Commentary: The End of Marriage?

The Beginning of The End of Marriage?

San Francisco Superior Court Judge Richard Kramer was right to rule last month that there exists "no rational purpose" to justify withholding marriage licenses from gay and lesbian couples. And now the nation’s most populous state is poised to follow Massachusetts and become the second in the union to permit same-sex marriages.

The bells are ringing: this is a moment for gay pride and a celebration of liberal inclusiveness. The decision paves the way for the extension of public benefits to a wider range of families and the legal recognition of couples who have historically been branded deviants.

This decision is an extension of the logic of Loving v. Virginia where, only 38 years ago, the Supreme Court forced states to abandon the argument that interracial marriage constituted a “corruption of blood.” Anti-miscegenation laws were premised on the idea that if God intended the races to mix, he wouldn’t have placed them on separate continents.

Then with race as now with sexuality, defenders of traditional marriage warn that should the institution be amended, we would find ourselves on a slippery slope that would destroy the structure of family and society. Change the rules and all kinds of folks will be asking to wed, turning marriage into an abomination. Platonic pals, siblings and parties of five would step up to demand rights that are not theirs by nature. Depraved anarchy would surely follow!

In a way, I agree with them. To open up marriage to anything other than one man plus one woman would forever alter the institution. It rightly calls into question the rationale for the distribution of public benefits according to a narrow definition of what constitutes a proper family.

Vermont’s civil unions, for example, allows for the registration of “non-sexual pairs.” To counter the argument that lesbian and gay couples would be granted “special rights” denied to other pairs, like “maiden aunts,” a special category of rights and responsibilities was established called reciprocal benefits.

A decade ago, I met a woman named Sylvie who, with her sister, inherited a large house from their parents. It had been in the family for generations and the sisters lived there on and off, through marriages and divorces, and while caring for their parents and a great aunt. At the time, both were content to be single. The sisters decided to raise their five children together; Sylvie earned a good living and her sister worked at home taking care of their kids. While Sylvie’s two children enjoyed the benefits of her health insurance, they had to purchase coverage for her sister, niece, and nephews, as they were not eligible for coverage under her family plan. It is this sort of arrangement that highlights the problems of narrowly defining families and tying benefits such as health insurance to marriage.

Across millennia, marriages have been blessed by an intermingled set of religious and state authorities, but there is nothing that makes it an inherently civil matter. In the name of separation between church and state, such relations could be designated “civil unions” while the term “marriage” would signify a strictly religious affair. Legal scholar Martha Fineman has argued that state-sponsored marriage ought to be replaced with private contracts between two or more individuals whose relations would be governed by their own legally binding needs and desires.

This is a moment to take stock of not just how far we’ve come in terms of gay rights and recognizing family diversity, but to notice how far we still have to go. Kramer’s decision will, of course, be challenged vigorously by conservative groups. But if, in the long haul, this ruling is a turning point in rethinking marriage as an institution, it’s truly a time to celebrate.