Foldvary: Marriage, Shmarriage, why not Pairage?
|February 23, 2004||Posted by Staff under Progress Report, The Progress Report|
Marriage, Shmarriage, why not Pairage?
by Fred E. Foldvary, Senior Editor
Great fusses are being made about the homosexual marriage-athon going on in San Francisco. Mayor Gavin Newsom authorized marriage licenses for same-sex couples, and so there has been a stream of gays and lesbians getting recognition from the city as a married couple. Many have come in from outside the city. But whether the State of California and the federal government will recognize these when it comes time to audit tax returns is uncertain.
Homosexual marriage involves religious, traditional, linguistic, moral, constitutional, and legal issues. There has been opposition from those who say that their religion prohibits homosexuality and mandates a marriage as a union between a man and a woman. The Constitution of the United States is clear on that aspect: there shall be no governmental establishment of religion. U.S. law may not be based merely on the prescriptions of any religion. So merely what is written in religious texts may not be the basis for U.S. law.
Some traditionalists have sought to go around this Constitutional limitation by proposing an amendment to the U.S. Constitution stating that marriage be a union only of a male and a female. One problem with this is that this intrudes into an category of law which in the USA has been in the domain of the states. If the people of a state such as Vermont desire that marriage be available to same-sex couples, the federal government would be imposing a restriction into family law and depriving that state of its constitutional sovereignty. It would be an attack on the federalism that the founders of the Constitution established.
The morality of homosexual marriage should not be based on tradition or religion, but on universal natural law and natural rights. The universal ethic prescribes that only those acts which coercively harm others are evil. Contrary to what some conservatives and religious supremacists claim, no coercive harm is done to society by homosexual marriages. The threat to heterosexual marriage comes from potential divorce, not from somebody else’s marriage.
There are social conservatives of good will who are willing to establish equal legal rights for same-sex couples with respect to inheritance, taxes, hospital visitation, and other matters, but who for traditional and linguistic reasons desire that the term ‘marriage’ be confined to man-woman mating. We can establish equal legal rights in substance by changing the symbol or form, naming homosexual unions something other than marriage.
‘Civil unions’ does not quite satisfy the desire of same-sex couples to be really married. Some have proposed calling it ‘sh-marriage,’ for ‘same-sex or homosexual marriage.’ But others think it would disparage marriage to say ‘marriage, shmarriage, what’s the difference?’
It seems to me that a better term for homosexual marriage is ‘pairage.’ The couple is a pair, and their union a pairage. A pairage would be available to same-sex couples only, since a man and a woman can enter into a marriage. The law regarding pairage can state that a pairage shall have all the legal rights of a marriage, and where a pairage is not legally recognized, then the pairage shall be designated a marriage. So a pairage would be a same-sex marriage that is called a ‘pairage’ instead of ‘marriage’ but is legally a marriage. The name ‘pairage’ grants traditionalists a symbolic value while granting to homosexuals the substance they seek.
Is a pairage required by state and federal constitutions? Yes, because equality before the law is the foundation of constitutional law. This goes back to the Declaration of Independence, where Thomas Jefferson expressed the natural-law view that people are ‘created equal.’ The natural-law philosopher John Locke based natural rights on the premise that human beings are all ‘equal and independent.’ Equal human worth is at the foundation of justice and liberty.
While conservatives will resist homosexual marriage, shmarriage, or pairage, they will fail to stop it, because it is a social tide that no law or amendment will stop. In the U.S. and Europe, the tide of public opinion is for according dignity and equality to homosexuality. Not so long ago, antisemitism was acceptable in the U.S. and Europe, but now only extremist nationalist and religious supremacists will express Jew-hating in public. Not so long ago, marriage between a man and woman of different races was illegal in many states. Fortunately, the social tide in North America and Europe is towards ever greater tolerance, first for religion, then for race, and now for sexual orientation.
This tide began centuries ago when the serfs were freed from bondage to the lord’s land, and then chattel slavery was abolished, and then women won voting and economic rights, and then religious and racial discrimination ended. Now the frontier is equal rights for gays and lesbians. Once that is done, the tide will keep moving to other frontiers, such as victimless crimes and taxation. For now, San Francisco is making waves as we witness a social revolution that is irreversible. The moving finger is writing, and having writ, will move on.
Copyright 2004 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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