TCS Daily

Contract Killers

By W. James Antle - January 27, 2006 12:00 AM

Can a gay-marriage ban affect people who are neither gay nor seeking to be married? This question has come up in Virginia, where such a ban recently sailed through the lower house of the state legislature and is one step closer to making it onto the November ballot. Even same-sex marriage opponents (a group that includes this writer) should be concerned if wording intended to make the measure insurmountable instead makes it injurious to freedom of contract.

The proposed amendment defines marriage as a union between a man and a woman. But, just to make doubly sure that no clever judge reads anything like gay marriage into Virginia's constitution, it withholds recognition of "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage" and prohibits the creation of marriage-like arrangements for non-marital relationships.

The point is to leave any Virginia court inclined to imitate the Massachusetts Supreme Judicial Court with as little wiggle room as possible. Not only is judicially imposed gay marriage out; so is any move to give the same-sex couples the benefits of marriage while calling it something else -- such as a civil union or domestic partnership.

Except that -- as same-sex marriage opponents are often the first to point out -- gay couples can already obtain many of the benefits of marriage through wills, trusts and contracts. Last year, Ramesh Ponnuru argued in a National Review cover story that making the incidents of marriage even more widely available to people living in other arrangements might point the way to a compromise, or at least lower the temperature of the debate. The Virginia amendment, however, is at least open to being interpreted as cutting the opposite way, complicating private contracts between same-sex couples that aim to approximate marriage and perhaps even making such contracts that already exist unenforceable.

For example, is a contract detailing property-sharing or setting agreed-upon penalties should the couple stop living together something that "intends to approximate the designs, qualities, significance, or effects of marriage"? What about living wills or power of attorney agreements that can currently exist independently of marriage? Similar questions arise regarding medical directives, child-custody agreements and other contracts negotiated as a matter of course.

Such arrangements aren't limited to same-sex couples. Unmarried heterosexuals, family members and even roommates might work out hospital visitation rights and power of attorney in some jurisdictions. Under the amendment, what would happen if they came to Virginia? "A physician may choose not to honor the contract or feel that the law prohibits him honoring the contract," says Kent Willis of the Virginia ACLU.

Proponents of the amendment counter that their proposal is only about marriage, not undermining existing contract rights. Republican Del. David Albo, chairman of the House Courts of Justice Committee, told the Washington Post, "Our intent wasn't to affect private contracts or anything like that . . . and we can't invalidate wills and shared equity agreements and things like that." Albo is seeking a legal opinion from the newly inaugurated Republican Attorney General Robert McDonnell to clarify whether the wording is consistent with those intentions.

Of course, the debate over allowing private employers to voluntarily extend health insurance coverage beyond spouses and dependent children suggested that some Virginia legislators aren't consistent defenders of contract rights. But Albo's colleagues have an important argument in their favor. There were similarly dire predictions about the fate of Virginians' freedom of contract following the passage of the sweeping Marriage Affirmation Act. That law is currently on the books, and unmarried couples' private contracts and shared bank accounts seem to have survived.

But skeptics can point to a counterexample in Ohio, where voters passed a constitutional amendment that prohibited government entities from recognizing anything "that intends to approximate" marriage. Gov. Bob Taft, a Republican gay-marriage opponent, warned that the phrase would inspire as many different interpretations "as there are judges in Ohio."

In at least one case, Taft was proven right. A Cleveland judge ruled that the state's domestic violence law violated the marriage ban because it treated an unmarried, cohabitating (heterosexual) couples the same as a married couple. An appellate court disagreed. But these contradictory decisions don't bode well for the clarity of the language in question.

Virginia legislators should decide that the same-sex marriage debate is difficult enough without including overly broad language that could spill over into other issues. Otherwise the defenders of our society's longstanding definition of marriage may run afoul of something even older—the law of unintended consequences.

W. James Antle III is a senior writer at The American Conservative magazine.



The effort to equate homosexual relationships to to heterosexual marriage is a classic case of overreaching. Homosexual activists choose not to be satisfied with legal acceptance of "civil unions", but rather insist on attempting to establish "moral equivalency" with marriage by broadening and thus changing the meaning of the word "marriage". If "civil union" is an unacceptable, or insufficiently descriptive term, perhaps "vagina dialogue" or "selective serial sodomy" would be more descriptive and thus more acceptable.

Gays activists then "wonder" why others begin overreaching in response to their efforts. I believe the reasons are quite obvious.

The author mentions the "Law of Unintended Consequences". However, while these consequences may truly be unintended, they are certainly not unanticipatible.

Where's the fire??
"moral equivalency"
Why is this so threatening?
How does it hurt anyone married not, or men and women who marry in the future?
What are people scared of?

Not threatening - irritating
People are irritated because they don't like being pushed, especially when the direction they are being pushed does not make sense to them. The word "marriage" has meaning which has been consistent for centuries. That historical meaning does not include enduring homosexual relationships. The acceptance of "gay civil unions" achieves the stated legal objectives of gay couples, but apparently does not establish the "moral equivalency" objectives of gay activists.

