would have full claims
to the worldly goods of the putative husband if he died -- "with all
my goods I thee endow" and so forth. (And vice versa. In Tudor
England, women controlled more wealth than men.)
It was witnessed in church and recorded by the minister of the church
because the latter was one of the few in those days who could write, and
thus be able, if necessary, to communicate with any other churches in the
following years if a dispute ever arose as to the validity of the
marriage. In turbulent times when kings, princes and local barons could
come and go overnight, the medieval Church was the one universal constant
from horizon to horizon throughout Europe. Many different cultural
variants of the Christian business ceremony occurred in other parts of
the world with different dominant religions, and each would have clear
provisions concerning the destination of any worldly goods if the
marriage broke up or one of the participants died.
The medieval marriage ceremony was but a grander version of what
frequently goes on even now in southern Italy and parts of Russia where a
business contract is best witnessed by the Mafia (for a suitable
commission!) because the state cannot be relied upon to enforce the
contract in case of dispute. The Mafia can -- and does -- enforce the
contract in the case of either party defaulting. The medieval Church also
had the ultimate sanction of excommunication and the threat of the flames
of hell if a marriage partner divorced his wife or tried to dispossess
her when he died. And, of course, that was a very real fear in those
days.
I used to know a couple called Billy and Flo who had a cottage next to me
in the hamlet I lived in when I was was first married. They were in their
80s and got on in just the way that you'd expect. I would often chat with
Billy, a retired farm labourer, over the garden fence as he pottered
about in his greenhouse at the end of his long garden to which he used to
escape as frequently as possible. If Flo called him from the kitchen for
a meal, Bill would mutter to me : "Silly old cow". Sometimes,
if I bumped into Flo, she would be looking for Billy: "Where's
Billy? I've got a job for him to do in the house but I can't find
him!"
As I say, it was a normal sort of marriage. Except it wasn't a marriage
in the normal way. One day I saw them getting off the bus from town at
the end of the country lane leading where we lived. She was wearing a
beautiful costume and Billy was wearing a suit! They had carnations in
their buttonholes. "What's all this?" I said. "We've just
got married," they replied. They had got married because they would
then be entitled to some sort of extra state benefit to which they were
not qualified before. However, in the eyes of the world (that is, in the
hamlet of about 30 people in which we lived) they had already been
validly married for over half a century. Billy and Flo had been living in
a common law marriage, of course.
For centuries, common law marriages were far more common than church
marriages for ordinary people without much by way of worldly goods when
they set up home together. In an everyday sense they were quite as
"valid" as church marriages. The only difference between a
common law marriage and a church marriage was that in the case of dispute
or death there was no authority to insist on the appropriate allocation
of any wealth that had accumulated between the partners. It was up to
local public opinion to make life difficult if one party to the original
marriage tried to welch on the deal. This type of dispute was frequently
the subject of public humiliation during local festivals and medieval
charivaris.
But since the rise of the nation-state, the secular authorities have been
muscling in on all sorts of public and social activities by means of
legislation, and medieval Church law now has long lost any powers over
people. At the time of Billy and Flo's civil marriage, the state had
finally outlawed the receipt of some benefit or other unless they were
married in the eyes of the state. But common law marriage itself has
never been outlawed by statute even though senior civil servants often
say that common law marriage has no legal standing as though to wave it
out of existence. However, any legislation forbidding a man and a woman
to live together would have been impossible to enforce and so it has not
been attempted. If it had been possible to impose it in the same way that
children, for example, are forced to go to school, then the authorities
would certainly have done so.
In the last few years in developed countries we have been passing the
peak of governmental interference in the matter of marriage and the
number of couples who live together in common law marriage, such as the
writer and his better-half, is increasing greatly. I don't know the
figures offhand but is is a substantial percentage.
Homosexuals who wish to live together should be quite entitled to do so,
of course. However, in their current phase of trying to persuade the
public at large that homosexuality is normal -- which, of course, it
isn't by mathematical definition -- many homosexuals want the state to
witness their union as man-and-man or woman-and-woman and, presumably,
lay on the full gravity of the law in if there were subsequent disputes
in the matter of the division of possessions.
Meantime, though, teh controversy is tying at least two churches, the
Church of England and the Episcopalian Church in America in knots -- even
as I write some Anglican churches are splitting from the Canterbury
communion. From the item shown below from the New York Times it looks as
though it's going to tie America in knots also. God forbid, it might even
interfere with the smooth unfolding of Bush's electoral campaign in the
coming months as he shows around his photographs of meetings with Asian
and European leaders and chatting with the Queen of England recently.
