Posted by: Randy Allgaier | October 26, 2006

Goin’ To The Shore To Get Hitched, But Don’t Say the M-Word! (A Right- Not a Rite!)


Anyone in the New York metro area, or anyone who has ever lived in the
New York metro area knows that one doesn’t go to the beach or the seaside in New Jersey; you go to the shore- the Jersey shore (said Joisey shoh) to be exact.  Now maybe some of the resorts in Atlantic City or the beaches of lovely Cape May will become honeymoon destinations for gay and lesbian couples but will they be celebrating a marriage or a civil union?

 

Yesterday the New Jersey Supreme Court made history when all seven justices agreed that the state’s Constitution demands full legal rights for same sex partners.  But its ruling, 4 to 3, revealed a split in how to proceed. The majority said that lawmakers, not the court, should decide whether to call those arrangements a marriage, a civil union or something else. The three dissenters went further, asserting that gay couples, like their heterosexual counterparts, must be allowed to wed.

In a decision filled with bold and sweeping pronouncements about equality, the New Jersey Supreme Court gave the Democratic-controlled Legislature 180 days to either expand existing laws or come up with new ones to provide gay couples benefits including tuition assistance, survivors’ benefits under workers’ compensation laws, and spousal privilege in criminal trials.  

 The New Jersey court did not go as far as Massachusetts, which in 2003 became the first state to permit gay marriage. Instead, it could be considered the new Vermont, which created civil unions for gay couples in 2000, in the politically, legally and culturally charged world of same-sex marriage.

 

“Our decision today significantly advances the civil rights of gays and lesbians,” Justice Barry T. Albin wrote for the majority. “We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples.”  

 

But the ruling passed along the thorniest question, of whether true equality demands the same name, to the Legislature, saying “such change must come from the crucible of the democratic process.”

 

While I am pleased that the New Jersey Supreme Court is insisting that New Jersey provide the same level of benefits to gay and lesbian couples as to heterosexual couples, I continue to be perplexed by the volatility around the “M- word” (marriage).

 

In the context of civil law, marriage is a civil union- it does not have any religious meaning in the canon of civil law.  Marriage in religious traditions and in ecclesiastical law has obvious overtones that are guarded by the dogma of the particular religion in question.  We are not talking about making same sex marriage a rite, but rather we are talking about making same sex marriage a right.

 

So if we are really going to be fair here- why don’t we call all unions between couples (straight or gay) civil unions since the Civil Law outlines the rights and responsibilities of said unions and leave “marriage” to the churches, synagogues, mosques and temples?  I mean if we are going to have an argument about semantics let’s have an honest and intelligent argument about the terms civil union and marriage.  But I think there would be a massive revolt in the heterosexual community if we re-difined civil marriage as civil union.

 

Precise definitions of marriage vary historically and between and within cultures: modern understanding emphasizes the legitimacy of sexual relations in marriage, yet the universal and unique attribute of marriage is the creation of affinal ties (in-laws). Traditionally, societies encourage one to marry “out” far enough to strengthen the ties, but “close” enough so that the in-laws are “one of us” or “our kind”. Exception to this rule has been found in the marriages whose aim is to strengthen concentration of wealth and power rather than to create affinal ties. Even in this case, the individual was often encouraged to marry “within” close family limits.  In one form or another, marriage is found in virtually every society. The very oldest records that refer to it speak of it as an established custom. Despite attempts by anthropologists to trace its origin (and test the hypothesis of primitive promiscuity), evidence is lacking. 

In its entry about marriage the on-line encyclopedia Wikipedia begins with this paragraph: 

A marriage is a relationship between or among individuals, usually recognized by civil authority and/or bound by the religious beliefs of the participants. The fact that marriage often has the dual nature of a binding legal contract plus a moral promise can make it difficult to characterize.

That second sentence is where the difficulty lies.  Marriage is seen as a legal contract and a moral promise.  But in my mind it still begs the issue.  In Civil Law, marriage is a binding legal contract- nothing more.  Civil law does not apply to a “a moral promise”- that is the purvue of philosophers, and relgion.  So we have a legal definition and a relgious/philophical definition of marriage. 

A hallmark of the freedoms granted to citizens of the United States is found within the conecpt of separation of church and state.  So the “Moral promise” definition of marriage has no place in the law; therefore marriage in our civil society is a legal contract, pure and simple.  So what’s the problem with calling a union between same sex couples a marriage?  It is the term used in legal documents to describe this legal contract and therefore it should be the term used for all couples entering into such a contract.   

This argument over symantics is asbsurd.  I always thought if it sounded like a duck, looked like a duck and walked like a duck it was a duck.  But I guess in our current society if it sounds like a duck, looks like a duck and walks like a duck it is an elephant.  Let’s just be honest- and call civil unions what they are in civil law- marriage.


Responses

  1. Amen, not too long ago in Court, someone used that phrase, regarding the duck, not only did the judge have a good time with the phrase, (since a duck wasn’t really a duck in that case), but everyone waited around had a chuckle too.


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