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Marriage, Civil Union, and "Same-sex Marriage"
Rick Garlikov

The Massachusetts Supreme Judicial Court ruled that only full, equal marriage rights for gay couples are constitutional, instead of just permitting civil unions. In other words, they ruled that for gay couples to have their full constituional rights, they must be allowed to marry, and that offering them civil unions is not sufficient. This is part of a firestorm over the issue of same-sex marriage that seems to be as much a confusion of language as of psychology, behavior, and law. The Massachusetts Supreme Judicial Court seems not to be immune from the linguistic confusion, writing in a majority opinion: 
The history of our nation has demonstrated that separate is seldom, if ever, equal.
From a linguistic standpoint, their solution will not help, since no matter what we call it, same-sex marriages will not be the same as opposite-sex marriages to people who do not see them as the same, and if "marriage" becomes a term applicable to gay couples, those who oppose such unions will either add an adjective or use a different word altogether to distinguish them from what they consider proper unions. The distinction which Vermont makes between "civil unions" and "marriage" will now simply be changed, in Massachusetts, into the distinction between "gay marriage" and "straight marriage" or "homosexual marriage" and "heterosexual marriage" or "same sex marriage" and "opposite sex marriage", or, more likely the distinction between "gay marriage" and "real marriage". 

In Massachusetts when a person is asked whether s/he is married, s/he will say either "No" or "Yes, I am" and then have to add if s/he wants to be more precise, "to a woman" or "to a man" or will say, "Yes, straight married." No one who opposes gay marriage or who wants to distinguish between it and what they consider "real" or proper marriage (between a man and a woman) will be hampered from finding a linguistic way to do that, any more than we are now hampered by characterizing straight relationships in ways other than simply married or not married, by terms such as: single, divorced, separated, dating, engaged, living together, going steady, estranged, etc. when they want to make such a distinction. Nor will calling same-sex marriages "marriages" make them more accepted by those who think they are wrong. 

Words can always be found that will either describe a relationship more clearly or, if desired, mask the relationship, as when people who are unhappily married and who have long been miserable in their marriage answer simply that they have been married 35 years, implying that to be a good thing or something to be proud of. But simplistic phrases do not really say much about relationships, other than to characterize their legal status. Unhappily married partners have legal rights and obligations that unmarried but happily long committed partners do not have. But that does not mean they have a better relationship. 

That is the language usage of the matter. But there is an underlying conceptual issue which influences how language is used. Marriage is a concept that covers a whole cluster of different elements, some of which change over time and many of which are not clearly delineated or defined at any given time. Until the gay rights challenge, the concept of marriage itself was not seen to be a problem even though there were questions about which elements ought to belong to the concept of marriage, either legally or culturally. For example, it has only been fairly recent that spousal physical punishment or abuse has been begun to be seen, not as a private matter between a man and his wife, but as a crime which the police, and, in some cases, private individuals have a right and duty to prevent and which the state has a right to punish. And though it is not part of any "definition" of marriage nor of any legal requirement, "living together" (apart from special circumstances) and caring for each other in various ways are typically considered part of the concept of being married. If a married couple lived in separate homes in the same city and seldom saw each other, most people would say they are not "really married".  Little kids often say they want to marry their mom or dad when they grow up because they see marriage as a living arrangement with caring and love involved. 

Legally, marriage creates a partnership between two people (or more than two, in societies where bigamy or polygamy is legally sanctioned) that involves many different obligations and rights or entitlements, only some of which may be known by those getting married until, and unless, a situation arises that brings them to light. These obligations and entitlements can change without the concept of marriage itself changing, as when Congress changes the income tax assessments for married couples as opposed to those couples who simply live together, when company’s add or remove family benefits, when privacy laws change so that individuals may or may not obtain information or make changes in various accounts (even household accounts) a spouse originated, or when "ethics" laws change regarding spouse incomes or change the criteria for illegal nepotism. The main impetus for civil unions was so that same-sex couples could have an easy and convenient ("one stop") way to secure the legal rights and obligations married partners have without having to have attorneys draft each element separately, where that was even possible. 