Considering that the homosexual lobby in America, while still a minority,
is still a sizeable one, it is going to be interesting to see whether
Bush will make a definite statement one way or another. My guess is that
he'll fluff it. His script writers will have devised a suitable form of
words for him when he's asked at press conferences.
Keith Hudson
<<<<
MARRIAGE BY GAYS GAINS BIG VICTORY IN MASSACHUSETTS
Pam Belluck
Boston -- Massachusetts' highest court ruled on Tuesday that gay couples
have the right to marry under the state's Constitution, and it gave the
state legislature 180 days to make same-sex marriages possible.
The 4-to-3 decision was the first in which a state high court had ruled
homosexual couples are constitutionally entitled to marry, and legal
experts predicted it would have ramifications across the
country.
"The question before us is whether, consistent with the
Massachusetts Constitution, the commonwealth may deny the protections,
benefits and obligations conferred by civil marriage to two individuals
of the same sex who wish to marry," wrote Chief Justice Margaret H.
Marshall of the state's Supreme Judicial Court. "We conclude that it
may not. The Massachusetts Constitution affirms the dignity and equality
of all individuals. It forbids the creation of second-class
citizens."
The decision, which did not explicitly tell the state legislature how to
carry out the ruling, sent lawmakers and legal experts scrambling to
determine what options exist short of legitimizing gay marriage. Other
experts said that the court appeared determined to extend full marriage
rights to gay men and lesbians.
The decision ignited a storm of reaction throughout the nation, with gay
groups and some liberals heralding the ruling, and conservatives and some
religious groups denouncing it.
"We're thrilled and delighted the highest court in the state of
Massachusetts confirms that our community has the right to enter into
civil marriage the same as other couples," said David Tseng, the
executive director of Parents, Families and Friends of Lesbians and Gays,
who noted that three of the four justices in the majority were appointed
by Republican governors. "This is a tremendous victory for fairness
and for families."
Tony Perkins, president of the Family Research Council, a conservative
group, said "it is inexcusable for this court to force the state
legislature to `fix' its state constitution to make it comport with the
pro-homosexual agenda of four court justices."
Mr. Perkins and other conservatives said the decision underscored the
need for a federal constitutional amendment banning gay
marriage.
"We must amend the Constitution if we are to stop a tyrannical
judiciary from redefining marriage to the point of extinction," he
said.
It also seemed likely that the court ruling would catapult same-sex
marriage into a major issue in the presidential campaign. Virtually every
Democratic presidential candidate issued a statement on Tuesday that
tried to find a middle ground on an issue that is nothing if not
polarizing. Most did not express support for gay marriage or a
constitutional amendment banning it, but said they supported giving gay
couples the benefits heterosexual couples receive.
President Bush, who has opposed same-sex marriage but not embraced the
idea of a constitutional amendment, said in a statement "Marriage is
a sacred institution between a man and a woman. Today's decision of the
Massachusetts Supreme Judicial Court violates this important principle. I
will work with Congressional leaders and others to do what is legally
necessary to defend the sanctity of marriage."
In defending the current practice of restricting marriages to
heterosexual couples, Massachusetts officials had argued that the main
purpose of marriage was procreation, that heterosexual marriage was best
for child-rearing, and that gay marriage would impose a financial burden
on the state. But Justice Marshall dismissed those arguments, saying that
the state "has failed to identify any constitutionally adequate
reason for denying civil marriage to same-sex couples."
Some legal experts said they thought the ruling might allow room for
Massachusetts to embrace a parallel system like the civil unions allowed
by Vermont. Other experts said the 34-page ruling left little doubt that
the court intended that full-fledged marriage be extended to gays and
lesbians. Robert E. Travaglini, president of the State Senate, who has
said he supports civil unions but not same-sex marriage, said on Tuesday
that "the strength of the language and the depth of the
decision" makes it clear that marriage, and not civil unions,
"is the wish of the court."
Because it is based in state law, the ruling cannot be appealed to the
United States Supreme Court. And it cannot be overturned by the
legislature. But the legislature could try to amend the state
Constitution to ban gay marriage, an option that Gov. Mitt Romney said on
Tuesday that he favored. Such a process, though, would take at least
three years.
Polls show that many Americans, while more tolerant of homosexual
relationships, still do not support homosexual marriage. And some experts
predicted that the court decision would increase support for laws banning
gay marriage in states and at a national level. Already, 37 states have
passed measures defining marriage as between men and women.
"This comes pretty close to an earthquake politically," said
Alan Wolfe, a professor of political science at Boston College. "I
think it's exactly the right kind of material for a
backlash."