What's wrong with 'moral equivalence?'
You say "people don't like being pushed." Gay people have been pushed for a long time. They're not people?

If a man and a woman are married, how does it affect their union is two women are? If a church doesn't want to perform the ceremony, nobody's saying they have to. But what if a church does?

Government in the bedroom...and church
"Even same-sex marriage opponents (a group that includes this writer) should be concerned if wording intended to make the measure insurmountable instead makes it injurious to freedom of contract."

The entire issue of gay marriage rests on the edifice of government intervention. The day that Americans decided to let the government sanction marriage the seed was planted for discord and disagreement--just as it is in ALL things politizied. Intervention by the state essentially killed freedom of contract and tossed out the pre-imminence of the church in matters of marriage and family. In other words, the government did not honor the first amendment but instead wedged itself between the church and people wishing to wed just as it has in many aspects of our supposed free existence.

Of course, the state has insured that couples must follow its "rules" because of its power to tax and treat married and un-married people differently in matters of income taxes, Social Security benefits and importantly inheritance. The whole mess,the derision and division it has splattered across and between Americans can be laid squarely on the state's doorstep.

Social problems
I've often heard it said that those who benefit most from society, that is, those who lead successful lives, owe something extra to society.

But then I think, why should such people owe something extra to society when they're the ones who make society work? If society is a framework of implicit agreements which, when honored, enable perfect strangers to cooperate with one another in order that both may enjoy society's blessings, then isn't it the people who breach society's agreements the ones who cause society's problems? And if so, aren't they the ones who owe something extra to society? Indeed, isn't this why we say of a convict who has served out his prison sentence, "He's paid his debt to society"?

What does this have to do with gay marriage? Everything.

Most Americans don't TRUST the theoretical institution of gay marriage because they know that the real institution of heterosexual marriage succeeds less than 50% of the time. Why should this weakened and questionably viable institution be broadened to include combinations even more iffy than one man and one woman?

Those who form families only to deform them through abuse, neglect and divorce cause most of society's problems. This we all know. The family is American society's core unit, and it's in decline. Why hasten its decline by experimenting with it?

"Weaken it" how?
This makes no sense. Heterosexuals are having problems with marriage, so the answer is to forbid homosexuals from even having a chance to have problems? Gay people didn't "weaken" marriage: Nor are they the ones who have "formed families only to deform them through abuse, neglect, etc." How does a gay couple marrying make any non-gay marriage less stable?

Hermaphrodites & Hypocrisy
Do hermaphrodites have as much right to marry as normal ly gendered people?

You might be surprised to learn that humans have more than two clearly defined genders, male and female. There are, in fact, many medical conditions which make a person's gender less than clear -- all of which fall under the category of HERMAPHORDITE.

In some cases, the sexual organs develop into an indifferent or under-differentiated state, in other cases, both sexual organs (or tissues) are present. In the past, doctors made a specific male/female assignment at birth that have later been found to be incorrect.

In any event, such person might best be described as possessing a ratio of male/female qualities, whereas one genetic-transexual might be 75-25 male/female and another might be 50/50 male/female.

So should a 75-25 male/female to be allowed to marry only females? And should the rare 50/50 male/female ever be allowed to marry?

One of the biggest disagreements that I have about this whole debate is the concept of "gay". Until the unelected illuminati of the psychiatric community decided (politically) that homosexuality was a benign characteristic, it was immutable and uncontrollable, we understood that it was an abnormal and unproductive outlet for the procreative faculties.

We know that people have sexual faculties and periodically, these faculties are exercised inappropriately or unproductively, sometimes in response to powerful predispositions. In the past however, people were considered separate from their pecadillos and not defined by them. When you say "gays" have been "pushed", that is to some extent true. Many people are "pushed" when they openly accede to behavior that deviates from the norm and if you don't think thats true, try getting a job with a high profile law firm after being tattoed and pierced.

I'm not suggesting, nor am I defending violence or persecution against someone known or perceived to be homosexual. I do however, defend my right, to hold the view that homosexual BEHAVIOR is instrinsically disordered and undesireable (even before AIDS, it was a huge public health problem) and to be free of government coercion to impose a view that it is otherwise. Additionally my opposition is not strictly confined to opposition to homosexuality. Pederastic, polyamorous and zooamorous "marriage" all have have to varying degrees zealous and insistent adherents with public positions in favor of legal recognition and I am opposed them as well.

Americans didn't decide to let the government sanction marriage
The entire issue of gay marriage rests on the edifice of government intervention. The day that Americans decided to let the government sanction marriage the seed was planted for discord and disagreement--just as it is in ALL things politizied.

Sorry but the idea that marriage is an affair of the state and not the church was most prominently decided by Martin Luther and Henry the 8th in the 1500's. That having been said, the government MUST be involved, principally as the registrar of the marriage.

Not threatening - irritating -and wrong.
That historical meaning does not include enduring homosexual relationships.