These kinds of issues are not just peculiar to marriage. They pertain to other family relationships as well, such as parental rights or grandparent rights. Colleges today will not send students’ grades to parents unless the students give permission for them to do that. When a parent calls any college office about some matter such as financial aid, grades, counseling, or whatever, s/he never knows ahead of time whether s/he will be able to get information or make changes or not. Even if a parent overpays for something, or seeks a refund for something, the refund check will be put in the student’s name and sent to the student, in many cases. 

From a legal standpoint, marriages are simply a kind of legally recognized partnership, often referred to as a form of domestic partnership. And legal partnerships simply bestow legal rights and obligations on members who enter into them. What rights and obligations ought to be conferred on any partnership is often a complicated matter and sometimes changes in response to various social and technological changes, and as different needs and opportunities arise. 

But there is one particular legal right which marriage bestows or seems to bestow, and which society legitimizes or seems to legitimize in bestowing it, that causes the furor with regard to same-sex unions. That is the legal legitimization of sex in certain relationships, and therefore in same-sex unions, the legal legitimation of homosexuality in certain relationships. No one cares about same-sex roommates in colleges, soldiers in barracks, or about brothers sharing a room in their parents’ home or about male friends or brothers sharing an apartment together when they are bachelors. In fact, most people say that is right and that such living arrangements between opposite sexes would be wrong. No one cared about the living arrangement between Felix and Oscar in the Odd Couple on television or between the brothers on the tv show Two and a Half Men. No one cares when two men or two women form business partnerships. What many people care strongly about is legally condoning private sex between people of the same sex. They do not want to do that and they do not want society to do that. And they believe that same-sex marriage would do that because marriage, in part does that for heterosexual couples. 

But even this is not as simplistic as it seems. Marriage today does not legitimize forced sex (rape) with a spouse, or sex with a spouse in a public place. Nor does marriage require sex. Marriage simply allows private sex between adults who are married to each other and who consent at the time to having sex with each other. But sex is not necessary for marriage, even for a good marriage. And the role of the relationship between marriage and sex has changed as pre-marital and extra-marital sex (and resulting "illegitimate" children) have become less socially taboo or less legally policed or enforced, and as divorce has become easier and more pervasive, negating the strength or duration of the commitment and security it once entailed. 

There was a time when marriage made sex morally acceptable because it was assumed to be a necessary and sufficient life-time commitment and partnership in which children (and women) would be provided for when sex led to pregnancy. But with changes in parenting laws, paternity laws and scientific determinations of paternity, divorce, and other areas that relate to parenting and marriage, birth control availability and effectiveness, availability of abortion, and even the acceptance of women in the workplace so that they have a measure of economic independence, the rationale for marriage as being necessary or sufficient for the legal and social care of children has been altered or lost. Unmarried parents can be identified and their parental obligations legally enforced. Married parents cannot be seriously expected to remain a couple or to meet their children’s needs any more than unmarried parents. Much of what marriage has meant in the past is no longer tenable to expect today. 

However, regardless of past social, parental, and economic reasons for legitimizing sex between consulting adults, and regardless of taboos or legal sanctions that are no longer in place, for most people in our society, marriage is not about two people simply living together and having some sort of family or economic partnership, but it is about publically legitimizing their right to have private, mutually consenting sex. And many people in America do not think it is right for society to condone or give consent to the legalization of homosexuality because they believe homosexuality to be morally wrong. Even many of those who do not want to punish homosexuality or make it a crime do not wish to promote it or publicly authorize it as merely an acceptable choice, because they do not want to encourage children to be or become homosexual if role modeling or (the appearance of) social acceptance has anything to do with that. 

Allowing domestic partnerships and civil unions bestows legal rights without necessarily bestowing sexual rights or without giving the stamp of approval to homosexuality. But granting same sex marriages would be essentially to say that society condones and encourages homosexuality. And most people will not accept that. That is why they oppose same-sex marriage. And it is why they oppose, in many cases, even civil unions because they see civil unions as blessing and promoting homosexuality and not just bestowing particular kinship or partnership rights which have nothing to do with sex. 

