Many of us feel that government intervention in our
affairs is excessive, but governments do have to do a few things. For
example, the government of Canada has to pay out superannuation to its
employees. Here it would seem to be trying to be as accommodating as
possible. For example, when one partner in a relationship dies, who is
entitled to a portion of his or her superannuation is defined as follows: "A
survivor allowance is a lifetime pension payable on the death of a plan member
to the spouse, the common-law partner or same-sex partner of the
member." And in the case of the Canada Pension Plan, which is
available to everyone who pays into it, the relevant government web site
says:
"The Canada Pension Plan survivor's pension is paid to the person who, at
the time of death, is the legal spouse or common-law partner of the deceased
contributor (see definition of "spouse" and "common-law partner"). If you are
a separated legal spouse and there is no cohabiting common-law partner, you
may qualify for this benefit.
If your deceased same-sex common-law partner contributed to the Canada
Pension Plan, you could be eligible for survivor's benefits if the contributor
died on or after January 1, 1998."
So, at least in Canada, the government seems to want to be
inclusive. It does not seem to matter who or what the survivor's
relationship to the diseased is, as long as a relationship can be
demonstrated.
Ed
----- Original Message -----
Sent: Wednesday, November 19, 2003 10:36
AM
Subject: RE: [Futurework] Bush's
impossible problem of same-sex marriage
Great posting.
Most
things seem to be ending in parody. This seems to include
marriage.
arthur
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>
|