by Joel Derfner
My friends Rob and David signed up for the New Paltz waiting list, and when they got the call in June of 2004 I joined them, their dog Goblin, and Rob’s friend Richard on a journey upstate. We arrived at the location, a tent outside a charming bed-and-breakfast, to find it filled with profusions of flowers and rainbow balloons. While Rob and David met with one of the people who would be performing ceremonies that day, I wandered around outside and looked at the other couples there to make their vows: four pairs of men and six pairs of women, one of which pairs I found so beautiful that I thought I would die if they told me I couldn’t take a picture. Luckily they didn’t, but I can’t include the picture because, although the women look gorgeous in it, there’s also this weird, slightly creepy guy behind them who ruins the effect. In any case, the day’s weddings were going to be performed serially, in one morning-long event. Rob and David were somewhere in the middle of the schedule, so we settled back to watch the ceremonies before theirs.
The first couple to get married that day in New Paltz was a pair of short older men, dressed in suits. The ceremony was brief—three or four minutes—and they held hands the whole time. The celebrant was dressed in a white robe with a purple stole; her voice was low and pleasant, and the language she used was comfortingly traditional (“Do you promise to take this man,” and so forth). At the end, she said, “I now pronounce you married,” and I started to cry. The two men went back to their seats and another couple got up.
The weddings were being performed by alternating celebrants (evidently conducting illegal marriages takes a lot out of you) and the second, a low-and-pleasant-voiced man similarly dressed in a white robe with a purple stole, used similarly traditional language, and I was all set to cry again, when he said, “I now pronounce you legally married” (italics his, not mine), and I have no idea how I was able to keep myself from leaping out of my wooden folding chair, running up, wrapping my hands around his neck, and telling him if he didn’t take it back and do it right I would choke the life out of him.
Because the couple he’d joined in holy matrimony (solve for some value of “holy”) was not legally married. They had no marriage license, because the mayor had been enjoined from issuing one; in the absence of a license, their marriage was invalid in the eyes of the law—an unjust law, to be sure, and I think an unconstitutional one, but the law of the land nonetheless—and to claim otherwise, to pretend that what had just happened would be considered a legal marriage, was, as far as I was concerned, a gross insult to every one of us there and to every single person in this country and others working toward marriage equality.
Worst of all, the couple involved didn’t even seem upset about the travesty being perpetrated upon them—they were just standing there, smiling, getting married, as if what they really cared about were declaring their commitment to each other in front of the assembled guests rather than flying into a towering rage because of a single word. Some people.
After a few moments, though, my fury began to abate, but I still spent the next three weddings terrified that Rob and David would get the I-now-pronounce-you-legally-married guy. Thankfully, they didn’t, so their wedding was unmarred by the pretense that you could conquer injustice by calling it justice; furthermore, they took their dog Goblin up with them and stood holding her, which made the whole thing cuter than anybody could bear. I cried again, we sat through another four or five weddings—the couple in the picture did not have Mr. I-Now-Pronounce-You-Legally-Married, so I cried at their ceremony too (apparently my lacrimal glands turn into Stakhanovites at same-sex weddings, so if you’re worried your friends won’t get emotional enough at yours, give me a call)—and then drove back, giddy, to Manhattan.
When I told Mike about the event the next day, he asked, “Would you ever want to do something like that?,” very carefully keeping the question in the abstract.
“No,” I said. “I’m so happy for Rob and David, but for me it’s legal marriage—unequivocally legal—or nothing.”
“Why?”
I told him why.
If I had ever had any doubt that the government should be kept out of the business of language, it would have been eradicated utterly by the gallimaufry of terms assembled when the defenders of what has come to be known as “traditional marriage,” knowing they couldn’t deny same-sexers some sort of legal recognition for our relationships, made it nonetheless clear that actual marriage was off the table: domestic partnership, civil union, reciprocal beneficiaries, relationship of mutual interdependence.
“There’s really a state that gives us relationships of mutual interdependence?” said Mike when I went through this list for him.
“Maryland.”
“Well, they are below the Mason-Dixon Line.”
People in these arrangements can typically do things like make funeral arrangements for each other and inherit each other’s estates if one of them dies without a will, but not sue for child support or visitation rights or be excused from testifying against each other if called to the stand in state court. In some states they can add each other’s names to the deed of a residence with no tax liability but only after swearing an affidavit and producing two documents proving they even have a relationship in the first place. (Lucky same-sexers in New York State, if their deceased domestic partner was a member of the City Council, also have the right, according to Ad. Code § 3-204.2, to buy the chair he or she sat in at Council meetings for fair market value.)
Even when the legal status in question offers, on paper, all the benefits of marriage, in real life it doesn’t always end up working out like that. Your sister makes you and your domestic partner stay in separate rooms when you come to town for the family reunion because you’re not married, for example, or you can’t open a line of credit at the bank because the computer system has options for “single” and “married” but not for “in a relationship of mutual interdependence” (seriously, Maryland, that was the best you could do?).
