What Is Marriage For?

by E. J. Graff

  And that was just a fight over someone’s memory. Disputes get really nasty over money. Wouldn’t you—at least, if you’re an American—think that everyone would be able to pass along property in just the way he or she wants? It ain’t necessarily so. For a society that does not survive by passing on property from one generation to the next, the subject of who can and should and will inherit occupies an unbelievable amount of legal airtime. While legislation does its best to define who gets what, there are inevitably court skirmishes over who gets what, on what grounds—and, of course, whether it’s taxable. If you can’t recall any family fights over inheritance rights, your family stands with the angels. Once you get to court, marriage is the marker that lets courts assume that you two wanted your relationship to be respected after death.

  All Western countries, states, and provinces assume that your spouse gets something if you die without making a will. If you want to make a will that leaves your property to your spouse, you don’t even need a witness. And even if you want to disinherit your spouse, you can’t: society finds that too unfair (and doesn’t want your widow on the dole). In fact, the spouse now consistently gets a larger share than in the past, when offspring or other relatives got their portions. And polls show that a larger share for spouses is what most people now want.

  Just about everything else in a will is open to challenge. If you left something to your mistress, your widow might try to get that overturned. Your adult children might challenge your will if, at age seventy-eight, you married a twenty-two-year-old a month before you died. There are certainly arguments to be made on either side of those aisles—arguments decided by society’s most recent agreement about who deserves what, and what is fair.

  If you have no legal relationship, your partner’s death is especially bad news. Marriage really matters when it comes to property. Your state or nation’s probate code has a list of people who automatically inherit—children, parents, siblings, and so on—and if none of those people can be found, the probate judge assigns everything to the state. “Friend” or “roommate” is not on the list. Meanwhile, even if she did write a will that gave everything to you, her parents or children or siblings or cousins can challenge you for any number of reasons: as someone who warped their beloved daughter into sin, or as a legal stranger with no right to the house in which you spent your entire adult life. And we haven’t even waded into taxes—where the spouse gets special treatment in things large and small. For instance, a legal widow pays no inheritance taxes on their jointly-owned house or furniture or car. What about Madeline and myself, co-owners of our house? We’re legal strangers: if one died, the other would pay a far higher rate of inheritance taxes just to “inherit” her own furniture and house.

  Still more complex is the question of who, if anyone, gets the less tangible inheritances that make up so much of our wealth. Who has the right to your social security benefits or your pension? Who has the right to keep running your joint business, if your dead spouse’s name was on those lobster or liquor licenses, or leases to Manhattan property that’s increased in value? If (god forbid) you’re murdered, who gets victim services or compensation? If you’re hit by a car, who can sue for wrongful death? The statutes go on for pages, insisting that a spouse should get compensation or scholarships if married to a police officer or firefighter killed in the line of duty; or forbidding the business’s suppliers from cutting off merchandise if there’s a surviving spouse qualified to take over; or forcing an employer to hand over any unpaid wages to a surviving spouse.

  The legal definition of “spouse”—whether it means only the legally married or also includes committed partners—is up for grabs as the world changes. One famous case is Braschi v. Stahl, in which a New York court insisted that a gay man’s partner be allowed to stay in the rent-controlled apartment they’d shared, even though his name had not been on the lease. In 1997, an Israeli court insisted that the military pay the military pension of Col. Doron Meisel, who in 1991 died of cancer, to his widower Adir Steiner. Canadian courts have recently decided that for all practical purposes “spouse” must include a committed same-sex partner. As lesbian and gay men grow more accepted and more confident in their partnerships, an increasing number of such cases will occupy the courts. Why should they be decided one by one, in expensive and exhausting lawsuits? Civil marriage would make such decisions clear: if you stood up and stood by a spouse, you get the goods.

  But why does it have to be marriage? Some people stay away from marriage because they don’t want the state to make surgical decisions about their functioning as a couple. People who don’t want to live by the general social understanding needn’t enter the institution, or should feel free to try to change it. Certainly many of us would like to see healthcare benefits untangled from coupledom. But in any society, pluralist or otherwise, one hardly expects agreement with every social detail. Only totalitarian government is free of compromise, over time and across groups. Others object that marriage is too facile a way to consider the relationship between people. But I feel slightly ill at the idea that a hospital or a state would have to conduct an inquisition into my relationships before deciding who to listen to about my life: what if some hospital administrator listened not to Madeline, or my brothers, or my dear friend Laura, but rather to some obsessed and sociopathic stranger?

