Equal Rights in Domestic Partnerships

Robert A. Levy, Chairman of the Cato Institute, and John D. Podesta, President of the Center for American Progress, wrote an interesting article for the 8 June 2010 Washington Post called Marriage Equality for All Couples.  They noted that the 1967 case of Loving v. Virginia, ended the ban on interracial marriage in the 16 states with laws banning it at the time.  The Supreme Court unanimously ruled that "marriage is one of the 'basic civil rights of man.'"  This decision was based on the 14th Amendment, ratified in 1868.  Sadly, it took 99 years for this ruling to finally be made.  At the time of that decision, 74% of Americans disapproved of interracial marriages.  Twenty years ago, only 6.8% of newly married couples said they married outside their race or ethnicity.  That number is now 14.6% according to a recent Pew Research Center study.  Clearly, the earlier prejudice against interracial marriages has subsided and more and more Americans are claiming their equal right to marry, whatever their racial mix may be.

The right of people to marry who are not heterosexual has not yet been given a basis in the federal courts.  In 2003, the American opinion was that only 37% supported same-sex marriages.  A February Washington Post poll found that 47% of Americans now support same-sex marriages.  65% of those ages 18 to 29 support same-sex marriages, so the trend will continue in the direction of increasing support.  Robert Levy and John Podesta are the chairmen of the advisory board of the American Foundation for Equal Rights, which is supporting the case of Perry v. Schwarzenegger.  This case is aiming to have California's Proposition 8 outlawing same-sex marriages declared a violation of the 14th Amendment and is now before the federal district court in California.  The case is likely to be appealed to the Supreme Court.  It ought to win the freedom for all couples to enter into equal marriages.

I have long made it clear that government should not be claiming to play a role in marriage at all.  For many, marriage is a spiritual union and I fully understand that concept even though it is not the case that I believe in a god.  There is good reason to reserve the term marriage to meaning a spiritual union and allowing people to control that spiritual content in their marriages without any presumption on the part of government that it has anything to say about that spiritual content.  Those who are religious or who have spiritual values which are not religious are best served by adopting a more appropriate term for the contract that government offers to couples.  It would be better if this were universally called a domestic partnership contract or agreement.  All of the issues which involve government are better described as contractual in nature.  Recognizing this, provides a separation of church and state in marriages/domestic partnerships which would help to diminish the passion of the argument from religious quarters against equal rights in domestic partnership contracts.

As I have written many times also, domestic partnership agreements ought to be a parallel to small business partnerships in that government does not dictate the sex or number of partners.  Two men, or two women, or two men and two women, or any other combination of several people ought to be free to enter into a legal domestic partnership contract.  Joint property, joint responsibility for raising children, the sharing of income, and critical medical decisions and support could readily all be incorporated into such domestic partnership agreements.

Very likely, most families would still be built around one father and one mother, but the huge number of divorces and resulting serial marriages are clear evidence that one-man-one-woman marriages do not work for large numbers of people.  Sometimes the failure is largely the result of two people becoming bored with one another or of one simply yearning for some change of pace.  Sometimes, the couple simply do not always share the same cycle of need for sex.  Sometimes, the strains of earning income, cleaning house, purchasing food and clothes, maintaining the house and cars, agreeing on a common vacation, and raising the children are simply too much for two people.  Some people would do better in larger domestic partnerships in which tasks are spread over more specialists or where they can be varied over time.  With most public schools having severe shortcomings, many such extended family groups would be able to have a member or two specialize in home-schooling the children, while a sufficient number of others remain to bring home the bacon.  One member might be particularly good in managing the family investments, while another is great in playing with the kids and caring for the yard.  One may love to cook, while another loves to work on the cars and keep them running.  Another may like purchasing the groceries, the furniture, and the clothes for the children.

Of course, in many such cases, family members may have the option for having a sexual life enriched by more than one sexual partner.  Sex is one of man's greatest pleasures in life.  It is very important to many people that they are able to optimally enjoy this pleasure.  There is no valid ethical principle that says that it is immoral for a man or a woman to have more than one sexual partner in any period of his or her life.  The ethical issue is whether the person one chooses to have sex with is a person of good character who is of great interest to and highly valued by the chooser.  If someone is fortunate enough to find more than one such person with whom they can form a more intimate bond with shared life-affirming sexual pleasures, people of good will ought to be ready to simply wish them the best.  This is true whether the individuals in the serious and sincere sexual relationship are of different sexes or the same sex.

