Tuesday, April 05, 2005

A Marriage of Cousins

I'm a fairly vocal proponent of equal marriage rights for one simple reason -- I think the government has only one purpose: a constitutional responsibility to uphold life, liberty, and the pursuit of happiness... and that's it. Among our basic, inalienable rights as citizens is our right to enter into private contract, and while the government has a responsibility to uphold contracts we create as private citizens (i.e., to recognize them as legitimate and binding in order to assure that it can protect our other rights should there be some sort of dispute), (edit: thanks elinor!) so long as no other constitutional rights are being impeded, the government has no business impeding our right to create those contracts freely amongst ourselves in the private sphere. Marriage is, essentially (as far as the law is concerned), a private contract between two people in which they agree to joint custody of all past, present, and future assets. Forget this religious, sanctity-of-marriage crap - that's the means by which two people enter into this contract, but there is no inherent 'sanctity' in marriage, and there is no constitutional necessity that requires that all private contracts that are labelled marriage should be between only certain kinds of private citizens. The government was never created to moralize and preach -- its duty is not to protect the morality of the citizenry. Whether a politician agrees or disagrees with what I do as a private citizen should be of no consequence, he should not be able to employ the government to restrict my actions in the private sphere. Unfortunately, in this new movement by the Religious Right to redefine the role of government as priest, missionary, and Holy Father, the original definition government and its limits has been lost. According to the Founding Fathers, the State has no business trying to restrict what marriages should be allowed and what shouldn't -- fundamentally, whether you agree with homosexuality or not, it's not about your queasiness with another person's same-sex couplings, it's about protecting everyone's constitutional right to make whatever contract they'd like with another private citizen. And that includes allowing this kind of marriage as well:

Cousins' marriage highlights relationship controversy PITTSBURGH, Pennsylvania (AP) -- It began as the kind of childhood crush that often becomes family lore shared at reunions years later. Eventually, first cousins Donald W. Andrews Sr. and Eleanore Amrhein realized they had a deeper love and wanted to wed. It couldn't happen in their home state of Pennsylvania, though, or 23 other states that prohibit first cousins from marrying each other. Instead, they tied the knot in Maryland last month. "This is a decision me and my husband have made on our own. We never thought of it being publicized," said Eleanor Andrews, 37. "We didn't want the publicity. We wanted the rights like anybody had the rights." Their nuptials highlight a relationship that often draws scorn, yet advocates say is equally misunderstood. Such marriages are common in the Middle East, Asia and Africa and are legal in Europe and Canada. In the United States, 26 states and the District of Columbia allow first cousins to wed, according to the National Conference of State Legislatures. Of those, five have requirements aimed at preventing reproduction and one state requires genetic counseling. Robin Bennett, associate director of the medical genetics clinic at the University of Washington, said that laws prohibiting cousins from marrying are "a form of genetic discrimination." Bennett led a 2002 study on risks of genetic problems in children born in such marriages. The study found that children born to couples who are first or second cousins have a lower risk for birth defects than commonly perceived. On average, an unrelated couple has an approximately 3 percent to 4 percent risk of having a child with a birth defect, significant mental retardation or serious genetic disease. Close cousins face an additional risk of 1.7 percent to 2.8 percent, according to the study, funded by the National Society of Genetic Counselors, and the U.S. Health and Human Services Department. Christie Smith, 40, founded Cousins United to Defeat Discriminating Laws through Education, in 2002 to overturn laws banning such marriages. So far, the group hasn't found much success. "People don't like what they don't understand," said Smith, who fell in love with her husband after seeing him at a family reunion.
It might be shocking, maybe even a bad political association for other gay marriage advocates, but I can't think of any good reason why two consenting adults can't get married if they would really like to, and that includes people of the same gender of the same family tree. Bottom line, when it comes to two cousins or even two siblings who really want to get married, the only reason one might have against doing so are a percentage of genetic defects that might occur in the children -- and that, in my opinion, is not a really good reason to outlaw the whole possibility to marry. Aside from this article pointing out that the risks are lower among first and second cousins than had originally been thought, I don't see what the harm is in educating a would-be couple of the serious risks of genetic anomaly in their children and then letting them make their own choice. To have the government step in and presume that they know better than the star-crossed lovers is a huge overstep of the government in trying to dictate moral and cultural precepts to the private citizenry, and makes that dangerous assumption that the citizenry needs the government to make their choices for them. So yes, I'm going to take that dangerous, 'slippery slope' step and say that any two consenting adults who want to get married and who know the risks are fine in my book. No matter how much I might be against personally marrying a member of my own family, when it comes to someone else, it's their decision to face the cultural stigma and genetic risks of wedding their cousin. And, if you're freaking out about cultural decline by legalizing marriage of all shapes and sizes, think about this: what kind of culture are we really talking about if you have to use the law to force people to live by your cultural values? Cultural values don't require laws to enforce them -- they have their own means of enforcement through cultural stigma and societal dialogue -- we don't need to restrict our own rights to keep American culture thriving. To do so would be its own kind of decline of American culture -- the decline of American democracy.