And sometimes it’s a lot worse, even if you’ve made every legal arrangement available to you. When Janice Langbehn and Lisa-Marie Pond were on vacation in Florida with their four adopted kids (of the twenty-six they’d fostered: “Lesbians,” said Mike when I told him this story) and Pond had an aneurysm, hospital workers wouldn’t allow Langbehn or the children in to see her because the two weren’t married, and Pond spent the next eight hours dying alone. Louise Walpin and Marsha Shapiro were thrilled when New Jersey passed a civil-union law in 2006, because it meant they could get more health insurance to take care of their son Aaron, born with severe mental and physical disabilities, but company after company told Walpin they didn’t offer health benefits for civilly united couples—even though they were legally obligated to do so—and the two went into hundreds of thousands of dollars’ worth of debt to pay for Aaron’s medical care before he died in 2008.
The example that shocks me the most, however, is that of Clay Greene and Harold Scull, who lived together in Sonoma County, California. Each had written a will making the other his beneficiary, each had granted the other power of attorney, each had named the other in his medical directives—if it was possible to sign a document, they’d signed it. Which was why, when Scull, eighty-eight, fell on the steps of their house and was taken to the hospital in 2009, Greene, seventy-seven, expected to be consulted from the beginning, as was required by law. Instead, however, he was forbidden to see Scull at the hospital. Then county health care workers put Scull in a nursing home and refused to tell Greene where it was or even what it was called. Then, without even letting Greene go back home to collect any of his belongings or his mementos of Scull, they put him in a nursing home too—a different one, and against his will—and went to court, explaining that they needed to make financial decisions on Scull’s behalf because his “roommate” shouldn’t be the one to do it. They sold the contents of the house the two leased together (in order to pay for Scull’s medical care), except for the few knickknacks workers pocketed to take home (“This would look
nice in my living room,” said one; another, “My wife will love this”), terminated their lease, gave their apartment back to the landlord, and abandoned their cat at the pound. Scull died three months later, Greene still begging for the name of his nursing home. Greene was finally released from his own nursing home and filed suit against Sonoma County, which recently settled for $600,000.
“That number,” said Mike when he heard about the case, “is missing a few zeroes.”
The fact that people often don’t know about or simply disregard these McMarriage laws isn’t the only thing wrong with them. Another glaring problem is that they function only on the state level, leaving questions of federal marriage law untouched. In 2004, the U.S. General Accounting Office reviewed the United States law codes and counted 1,138 federal benefits to which married couples are entitled. President Obama has told America he supports same-sexers’ right to marry, and the Defense of Marriage Act signed into treacherous law by President Clinton seems to be headed for the dustbin, but it’s still a far cry from where we are now to full marriage equality. (Of course, by the time you read this, the Supreme Court may very well have ruled in Hollingsworth v. Perry and U.S. v. Windsor, and if their excellent opinion from 2003 in Lawrence v. Texas striking down Texas’s risible sodomy statute is any indication, they might even have made the right decision, in which case I don’t know, maybe you should just stop reading and go out for some ice cream or something.) In any case, here are some highlights of the things that would not have been available to me as Mike’s domestic partner and that in fact are not available to me in February of 2013 even though (spoiler alert) Mike and I are married.
If Mike dies, I don’t get his Social Security benefits. (He doesn’t get mine if I die, either, but my employment history is such that my benefits are likely to be all but worthless.)
If one of us becomes aged, blind, or disabled, the other can’t get Supplemental Security Income assistance to take care of him.
We’re considered inessential when it comes to each other’s Medicaid benefits.
If we lose everything to Nigerian Internet scammers or another banking collapse, we’ll be ineligible for federal support for low-income family housing.
If I go to war, Mike won’t be compensated if I disappear, won’t get any additional disability compensation if I’m disabled, won’t get my pension if I die, won’t get military life insurance, won’t get government medical care, won’t get any educational assistance or job training, and, if I’m buried in a military cemetery, can’t be buried with me. (I choose myself rather than Mike to go to war because I have a lot of fantasies about killing people who make me angry, though to be honest those fantasies involve a lot of torture beforehand that probably isn’t sanctioned by the Geneva Conventions.)
If it turns out that he was actually born in another country and his visa runs out or he’s here illegally, he’ll be deported no matter how long we’ve been together, though with luck the Uniting American Families Act pending in Congress (at least as of early 2013) will rectify this situation.
The list goes on and on.
(I actually think that marriage shouldn’t be a prerequisite for access to most, if not all, of these benefits in the first place. There are same-sexers who agree with me who argue that it’s the institution of marriage that is the problem; I understand where they’re coming from, but I think universal health care and housing will be a lot easier to accomplish than the abolition of marriage itself.)
Some of the rights I’ve mentioned can be gained by drawing up legal arrangements, but only in exchange for thousands if not tens of thousands of dollars in legal fees, and not necessarily to any effect—the documents Janice Langbehn, Lisa-Marie Pond, Louise Walpin, Marsha Shapiro, Harold Scull, and Clay Greene had signed didn’t help them much when push came to shove.