A knowledge of history makes it very clear that while some people may be entirely heterosexual, very many people are bisexual or homosexual.  When societies are not burdened by severe heterosexual bigotry, it is clear that many people are happy to give outlet to their bisexual or homosexual desires and choose to pursue their happiness in that way.  In our present time, the video market in erotic movies and the rich offering of sexual images and discussions offered on the Internet, make it clear that sex is both of great interest to many people and that their interests are highly varied.  These interests, when given anonymous expression, do not conform to the publicly affirmed principles dominant in our society.  It is clear that many sexual interests are being suppressed, some for good reason, but many for no more reason than traditional prejudice.  It is no one's right to interfere with the exploration, development, and expression of another's optimal sexuality, so long as only consenting adults are involved.

We are all complex and highly differentiated individuals and one of the great expressions of that is in our sexuality.  To suppress the sexual development and expression of others is to attack the rights of the individual in a very basic and fundamental way.  This is an attempt to deny the nature of man and as such it is not consistent with a rational understanding of man and reality.  Let us hope that a step in the direction of our sexual liberation will be made with a Supreme Court decision that same-sex marriage must be allowed because all people have an equal right to pursue their happiness in domestic partnerships.

Levy: The Moral and Constitutional Case for a Right to Gay Marriage

Robert A. Levy is the chairman of the Cato Institute, a libertarian think tank in Washington, D.C.  He recently played a major role in strengthening the Second Amendment to the Constitution in the case of Washington, D.C. vs. Heller.  He recently wrote an article appearing in the New York Daily News on 7 January 2010 on the right to gay marriage called The Moral and Constitutional Case for a Right to Gay Marriage.  It is an excellent article, consistent with my oft-stated belief that we would be better served by getting government out of marriages, which I believe are a spiritual union of partners.  The government should only be offering an important legal contract for domestic partnerships, somewhat akin to a small business partnership.  The spiritual aspect of such a domestic partnership, the marriage aspect, is not something government can or should attempt to address.

Levy points out that New Hampshire and Washington, D.C. have just joined Connecticut, Iowa, Massachusetts, and Vermont in legalizing gay marriage after disappointing defeats in California, Maine, and New York.  Levy says:

The primary purpose of government is to safeguard individual rights and prevent some persons from harming others. Heterosexuals should not be treated preferentially when the state carries out that role. And no one is harmed by the union of two consenting gay people.

For most of Western history, marriage was a matter of private contract between the betrothed parties and perhaps their families. Following that tradition, marriage today should be a private arrangement, requiring minimal or no state intervention. Some religious or secular institutions would recognize gay marriages; others would not; still others would call them domestic partnerships or assign another label. Join whichever group you wish. The rights and responsibilities of partners would be governed by personally tailored contracts — consensual bargains like those that control most other interactions in a free society.

Levy notes that more than 1,000 federal laws dealing mostly with taxes and transfer payments have provisions for married people.  The states have many more laws with provisions for married people.  But Levy says:

Whenever government imposes obligations or dispenses benefits, it may not "deny to any person within its jurisdiction the equal protection of the laws." That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

Levy also observes that:

No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages. Nor is a ban on gay marriage a close fit for attaining the goals cited by proponents of such bans. If the goal, for example, is to strengthen the institution of marriage, a more effective step might be to bar no-fault divorce and premarital cohabitation. If the goal is to ensure procreation, then infertile and aged couples should be precluded from marriage.

More and more people are unable to find any substantial merit to the claim that gay domestic partnerships weaken or threaten heterosexual marriages.  As Levy notes, nearly 60% of Fortune 500 companies offer employee benefits to domestic partners.  The Senate Homeland Security and Governmental Affairs Committee has also voted to apply employee benefits to the gay partners of federal employees.  The clock is running out on this cruel act of discrimination.