Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, June 10, 2008

More on friends with benefits (and same-sex marriage)

In response to the thoughtful observations/questions by Elizabeth and Michael, my concern with the push to recognize friendships legally is not so much focused on the good-faith desire to remedy a particular case of injustice, say where a friend cannot gain hospital visitation privileges; my concern derives from the extent to which the push is part of a broader effort to end the law's "privileging" of marriage.  Here's a quote from Laura Rosenbury's paper, Friends with Benefits:

"[A] more radical aspect of this type of proposal would be its rejection of private contracting to readjust the current consequences of marriage determined by the state. Instead, some or all of the benefits, obligations, and default rules currently reserved for spouses would be available alike to spouses, friends, or the other individuals designated. Such a proposal would therefore allow all individuals, not just married couples, to decide how they would like the state to support their personal relationships, if at all. Unlike the current state of the law, marriage or a marriage-like relationship would not be a prerequisite for taking on the packages of benefits, obligations, and default rules provided by federal, state and local governments. Instead, individuals could choose to apply those packages to other types of personal relationships without engaging in private contracting."

For a real-world example of the movement's vision, read the "Beyond Same-Sex Marriage" statement from 2006. 

Participating in a state-registered marriage entitles you automatically to certain benefits and privileges. In my view, participating in a state-registered friendship should not. I support the possibility of allowing individuals to contract with each other or with third parties to attain some of the benefits that automatically flow to married couples. Such contracts do not require the state to elevate friendship as a relationship of equal importance to marriage -- indeed, they do not require the state to do anything except to refrain from invalidating the contracts. I oppose the suggestion that groups of friends should be able to register their relationships and receive a certain set of benefits by operation of law (as opposed to the operation of the agreements they reach on a case by case basis).  Marriage should be privileged because of its channeling function: it calls us to a commitment (or at least should call us to a commitment) that is greater than our own cost-benefit maximizing episodic calculation.

Michael also asks why I assert that "It is difficult to imagine marriage maintaining its privileged status (as I believe it should) twenty years from now if a significant portion of the population is ineligible."  Our society is on the path toward extending full citizenship to gays and lesbians, and I do not think there is anything that can knock us off that path at this point.  I have not seen compelling arguments as to how full citizenship can be maintained without extending the same rights and privileges as heterosexuals enjoy in terms of the state's support of their intimate relationships. (I'm talking about as a matter of politically persuasive justification, not as a matter of constitutional right.)   For those who oppose SSM, the challenge will be to articulate (in secularly accessible terms) a distinction between opposition to SSM and opposition to interracial marriage.  The categorically procreative / biologically unitive argument is unlikely to do the trick.  If the compromise position becomes civil unions for same-sex couples, my fear is that civil unions will become the non-discriminatory norm, and that the state will eventually get out of the marriage business entirely, leaving it as a relic of "illiberal" religious communities.  For some, maybe that's the "least bad" choice, but to me, that would be a shame.

The status quo will not hold.  Gays and lesbians are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles.  The shift in attitudes on homosexuality from my parents' generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next.  From what I've seen thus far, moral opposition to homosexual relationships is just not conceivable to 98% of the law students I've taught.  I don't think a two-tier system is a long-term solution: eventually the most inclusive form of state-sanctioned commitment will win out, either because citizens vote with their feet or because the state decides that it no longer has a legitimate justification for maintaining the two-tier status.  My question is, what do we want marriage to look like 20 or 50 years from now, and what is the most likely path by which it will even remotely approximate that vision?  If same-sex marriage is not an option, what path should we take?


Vischer, Rob | Permalink

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