Anonymous unfurling said...

couldnt agree more - strange that in liberal england, gay marriage really isnt a hot issue at all.

4/05/2005 02:33:00 PM  
Blogger Jenn said...

agreed. i'm actually canadian, and gay marriage isn't a big deal over there either. i dunno why americans freak out so much over what OTHER people want to do in their private lives.

4/05/2005 11:21:00 PM  
Anonymous Anonymous said...

so what about three people who love each other very much and want to marry?

(or how about marrying a pet?)

4/06/2005 07:20:00 AM  
Blogger Jenn said...

i have no problem with three people who want to marry either. that is entirely a cultural value that prevents polygamous marriages from being recognized... the same kind of cultural reticence that says gay marriage shouldn't be allowed because any kids who are exposed to two mommies or two daddies will turn up all fucked up.

marrying a pet on the other hand doesn't work because animals are not considered citizens of the U.S. with constitutional rights. Hence, you can't enter into a private contract with an animal. It's the same reason you can't marry a child -- they don't have the same rights as a full adult.

4/06/2005 08:51:00 AM  
Blogger Elinor said...


Just a question: I'm a little confused as to where this puts you as far as labour relations go. This sounds like essentially a libertarian argument. If we have or should have an unlimited right to enter into private contract with each other, what's your opinion on, say, the minimum wage, or occupational health and safety laws?

4/06/2005 02:31:00 PM  
Blogger Jenn said...

good question!

i'm no poli-sci/constitutional law person, but when it comes to health and safety laws and minimum wage, the government has to balance the right to enter into private contract with its responsibility to protect our other basic inalienable rights: life and liberty.

The government must protect our right to life which includes ensuring that we are guaranteed proper healthcare and safety in contracts we enter into. similarly, with minimum wage laws, gov't recognizes both that we cannot have a certain quality of life if we're not getting enough money and at some point, we lose out on our liberties if we enter into a contract that is essentially a form of indentured servitude.

all of that is also covered by our third right: our right to pursuit of happiness which which was in its purest form, our right to a fair pursuit of property and financial success. Neither of those can be accomplished with unfair labour laws.

Incidentally, that last bit also applies to marriage, since marriage is essentially an agreement that extends to the right to jointly 'pursue' or maintain financial resources.

(but, with this response is the caveat again that i'm no poli. sci person. this is just my crude interpretation of what i think the gov't's role should be when it comes to the constitution).

... i hope that made sense?

4/06/2005 02:47:00 PM  
Blogger Elinor said...

It absolutely does make sense, but it belies statements like "the government has no business impeding our right to create those contracts freely amongst ourselves in the private sphere." Because clearly the government DOES have business impeding some private contracts between individuals, and it can stop agreements that it would consider to endanger the public health, etc. There are laws in most cities that say you can't set up a strip club next to an elementary school, and so on.

I tend to look at the same-sex marriage debate from a slightly different angle, for that reason.

4/07/2005 11:01:00 AM  
Blogger Jenn said...

I suppose you're right -- I probably should've qualified that statement with: so long as no other Constitutional rights are being impeded, the government has no business yada yada yada... "

thanks for pointing that out!

4/07/2005 11:54:00 AM  
Blogger James said...

I don't buy the argument that governmental imposition in private contracts can be used to justify federal antagonism towards gay marriage. The motivations of the public will of the body politic - the government - must be considered anytime the government asserts influence or dominion over interactions in the private sphere.

If the government "DOES have business impeding some private contracts between individuals", even going so far as to terminate agreements that it deems antagonistic to public health, that that impediment should not occur based on the subjective cultural or moral motivations of any faction of the governed populace. To impede gay marriage using the same theory as Elinor's allusions to workplace safety and/or public health concerns, one has to assert that gay marriage endangers the public health in some continuous, omnipresent manner, just by existing.

