Prenuptial Agreement

January 2004

One of the central roles of traditional marriage has been to signal that married partners were each other’s sexual property. Indeed, until recently, only marital sex was socially sanctioned and legally permissible. Fornication and adultery laws, along with social stigma (especially for women), underscored that one of the prime benefits of marriage was access to sex.

Such rigid regulation of sexuality made some sense at a time when male/female couples had no effective contraception and most women had little or no financial independence; by offering protection to economically vulnerable women and children, marriage promoted desirable social stability.

But today, sex­ even the heterosexual kind­ does not inevitably mean children, and women do not have to belong to a man in order to survive as mothers. There has been, therefore, a tremendous shift in social mores regarding non-marital sex. Without the “sex subsidy,” the popularity of marriage has waned; amorous couples need not be coerced into lifelong commitments just to fulfill fleeting biological urges, and more and more couples are choosing cohabitation without the extraneous legal entanglements involved with contractual marriage.

Thus, it seems ironic that gay groups, previously dedicated to challenging society’s constrictive sexual prohibitions, have focused their organizing efforts on gaining same-sex access to old-fashioned legal marriage. After decades of trying to keep the state from proscribing our sex lives, it seems odd to now be demanding government regulation of our intimate relationships.

The Massachusetts Supreme Judicial Court ruled last month that same-sex couples must be granted access to marriage. After celebrating this decision, gay marriage advocates may do well to keep in mind the proverbial curse “may all your wishes be granted.” Do we really want to strengthen an institution predicated on treating partners as sexual property? If flexible domestic partnerships better meet modern households’ needs, why are we insisting on traditional marriage? Why should single people subsidize married folks? Should benefits such as health insurance depend on being “appropriately” coupled? Are we moving towards new punishments for extramarital gay sex? These and other questions have not been adequately addressed by same-sex marriage proponents.

Nonetheless, the national debate about gay marriage that has followed the Massachusetts court decision– on the heels of the Supreme Court’s voiding of sodomy statutes and the Episcopal Church’s consecration of an openly gay bishop­ underscores an astonishing shift in attitudes about homosexuality.

And the gay marriage campaign, focused on equity concerns about issues that most people hold dear, has the potential to advance the cause of justice, even if­ or better said, especially if­ it leads only to a thoughtful examination of why we encourage and protect certain relationships. Who but a callous bigot could insist that life-long partners should not have hospital visitation rights? Why should possibly-estranged blood relatives inherit property in preference to a beloved partner? Shouldn’t any couple raising children have access to stability-providing legal commitments?

While traditional marriage may not be the best or fairest solution to these questions, everyone is better served by a debate that includes all our families and households, not just heterosexual couples. Gay marriage is not the ultimate answer, but it does pose the right questions.

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=D7B8A3C1-BEEF-476E-AA92C017365EFA4D>