  Some would like to offer same-sex couples not marriage but rather domestic partner policies. Certainly one can make a case for undoing the either/or of modern marriage, returning to history’s more pragmatic approach: having a variety of marriage forms, some looser and some more binding than others. But marriage laws and regulations have accreted over centuries of understanding how two people work together; their comprehensiveness cannot be replaced by piecemeal or sometimes purely ceremonial policies. American domestic partner policies offer very few things and affect only the employees of the particular city, company, university, or other organization that adopted them. Yes, its employees—not its residents. For instance, if Cambridge, Seattle, or Atlanta offers domestic partner registration, those cities’ municipal employees can enroll their partners on the municipal health insurance plan. Or if the DP-giver is Lotus or Harvard, maybe those employees can use the corporate childcare center (if it exists) even if the co-mom, not the bio-mom, is the one who’s employed. There’s not much else to gain—and even that little gets taxed. Even if I lived in DP-granting Atlanta but my employer did not offer DP policies, the city’s DP registration would affect Madeline and me not a whit. We’d remain legal strangers when it comes to such things as inheriting our own house and all the rest.

  Surely some couples might, given the choice, decide to enter what one French magazine calls “mariage light.” But two questions arise about domestic partnership or “pactes de civil solidarité.” Won’t DP inevitably drift toward all the long-argued rules of marriage, as one couple after another winds up in court over the same questions that wrench apart post-marrieds? And why should only same-sex couples have no choice, be relegated only to the second-class option, for which you pay more and get less?

  While current domestic partnership policies are miniscule in scope, they are actually harder to get than marriage. In most American states marriage itself requires only a blood test, a $50 fee, and a few minutes in front of some municipal official. Signing up for DP benefits usually requires, for instance, affidavits of shared residence (for a proven length of time) and bank statements proving financial interdependence—making DP seem much more like “traditional” marriage than like contemporary marriage. So why do people fight so hard for domestic partnership when marriage has the real goods?

  In the Netherlands, Denmark, Norway, Sweden, Finland, Greenland, and Iceland, same-sex couples can already enter legal partnerships that are “all-but” marriages—gaining all marriage protections except the ability to marry in the state church, to adopt, or to use assisted fertility services. And those last two bars are coming down: the Scandinavian countries are all considering
extending adoption and fertility services to same-sex pairs, and the Netherlands—where at this writing 78 percent of the population favors same-sex marriage—already has. And the world has not come to an end. Society need not reinvent the wheel—or in this case, a parallel institution that attempts to replicate years of accreted decisions about what’s fair—simply to keep the word “marriage” pure from the taint of homosexuality. It need only ask itself: what is marriage for? If it’s to let equal partners willingly share responsibility for each other’s lives and fortunes, then same-sex couples belong.

  TWO:

  Sex

  Item: For many centuries, the “crime against nature” included any sex that attempted to prevent conception—coitus interruptus, sex con bouche, sex con mano. According to one key theologian, if a married couple tried to prevent making babies while making love, the wife was no better than “a harlot and the husband an adulterer with his own wife”; if they used contraceptive techniques, “I do not see how we can call it a marriage.” For many centuries the Church refused to bless remarrying widows and widowers, especially if the woman was too old to bear children. When in the nineteenth century the Western world’s birth rate began to drop dramatically, pundits, priests, and politicians cried out against a world of “harlots and adulterers.” But by the mid-twentieth century, that older rhetoric had faded away: the Western economy had come to favor individuals who ran their lives by their own consciences rather than couples who constantly churned out babies. In 1965, the United States Supreme Court decided that married adults had a right to regulate their own sexual behavior. The crime against nature had become a Constitutional right—except for one last nonreproductive group.

  To many people throughout history, the answer to my question—“what is marriage for?”—is so obvious that the question defies common sense. Marriage has long been seen as what makes sex legitimate—literally making it legal, roping it off from all those other kinds of sex for which an appalled neighbor might haul you in front of the local ecclesiastical or county court. Sex outside marriage’s white picket fence was long considered adultery or fornication—“th’expense of spirit in a waste of shame,” as Shakespeare once sonnetized. It’s an interpretation that’s disappearing in our era, when living together is no longer remarkable, when consumer culture sells sex with every pair of jeans, when pop magazines explain how to wow your boyfriend in bed, when the latest political scandal seems nothing more than an excuse for voyeurism.

  But even in our jaded era, sex brings up profound moral questions. That’s true partly because sex involves our own bodies, spirits, and hopes—and partly because, to have sex, we must either arouse or overpower not just ourselves but other human beings. Most of us know that sex can be a powerful force for joy or for chaos, either strengthening or destroying us with sensations and desires that threaten to erase the rest of our own (or others’) lives. And so many of us conclude that there should be some rules about sex. Every human society obliges, offering a wonderful variety of systems. The system might include just a few laws against rape and molestation, or it might be a comprehensive code punishing sex outside marriage. Whatever the system, it means we’ve agreed that somehow the traffic among us must have stoplights so we don’t all crash. And whatever the system, it involves the marriage rules.

  In other words, one of the questions hiding inside this book’s main question is: What justifies sex? In the West, that question has found many expressions over the millennia. Is sex justified by power, so that people captured into slavery (or drafted by the Roman army, or handed over to a husband) can abandon all hope of owning their bodies? Should marriage confine sex entirely—or confine it only for women, while men still range freely—or confine it not at all? Are there limits even between spouses? Is sexual pleasure a sin and a rebellion against God, or a sign of God’s joy in creation?