Gay marriage isn't social toxic waste.

Obscenity laws that prevent strip joints from co-existing beside elementary schools exist because of local mores concerning the possible exposure of salacious material to youth - a totally subjective concern applied in different ways by different localities. When the federal government, in an effort to pander to the subjective cultural or religious perspectives of a particular faction of the body politic, attempts to pass legislation that denies the rights of individuals to enter into private contracts on the basis of subjective cultural or religious concerns, the government sacrifices equal application of its statutes to all of its citizens, and legalizes separate and unequal treatment, violating the Fourteenth Amendment.

Gay marriage isn't pornography. Gay marriage presents no public medical nightmare. The federal government has no need to intervene to outlaw same-sex marriage contracts, simply on the basis of sexual orientation classification. Loving v. Virginia (1967) found unconstitutional Virginia's statutes preventing interracial marriage, and any statutes preventing same-sex marriage would have to combat this sensible and needed precedent. The government has a high standard to uphold before it can intervene into private contracts using purely subjective motivations.

4/07/2005 04:43:00 PM  
Anonymous Anonymous said...

thanks for replying to my earlier comment. that does indeed make sense, and the points you raise with elinor are good ones too.

but i was wondering just how far this sense of marriage as just a contract extends? what about a father and his daughter? what if that daughter is under 18 (but has her father's permission)?

4/07/2005 07:27:00 PM  
Blogger James said...

Anonymous, I think that the ideal of marriage as a private contract between consenting adults extends throughout every possible permutation, no matter how non-traditional. The important practical limits here are those that preserve individual liberty, free consent, and medical health for all participants. Your example of the father-daughter marriage where the daughter is under eighteen but possesses her father’s consent promotes an obvious conflict of interest on the father’s part; another example may help to clarify your point.

If our society wishes to impose constraints upon possible marital contracts, we must remember that those constraints need only to reflect our collective respect for life, liberty, and the pursuit of happiness. The modern religious right's antagonism towards same-sex marriage reflects only their distaste for homosexual social unions of any kind. Consensual homosexual interaction does not pose any innate medical or social risks, therefore the government has no reason to restrict marriage between same sex couples on the basis of the couples' sexual orientation alone.

Anything involving pets or underage children without legal age of consent does not allow for personal free consent, and therefore does not apply to the same sex debate, or the concept of marriage-as-contract.

4/07/2005 07:55:00 PM  
Blogger Jenn said...

Anon, I agree with what James said. To me, it's a question of consent -- I'm not sure that parental consent rights include the ability to wed an underage child to someone, themselves or otherwise.

Nonetheless, the government does not intervene in the right of private citizens to enter into a "contract" with one another to promise their children to one another in a cultural arranged marriage, provided the child later, upon the age of consent, gives their own personal consent to the arrangement.

4/08/2005 10:00:00 AM  
Blogger Elinor said...

Obscenity laws that prevent strip joints from co-existing beside elementary schools exist because of local mores concerning the possible exposure of salacious material to youth - a totally subjective concern applied in different ways by different localities.

Absolutely. My argument is that the exact same subjective concerns ARE expressed when gay marriage is brought up, and if subjective concerns are enough to stop pornographic magazines from being sold to children, they clearly are admissible in some cases; I don't think that, in itself, is a bad thing.

To be perfectly clear, I am 100% in favour of legal same-sex marriage and am very proud of those provinces in my country that have made it legal - but to speak of it exclusively as a private contract that should not be interfered with because it is a private contract seems to me not to be an adequate argument in favour of it. I am uncertain of the status of marriage as an exclusively private contract, really; it involves a very public change in legal status, etc. I would argue that it is a public arrangement and a public good (given the huge number of financial and other benefits married couples get as a matter of course) that all adult citizens should be entitled to share with the adult partners of their choice, as a matter of course.

Gay marriage isn't pornography. Gay marriage presents no public medical nightmare.

See, this, here, is the nub of your argument in favour of same-sex marriage, which I absolutely agree with; I'm just not completely comfortable with the "contract" model.

4/08/2005 01:57:00 PM  
Blogger Jenn said...

personally, i'm uncomfortable with the 'cultural' reasons for making same-sex marriage legal -- because i don't think one person's definition of what is culturally acceptable should trump another person's. i think that just breeds cultural uniformity and castrates our ability for freedom of thought.

4/09/2005 02:04:00 PM  

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