That is the linguistics and the legality of the matter. The psychology of it is something else and is quite complicated. Accepting the legality of homosexual unions, regardless of what they are called and regardless of what legal rights and responsibilities they entail, is not necessarily to approve of homosexual unions any more than is recognizing your daughter (or son’s) marriage means you approve of her husband (or his wife). Nor do many of us approve of all marriages. Even in regard to straight marriages, not everyone considers every marriage to be either a blessing or an acceptable relationship. However, while individuals can register such disapproval of a particular marriage, it is difficult or impossible for society to register such disapproval of any particular kind of marriage that it legally permits. Individuals and groups, of course, can show adamant rejection of homosexual marriage just as they can show hostility toward mixed race marriage between blacks and whites or sometimes even between interfaith couples, but if society legitimates such marriages, individual or even cultural disapproval of it is attenuated or vitiated, especially in regard to influencing children. 

Another aspect of the psychology, even in talking about "straight" marriages, is that of distinguishing between a religious (straight) wedding ceremony and a civil (straight) wedding ceremony. There are many people who do not think people are "really" married if they "only" had a civil ceremony. Many a parent today insists on a religious ceremony for children who have announced they eloped and had a civil ceremony. On the other hand, Americans today tend to recognize as "the same" for all legal, social, and psychological purposes, marriages that were performed in different religious ceremonies, so that people married in a Catholic or Protestant or Jewish ceremony are all considered by most people in America to be married. That is not true, however, for some aspects pertaining to dissolution of marriage. Most non-Catholics (and many Catholics) mock the idea of Catholic "annulments" of long time marriages with many children that Rome distinguishes verbally from "divorce" which is not recognized by the Church. To many people calling such terminations of a marriage an annulment rather than a divorce is a distinction without a difference. And because the Roman Catholic Church does not recognize divorce, it considers many people to be married that American society considers to be divorced, and thus not legally married. 

Legally, what is important is what rights people should have in regard to each other – as in next of kin rights, inheritance or family government and job benefits rights, etc. – not what we call the relationship. Especially if what you call the relationship is not what someone else would call it. And if the legal terminology is odious to people, they will make a distinction between "legally married" but "not really married" just as they now make the distinction between "legally innocent" and "not really innocent" in cases where they believe judges or juries gave mistaken trial verdicts. 

The Supreme Judicial Court of Massachusetts, in a much quoted explanation, wrote: "Barred access to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions." But this is a justification for bestowing on same-sex couples the non-controversial (perhaps meaning the non-sexual) rights of marriage, not necessarily bestowing upon them the terminology, or the psychological acceptance of that terminology, of being "married". It is not the illegality of same-sex marriage that makes most people object to homosexuality; it is the rejection of homosexuality that makes most people object to legalizing same-sex marriage. Allowing gays to marry will not make their unions cherished; it will simply make "marriage" no longer a cherished institution. It will transfer what is cherished to "straight marriage" rather than just to marriage. And children will have to be taught that any references in literature written before 2004 to "marriage" will have meant "straight marriage", not what is called marriage after 2003. 

Morally, what matters is simply how people treat each other and what obligations, responsibilities, and rights they actually have toward others regardless of what the legal relationship is. It is a moral issue whether homosexuality is right or not, and why or why not, and whether even if it is considered to be acceptable it should be legalized or not, or given a civil stamp of approval by allowing same-sex marriage or not. This essay is not meant to argue for or against homosexuality, but to try to explain and separate all the different issues involved in the concept of legalizing same-sex marriage. 

Finally, there is one particularly really odd judicial rationale for Supreme Judicial Court’s decision – a rationale that seems to confuse law with linguistics: 

The state "has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples," the court wrote.
While the state may not have identified (or be able to identify) any moral or constitutional grounds for denying the rights accompanying marriage to same-sex unions, there is no need to identify a constitutionally adequate reason for denying the term "marriage" to same-sex couple, any more than there is a need to identify a constitutionally adequate reason for denying the term "marriage" to people and animals or to people and their computers. The law is not about having to justify terminology, and if anything, the law often misappropriates common terminology as in calling people "innocent" or "not guilty" just because they were not convicted. Not being convicted of a crime is not the same thing as being innocent of a crime. The law also, as it stands now, does not consider harming someone, in the workplace, on the basis of racial hatred to be "discrimination" if no one of the opposite race is given a benefit in his place, nor if the people who harm him are of the same race. So even if black supervisors favor white workers, they are not legally discriminating against black workers they reject in order to promote less qualified white workers. The legal definition of "discrimination" is not the normal use of the word in everyday life. It is a misappropriation of a normal term. 