  In the hopes of illuminating today’s marriage debates, this chapter examines a few pivotal times and places in the ongoing battle over the West’s sexual philosophies. Three philosophies have dominated the West’s answers about sex: Refraining, Reproducing, and Refreshing. Depending on what your world currently counts as right thinking about sex, what’s demonized as wrong shifts from one act to another. If refraining is the right thing, then any sexual pleasure is evil. If reproducing is the right thing, then the “crime against nature” is any act that prevents babies—whether coitus interruptus or drinking pennywort tea as a contraceptive. If sex is for refreshing each other’s spirits, then someone besides contracepting pairs must become society’s sexual scapegoat—and lately that scapegoat has been Madeline and me. Are we necessary scapegoats, or is the debate over same-sex marriage actually rehashing a debate settled half a century ago?

  Refraining, 1: Christians Reject Marriage

  Our first battle lies between the radical sect of early Christians and its philosophical forebears: Rome, Christianity’s father, and Judaism, Christianity’s mother. Asked what justifies sex, Rome would answer procreation and power; Judaism would answer procreation and praise.

  It’s easy to recoil from the Roman Empire’s official sexual attitudes and habits. Remember the grade-school joke, “Where does a 400-pound gorilla sleep?” Like the gorilla, the upper-class Roman male patriarch slept anywhere he wanted to. His wedding night, declares one historian, was an officially sanctioned rape. Both before and after marrying he was free to entertain himself sexually not just with his official wife but also with any of his slaves, servants, and hangers-on, all of whose bodies belonged to him—female and male, adult and child. Their unwanted offspring he could choose to raise or to abandon in public to die if no one else picked them up. If his slaves’ babies were beautiful—whether or not they were his own bastards—he could sell them to be reared as specialists in particular sexual practices, for which he (or some other patriarch) could later buy them.

  Which is not to say that every Roman male was an unrestrained satyr: there were moral and social limits. Some philosophies urged him to practice sexual restraint—for the sake of his own power and respect, not because he owed fidelity to his wife. He wasn’t ever to touch some other citizen’s daughter or wife, unless he got the father’s or husband’s permission and turned her into his own wife or concubine. He wasn’t to touch a young male Roman citizen; the law got very nasty about that. But if you were born into the wrong nationality or class—taken as or born a slave or freed but still living gratefully under your ex-owner’s protection—tough. Declared one senator: “Unchastity in a freeborn person is ground for prosecution, in a slave necessity, in a freed person duty.” What the Roman patriarch wants, he gets: to the victor goes the spoils, and it’s you. You expected, maybe, some kinder sexual morality from empire-building conquerers?

  The male Roman aristocrat did face a few other limits on his penile behavior. He was vehemently urged, even coerced (either by his father or by Augustinian law), into a legal marriage by the end of his teens, since someone had to produce more ruling-class Roman citizens. And he couldn’t—at least, not if he wanted his fellow citizens’ respect—let some other man use him the way he could use women, prepubescent boys, and slaves. If he voluntarily bent over, “he invited scorn in metaphorically abdicating the power and responsibility of citizenhood.” A man wanting a man was not seen as a problem, since he was still displaying his own desire and power. For a man to refrain from sex (after, of course, he’d produced his three official offspring) was an impressive display of personal power, this time over himself. But a man choosing to be passive was disgusting. Power—using it, proving it, hanging onto it—was what mattered.

  The Jews, on the other hand, wanted to mark themselves off from every other tribe—marking every daily act as sacred and uniquely Jewish through special codes, disciplines, and requirements. Just as Jews could eat only food that was kosher (and therefore could not accept the hospitality of non-Jews), so Jews could have sex only within marriage—which therefore meant only with other Jews. But within marriage, that holy
obligation, sex was a mitzvah—an obligation and blessing so important that the truly holy performed their marital duties on the Sabbath. As the rabbis commented, “‘The holy person performs an act of holiness at a time of holiness.” A good part of the mitzvah was in making more little mitzvahs who would, in their turn, praise God with their own hearts and bodies—and not coincidentally help make Abraham’s tribe as numerous as the stars in the sky. Procreation was so strong an obligation that for many centuries Jewish men had to marry again, with or without divorcing, if Wife Number One did not deliver offspring within ten years—an injunction that was a bit shocking to their officially monogamous contemporaries, such as the Romans (whose polygamy was more tacit). Being a small merchant rather than a powerful patriarch, the Jewish husband had to take his wife into account far more than did the Roman. Even though the rabbis discussed the man’s purchase of his wife’s virginity, or rather, of her untouched womb, as if he were buying a head of cattle; even though he could divorce her for any reason at all; even though her adultery was a permanent blot and punished in the extreme while his was bad only if it marred another man’s sexual property—despite all this, rabbinical tracts went into great detail about his obligation to put her pleasure before his. Her womb might be some man’s property, but as a sexual being she was her own person.