by E. J. Graff
The same is true not just if you’re richer but if you’re poorer. The state counts you as responsible for your spouse when deciding who’s eligible for state benefits—Medicaid, AFDC, food stamps, public drug rehab or psychiatric hospitalization, first-time homebuyers’ programs, student loans. Massaschusetts’s hot lunch program for the elderly is for people over sixty—and their spouses. If your spouse is a work-release prisoner, your alimony or child support money is automatically deducted from his salary.
Not just the state but other institutions also treat you differently depending on whether or not you’re married. When Madeline and I bought a house, for instance, the bank required us to buy life insurance, naming each other as beneficiaries, because neither makes enough to pay the mortgage on her own. But insurers refused to issue a policy, since we have no legal relationship. Our determined insurance agent finally put us down as “business partners”—co-owning a house—and snagged us a policy. In 1997, the Canadian Parliament extended the free travel allowances for M.P.s’ spouses to M.P.s’ same-sex partners as well. Shared frequent flyer miles; waiving the “extra driver” cost if a married couple rents a car; joint auto or home insurance policies—the list of financial entanglements continues for quite awhile. Alone, each of these shareable perks is petty (except maybe the M.P.s’ spouses’ free travel). What’s common is that financial interests are always at stake—and that society uses marriage as shorthand to define who gets to share and who does not.
Nations and states, of course, have elaborate laws defining how intertwined a married couple’s finances must be. That doesn’t mean that married people actually manage their money the way the state thinks they should. Contemporary professional couples without children, or partners in second marriages, often keep “separate purses.” Working-class couples or couples with children usually pool their money. And most studies find that, so long as at least one spouse is male, whoever earns or has more money has more power at home—except among lesbians, who work hard to keep money irrelevant. None of that is the state’s concern—unless you split.
But even while you’re together, the marriage rules do help decide who has a right to what if you disagree. Say you’re a stay-at-home mom whose husband doesn’t hand over any money to buy groceries or pay the utility bills. Can you take funds from a bank account that’s just in his name? Can you take him to court and insist he pay up? Can you get a court order blocking him from taking all the money to Vegas? Before the Anglo-American Married Women’s Property Acts, the answer was a resounding no. Or say you’re a man who has just been downsized from your middle-management job: does your physician-wife have a legal right to stop you from using your buy-out package to invest in a Friendly’s franchise? Ask what your state’s marriage laws are (and get a good lawyer).
The point here is not to decide the fairest answer to those specific questions. The point is that such questions regularly arise—and marriage law is the mechanism society uses to decide what’s fair.
Few people have to pay any attention to marriage’s property laws—unless they want out. That’s when they discover marriage has a steep exit penalty: that the state helps decide who gets what. The easy part (which, of course, is hideously difficult) is dividing up what you own, actual property in hand—cash, land, houses, cars. The hard part is deciding whether both of you have a right to today’s more important property—education, experience, and career, those intangible valuables that live in individual heads. If she stayed home taking care of the kids while you became a more and more skilled machinist, how much should she be compensated for “opportunities lost”? If she chose not to go to law school and became your hostess, ran your household, handled your drycleaning, and in other ways became your silent partner while you climbed to CEO—and since her “opportunity cost” was astronomical, or to use non-economist-speak, since she can never get back the years invested in your joint career—does she have a lifetime stake in your intellectual property, the skills in your mind? Again, marriage law is how society helps the two of you resolve that dispute.
Some people object that marriage is one of the few contracts—and certainly the most complicated—that we enter with no advanced disclosure. But breaking up without the state’s involvement can also be nasty. If you have legal title to something, it’s yours—even if your partner did pay into the mortgage for many years, or did stay home and take care of your children while you were putting your name on that bank account. As one observer writes, going only by what’s on a given piece of paper may ignore “the moral implications of a long-shared life.”
