April 16, 2004
(Updated) Marriage As The Doorway To Benefits
The Crux Of The Legal Debate In Oregon
Note: This post has been updated. Any and all updates appear at the end of the original post.
What you see above is our representation of a concept sketched out by Stephen K. Bushong, representing the State of Oregon during this morning's oral arguments before Judge Frank L. Bearden in the ACLU of Oregon's same-sex marriage lawsuit.
We'll be getting more deeply into today's arguments later, when the transcript becomes available (and we'll have more later about just how and why this transcript even exists, because that's interesting in and of itself), but for now we want to take just a brief a moment to study the concepts behind this representation. For us, it encapsulates the entire legal debate over the issue same-sex marriage.
During his arguments, Bushong drew a version only of the first figure you see above. He explained that the area marked "I" represents marriage as the "doorway" or "gateway" into the areas marked "II" and "III" -- legal benefits and social benefits, respectively.
In essence, Bushong argued that it is possible to craft laws which create a kind of parallel universe which features a second doorway into the legal benefits. This is what we've added by including the second figure above, and in fact is the approach taken in Vermont when that state's courts directed the legislature to craft something that allowed same-sex couples access to the legal benefits represented by "II" in these figures.
At issue, Bushong argued, is that it isn't marriage per se that qualifies as a privilege or immunity, but the legal benefits to which marriage grants different-sex couples access. His argument did not at all address the question of the social benefits conferred upon couples by virtue of having access to the doorway called "marriage" that might not be conferred upon couples by virtue of having access to a different doorway given a different name.
At the core, then, of the legal debate over same-sex marriage in Oregon is whether it is permissible under the probihition against discriminatory granting of privileges and immunities contined in Article I, Section 20 of the Oregon Constitution to create a parallel doorway which only grants access to the legal benefits, but precludes access to the social benefits.
Update
As we continue to await the email containing the transcript of the hearing, so we can rely on our own notes only for observations while directly and precisely quoting arguments, we will add an addtional thought or two to this item.
One of the arguments made by defenders of same-sex marriage is that the "civil union" concept fails because we've long since decided that "separate but equal" is not actually equal.
What's interesting about the above doorway/gateway conceptualization, however, is that it demonstrates quite nicely (although this is not what Bushong intended to demonstrate) that even if we were to accept the idea that "seperate but equal" indeed was equal after all, the creation of a parallel universe for same-sex couples called "civil union" doesn't in fact even result in a "separate but equal" construct.
As is plain from the two above figures, the "civil union" doorway creates a construct that only grants access to legal benefits -- whereas the existing "marriage" doorway permits access both to legal benefits and social benefits.
So not only do we not accept "separate but equal" as truly equal in this country anymore, even if we did still accept it as truly equal, "civil union" still fails the test of equality even in those terms.
Comments (4)
Sheryl Anderson on 16 Apr 2004
A brief story: My wife and I have run into the social benefits of marriage (circle 3 in your graphic). Just last week we received a very formal wedding invitation from the mohter of the groom of 2 of our friends living in New Mexico. The invitation was addressed to "Mrs. and Mrs. Anderson."
Thanks for helping keep us informed. You do great work.
ron on 18 Apr 2004
I view marriage as a purely intrafamily matter -- to which the government's role is (or should be) limited to registering the public announcement. To me, that function is identical to civil unions. Both relate to purely intrafamily matters -- and thus keeps the state from openly supporting or rejecting any form of relationship at the first level of consanguinity. That function, I think, could be performed without the risk of religious entanglement.
The societal benefits -- the state sponsorship through the tax code or public employee benefits -- are accorded both in marriages and civil unions alike. I think you misidentified this a legal benefits. A societal benefit is accorded through the means of the legal process (they are one in the same).
The issue isn't marriage per se, but the societal benefits bootstrapped onto that relation. If all marriages are nothing more than a blank check to public dollars then there is nothing but religious gobbledygook separating marriage from civil union.
I would rename III above to “pure religion” and II above to “state sponsored benefits”.
Just imagine that the gay rights opponents offered instead to abandon all publicly sponsored spousal benefits for all marriages. You would still have a registry for marriages as a part of the public announcement process. This would give commercial interests notice of a private, though religious, contract between specified parties. As to the tax code and public employee benefit consequences -- a marriage and a civil union perfectly overlap.
The first step, in my opinion, is to unlink all government benefits that are tied to the word marriage, other than the registry-notice function. This will, of course, eliminate the issue of state sponsorship of religion. After which, the only area of common agreement will be support for kids. I do, however, like the notion of societal recognition of a civil union between opposite-gender couples for purposes of raising a family free from the embarrassing gobbledygook of religion. If the gay marriage issue is more about religion than government benefits then it belongs in religious arena rather than in a secular court of law. A gay religious person is just as offensive to me as a straight religious person, no more or less because they are gay, because they both use the state to validate their religion through public rewards to encourage the behavior.
The One True b!X on 18 Apr 2004
The societal benefits -- the state sponsorship through the tax code or public employee benefits -- are accorded both in marriages and civil unions alike. I think you misidentified this a legal benefits. A societal benefit is accorded through the means of the legal process (they are one in the same).
The issue isn't marriage per se, but the societal benefits bootstrapped onto that relation. If all marriages are nothing more than a blank check to public dollars then there is nothing but religious gobbledygook separating marriage from civil union.
I would rename III above to “pure religion” and II above to “state sponsored benefits”.
You're completely misconstruing that the figures are describing. Level II are the legal benefits of state sponsorship (tax matters, benefits, etc.) and is properly labelled. Those are accessible through the doorways of both marriage and civil unions.
Level III has nothing whatsoever to do with religion. It has to do with the value society places on referring to smeone as "married" that simply does not exist if you cal them "unioned." It's less of a concrete matter than pointing to the specific benefits and legal recognitions of level II, but it's no less real. Level III social benefits are matters such as how society views a family whose heads can call themselves married versus how society would view a family whose heads call themselves "civil unioned" (or whatever).
The figures as presented don't have anything to do with the religious aspects at all.
tornadogrrrl on 19 Apr 2004
There is still a problem with saying that civil unions create an equal doorway into legal benefits. While it can be true on the state level, civil unions do not recieve recognition on a federal level, depriving "unioned" people of a whole slew of benefits that the "married" recieve. Social security, federal taxes, and citizenship are just a few of the areas that civil unions don't address.