The decision was a personal victory for at least 14 people the gay and
lesbian partners who were plaintiffs in the court case. The seven couples
from across the state, most of whom had lived together for years and some
of whom are raising children, all sought marriage licenses in 2001 from
their town or city offices.
A lower-court judge dismissed the case in May 2002 before it went to
trial, ruling that because same-sex couples cannot have children, the
state does not give them the right to marry.
"Without a doubt this is the happiest day of our lives," said
one plaintiff, Gloria Bailey, 62, of Cape Cod, as she stood, teary-eyed,
at a news conference with her partner of 32 years, Linda Davies, 67.
"We've been wanting to get married practically since the day we met.
We didn't know if it would happen in our lifetime. We're planning a
spring wedding."
Several of the couples told stories of being denied access to their
partners when they were hospitalized.
Hillary Goodridge, 46, of Boston, had to say she was the sister of her
partner, Julie Goodridge, 45, to see Julie when she was rushed to the
neonatal intensive care unit after giving birth to their daughter,
Annie.
David Wilson, 58, was not able to say he was the brother of his partner,
Robert Compton, 53, because Mr. Wilson is black and Mr. Compton, who has
been hospitalized five times in the last five years, is white.
"We never have to worry about going to the hospital and negotiating
our way through hospital teams because now we have the opportunity to
protect ourselves through marriage," said Mr. Wilson, smiling at Mr.
Compton.
Being legally married in Massachusetts would entitle same-sex couples to
numerous other rights and benefits, including those related to property
ownership, insurance, tax consquences and child custody. The marriage
would not automatically be considered valid by the federal government or
other states, which would probably have to decide on their own whether to
recognize a Massachusetts gay marriage.
In the ruling, Justice Marshall wrote about the benefits of marriage for
children and said that not being allowed to marry "works a deep and
scarring hardship" on homosexual families.
"It cannot be rational under our laws, and indeed it is not
permitted, to penalize children by depriving them of state benefits
because the state disapproves of their parents' sexual orientation,"
she wrote.
In the dissent, Justice Robert Cordy wrote that the marriage law was
intended to apply to a man and a woman, and "it furthers the
legitimate state purpose of ensuring, promoting and supporting an optimal
social structure for the bearing and raising of children."
As it considers how to respond to the ruling in the next 180 days, the
legislature will most likely consider several options. Already, in recent
months, three different efforts have begun in the legislature a drive to
amend the state Constitution to ban gay marriage, a bill to establish
civil unions and a bill that would allow for same-sex marriage.
The politics of Massachusetts make the issue especially tricky. The
legislature is majority Democratic, but also largely Catholic, and the
Roman Catholic Church is strenuously opposed to gay marriage. On the
other hand, the Democrats are rarely aligned with Governor Romney, a
Republican, who indicated on Tuesday that he would support some effort to
extend benefits and rights to gay couples, though he would not support
marriage.
"Marriage is an institution between a man and a woman," he
said. "I will support an amendment to the Massachusetts Constitution
that makes that expressly clear. Of course, we must provide basic civil
rights and appropriate benefits to nontraditional couples, but marriage
is a special institution that should be reserved for a man and a
woman."
Arthur Miller, a Harvard law professor, said he thought that given the
closeness of the court decision, there might be room for the legislature
"to create a relationship that might not necessarily be called
marriage but allows for the recognition of property passage and joint
ownership and insurance and even child custody."
But Elizabeth Bartholet, a family law expert at Harvard Law School, said
the extensive discussion of marriage in the decision made it unlikely the
court would allow civil unions.
If the legislature did nothing or failed to comply, Professor Bartholet
said, "I would assume after 180 days the Supreme Judicial Court
would say this is law and the state would have to issue marriage
licenses."
New York Times -- 19 November 2003
>>>>
Keith Hudson, Bath, England,
<www.evolutionary-economics.org>
- RE: [Futurework] Bush's impossible problem of same-sex ... Keith Hudson
- RE: [Futurework] Bush's impossible problem of same... Cordell . Arthur
- Re: [Futurework] Bush's impossible problem of same... wbward
- Re: [Futurework] Bush's impossible problem of ... Keith Hudson
- Re: [Futurework] Bush's impossible problem... Ray Evans Harrell
- Re: [Futurework] Bush's impossible problem... Ray Evans Harrell
- RE: [Futurework] Bush's impossible pro... Harry Pollard
- RE: [Futurework] Bush's impossible problem of same... Cordell . Arthur
- RE: [Futurework] Bush's impossible problem of same... Karen Watters Cole
- Re: [Futurework] Bush's impossible problem of same... wbward