Granting Marital Rights Without Legalizing Same-Sex Marriage

Lots of interesting things are happening on FaceBook these days, at least within the realm of reactions and discussions vis-à-vis the United States Supreme Court legalizing same-sex marriage. A friend shared her friend's thinking on the subject, noting that these thoughts echoed her own sentiments:

I'm not against all people in this country having equal access to insurance, retirement, property rights, inheritance, and all that. In fact, I'm all for it. What I am NOT for is having all of those rights and privileges tied to the definition of marriage. A definition which no government has the authority to change, since no government was responsible for instituting it.

I thought this an interesting statement because it got me thinking about how spousal rights would be granted to non-spouses. There are civil partnerships or common law marriages, but I don't know if those grant the same level of rights that full-on legal marriage would provide; these rights might differ from state to state, and I'm not entirely sure whether each state even has the option of civil partnerships or endorses common law marriage. Marriage within the confines of a religious establishment is usually legal, although there are exceptions; polygamists, for example, tend to have multiple wives, although one is only legally married to one wife at a time.

My friend noted that she believed that marriage should never have become part of the legal system, but I wonder if that means that even heterosexual marriages should not have become part of the legal system. It has, however, become part of that legal system. I'm sure there are people out there who call themselves "married" without actually being legally married, but they're not granted the same rights as legally married couples.

For many, marriage is so intrinsically tied with religion that the religious definition of marriage is the important one. I can't argue that; I was married in a Catholic church, and I wouldn't have considered my own marriage valid unless I had done that, but I know others feel differently. (In a previous blog post, I worked my way through how we define the validity of marriage.)

So this comes back to how we might grant spousal rights to couples without their being married. I like this question; it gives me something to think about. I certainly have no background in law so I don't know if there's a way to grant those rights without having legalized same-sex marriage.

What Makes a Marriage Valid?

In many cases, I'm seeing people view the Supreme Court's legalization of Same-Sex Marriage (SSM) as either a civil rights issue, a religious issue, or both. (For the purposes of this blog post, I'm focusing on those two aspects.) This leads to the question of what actually makes a marriage valid.

Is it being married by anyone who is legally permitted to perform the ceremony? Is a marriage valid only if a couple is married in a house of worship? Is that marriage valid only if that marriage takes places in your house of worship? Ed and I were married in a Catholic church; would our marriage be considered invalid because we were married in a church of a different Christian denomination, or in a Jewish Synagogue, or a Mormon or Buddhist Temple, or a justice of the peace?

My brother and sister-in-law were married by a justice of the peace, as was my a cousin and three friends. Others I know were married by members of the clergy but not in places of worship. The last wedding that took place in a house of worship - a wedding to which I was invited - was more than 20 years ago. Are these marriages invalid because they weren't in places of worship, or married by someone of who is not a member of the clergy?

Legally, any recognized member of the clergy, a judge, a court clerk, and justices of the peace have authority to perform a marriage (one can become an ordained minister thanks to an online ordination process through the Universal Life Church), although in some states have laws that permit other persons to apply for authority to perform marriage ceremonies. In South Carolina, for example, notary publics may perform the ceremony.

In Pennsylvania, where Ed and I got married, persons may marry themselves if they obtain a certificate from the clerk of the orphans' court, although each marriage license bureau has different requirements. (We got married in a Catholic church, where the thinking is that we marry ourselves; the priest presides over the ceremony. Historically, a couple would promise verbally to each other that they would be married to each other; the presence of a priest or witnesses was not required. This promise was known as the "verbum" and was unquestionably binding.) Although we married in Pennsylvania, we live in Utah, where "[m]inisters of the gospel or priests of any denomination who are in regular communion with any religious society may perform marriages."

