Friday, May 16, 2008

What's in a word?

When it comes to the word 'marriage', apparently a lot. The ruling yesterday by the Supreme Court of California illustrates this.

In re Marriage Cases a 4-3 majority of California's highest court struck down two laws that limited marriages in California to heterosexual unions. The interesting point is that the majority acknowledged that the "current legislation did afford same-sex domestic partnerships most of the substantive elements embodied in the constitutional right to marry." The majority concluded, however, that "the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution."(1)

The majority held that the constitutional right to marry entailed the right to have ones "family relationship accorded dignity and respect equal to that accorded other officially recognized families." Reserving the term 'marriage' exclusively to heterosexual couples therefore "poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect."(2) As the majority held that laws based on sexual orientation should be reviewed under a 'strict scrutiny' standard,(3) the legislation was subjected to this higher standard of review and struck down.

I know very little about Californian law, and I really don't have any opinion about the decision. However, the premise of the above decision, and the general controversy over same-sex marriage in the US, does puzzle me. The issue being debated is not really substantive rights, but merely the use of the word 'marriage'.

When I compare the US debate over same-sex marriage to that in Denmark, I am struck by the differences. Denmark became, in 1989, the first country to give same-sex civil unions the same legal status as heterosexual marriage. Yet the question of recognising same-sex unions as marriages is not debated at all in Denmark. The reason for this lack of debate could derive from the linguistic differences between Danish and English. While the Danish word 'ægteskab' does equate to the English noun 'marriage', it does not, as in English, share the same basis as the verb 'marry', which in Danish is 'gifte'.(4) Also 'ægteskab' is normally used to describe individual marriages, not the institution of mariage per se. The lack of political controversy may therefore be related to lack of importance placed on the word 'ægteskab'. A change in the Danish law would in any case be cosmetic, as civil unions are de facto marriages.

All this makes me completely agnostic as whether homosexuals partnerships should legally be recognised as marriages. I believe same-sex couples should have the same substantive rights as heterosexual couples, and it makes no difference to me whether these unions are called marriage or not. Neither would I care if the union between my wife and myself is legally called a 'marriage','domestic partnership' or 'civil union.'


(1)In re Marriage Cases, at p.9, per Chief Justice George. For complete text of the decision see: www.courtinfo.ca.gov
(2) Ibid. p.8-9.
(3) Ibid. p.10.
(4) As in 'gifte sig', 'blive gift' or 'gifte bort.' Also note that Danish has a different word for the act of marrying someone, i.e. 'vie'. Finally,'give/tage til ægte' also has the meaning of 'marry', but this is an old fashion expression similar to the English word 'espouse'

3 Comments:

At 22 May, 2008 12:20, Blogger karlund said...

Thanks for this one - I never understood why people could get worked up on the naming of it...

 
At 23 May, 2008 20:52, Blogger Charles & Kiersten said...

Hey Torsten,

Interesting post. The difference here in America is specifically directed at two points:

1. If homosexual relationships could be titled "marriage", then anti-homosexual literature, blogging, or sermons in church could be labeled hate speech. Its the beginning of a slippery slope.

2. There are 49 other states that each have different laws. Its different in Europe with different nations. Would each state then be required to recognize a civil union or marriage from California if someone were to move to a state that does not recognize homosexual marriage.

More later. Nice to see you posting again.

Charles

 
At 24 May, 2008 12:51, Anonymous Kiersten said...

This is a question that I have struggled with myself. I think there is a couple reasons that this controversy is so big here in America.

First of all of course we have the religious right, who believe that if we, as a country go against God's morality, eventually He will destroy us. This belief stems from the many nations in the bible "who filled up their cup of iniquity" and were destroyed.

I don't think that most of these people are rabid about forcing people not to be homosexual through the government, they just don't want the government to sanction it. Also I think that most of these people would feel that civil unions are not correct either.

Then there are the people who feel that homosexual couples should have the right to see each other in the hospital, make medical decisions for the other person, have their insurance cover both people. That they should be able to inherit money from the other person without the government tax. Basically those government benefits that married couples enjoy, but homosexual couples do not have. However, these people feel that if you call it marriage, what is to stop us from recognizing polygamy etc? Where does it end? And thus they see civil unions as the way to go because it gives homosexuals the government rights without the "slippery slope".

I think another reason that everyone is so concerned about the California decision, and this doesn't have to do with the difference between Civil Unions and Marriage so much, is one of the reasons Charles mentioned. Once one state recognizes homosexual marriage and makes it a right. What happens when a couple moves from that state to another state where it is not legal?

Anyways, I need to get going, gotta get the kiddos to church. Glad you are blogging again and good luck on your paper.

Kiersten

 

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