Someone has to decide who’s right—however difficult that may be. Those without law are at the mercy of whoever’s stronger; those with law are at the mercy of the reigning ideology. The rich have always written contracts that could be fought over endlessly in courts; the rest of us have lived by common consensus—whether an ecumenical decree, a village’s set of beliefs, or national legislation. The rules have sometimes been based on one social ideal (an adulterous wife should be kicked out of the house with nothing, not even her dowry), and sometimes another (each spouse has a theoretically equal ability to make a living after the marriage). But anyone who wants to benefit from the social consensus on what’s fairly shared while you’re together—those lobstering licenses, say, or her years spent cooking and diapering, or his military pension—has to swallow hard and live by the social consensus on what’s fair if you break up. Perhaps letting same-sex partners marry would help force these decisions to become gender-blind—and therefore more fair, in that legislators and judges would have to consider who is caring for whom, and who has sacrificed what, rather than who is female and who male.
In sickness and in health . . . Perhaps even harder to measure is the unpaid economy of marriage. Who gets to care for whom at life’s extremes? Since we’re all mortal, we can all expect to face that question. Civil marriage is the marker that allows you to visit your spouse in the hospital, or to assume control—you, not his brother or child by an earlier marriage—if, say, he goes into seizures and needs intubation, or heads into a bipolar mania, or descends into drug addiction and needs to be committed. Most people think these abilities can be acquired by signing certain pieces of paper. It’s not so simple. The difference between powers of attorney—or domestic partnership, for that matter—and marriage is the difference between a skateboard and a jet. An unmarried couple might sign a notarized healthcare proxy, but it will take effect only if one of you becomes incapacitated. For instance, the documents that Madeline and I have signed allow me to care for her if she’s in a coma—but so long as she’s conscious, no nurse or physician has any obligation to tell me anything about her condition or care. And those notarized pieces of paper can be overridden by disapproving hospitals or family members who insist they are outdated or were signed under duress—and rare is the distressed spouse who has the savvy and energy to fight during such terrifying moments.
All of which adds an extra layer of fear, for many same-sex couples, to the prospect of illness. If we got hit by a Range Rover while vacationing in, say, Utah’s Canyonlands or Wales—and we’d forgotten to pack our envelope of notarized papers (or if they’d burned when the car exploded)—how could I persuade the hospital that she belongs to me? I wouldn’t even be able to lie and say we were married, as unmarried different-sex couples can. Every administrator, nurse, or physician could decide for themselves—based on their own ideologies—whether I had the right to know whether she was in the ICU, or surgery, or alive, or whether I could stay in her room overnight.
These are not idle speculations: every same-sex couple I know has a personal horror story, whether their own or a close friend’s. My friend John’s spouse Martin was robbed and shot on a business trip—and for four hours John was on the phone from Boston, desperately trying to get anyone in the Dallas hospital to tell him whether Martin had survived. Many people know of the Sharon Kowalski and Karen Thompson case. After the two schoolteachers had shared their
life and home for ten years, a terrible car accident left Kowalski almost paralyzed and unable to speak. Kowalski’s parents insisted they, not Thompson, had the legal right to control their daughter’s care. They parked Kowalski in a nursing home, and Thompson fought for seven years before she was able to bring her spouse home.
Sometimes the hospitals or families are friendly. But the history of humanity is a history of disagreement. The law is too blunt and gross an instrument to make fine-tuned decisions about individuals’ wishes. Marriage is one of the most convenient ways we have to tell the law—and thus those who may disagree with how we live our lives—who we’ve chosen besides our blood family to care for us in sickness and in health.
