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[sorta OT] Essence of Marriage and Equality (same-sex marriage article)

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  • Shane
    This Article was sent to me by my Mother. I found it so interesting I decided to send it to the group hope you enjoy! I hope no one minds. ...
    Message 1 of 1 , Feb 22, 2006
      This Article was sent to me by my Mother. I found it
      so interesting I decided to send it to the group hope
      you enjoy! I hope no one minds.

      > The Essence of Marriage and Equality: The New Jersey
      > Supreme Court
      > Considers Same-Sex Marriage
      > By SHERRY F. COLB
      > ----
      > Wednesday, Feb. 22, 2006
      > Last week, the New Jersey Supreme Court heard
      > argument in Lewis v. Harris. The case asks whether
      > the State Constitution's guarantee of equality
      > requires New Jersey to permit gay couples to marry.
      > The state intermediate
      > appellate court last year ruled against the
      > plaintiffs, holding that the
      > legislature may decide whether or not to extend all
      > of the benefits of
      > marriage to gay people.
      > The issue of same-sex marriage may now force the
      > highest court of New
      > Jersey to confront important questions about what
      > "marriage" and
      > "equality" really mean.
      > What Is The Essence of Marriage?
      > To determine whether limiting marriage to
      > heterosexual couples violates
      > anyone's equality rights, it is necessary to define
      > the "essence" of
      > marriage. When people assert a previously
      > unrecognized right to marry,
      > they implicitly embrace the proposition that
      > whatever distinguishes them
      > from legally married couples is not relevant to the
      > essential meaning of
      > marriage. They can then join the institution without
      > effectively
      > dismantling it.
      > To give an outlandish example of departure from the
      > marital "essence," if
      > John Doe were to head to City Hall - in New Jersey
      > or elsewhere - and
      > attempt to marry himself, he would face serious
      > obstacles. He would find
      > it similarly impossible to marry his pet goldfish.
      > Societies around the
      > world view marriage as requiring that there be a
      > relationship between
      > different parties (and therefore, that John Doe
      > marry someone other than
      > himself) and that all members of the relationship be
      > human. So far as I
      > know, moreover, there is no constituency for
      > challenging either of these
      > two core marriage requirements.
      > Though John Doe's two hypothetical weddings are
      > unlikely to qualify under
      > anyone's notion of what constitutes a marriage,
      > however, other examples
      > may prove more difficult to exclude out of hand.
      > Marriage and Sexual Taboos
      > Consider polygamous relationships. At the present
      > time, fundamentalist
      > Mormons continue the practice of what is known as
      > "celestial" or plural
      > marriage. Yet no state in this country permits a
      > person to marry more than
      > one other individual. A majority of Americans appear
      > to view marriage as
      > essentially a two-person commitment.
      > Other examples of people viewed as perhaps
      > inherently unqualified for
      > marriage, are sibling relationships, parent/child
      > relationships, and -
      > crucially for our purposes - relationships between
      > two people of the same
      > sex.
      > Column continues below ?
      > What the second set of examples all share is that
      > they involve
      > relationships that - quite apart from whether they
      > are recognized by
      > marriage - trigger moral taboos of various
      > strengths. Living with more
      > than one spouse violates current norms, both
      > religious and secular, about
      > sexual fidelity to one partner in marriage. And
      > taboos against incest and
      > homosexuality are similarly familiar.
      > Gay marriage does, however, seem less troubling to
      > many than these other
      > examples of taboo relationships. Indeed, opponents
      > of gay marriage like to
      > cite incest and polygamy as points further along the
      > slippery slope down
      > which society will eventually descend if it permits
      > same-sex couples to
      > marry.
      > And as of the U.S. Supreme Court's decision in
      > Lawrence v. Texas, states may no longer criminally
      > prohibit gay couples from having sex.
      > The Court has evidenced no similar inclination to
      > invalidate criminal laws
      > banning incest and polygamy.
      > To find a right to marry siblings or to marry groups
      > of people, then,
      > would require the Court to recognize, first, that
      > such relationships are
      > legitimate enough not to be subject to criminal
      > penalties. For gay
      > couples, the Supreme Court has already taken this
      > first, and critical,
      > step.
      > If same-sex coupling is not a threat that state
      > governments may address
      > through the criminal law, then one can argue with
      > greater force that
      > same-sex dyads really are - for all practical
      > purposes - just like
      > heterosexual married couples. If so, then there is
      > no good reason for
      > prohibiting such pairs from marrying.
      > Is Sex Essential To Marriage?
      > When debating the question of gay marriage, one of
      > the "essential"
      > characteristics of marriage that often goes
      > unstated, is that it be
      > between two people who are sexually interested in
      > each other. Though not
      > an official requirement, it is expected and
      > implicitly understood. This is
      > in fact why the various taboo relationships
      > mentioned above would also
      > make for taboo marriages: married people are
      > expected to have sex, and
      > people who should never be having sex with each
      > other (like siblings or
      > other people's spouses) must accordingly refrain
      > from marrying each other
      > as well.
      > But what if people with no intention of having sex
      > with each other wish to
      > marry? As a practical matter, a married couple is
      > free to decide how often
      > or even whether it will engage in sexual relations.
      > Some couples have sex
      > very frequently, while others go for months or years
      > without sharing
      > sexual intimacy. If two people have a reason for
      > wanting to be committed
      > to each other for life, but have no desire to have
      > sex with each other,