On the other hand, if I open a flower shop, Mike’s salary won’t be counted in determining whether I meet the income cap for assistance under the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993, so in the end I guess it all balances out.
The thing is, though, being denied the rights currently available to married straight people isn’t really my problem. I’m not interested in interacting with a child until it’s old enough to discuss Kafka, so questions of child support are moot, and I don’t need Medicaid benefits yet (though ask me again in forty years and we’ll see what my answer is then). Right now, I don’t experience the lack of access to most of those 1,138 privileges as particularly onerous. What I do experience as particularly onerous is this:
I’m a grown man chained to the kids’ table.
Marriage is a public, legally approved way to declare that you’re willing to be charged with the well-being of another human. The whole for-richer-or-for-poorer-in-sickness-and-in-health thing isn’t there to make sure you have an easier time dealing with the embassy when you’re in Cabo. It’s not there to give you tax breaks (which would be useless to us anyway, as my finances are irregular enough that any time I suggest merging our assets and accounts Mike sticks his fingers in his ears and goes, “La la la la la,” and besides, I avoid taking loopholes because I think it’s unpatriotic to try to pay less in taxes than you owe). No; marriage is there so you can tell your boyfriend that if something bad happens to him you’ll support him—and so other people can see you tell him that. Marriage lets you accept a responsibility in such a way that society can hold you to it.
The purpose of government, according to Thomas Jefferson, is “to enable the people of a nation to live in safety and happiness.” So if the representatives of my government forbid me to marry, I have to assume they believe it would threaten the safety and happiness of the American people to allow me to be responsible for someone I love. And what other reason can there be for this than that they think I’m too weak to bear that responsibility?
I am, in the eyes of the law, a creature incapable of full human development.
How, at base, is this any different than being told, by men and women I grew up with, no less, that there is not a seat for me with them at the grown-ups’ table and there never will be so I should just get used to the plastic utensils and enjoy the finger paint?
There are people who are like, oh, marriage equality is a good thing because it will force same-sexers to grow up and start acting like heterosexual married couples. Jonathan Rauch, in his terrific book Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, writes that gay culture, “with its elevation of play over work and of self-expression over discipline and of youth over everything . . . seem[s] to suffer from an advanced case of Peter Pan syndrome.” (He’s talking about gay male culture; if female same-sexers have a common problem, it’s not a refusal to grow up. “Overprocessing,” offered one lesbian I asked; “Birkenstocks,” another. “If the women I’ve been dating are any indication,” said a third, “cat allergies.”)
On one hand, it’s difficult for me not to feel that Rauch and others who take this position have something of the Uncle Tom in them, as if they were saying, look how selfish and immature we gay men are, but if you let us get married we’ll be able to become better people like you. At the same time, however, I can’t say that I’m against giving gay men the opportunity to grow up if we want to.
Which is why I feel so ambivalent about the “marriage will force gay men to mature” argument. Yes, the legal right to marry will allow us to assume adulthood in a way that has been forbidden us for centuries, if not millennia. On the other hand, forcing us to be children and then blaming us for acting selfish and immature—you might as well burn down a house to prove it was made of ash.
Let’s say that the Defenders of Traditional Marriage are right and that the institution of marriage is in terrible danger.
The problem is, it’s not the kind of danger they’re talking about.
And they’re the ones creating it.
The current attack on marriage, if such an attack exists, began, as far as I’m concerne
d, on October 11, 1991, when Berkeley, California, became the first city in the United States to register legal relationships that offered access to some but not all of the rights and responsibilities of marriage. On that day, twenty-nine couples went to City Hall and, before city employees, officially declared their commitment to each other by becoming domestic partners, and the erosion of marriage began. Because twenty-eight of those couples were same-sex.
But one was straight.
On October 11, 1991, my first year of college, two people who could have gotten married more easily than they could have spelled each other’s names gained official recognition for their partnership without the benefit of marriage.
And marriage, if you’re inclined to such a way of thinking, has been in danger ever since.
A look at a possible future: In 1999, the French government created the pacte civil de solidarité (civil solidarity pact), a marriage-lite status like the ones in many American states that allow couples most of the privileges of marriage without the name. That year, 6,000 couples chose to unite in a civil solidarity pact—and of those couples, 2,520 were straight. In 2010, there were 205,558 civil solidarity pacts, 196,415 of which were between heterosexuals. There is now one civil solidarity pact for every two weddings performed in France, and 94 percent of those pacts are made by straight couples. As of 2010, of the approximately 900,000 civil solidarity pacts made in the decade since the creation of the status, some 835,000 were between straight people who could have gotten married but chose instead to do something different. Since the creation of the civil solidarity pact, the number of heterosexual marriages performed in France, which had been holding steady up till that point, has fallen by an average of 5,000 per year. That’s over 500,000 potential heterosexual marriages in France destroyed—not by marriages of same-sex couples but by the attempts of the Defenders of Traditional Marriage to prevent such marriages. (In early 2013, France finally repented of its squeamishness and now same-sexers can wed, but given the civil solidarity pact statistics one fears it may already be too late for the institution of French marriage.)