Under “sickness and health,” I’d include heart-sickness as well: marriage is a way the law recognizes and respects a committed emotional bond. If a Canadian man falls in love with an American woman, simply by marrying they can stay together in one country. All the Scandinavian countries, the Netherlands, Britain, Australia, and Canada offer that to same-sex couples as well. But most of these countries have excruciating procedures for sorting out which same-sex bonds count; why come up with an entirely new set of procedures when societies already have the shorthand of marriage? Only a civilly married spouse is exempt from testifying against the other in court. Only a legal spouse need be notified if a state facility transfers a psychiatric patient or mentally retarded person. What’s more, marriage recognizes as well the delicate web of ties you have with your spouse’s family—so that most employers offer, for instance, bereavement leave if your father-in-law dies. None of those recognitions of shared responsibility exists for couples who are not married under civil law.
Why should society care? Simply because it’s right to help spouses fulfill their vows in life-or-death moments? Or is there some social benefit when married people find it easier to take care of each other? The answer is: Both.
In a working marriage, the two of you care for each other both emotionally and physically. You are, to use HMO-speak, each other’s primary healthcare provider. In part that means it’s often a spouse who’ll bring an icepack (and open the aspirin container) for her arthritis . . . or go to the all-night drugstore to get Robitussin if he’s coughing so hard he’s bruising his ribs . . . or hold her hand while she’s getting chemo . . . or talk him through his nightmares after he loses his job. But of course it’s sometimes friends or family who offer that personal care, and besides, the law is not interested in enforcing such details. And so what I mean is something measurable: Married people live longer, healthier, more productive lives.
In 1858, British public health statistician William Farr noted that, on average, married people outlive singles: “Marriage is a healthy state. The single individual is much more likely to be wrecked on his voyage than the lives joined together in matrimony.” The data have been eerily consistent ever since: whether measuring by death rate, morbidity (health problems such as diabetes, kidney disease, or ischemic heart disease), subjective or stress-related complaints (dizziness, shortness of breath, achiness, days in bed during past year, asthma, headaches), or psychiatric problems (clinical depression or debilitating anxiety after a cancer diagnosis), married people do better than unmarried—single, widowed, divorced.
Why? For the past twenty years, researchers—epidemiologists, sociologists, biologists, and psychologists have been trying to find an answer. You have to actually hold this hefty pile of studies to grasp how many theories they’ve been testing. Can it be explained by a “marriage selection effect”—that healthier people are more likely to get married? Perhaps: you may (fairly or not) have fewer chances of marrying if you’re severely obese, say, or trembling with MS. But it doesn’t fully explain the gap. When researchers match married and unmarried people with the same health status—with cancer, say, or cardiovascular disease—the unmarried die earlier than the married. And when they followed otherwise matched sets of women over time, the unmarried women’s health went downhill faster than the married.
Can it be explained by the theory that spouses force each other to live in healthier ways—that women make men moderate their drinking and smoking, snowboarding and carousing? Maybe—but even badly behaved married men live longer. In studies of from 1,000 to 7,735 subjects, when researchers matched men for such factors as age, smoking, past heart disease or diabetes, obesity, exercise, drinking, blood pressure, and cholesterol levels, the unmarried ones got sicker and died earlier.
Can it be explained by the fact that married people have more resources, including the built-in financial safety net of someone else’s help (whether your wife’s or your wife’s family’s)? Sure, that helps: poor people get sicker and die younger, for reasons that only start with such obvious things as food, housing, and health care. A rich single man has, statistically, a better shot at a long healthy life than a very poor married couple. But that explanation doesn’t cover everything. When researchers match people’s resources—adjusting for such things as total household income, home or car ownership, or (in the U.S.) having health insurance—unmarried people still get sicker and die earlier.
Some opponents of same-sex marriage argue that none of marriage’s health protections would work for same-sex couples. Husbands do so much better than wives that they obviously benefit from having a woman around, someone trained in listening and caretaking—so why would it help a man to marry another man? Meanwhile, women are widely known to have stronger social networks, more friends to talk to in hard times, mothers or daughters or friends who might massage their feet during a frightening MRI—so why would marrying another woman make a difference? But those arguments fall apart once you notice that even women live longer when married—which suggests that even being married to a man is good for your health. Why wouldn’t that work for a man as well—especially a man who’d be unhappy, and therefore no better off than single, with a woman? And since living with another adult (a widow with her daughter, for instance, or a divorced man with his parents) works just as well as marriage, why shouldn’t two women who are happily married do better as well—especially women who would be unhappy with men?