      > they can marry without anyone's taking (or even
      > having occasion to take)
      > notice.
      > Notwithstanding the ease with which a couple might
      > hide its disinclination
      > for sexual congress, though, the law nonetheless
      > assumes and expects that
      > married couples will have sex, and structures its
      > explicit requirements
      > accordingly. Thus, if a brother and sister are
      > deeply committed to each
      > other in platonic love and affection and want to
      > live together for life,
      > they may do so, but they cannot marry.
      > They cannot marry because it will either be the case
      > that (a) they
      > actually do plan to have sex as part of their
      > marriage, and such a sexual
      > relationship is prohibited to siblings, or (b) they
      > really do have no
      > intention of having sex, and marriage is essentially
      > a relationship that
      > includes sex.
      > Even if siblings stipulate that they will never have
      > intercourse, and that
      > they feel no desire for each other, the law will not
      > grant them a marriage
      > license. Sex and marriage go together.
      > Are Children Essential to Marriage?
      > Christian groups opposing gay marriage have asserted
      > that the only reason
      > the government has an interest in licensing marriage
      > at all, is that
      > people who marry can have children. Therefore,
      > opponents conclude,
      > marriage ought to be unavailable to same-sex
      > couples.
      > There are two ways in which one might understand
      > such an argument. First,
      > two people of the same sex cannot, biologically,
      > create a baby who is
      > genetically the child of both members of the couple.
      > While this is no
      > doubt accurate, though, it does not apply solely to
      > same-sex couples but
      > to any couple in which one or both members is
      > infertile. A man who has had
      > a vasectomy is no more qualified to marry a woman -
      > under this rationale -
      > than two people of the same sex are to marry each
      > other.
      > Furthermore, people can have children in a variety
      > of ways, including
      > sperm or egg donation, surrogacy, and the adoption
      > of a biologically
      > unrelated child. Few people would seriously suggest
      > that heterosexual
      > couples who plan to embark on such alternative forms
      > of parenting ought to
      > be denied the benefits of marriage. Nor would they
      > suggest that the many
      > married couples who have no intention of having
      > children at all be denied
      > the right to marry. Ordinary biological reproduction
      > is simply not viewed
      > as an essential ingredient of marriage.
      > Enemies of gay marriage may, of course, have another
      > purpose in suggesting
      > that marriage is for children. It is that the
      > benefits of marriage are
      > intended to encourage and help people to form
      > families in which they will
      > care for children, however those children might be
      > conceived. Opponents of
      > gay marriage may be suggesting, then, that even if
      > sexual intimacy is
      > generally be the business of consenting adults (a
      > concession,
      > incidentally, that most of them are loath to make),
      > one's conduct in a
      > home with children is very much the business of the
      > State. And the State,
      > under this approach, should be concerned about
      > allowing or encouraging
      > same-sex couples to make homes and families for
      > impressionable children.
      > Sexual Morality: The Ultimate Basis of Arguments
      > Against Gay Marriage
      > So it all goes back to morality -- just as the
      > original criminal bans on
      > gay sex, now constitutionally defunct, rested on
      > alleged moral
      > imperatives. It is not that marriage is
      > "essentially" a relationship
      > between a man and a woman.
      > If there is a potentially flawed essentialism about
      > marriage, it lies in
      > the contention that marriage and all of the benefits
      > that attach do not
      > extend to explicitly nonsexual unions, a point made
      > compellingly by Martha
      > A. Fineman in her book, The Neutered Mother, The
      > Sexual Family, and Other Twentieth Century
      > Tragedies. Gay and lesbian couples, by contrast to
      > the neglected non-sexual
      > families, fit quite nicely into the existing
      > marriage paradigm. They
      > include two people who are sexually interested in
      > one another, and the
      > sexual relationship at issue is no longer subject to
      > criminal penalties.
      > When opponents argue that a gay couple is not suited
      > to raise children,
      > they are simply re-litigating the argument that
      > sexual intimacy between
      > two women or between two men is morally wrong. If
      > two older siblings were
      > to undertake the parenting of their baby brother
      > after their parents died
      > in a plane crash, for example, no group would likely
      > say that the siblings
      > are inherently unfit to care for the baby. But when
      > two women or two men
      > are married, then their children "know" (in the way
      > that children of
      > heterosexual parents allow themselves, in moments of
      > disgusted
      > acknowledgement, to know) that their parents have
      > sex, and - according to
      > anti-gay-marriage activists -- children should not
      > live in a home of such
      > iniquity.
      > The argument should be a losing one, now that the
      > Court has decided Lawrence. The State can no longer
      > punish gay people for their intimate,
      > consensual, sexual activities. And one must, in
      > candor, recognize that
      > locking same-sex couples out of an institution to
      > condemn the "sinfulness"
      > of their relationships punishes those couples, along
      > with their children.
      > Though the New Jersey Supreme Court may not be ready
      > to do the right thing
      > in Lewis v. Harris, the truth about existing law
      > will become increasingly apparent and
      > ultimately decisive: The requirement of male/female
      > couples for marriage
      > is premised on a vicious and sectarian animus toward
      > an innocent group of
      > people. Our gay and lesbian citizens deserve better.
      > Sherry F. Colb, a FindLaw columnist, is Professor
      > and Frederick B. Lacey
      > Scholar at Rutgers Law School in Newark. Her other
      > columns may be found in
      > the archive of her work on this site.

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