The most important mistake of the debate is the concept of the "enduring" homosexual relationship. Most studies indicate homosexual relationships to be transient and nonexclusive, especially among males-which makes sense when you realize that the "relationship" is primarily based on mutual pleasure and that where sex is concerned-that is often a fleeting coincidence, even in authentic matrimony that results in the most enduring bond-children.

The advocates however inevitably trot out the rare long enduring relationship as the rule, rather than the exception. In short "gay marriage" is a franchise clamoring for a constuency, rather than a constituency seeking a franchise.

Why not mind your own business?
You don't like it? Fine. Nobody's forcing you to have sex with someone the same sex as you are.

"l. I do however, defend my right, to hold the view that homosexual BEHAVIOR is instrinsically disordered and undesireable (even before AIDS, it was a huge public health problem) and to be free of government coercion to impose a view that it is otherwise."

You can hold any view you like. As far as "government coercion," what are you talking about? What's government forcing your to do? Not to change your mind. So what's your problem?

Even if true, so what??
"Most studies indicate homosexual relationships to be transient and nonexclusive."

First, what studies? Lots of heterosexual relationships are transient and non-exclusive. Some gays are promiscuous; so are some heterosexuals.

but the main thing is, why not treat people as individuals?

Even assuming for the sake of argument that long enduring relationships are (relatively) rare, why discourage such relationships? What's the downside of encouraging non-promiscuity and homebuilding? How is society impacted negatively?

Against amendments in principle (because they waste time)
What good do Constitutional Amendments do if the Constitution is not enforced?

The Constitution defines the 3 branches of government and had processes for the removal of people who violate their oaths of office. When judges or Presidents (or Governors) think they can pass laws by royal decree, they are supposed to be impeached.

If the legislatures won't impeach judges who violate their oaths of office, what is the point in passing amendments that they can ignore or interpret away?

My "problem" have it backwards.. why don't YOU MYOB

That people like you want to force me through government recognition (in which case for example, as an employer I'm forced to expend precious benefit dollars on a relationship I would otherwise ignore) to recognize a relationship as a marriage that is a total deviation from concept for the entirety of human existence absent the last 20 years or so.

As you said "You can hold any view you like." If you want to call the relationship of two people of the same sex a marriage-thats your perogative-just don't ask the rest of us to record it in the county courthouse.

If its "so what" why do you care?
I don't have exact quotes, but I remember the findings as general facts just as I know medical studies conclude Vitamin C is necessary and beneficial. On the contrary, why don't you produce evidence that homosexuals are predominately engaged in enduring, monogamous relationships. YOU are the one that wants to reorder the law, not me.

Of course, in any case, why is it so necessary to have an official recognition to "encourage non-promiscuity and homebuilding"? (By the way, the word you are looking for is "fidelity"-Orwell must have been right about the expansive use of negative modifiers when the vocabulary was stripped of the proper antonym)

If official recognition was so effective in encouraging those attributes-there'd be minimal heterosexual divorce-so your argument is fallacious. Anybody who remains with their spouse over time will tell you they do so out of innate desire, convenience, fear of being alone or other reasons than the records at the courthouse. Homosexual relationships are far more fragile, so having official records serves no purpose other than enriching the divorce practices of the Bar Association.

so if it doesn't make a difference, what's the problem
Ok, so official recognition doesn't encourage fidelity. It surely doesn't encourage infidelity either. But if it's a wash, why not allow same sex marriages?

and this:

" Homosexual relationships are far more fragile, so having official records serves no purpose other than enriching the divorce practices of the Bar Association."

makes no sense at all. why not leave it up to individuals? Is choice really such a scary thing? How does this conceivably affect anyone else than the couples who make the choice?

Poor baby!
A civil union would involve the same employer obligations, with or without marriage; so that's a wash. And it's not companies who are complaining about granting these benefits, which help to retain good workers. Instead, when the extend the benefits, out of what seems simple fairness, they get noises from buttinskys who not only can't accept homosexuality in their affairs, but insist it be kept out of everyone's.

The government now doesn't let you discriminate against black workers either, even though it did for a long time. If you want to cry about that, let me hand you a tiny handkerchief.

normal is superheater being wrong
And the rest of the red neck cultists. Homosexual relationship are as old as humanity and in manu cultural excepted as such. The fact that science has shown what the rest of us no bigots all ready know is comforting. the fact is it's only redneck religious types that have issues with sex and sexuality the rest of us are happy to see two or even consenting adults live however they choose.
I always find it funny that religious types are always the first to condemn Activist Governments and always the first to use governments to impose their pov. No one is forcing you to be gay however it is well known that those who fervently opposes gays are generally gay Christian /Jew/ Muslims who feel guilty about their feelings. Anything you want to get off your chest sup?

Who cares where it orignated America subscribes to the nonsense.
Why should the state register marriages? Simply to control and regulate?

Marriage at its essence is a contract between two competent, consenting individuals. The ONLY function that government should have is to protect the right of free association and contract, and to adjudicate and settle disputes between the parties.

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