The reason there is no constitutionally adequate reason for denying the term "marriage" to same sex couples is that no one would have ever thought one would have had to legally register a common term to ensure it kept its meaning. The court may as well have said there is no adequate constitutional grounds for denying calling gasoline "milk", or "up" to mean "down". While there are all kinds of reasons not to change language by using words in new and unusual or opposite ways, I doubt many of them have some grounding in any state constitution. 

On the other hand, the call for a constitutional amendment to define marriage as the relationship between one man and one woman as husband and wife is also to confuse legal issues with linguistic ones. The battle to appropriate the meaning of a historically common word, as opposed to the battle to distinguish what legal and moral rights various kinds of couples ought to have, trivializes the issue and makes a mockery of what the law ought to be about. Constitutionally defining "marriage" will not resolve the issue of what sorts of relationship behaviors the law has a moral right to accept or reject, to condone or deny. 

And, as I said earlier, it will not matter linguistically anyway, since even if same-sex couples win the right to the word "marriage", heterosexuals will just find some other way to designate the distinction between same-sex marriage and what they will consider to be "real" marriages or what has commonly been referred to simply as "marriage" until some challenged the use of normal language. The law can appropriate a term to mean anything it wants in legal contexts, and unfortunately, to the detriment of clarity and social usefulness, it often does. But it cannot successfully tell people what words ought to mean in ordinary language, unless we want to have grammar police with greater enforcement powers than schoolteachers. 

One Possible Resolution Suggested

I have been asked by some people who have read this what I thought the answer should be. Without getting into a discussion of the morality of homosexuality or any kind of sexuality, let me suggest the following three-part solution, and give my reasons for it:
(1) I think gay couples should be able to have all the same non-sexual legal rights as married people in as easy to obtain form.
(2) Government should be out of the mutually consenting sex lives of adults altogether, so no sex laws should distinguish between whether people are married or not or the opposite sex or not. (There should still be laws against rape and statutory rape, molestation, etc. and possibly some laws against the intentional or even knowing likely transmission of serious sexually transmitted diseases. There may be some other cases of consenting sex that should not be legal also that might have to do with taking advantage of drunkeness or gullibility or some such, but basically the idea is to prevent the law from making marriage a necessary condition for legal consenting sex between adults.  There may be other conditions that are legally justifiable, but marriage and heterosexuality should not be among them.)
(3) But, since people culturally equate marriage with condoning of (private, consensual) sex, I think "civil unions" should suffice and legally be exactly like marriage once sex laws are got rid of as in the preceding condition.  They just won't culturally be exactly like marriage or have the term apply, for the following reasons: 

a) As long as most people do not think they are culturally like marriage anyway and would not be likely to consider them the same, and would not use the same terminology to apply to both homosexual and heterosexual unions, nothing is lost.
b) It allows society, from a cultural standpoint, to tell children that these are not the same thing. That is culturally important for most parents because they believe homosexuality is wrong, or at least not preferable.  I think society should have the right to encourage particular values for children, and that in some cases this means having what I call known institutional or social hypocrisy -- whereby a practice is publicly discouraged while being privately tolerated, for the purpose of discouraging youth from seeing it as an equally acceptable or desirable behavior option. Legitimate social hypocrisy allows tolerance of acts that are disapproved but not perhaps sufficiently or universally thought wrong enough to be illegal or punished.  There are many things that people do not want their children to do that yet they would not condemn them or have them arrested for doing.  And they should be allowed to discourage, or at least not encourage their children to do these things without having to have their legitimate moral teachings or preferences be opposed by government policies and practices. The government can remain neutral about homosexuality (or marital/non-marital adult sexuality in general) while allowing opposing cultures to rear their children and hold their values as they see fit.  I guess if Thomas Jefferson were alive today he might comment in a letter that there should be a wall of separation between sex and state.

This work is available here free, so that those who cannot afford it can still have access to it, and so that no one has to pay before they read something that might not be what they really are seeking.  But if you find it meaningful and helpful and would like to contribute whatever easily affordable amount you feel it is worth, please do do.  I will appreciate it. The button to the right will take you to PayPal where you can make any size donation (of 25 cents or more) you wish, using either your PayPal account or a credit card without a PayPal account.