Semantic Nonsense

The argument over gay marriage continues, and I’m going to post what may be the longest article I’ve ever posted. It’s on that subject, giving my thoughts on why this whole thing is such a nonsensical argument and why civil unions for same sex couples are not only unequal, but how they are hopelessly inadequate.

When my wife and I got married we had a ceremony in a church with a priest, quite a lot of people and music. We made vows to love and be faithful, we invoked God as part of the union, most of the women cried and then we walked down the aisle. After all of that was finished the priest said “We have some business to take care of” and we retired to a small room with the priest, best man, and matron of honor. We all signed a bunch of documents which the priest then filed with the State of California.

Sound familiar? Sure it does. Everyone who has been married in any church has been through that routine, engaging in two entirely separate ceremonies on the same day, one following immediately upon the heels of the other. They are two different processes involving entirely different concepts and, unhappily, both of them are called “marriage.”

For the sake of clarity, I’m going to refer to the first one, the one in the church with the music and what have you as “marriageC” for church marriage, and the second one, in the little room, as “marriageD” for the documents that are involved in it.

In the first ceremony the priest was functioning in his capacity as a representative of the Episcopal Church and a delegate of God because we chose to make this a religious ceremony involving that church. Note here that I spoke of the vows of love and faithfulness, as these vows are usually considered an important aspect of marriageC.

In marriageD the priest was functioning as an official of the State of California, and was overseeing us as we entered into a legal agreement between us involving power of attorney, property rights and other legalities. There is nothing in that agreement about love or faithfulness, and the priest was signing it purely in his capacity as a state official.

In our society today any heterosexual couple can elect to have marriageD, or marriageC, or both. Unless, that is, your church won’t let you.

The Catholic Church doesn’t recognize divorce, so if you get divorced you are still connected by marriageC but not by marriageD. If you remarry the Catholic church does not recognize that marriage so you are not single in marriageD terms but you sort of are single by marriageC terms, except you’re still sort of marriedC to your first spouse. I have no first hand knowledge, but I’m sure there are other churches with similar and other issues regarding the permissibility of marriageC.

Everybody was perfectly content with that, with churches discriminating on no real apparent legal basis and with people being married but not really married, until two men announced that they wanted to get married. At that point religious fundamentalists took up the hue and cry and something approaching a civil war has erupted.

Over what, precisely?

No one has suggested that any church must accept in its marriageC definition the union of same sex couples. Churches would be entirely free to grant or deny the marriageC ceremony to same sex couples, just as the Catholic Church denies it to some heterosexual couples today.

The argument is over whether or not same sex couples should be allowed to enter into the legal contract which we call by the same name. It is not the same thing, however; it is merely a contract that says, “This is the person whom I choose to make decisions for me when I am incapacitated. This is the person with whom I choose to share my property.” Etcetera. It is a legal contract between the parties and the state, and has nothing whatever to do with any higher power or religious belief.

So when you hear someone say that they think the government should just limit itself to “civil unions” for everybody and leave marriage up to individual churches, tell them that that is exactly the way we are presently doing it, except that we use the word marriage for both of them.

There are plenty of cases in the English language where we have two different things that go by the same name, and we don’t seem to have any huge problem with them. (The fact that they are called “homonyms” is a bit unfortunate, here.) Take the word “bank” for instance. You don’t freak out and ask your friend why in the hell he would bury his money alongside a river, do you?

We use the same word for two different institutions because our law is derived from English Common Law in which, at one time, the Church of England was the “established” church and the two issues were not separate. But they are entirely separate in America today.

Some couples choose to get married, marriageD, by a Justice of the Peace and never engage in marriageC at all. There are cases where a couple will choose to engage in a marriageC and not in a marriageD and, in fact, if one is a member of a church willing to do so a same sex couple could do that very thing today.

That is no solution to the problem, though, because that couple would not have the same legal rights as my wife and I do, and that is the point of the argument. Why should a same sex couple not be allowed to have those same rights?

Pat Robertson applies the “one man, one woman, for the purpose of procreation” definition to both forms of marriage. (Perhaps because he has difficulty distinguishing between church and state, but…) His argument of applying that definition to marriageD gains some credibility from the fact that a child which is the product of a marriageD contract inherits from the father, while the child produced without the benefit of that contract does not.

However, the right of inheritance is not spelled out within the marriage contract, but is spelled out in other laws with marriage being referenced in those laws as a status being needed for those laws to apply in a certain manner. If the status of marriage does not exist then those laws are applied in a different manner.

That is because we carry out the marriageD contract by having the state confer upon us the status of marriageD that requires that various other laws be carried out in various ways. The rights of marriageD are not enumerated rights, but are inherent rights conferred by the status of marriageD in the application of all of the other laws of the state within which the marriedD couple lives.

One of the inherent privileges conferred by the status of marriageD is to have the father’s property passed on to the children in the application of the state’s property laws. Not marriage laws, property laws. (Pat Robertson translates that to “a license to procreate.”) A same sex couple would in many cases, but not all since some will adopt, not be choosing to use this privilege. Does this render them ineligible for the status of marriageD?

Citizenship is another issue which confers inherent rather than enumerated rights and priveledges. One of those is the right to run for public office, something which the vast majority will never do. Should they therefore not be eligible for citizenship because they will not be exercising one of the privileges of that status?

So the fact that a same sex couple cannot procreate is a nonsensical reason for refusing them the status that we grant to others. Besides which, many heterosexual couples engage in marriageD without having the slightest intention (and in some cases ability) to procreate.

Since the rights and privileges of marriageD are inherent rather than enumerated, the use of “civil unions” is utterly unworkable. To make that status equal would require going through every single state law and changing every single reference of “married” to read “married or engaged in civil union.” Absurd. If you missed even one instance, then the “civil union” would not be equal.

The alternative would be not to expect a “civil union” to have inherent rights and then list all of the state laws and apply them as enumerated rights and privileges in the status conferral rather than changing laws. That process is even more absurd, because then the status would have to be amended every time a new law is passed.

And what happens if the couple moves to a different state?

I have always thought that it was required that all states honor marriageD status conferred by all other states, but I can find no reference indicating that such is the case. Certainly that has always been done prior to this issue arising, perhaps merely as a point of common understanding, and certainly things would be chaotic as all hell without it. Otherwise a couple would have to perform a new marriageD every time they moved to another state. As far as I know all states honor do the marriageD status conferred by other states for heterosexual couples today.

To summarize, there is no valid reason not to grant marriageD to any couple based on gender; none whatever. The screaming and yelling is occurring because churches, not all churches but only some churches, do not want to grant marriageC to same sex couples, when the discussion is about marriageD and no one is even talking about marriageC. Churches who want to grant marriageC to same sex couples can already do so and churches who don’t want to don’t have to, and that will remain true no matter what happens with marriageD.

So why is the religious argument even in this thing? Because the antagonists cannot tell the difference between fishing from a bank and putting their money in a bank.