About Me

My photo
Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Monday, June 27, 2011

Silly bishop manages to say something right

According to The New York Daily News, church leaders have (predictably) bashed the provision for same-sex marriage recently made by the State of New York.

Amongst their nonsense is a statement by Bishop DiMarzio, who apparently told the Daily News: "The state should not be concerned about regulating affection."

Well, fine. From a purist viewpoint I'd go along with that. It seems quite right to me. So let the state stop regarding some relationships as "marriages" and others not. Stop registering marriages altogether, and simply let people get on with having whatever "affection" for others they like. It will still be necessary to keep track of births and to oversee the welfare of children.

Until that's done, though, how is recognising heterosexual couples as "married" but not recognising homosexual couples as "married" - when both have the same desire for official recognition - an example of not regulating affection?


John Pieret said...

What do we do about inheritance rights, medical decisions, child custody and the like?

Russell Blackford said...

Outside of the US, these are handled just fine for de facto couples.

Russell Blackford said...

That said, I'm not arguing against providing for same-sex marriage in current circumstances. On the contrary, I defend the idea in Freedom of Religion and the Secular State. Rather, I'm pointing out the illogic of what the bishop is saying.

John Pieret said...

I'm pointing out the illogic of what the bishop is saying.

Of course, I agree with that.

I'm curious, though, how, legally, de facto couples' inheritance rights are handled, for example. How are parents' and siblings' inheritance rights subjected to the de facto "spouse's" rights? If the de facto couple have been living together for a week, does the "spouse" inherit over the parents and siblings? Is something more than that required? If so, what? And if society recognizes that something else, how is it not "sanctioning" the relationship?

I'm not being contrarian, I'm really not sure how the state can avoid recognizing differences in legal relationships.

Russell Blackford said...

John, I'm not an expert on these areas of law, though I know a little bit about some of them. But it's just not a huge problem in Australia (or, I believe, most other Western countries).

E.g., the ordinary law of trusts applies to situations where people have pooled income to buy a house, or where one has looked after the kids while the other has gone to work, etc. The law relating to the breakdown of de facto relationships, including what happens to children, need not work greatly differently from divorce law in the strict sense. Also, de factos after some statutory period of time can get access to government benefits in the same way as actually married couples.

Probate I know nothing about, but it doesn't sound like a huge issue when it's so easy to make a cheap will. Suburban solicitors don't charge much at all for this, and there are plenty of guides for how to do it without going to a solicitor. (And if it's at all complicated, you'd probably want to consult with your solicitor even if you are married.)

Really, when I look at long-term "living in sin" couples I don't see that they are suffering any particular legal burdens from not being recognised by the state as "married", and the general direction of public policy is to assimilate their legal rights against each other and the state to those applying to married couples. The US is notoriously an outlier in being so slow to follow that approach.

That's not to say that things are absolutely identical for established de factos and married couples in Western countries outside the US, but it's very much the tendency for the married/de facto distinction to break down. And de factos can be same sex as well as opposite sex (indeed the relevant areas of law are flexible enough to handle the property rights of threesomes, friends who pool resources, siblings who do so, communal arrangements, and all the other possibilities). Nor is it to say that marriage has no advantages at all in getting a clear bundle of rights established.

But all the same, the issues you raised just don't seem to me all that important in practice. Which is one reason why many heterosexual couples don't bother getting married: legally, it doesn't make a lot of difference. I think it's all a bit of a bogeyman. E.g. the Australian government could withdraw from recognising marriages tomorrow, and not much need change as long as it has some sensible criteria for recognising the existence of established domestic relationships in areas where it considers this relevant.

Mike said...

The issue of immigration with transnational couples is still one that is causing massive heartache where same-sex couples are involved.

In the US there are thousands of couples who are legally married but because of DOMA one of them will be ejected from the US.

States would probably find polygamous arrangements much more straining for border controls.