There are more theories than you could guess—but the figures hold stubbornly true. Variations do show up in these hundreds of pages of data. So long as young women work, for instance, they do about equally well whether they’re married or unmarried. In fact, the health difference between single and married is much greater for men than for women: Men who want to live should get married, pronto. And the never-married, separated, recently divorced, long-divorced, and widowed have different prospects, which vary from study to study. Finally, of course, predicting individual lives from such aggregates and averages is foolish: despite my offhand comments, these numbers don’t really predict anything about the health or mortality of your single friend Janet or your married brother Carl.
But if our question here is a large social question—why should society reward marriage?—it’s important to ask what researchers mean here by marriage. Does the health boost of marriage happen when your marriage is de facto—unmarried but committed couples, straight or gay—or only when your marriage is de jure, recognized by law? Does it matter whether you’re just tolerating each other or whether you’re in love?
The answer: living with another adult (whether your lover or your widowed mother) apparently helps your health just as much as marriage—but only if you get along. The first half of that sentence comes from a Dutch study of 18,973 people, ages fifteen to seventy-four. The second half comes from a few studies that have tried to peel apart happy from unhappy couples and found that the unhappily married do just as badly as most single people (although not quite as badly as the just-divorced).
Although researchers seem baffled about why, the rest of us needn’t be. Most of us know how we relax in the daily hum of someone else’s physical and conversational company, the simple animal comfort of being heard or held when you’re tired or scared, the exhausting arguments followed by that incred
ible gratitude of knowing you’ve been seen at your worst and are still loved. TV just doesn’t cut it as a substitute. Most of us know that we can concentrate more productively when we belong somewhere. Why bother even trying to link loneliness or late-night fear or higher anxiety to distressed functioning? Happiness—or even the simple security of being near someone who cares about you, of being responsible not just to yourself but to and for another—is good for you.
I hope my conclusion is obvious. Because being contentedly paired is good for each citizen’s health and productivity, society should open civil marriage to same-sex pairs, making it easier for them to care for one another. We needn’t worry about recognizing those widowed mothers who live with their daughters, or young adults who live with their parents, or siblings who room together, since the law already puts blood relations first unless overridden by marriage. Nor need we worry about best friends or roommates, who—if same-sex marriage were legal—could marry if they chose, with no more inquiry into their sex lives than is currently put to a different-sex pair who’ve decided that being best friends is a good enough reason to marry. The unpaid economy of coupled life—which shores up our interdependence, so full of sacrifices and joys, so tremendously valuable in an isolating society like our own—should gain all marriage’s recognitions, in sickness and in health, even when those couples are the same sex.
Till death do you part Civil marriage recognizes the couple after one dies—in an inordinate number of ways that unmarried pairs cannot hope to replicate. Marriage laws let the widowed claim her remains or decide whether or not to donate her organs, or permit you two to share a burial plot. Such things cannot be taken for granted if you two are not legally married. In one recent American legal case, Sherry Barone and Cynthia Friedman had been together for thirteen years when Friedman got cancer. They signed as many legal documents—wills, powers of attorney, health proxies, written instructions to the survivor to carry out any wishes—as they could to ensure Barone would be in charge. But after Friedman died, the cemetery refused to follow Barone’s instructions to inscribe the epitaph Friedman had requested—“Beloved life partner, daughter, granddaughter, sister, and aunt.” The bereaved Barone took the cemetery to court—and after a year of legal wrangling, was allowed to honor her dead beloved’s wishes. If that’s after the pair took every available legal precaution, what happens to couples who haven’t so carefully planned?