Letters

From the April 1996 issue

Gay Rites or Wrongs?

David Link's "Gay Rites" (January) is a fascinating look at same-sex marriage and domestic partnerships. While exceptionally instructive on practical reality, it misses the very real issue of the right of the state to determine what constitutes marriage and what terms legally married individuals will confo rm to. The very fact that heterosexuals have ceded every one of their rights to make marital arrangements as they see fit should not be seen as a criteria for gays to do the same.

At present all unmarried couples do have legal methods of ensuring their wishes are carried out. These are typically clumsy and somewhat costly and are a problem that legally wed couples do not face. Yet those remedies exist.

Perhaps a lesser role of the state in marriage arrangements would be a better answer for both gays and straights. Given the American propensity to mind the business of others this would be an unlikely proposition. However, it would be an interesting exercise to imagine a world in which lovers actually decided for themselves what best constitutes a blissful union.

Michael R. Snell
Lake Elsinore, CA

"Gay Rites" missed the whole point of why gay couples seek and deserve legal recognition for their relationships. I am a gay man in a stable and long-term but legally unrecognized relationship with another man. My best friend, Jim, is a heterosexual who is legally married to a woman. If Jim and I both have heart attacks, his spouse automatically gets to make decisions but mine may well be excluded from the hospital. If we both die, his spouse automatically inheri ts and gets his pension benefits but mine doesn't. If we both lose our jobs, he continues to be covered by his spouse's health insurance but I don't. If we are both indicted for a crime, his spouse is immune from testifying against him but mine is not. And finally, his spouse pays no inheritance tax whereas mine will pay through the nose.

Most gay couples frankly don't care about the symbolic, pat-on-the-head social approval that marriage would confer on our relationships. We are much more concerned about t axes, inheritance, insurance, the right to make medical decisions for each other, and so on. Until such inequities are corrected, I don't want to hear one word from the radical right about how gay people are out to get "special rights."

Mel Dahl
Fall River, MA

I was disappointed that your article on gay marriages in Hawaii did not raise the issue of why government should even be engaged in regulating marriages. Marriage is primarily a religious celebration, and a religious rite. As such, government should have no involvement.

Does government have a role in marriage? Only in the realm of contract enforcement, and in protecting the rights and interests of minor children within the family formed by the marriage. This perspective gives an indication of what role government could pl ay: register contracts between individuals, and enforce them. No ceremony need be involved, other than that required for any contract: a signing and witnesses. This would free up religions to do as they wish.

It would also allow f or a variety of model contracts from which people could select: a limited partnership for a set period of time, an "at-will" partnership, or a lifetime partnership not terminable except with the agreement of both parties. Or, the participants could write their own contract, or modify a model.

Such a system would allow companies to define for themselves what relationships they wish to fund--or, better yet, eliminate benefits for families, and give all employees an equal wage and let them fund their relationships. The more relationships can be removed from social scrutiny, the better off we will all be.

Tom Slaughter
Jackson, MI

David Link responds :

A key premise of Michael Snell's argument is that all couples, gay or straight, can ensure their wishes and desires will be carried out, even if the methods are cumbersome. That's not quite true, as Mel Dahl's letter illustrates. Certainly some of the thi ngs Mr. Dahl wants can be accomplished under existing law, such as the right of his partner to make medical decisions for him, or to inherit. Unmarried couples can sometimes get these default advantages most married couples take for granted, depending on the state where they reside. Similarly, some insurance companies do provide benefits for domestic partners. But Mr. Dahl and his partner have a legitimate complaint because they have to depend on the good graces of their legislators and private businesses to achieve an equality that ought to be assumed.

But they have no way at all of "ensuring" (to use Mr. Snell' s word) that they can get pension benefits or certain tax breaks unless and until their relationship is given formal state recognition. It is this quality of being locked out that is most frustrating. Benefits are intended to reward couples who proclaim th eir commitment to one another in what Thornton Wilder called "a mighty public way." Same-sex couples are looked down on because of stereotypes about promiscuity and irresponsibility, and they're--by law --prohibited from doing something that would prove the critics wrong.

I share some of Tom Slaughter's concern about the interrelationships between marriage and religion, more so after discussing the article on a nationally syndicated call-in show and having the Bible quoted to me from five different states. While it's sometimes difficult to separate religious justifications from secular ones, I think it's possible.

And I think we have some awfully good reasons to provide affirmative support for couples who are willing to take the plunge. Or to put it another way, maybe the benefits we get for recognizing relationships are worth the effort. I don't think we need to encourage people to form relationships in the first place, which history and biology both suggest they will do irrespective of what the law says or does. The hard part is usually staying together, and while neither tax breaks nor tort law will be the deciding factor for most couples, I think there's something profoundly good about a society that says we not only value commitment in the abstract, but are willing to put our money where our values are.

Some of those values are enshrined in the Constitution itself. In December, the federal Court of Appeals decidedShahar v. Bowers, mentioned in the article. While the three-judge panel disagreed on some matters, they were unanimous in holding that same-sex couples, like opposite-sex couples, have a constitutionally enforceable right to intimate association that protects them against government intrusion.