Friday, June 17, 2011

Marriage v. Civil Unions, with a postscript on Trans Rights

On the issue of marriage v. civil unions – “separate but equal" is still as bad an idea as it was during the period in which the United States permitted racial segregation with that as the basis), I'd like to examine the whole "civil union" as an alternative to "marriage" basis.

The ancient Romans used a term matrimonium to deal with the marriage concept of caring for children (the first part of the word comes from mater - the Latin word for "mother").

They had a separate concept of connubium (a word from which the English term "nuptial" emerges) that dealt with the rules as to who one could marry. In the early Roman Republic, patricians and plebeians could not intermarry - they did not have the right of connubium with each other, regardless of whether there would be children in a relationship.

Opponents of marriage fairness, whether they are in complete opposition, or merely want to create a separate legal status for gays, are possibly confusing matrimonium with connubium.

The right to marry is an issue of connubium - and the civil term "marriage" does not have to rerefer to a combination of matrimonium and connubium. (And with marriage being permitted between opposite-sex octogenarians and infertile (and other) couples who might not have the desire to raise children, the connubium issue - who may marry whom, is paramount.

It could easily be argued that the state is primarily concerned with the connubium aspect of marriage with marriage equality bills.

Even though the matrimonium aspect is one that would more often affect opposite-sex couples because of the fact that babies often (but not always) come as the result of heterosexual sexual encounters, matrimonium also involves caring for and nurturing children – something that studies have shown that gay and lesbian couples can do as well as, if not better than, heterosexual couples.

Matrimonium is the part of the marriage equation that Roman Catholics celebrate as a Sacrament of Holy Matrimony." For Catholics, the *sacramental* aspect is the matrimonium - at the same time, the Church recognized the connubium aspect for those who, in addition to the sacrament, wish to celebrate a Nuptial Mass.

There is nothing in any pending bill for marriage equality, marriage fairness, or the right to marry, that has any negative or deleterious impact, on the matrimonium aspect of marriage. In fact, what marriage equality bills do is enhance matrimonium to benefit children who live in households in which the parents are a same-sex couple.

This will have a particularly great impact on African-American and Latina lesbian couples, who are more likely to be raising children from previous relationships, than any other demographic. (One can argue that opposition to marriage fairness is racist, and onewould be right, in that context).

Religious-based opposition to civil marriage equality is absurd – perhaps a slogan should be made of "Marriage Rights for all, not Marriage Rites for all" with a crucifix for the central T in Rites. Despite rhetoric coming from some circles, there is no requirement that religions that do not accept marriage except between members of an opposite-sex couple, would be forced to perform or sacramentalize same-sex unions.

Still, for those religions that would wish to celebrate marriages for same-sex couples, a sacramental rite for same-sex marriages (or for octogenarians or infertile couples) would not have to include aspects that relate to matrimonium - (I mention marriages for opposite-sex octogenarians way past their child-bearing years in this context - this would avoid the necessity for some of the questions relating to bearing children - I have seen Catholic ceremonies for the elderly in which the question is always asked.) Of course, if the couple does have existing children (whether related by blood or adoption to one or both of the parties), plan to adopt, or have plans for surrogacy or medical procedures ranging from artificial insemination to embryo implantation, a celebration of the matrimonium aspect would be just as welcome as it would be

As I have mentioned, from the *civil* side in the marriage equality bills, we're talking mostly about connubium - the right to marry. The matrimonium comes in only if there are children involved, wheher pre-existing, later adopted, or in the case of pre-menopausal lesbians, even naturally born (though perhaps not "naturally" conceived, though I would not refer to artificial insemination or other fertility treatment as "unnatural.")

Using a different term for the connubium of same-sex couples than that used for the connubium of opposite-sex couples is a bad idea.

Call it marriage. Period. The focus is on the connubium - and that is the *only* change that marriage equality laws make. Matrimonium does not change - if there are or will be children, than the family created by marriage, regardless of the gender of the couple, will benefit the children.

For Roamn Catholic thrologians, one might find support for the idea in an unexpected place – a 1930 Papal encyclical from Pius XI, that, while it does put primacy on matrimonium, does place a lot of value in other aspects of marriage - this encyclical could actually be rewritten with very few changes to incorporate Catholic theological teachings that could be applied to same-sex couples as well.

Casti Connubii is the name of the encyclical.

Here is an excerpt, from Paragraphs 24 and 25:

24. This mutual molding of [husband and wife] spouses, this determined effort to perfect each other, can in a very real sense, as the Roman Catechism teaches, be said to be the chief reason and purpose of matrimony, provided matrimony be looked at not in the restricted sense as instituted for the proper conception and education of the child, but more widely as the blending of life as a whole and the mutual interchange and sharing thereof.

25. By this same love it is necessary that all the other rights and duties of the marriage state be regulated as [the words of the Apostle: "Let the husband render the debt to the wife, and the wife also in like manner to the husband,"] not just a 50-50 proposition, but as each spouse giving 100% to the other, to express not only a law of justice but of charity.

NOTE: [Bracketed] portions to be deleted, Italicized portions are my gender-neutral replacements.

It's *possible* that one day, ancient texts will be rethought - after all, even our Declaration of Independence and other foundational documents are sexist - with the declaration that "all men are created equal" - at a time when married women were considered as "civilly dead" as any convicted felon, since in marriage under the common law, "the two become one and that one is the husband."

Today, we read men in that document as encompassing both men and women. Perhaps the day will come when old documents that relate to sex-specific marriage roles can be recast and reunderstood in a gender-neutral manner.

Many states have made their marriage and domestic relations laws largely gender neutral, even if many have not yet taken the final step of making the connubium also gender-neutral.

New York State is once again on the brink of recognizing the broadening of connubium to make it gender neutral.

Postscript: (Meanwhile in New York, the transgender community languishes, desperately awaiting Senate passage of the Gender Expression Non-Discrimination Act (GENDA) – a bill which would serve to “catch up” the trans community on the issues of hate crimes (passed without us in 1999), and on human rights (passed without us in December 2002). GENDA passed in the Assembly this year one day before the Assembly passed the Marriage bill. While the Senate should take GENDA up immediately before marriage, that depends on the Republican leadership of the Senate, as to whether one, both, or neither bill will come up for a vote.

While making marriage laws gender neutral is a positive step for the trans and intersex communities as well as the members of the lesbian, gay and bisexual communities, the failure to enact GENDA will remain an indictment against the members of the legislature, and the governor, for not following through on this vital bill as well.)

When marriage equality comes to New York, and I fervently hope it does, if GENDA is not also passed, my celebration will be somewhat muted. Will the ardent advocates of marriage turn to help pass GENDA? Or will they disappear? And if GENDA does not get a Senate vote - when redistricting come in 2012, it would be my fervent hope that it would result in the election of 35 or 36 Democrats to the Senate - because once that happens, there will be no excuses left.

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