The issue of gay marriage has become perhaps the leading flashpoint for today’s culture wars.  [Last year], both houses of the New Jersey legislature approved a bill that would legalize gay marriage, which Governor Christie has previously vowed to veto.  The Ninth Circuit issued a ruling affirming a district court ruling invalidating the California voter approved Proposition 8, which defined marriage as between one man and one woman.  I have made various comments on over time reflecting some of my views on the subject of gay marriage, but haven not formalized my views in a single place.  At the request of several friends, I am doing so with this note.

Let me start with what I believe is fundamental to the definition of marriage.  Marriage is the means by which a person exercises his right to choose his own next of kin. By marrying, he replaces the person who was his next of kin when he was born (i.e., his parents) with the person whom he decides to make his life partner.  The replacement of the next of kin into which you were born to the next of kin of your own choosing is for the purpose of transferring the benefits of certain irrebuttable legal presumptions to your chosen next of kin.  While some argue that the ability to procreate is fundamental to the definition of marriage, this is contradicted by the fact that there are numerous marriages of people who are not capable of procreating (such as senior citizens) and that there are numerous children procreated outside of wedlock.  Given the vast under-inclusiveness and over-inclusiveness this definition creates, I believe that it cannot be the basis of a good definition of marriage.

When a person is born, his parents are deemed by legal presumption to be his next of kin.  With that designation, the parents have the authority to make medical decisions for the child and are deemed the beneficiaries of that child’s property in the event of his death.  The parents are also charged with a support obligation as part of the next of kin relationship they created with the child.  These legal presumptions allow the parents to presumptively take care of the child without interference from others.  These legal presumptions allow for the development of a family.

At some point though, a child reaches an age when he is mature enough to choose his own family and substitute the next of kin of his choosing for the next of kin into which he was born.  In so doing, the child designates another person as his life partner.  The life partners mutually assume the obligation of supporting each other and taking care of each other.  This includes the presumptive authority to make medical decisions when one spouse is otherwise unable to speak for himself, and it also includes the right and freedom to be the presumed heir in the event of death of one spouse.  Marriage is the means by which a person exercises his right to choose his own next of kin. By marrying, he replaces the person who was his next of kin when he was born with the person whom he decides to make his life partner.

The legal presumptions that were created at birth continue indefinitely in the absence of a new designation of next of kin by the child.  The legal aspect of marriage is the replacement of the presumptions that attached at birth, and the substitution of the chosen life partner for the parents as legal next of kin.  A formal legal process is necessary to solemnize this replacement – a process which cannot be later challenged once the parties have publicly made a mutual commitment to each other.  That formal legal process is a public marriage ceremony officiated by a person deputized by the state to grant legal sanction to this substitution of next of kin.

Mere contractual documents are insufficient to achieve this objective, precisely because those documents can later be challenged.  Because they are simply private pieces of paper that can be forged, by their nature they cannot have the same legal presumptions as those that attach to a government officiated marriage.  If the contractual documents are ever challenged, they require a legal proceeding to establish their authenticity – which is precisely the effect of having a government sanctioned marriage ceremony.  By contrast, the public marriage ceremony – where each partner promises to take the other as life partner, in sickness and in health, for better or for worse, forsaking all others – is itself a legal proceeding by which this substitution is accomplished.  The public oath each party to a marriage takes in that public legal proceeding conclusively establishes their mutual desire to substitute each other as next of kin for the respective families into which each was born. This cuts off the rights of the prior family members to meddle in the relationship of the new family created by the public marriage ceremony.

Without the conclusive presumptions that attach upon a marriage ceremony, persons who rely on mere written contract documents such as powers of attorney, health care directives and wills have not extinguished or cut off the rights of disgruntled family members to challenge the authenticity of those documents.  This allows prior family members to meddle into a committed relationship when those family members do not accept that relationship – as is the case with so many who do not accept the gay relationship.  Worse, the legal proceeding in which the authenticity of those documents must later be established typically occurs when the family of an incapacitated or dead partner challenges them – and the surviving partner is required to prove, in the absence of his partner, that theirs was in fact a truly loving relationship rather than some nefarious plan by the survivor to steal the property away from the deceased’s family.  This is an indignity no married heterosexual ever has to endure.

