Objection
There are a host of rights that married couples enjoy that unmarried couples do not. Don’t lifelong, committed same-sex lovers deserve to be with each other in their dying moments? Shouldn’t they be able to bequeath their property to each other? Shouldn’t they able to jointly file their taxes? From this perspective, denying marriage benefits to same-sex couples leads to tangible harm and is unfair to lovers everywhere.
Introduction
We think that same-sex couples should be able to do these things. There’s no good reason that any two — or more — people who share the burdens of life together should be prevented from arranging for hospital visitation rights, survivorship rights, and several other financial and legal arrangements that are often closely associated with marriage. We simply question the wisdom of using marriage law as the vehicle for making this possible. Instead, we think that these can be arranged through legal contracts or civil unions.
The Differences between Civil Unions and Marriage
Some may ask, “What’s the difference between these civil unions and marriage?” We think that there are significant differences between marriage and civil unions, both philosophically and legally. The most important distinction is that marriage is structured around procreation while civil unions are not. For more information about this, read The Conjugal vs. Revisionist Views of Marriage. Below are some of the implications of this crucial difference:
- Civil unions can represent anything the partners want it to. Partners in a civil union can be in a romantic relationship, or they can be roommates, or they can be father and son, siblings, or just friends. In contrast, marriage is an institution that reflects the procreative potential of sexual union of a man and a woman, and is thus accompanied by norms and expectations that protect potential children, such as permanence and fidelity.
- Civil unions are not necessarily limited to two people. There is no reason, for example, why three or four siblings or roommates cannot make such a legal arrangement. Procreative relationships, in contrast, are necessarily limited to two — a child can only have one biological father and mother.
- Civil unions do not imply that a sexual relationship exists between the partners. Roommates, siblings, or best friends could enter into these contractual agreements. In contrast, marriage implies a sexual relationship between the partners, because it binds partners to the duties and rights associated with procreation. In fact, marriage is (in part) a pledge of sexual fidelity.
- Because civil unions do not imply a sexual relationship, they also have no intrinsic connection to parenting or child-raising. That is, there would (and should) be no expectation that those who legally contract in this way give birth to, adopt, or raise children. Furthermore, the historical non-consummation requirement for annulment could be done away with, as same-sex couples cannot become pregnant.
- Furthermore, the rights and duties of partners in a civil union arise from contractual agreements they have made, and are thus fully customizable. For example, partners in a civil union are only obligated to permanence and fidelity based on the terms of the contract. In contrast, the duties and rights of marriage partners do not arise from contract alone, but are assumed whether or not they are enumerated in a contract. Marriage does not come with a fine print enumerating survivorship, an expectation of permanence, etc. — but marriage still carries with it an inherent (legal and moral) obligation towards permanence and fidelity, because of the potential for and expectation of children.
Why Civil Unions?
Most arguments for same-sex marriage, when examined closely, are in effect arguments for the rights of marriage to be offered to non-marital households–not for marriage to be reconceived to include those households. A civil union institution can be the means of securing these rights for same-sex couples and other groups. This would not necessarily undermine important marriage norms, since these civil unions do not imply, as same-sex marriage does, that the core obligations and rights of marriage exist solely as a matter of statutory law, nor that the obligations and rights of marriage are merely private and contractual (rather than public and ordered toward the public good). (See the Objection from Contract or the Argument from Limited Government for why these would be bad things.) The law could still treat man-woman procreative relationships as giving rise to uncontracted obligations and rights.
In contrast, if we grant same-sex couples access to these benefits by redefining marriage, we would be forced to apply the same norms to both same-sex and opposite-sex couples. This would formalize in law the revisionist view that marriage is not intrinsically connected to procreation, but is simply any loving, affectionate relationship. Such a view of marriage does not offer any reason why norms of fidelity and permanence should be anything more than matters of personal preference, or why marriage should be restricted to two people, or even to (presumed) sexual partners.
Conclusion
In conclusion, the core obligations and rights of marriage and family — including the duties of material care, permanence, and fidelity, as well as the rights of survivorship, jointly-owned property, etc. — arise as a natural consequence of procreative union, and marriage law is how governments have traditional recognized and respected those rights and duties. However, many of these rights and duties can also be arranged contractually, and allowing people to make such contracts does not undermine crucial marriage norms so long as marriage is understood as a distinct institution intrinsically connected to procreation. Most supporters of man-woman marriage policies have no qualms allowing same-sex couples to make private contracts or enter civil unions that allow them to make decisions regarding survivorship, end-of-life care, joint assets, etc.