Same-sex marriage opponants often argue that the purpose of civic marriage is to provide an ideal environment to bear and raise children through heterosexual sex. However, this idea doesn’t stand up very well to evidence. As many people have pointed out, there is no law forbidding the infertile, the elderly, or stuck-in-prison, or the otherwise unlikely to breed from marrying. As “Alas” reader Lucia has pointed out, infertility was not generally grounds for fault-based divorce in the USA.
Now SK Elkins brings us more proof that civic marriage in the US has never been based on the ability to bear children through het sex. What about common-law marriage?
These are the rules which govern what criteria we use and have
used historically, here in the US, to determine whether or not a relationship between two people should be deemed worthy of the status of marriage by default. Many of these laws originated in a time when the nearest courthouse was often so far away, and over such rough terrain, that it was really not feasible for everybody who wanted to be married to make the trek to get the papers. The various states, in recognition of this problem, established guidelines for what people had to do to be considered “married in the eyes of the law” even if they did not have the license proper. On a very fundamental level, I think that these rules show what our legal and civic understanding of what marriage is: what it means within a civic context.
Common-law marriage used to be far more common than it is today. There are currently only 16 states in the union that still consider people married “by default” if they fulfill common-law marriage criteria. Here is a common law marriage fact sheet listing those states.
If you look at the criteria listed for each of these states, one of the things that is rather striking about them is that not one of them cites having children together as a factor in deciding whether or not two people are “married.” Indeed, these rules are remarkably consistent from state to state, and they all seem focused on two things:
– co-habitation
– self-presentation to community as a committed couple
I also find this phrasing suggestive:
“If you live in one of the above states and you “hold yourself out to be married” (by telling the community you are married, calling each other husband and wife, using the same last name, filing joint income tax returns, etc.), you can have a common law marriage (for more information on the specific requirements of each state, see next page).”
In other words, self-presentation to the community, or “holding yourself out to be married,” is facilitated not only by the usual social constructions, but also by proof of mutual financial support. Child-rearing, on the other hand, does not even make the list, and only one of the sixteen states–Alabama–lists sex, or “consummation,” as a relevant factor at all.
Elkins has many more details; go here to read the whole thing..
There’s also no reason to think that homosexual parents somehow do a worse job at parenting than heterosexuals. I wrote a post on this yesterday that you might want to check out –
http://www.braydenking.com/weblog/archives/000213.html
Excellent information btw. Especially following on the discussion of divorce.