To concretize this, suppose a heterosexual man marries a heterosexual woman – a woman that is not accepted by the man’s parents and prior family.  Thereafter, he executes a power of attorney and health care directive giving his wife full power to make medical decisions for him in the event he becomes incapacitated.  He also executes a will leaving all of his property to his chosen wife in the event that he dies.  Subsequently, he becomes incapacitated and is rushed to the hospital for medical treatment.  By virtue of the marriage, the wife’s rights to take care of her husband, to oversee his treatment and to make medical decisions solely as she sees fit cannot be overridden by her husband’s parents, not even in a legal proceeding.  Even if, theoretically, the man’s parents were successful in having the power of attorney and health care directive invalidated, the legal presumptions he and his wife obtained through marriage would still vest all decision-making power in the wife, not the parents.  Similarly, if he were to die and his parents were to challenge the will – say, on the grounds of undue influence of a woman who never loved him and was just trying to obtain his money – even a successful will challenge would be meaningless because the legal presumptions of intestacy would provide that the wife would still inherit his property even in the absence of a will.  The earlier marriage establishes conclusively all the things that would have needed to be established in a subsequent legal battle in which the key witness generally is unavailable to testify – thus the marriage ceremony acts as a way of authenticating the contract documents before the fact by way of legal presumption.  Thus, marriage cuts off the rights of the family into which he was born so long as the marriage remains in effect – and the family is not able to meddle or otherwise interfere with the chosen spouse’s exercise of the duty of support and ultimately in inheriting property at death.

Contrast this situation to the one where a homosexual man chooses another man as his life partner.  Without a marriage statute – or Civil Unions/Domestic Partnership Statute – there is no way for him to cut off the rights of his prior family in the event that they do not accept his relationship with his gay lover.  In contrast to the marriage example outlined above, if the parents can successfully convince a court that the power of attorney and health care directive were obtained fraudulently and the documents were thrown out, the legal presumptions established at birth would come back to life (or perhaps it would be more accurate to say that those legal presumptions will be seen to have never been extinguished in the first place) and would vest the parents with the power to make deeply personal medical decisions for the man to the exclusion of his chosen life partner.  Similarly, if he were to die, his parents could challenge the will – and if they were successful in having it invalidated, again the legal presumptions established at birth would defeat the claims of the gay lover.

To compound the egregiousness and unfairness, the main issue that would be litigated in any case where the parents were challenging the bona fides of the contractual documents would be legitimacy of the gay relationship which the parents have rejected.  As noted above, heterosexual couples can avoid this problem entirely by entering into a marriage – which is the fundamental purpose of a marriage statute. It is only gay couples that have to prove, often after the incapacity or death of one of the partners, that the relationship was a “real” relationship grounded in love.  In light of how many loveless marriages exist between heterosexual couples, just imagine the amount of litigation that could be spawned if the law did not conclusively presume that a marriage indicated a true and full life commitment between the spouses, irrespective of what others may have thought of the relationship.  So long as it works for them, no outside authority or individual may challenge the bona fides of the relationship.  This is how it should be – but it is not the case for homosexual couples in most states today.

In short, gay couples have the same need of access to the same basic legal presumptions that insulate the sanctity of heterosexual marriages from challenge by meddlesome family members who may disapprove of the relationship.  In order to effectuate each individual’s right to cut off the rights of the family into which he was born and substitute next of kin of his own choosing, there must be a legal mechanism for doing so.  And because the issue is the legal presumptions, not the ability to contract, contract rights outside of a marriage statute or marriage equivalent statute are plainly insufficient to achieve this purpose.

Indeed, the lack of any marriage or marriage equivalent statute has led many gay couples to resort to various odd legal methods in an attempt to cut off the rights of prior family members who do not accept their gay relationship.  For example, some gay couples have attempted to use “mutual adoptions” or “reciprocal adoptions” as a way to cut off the rights of disapproving family members.  In this practice, each member of the couple files a petition to legally “adopt” the other as his child, in an attempt to create the next of kin legal relationship that the law does not otherwise allow them to create.    Generally, however, these attempts have not worked – and cannot work.  Nor should they, given that their purpose is the adoption of children, not the adoption of adults.  Adults “adopt” each other by means of a marriage or marriage equivalent law.  Such a legal apparatus must be in place to allow homosexual couples to exercise their rights to the same extent as heterosexual couples do.  The absence of such equal access for all individuals is a gross violation of rights.