Cousin marriages (when both parties are above a certain age, and/or can prove sterility) are legal in Utah, since apparently "many cousins do get married in their senior years.") Arizona, Illinois, and Minnesota also allow first cousin marriages with certain conditions such as sterility and/or age, while Maine considers this a civil violation. In some states (California, Hawai'i, Alaska, New Hampshire, Florida, Massachusetts, and other states), marriages between first cousins are outright legal, while in other states (Pennsylvania, Delaware, Arkansas, Texas, Washington, and others) marriage between first cousins are not legal. Am I to consider cousin marriages invalid, then, because they're legal in some states but not in others, or because I wouldn't want to marry my cousins? (They're lovely people, by the way.)

So who does validate the marriage between two people? If the government legalizes a marriage, but it's not the way I "would have done it," that does not invalidate the marriage. The only two people who validate an otherwise legal marriage are the people who are in that particular marriage. Personal disagreement over whether those people should be legally permitted to be married is not your decision to make.

Traditional ≠ Right; Untraditional ≠ Wrong

Same-sex marriage was legalized in the United States today, and it got me thinking. My social media feeds are mostly filled with messages of support. There were very few religiously-minded friends (notably both practicing Mormons) who "liked" pages in which official message of disapproval were voiced by the LDS; my other religiously-minded friends tended to simply stay quiet.

I, however, am vey much in support of same-sex marriage.

"Traditional" anything is not necessarily always the best thing, just like "untraditional" is not necessarily always the worst. One could flip those, too, of course; "untraditional" is not always the best, just like "traditional" is not always the worst. I've noticed that we often use "traditional" or "untraditional" (or "nontraditional") to promote acceptance or disapproval, which presumes that either of these terms are wholly good or bad.

The problem is when one defines "traditional" marriage as the only way, simply because that's how one was raised, and uses those definitions of "traditional"/"nontraditional" to limit or deny others' rights. "Traditional" marriage is, I see, being used by more conservative, religious people who argue that marriage is Biblically-based, and is and should remain between one man and one woman for the purposes of the propagation of children.

There are problems with that, of course. Not everyone in a "traditional" marriage has children (for many reasons, some of which are of their own choosing, but many of which are not); some couples should not have children. "Traditional" marriage can be too narrowly defined, especially if gender roles and expectations are at the heart of the marriage. That can be just as damaging to everyone within a family, especially if one does not fit easily into those stereotypes, if one wants something different for oneself. There are women I know who delight at being stay-at-home mothers, whose husbands make the primary financial and family decisions, who are the head of the house. If that's the choice that's made within the family, there's nothing wrong with that. That is not the kind of marriage I want, though, and it would really chafe if those roles were expected of my husband and me.

I don't want a traditional marriage. I don't think I'm in a traditional marriage: I have more education than my husband; I work (and in a career that requires an advanced degree); I don't have children; I would not find satisfaction and fulfillment in being a housewife. It is not solely my husband's job to provide financially for our family. (And thank goodness I have the capacity to provide solely should something happen.)

There is absolutely nothing wrong with being as educated as one's husband, or one's husband being more educated; similarly, there's nothing wrong with choosing not to work, with raising children, with being a housewife; not every choice is the best one for each family or individual, and these choices are often made within the confines and in the best interest of individual families. However, to expect others to choose the same "traditions" that you do simply because of "tradition" is a very narrow view.

More damage is likely to occur if someone divorces multiple times, or practices polygamy. (That's another discussion right there, isn't it: Whether the Bible traditionally "allows" divorce or polygamy and whether those practices are still accepted.) It's ridiculous to limit the rights of two consenting adults who understand as well as anyone can before getting married what being married actually entails. Presuming that same-sex couples don't have the ability or maturity to enter into marriage because of their sexual orientation is fallacious and ignorant.

"Traditional" and "untraditional" are neither good nor bad; the harm comes when one tries to limit others' choices because of one's owns views. Not everyone should get married, regardless of sexual orientation. (In Catholicism, we consider marriage a calling, just like some are called to the single life, or to have children; they're not universal, unilateral callings.) "Traditional" or "untraditional" (or "nontraditional") should no longer be means to promote acceptance or disapproval.