Some people suggest that the solution to this problem is for the government to get out of the marriage business entirely. Such an anarcho-libertarian solution cannot work, however.  A child born into the world is unable to exercise his rights – therefore the legal system necessarily must designate someone to exercise those rights on the child’s behalf.  But the child also needs a mechanism by which he can dissolve the legal presumptions that were established at birth.  That is precisely what a marriage statute does.  Furthermore, dissolution of that legal presumption without a replacement designation (as, for example, with an emancipation law) would lead to chaos in short order: it is vital that there exist default provisions in the law providing who will make medical decisions and who will inherit property in the event that the individual has not made a designation himself – whether such omission was intentional or not.  If no legal presumptions exist in the legal code providing for your next of kin to make these decisions on your behalf, the only other solution is for the state to make these decisions independent of what a person and his loved ones desire – which is certainly not a workable solution.

Some also argue that allowing gay marriage would be a slippery slope toward polygamy.  However, when one recognizes that the purpose of a marriage statute is to provide a default designation of a next of kin to make decisions on your behalf in the event you are incapacitated, it is easy to see that having a single such decision-maker is an essential element of such a default rule.  If a person wants to designate a board of directors to make medical decisions for him in the event of his incapacity, he can so provide in a written instrument – but the creation of such a board of directors is not a proper way to go about creating *default* legal provisions.  And for those who point to the fact that when you are born two parents jointly share that decision-maker function after birth, it is important to note that the only reason why two parents can jointly share in that default decision-maker role is that marriage treats those two people as one – and because they had equal rights in creating the child in the first place.

While I believe that it is essential that the law provide homosexual couples with the same ability to cut off the rights of family members who do not accept their relationship as heterosexual couples have, I do not believe such equal rights must have the same nomenclature as the words used for heterosexuals, i.e., marriage.  The legal rights protected must be identical, because it is wrong for the government to discriminate against people for choices (if homosexuality is a choice) or inborn characteristics (if homosexuality is genetic) that do not violate the rights of other people.  A gay person’s choice – to the extent it is a choice – of a homosexual life partner harms nobody else – and indeed, even the opponents of gay marriage do not suggest that a gay person should not be allowed to designate in a written instrument a same sex designee as next of kin.  But identical legal rights does not mean that the words used to describe those rights must be identical.  Just as the words “heterosexual” and “homosexual” have different referents in reality, there is no reason why there may not be “marriage” laws for heterosexuals and “Civil Union” or “Domestic Partnership” laws for homosexuals, so long as the rights protected are identical.

It is improper to use government force to change the definition of the word “marriage.”  It is also improper to use the government to force social acceptance on others.  Ironically, it was not long ago that gays (correctly) argued that it was wrong to use the law to impose a social stigma against homosexuality by making it illegal for gays to marry – and it is just as wrong today for gays to attempt to use the law for the reverse purpose of obtaining a social acceptance.  The legitimate functions of a properly limited government do not include either stigmatizing gay behavior or applauding it.

Finally, I want to get back to the fact that this issue is being fought in states like New Jersey and California, both of which have marriage equivalent statutes in place already.  New Jersey has a Civil Unions statute that by law recognizes identical rights for gay couples and straight couples.  The application form for a Civil Union license in New Jersey is on the same sheet of paper as the application for a marriage license – you simply check a different box.  Similarly, the California Domestic Partnership Law also provides for the protection of identical rights for gay couples and straight couples.  The only distinction in either law is the nomenclature given to unions between heterosexual couples and unions of homosexual couples – which, as identified above do, in fact, refer to two different referents that exist in reality.  Unlike New Jersey and California, however, there are approximately 40 states in the United States that blatantly discriminate against gay couples by not having any marriage equivalent statute whatsoever.  I find it appalling that leaders of the gay community are spending so much time, effort and money fighting for marriage statutes in places that already have marriage equivalent statutes, when their brothers and sisters in the gay community living in the vast majority of American states have no legal recourse whatsoever for protecting their rights.  Searching for “victories” in places that already provide a legal mechanism for gay couples to fully protect their rights, while ignoring the places where gay couples do not have such a legal mechanism (and in fact endure discrimination enforced by law) is a gross abdication of responsibility for the leaders of the gay movement instigating these battles. While these leaders play word games in search of titles that in no way alter legal rights, untold numbers of gay couples living in America are left without legal recourse to protect themselves and their chosen life partners.  In some respects, this abdication of leadership is even worse than the discrimination inflicted on these wholly innocent people.

The following two tabs change content below.

Ed Mazlish

Ed Mazlish is an attorney practicing law in NJ and NYC. His experience covers a wide range of commercial law matters, and he has also litigated constitutional cases as high as the United States Circuit Courts of Appeal. He is also the co-founder of the blog, where some of his other articles on law and politics have been published. You may contact Ed at

Latest posts by Ed Mazlish (see all)

Pin It on Pinterest