The Private Intellectual
Ecclesiastes-Based Real Estate Advice

Thursday, December 13, 2012  

The Inalienable Right to Something or Other

Item "Love Makes a Family":

Naturally Thea left her possessions, including the apartment they had shared for decades, to Edie. But while New York considered Edie and Thea married, DOMA required the federal government to treat them as legal strangers. So Edie was socked with a $363,000 federal estate tax bill that would have been $0 if she had been a straight widow. If you haven’t seen the video about Edie, take a look, it’s quite moving.

Heartbroken at the injustice, Edie challenged the constitutionality of DOMA. Two lower federal courts have struck down DOMA in her case, and now the Supreme Court will have the final word.

Says Dan Savage: "The ACLU is confident that the Supreme Court will rule in Edie's favor. The haters at NOM are confident that the Supreme Court will rule against Edie. But however the Supreme Court rules—for love and commitment and fairness and dignity or against love and commitment and fairness and dignity—Edie Windsor is a hero."

Hooray love! Hooray commitment! Hooray life-long marriage! Boo people who think that those things don't equal marriage!

Item, "Amelia Earhart's Surprisingly Modern Prenup":

The publisher George Palmer Putnam proposed to Amelia Earhart six times before she agreed to marry him. First, she served him a letter detailing “some things which should be writ before we are married.” She would not be faithful: “I want you to understand I shall not hold you to any midaevil code of faithfulness to me nor shall I consider myself bound to you similarly,” Earhart wrote. She would not quit flying: “Please let us not interfere with the others’ work or play.” And she would not commit to forever: “I must exact a cruel promise and that is you will let me go in a year if we find no happiness together.” They married on Feb. 7, 1931.

I stumbled upon Earhart’s prenup last week, nestled in Purdue’s online library of her letters. I posted it to my Tumblr. Hundreds of women approved. Earhart’s prenup has been quotedbefore, but it seems to have struck a chord at this particular point in relationship history. Lori Adelman of Feministing called it “a pretty darn modern vision of marriage.” At the Frisky,Amelia McDonell-Parry also praised Earhart’s “incredibly modern view,” including “expressing her weariness of the institution itself, and then laying out her expectations for such a union, which include a willingness to be monogam-ish … and a need for privacy and respect for her career aspirations.”

Dan Savage--need it even be said?--agrees wholeheartedly.

Hooray radical individual autonomy! Hooray private, non-"midaevil" definitions of faithfulness! Hooray limited, non-lifelong non-commitments! Boo people who think faithfulness and commitment equal marriage!

Oy. I have no interest in troubling the bones of Amelia Earhart, who like everyone else deserved to make her choices and live in peace. This may have been a plausible way to fend off an annoying suitor rather than a clarion call to a "modern" view of marriage. Who knows? Who has any business caring?

But the reaction to this private memorandum is, lamentably, instructive. Marcotte's item on the Earhart memo is like a game of Orwell Yatzee, expressing nothing in particular apart from the vague suspicion of marriage as such (though not the attraction to weddings, which I suppose hold appeal for people who aren't willing to hold big parties and get drunk for no particular reason). The anti-marriage angst expressed in this little essay is entirely fair: "Dana LaRue, the editor-in-chief of alternative wedding site The Broke-Ass Bride, told me that she’d like to see marriage evolve “as a social construct away from a ‘lifetime commitment under God’ and more toward a ‘civil union in whatever form speaks most to those involved.’” Life-long commitments are hard, and so is faithfulness. I don't really blame anyone for not wishing to attempt both, or either.

Fortunately or not, however, there is already an alternative to "a lifetime commitment under God," and it is called "not getting married." And it really doesn't matter, for the purposes at stake here, whether you think of your "lifetime commitment" as being "under God" or "under my highest moral and philosophical commitments," because those are effectively equivalent statements. Contrarily, if you think of marriage as a "social construct" that "speaks most to those involved," then all the rhetorical force behind the concept of an inherent, natural, or fundamental "right" to marry goes away. And the heart-rending story of a decades-long partnership becomes irrelevant, because Amelia Earhart's annually-renewable marriage is modern and awesome and just as much a marriage as the stuffy, old-fashioned lifelong business between Thea and Edie.

Honestly, I can see it either way: marriage as essence of "love and commitment" and hence, more or less, as a "fundamental right" implied by the fundamental mutual obligations of love and commitment; or marriage as a "social construct" subject to the private negotiations of individuals. The problem is that I can't see it as both at the same time. If society has grounds to grant--is morally required to grant!--a tax advantage to the relationship between Thea and Edie, I just don't see how it should, may, or must grant a similar advantage to the relationship between Amelia and George. If the legal and public status of marriage is at stake, that status needs to serve some legitimate purpose.

The curious thing is that just as the advocates of same-sex marriage have turned the tide in favor of what is called "marriage equality," a number of voices in that camp have lost any interest in defining the first half of that term. I know, of course, about the legal entitlements. But why is the more obvious step not to simply abolish marriage as a public, legal institution? I personally am inclined to the former view--to the lifelong commitment, faithfulness, and mutual self-giving concept, by which standard the sadly guarded profession of year-long arrangements falls clearly short. But it is discouraging to think that some advocates of same-sex marriage have become weary of holding the territory--or ambivalent about the institution, as Marcotte puts it--before that territory has even been won in most of the country. 

posted by Benjamin Dueholm | 2:20 AM
Rather off-topic:

I'd never heard of Amelia Earhart's pre-nup. That's very interesting. It makes me think of the multi-volume argument between Lord Peter Whimsey and Harriet Vane, which of course is fictional but since Harriet Vane is Sayer's Mary Sue I assume it is autobiographical in some way. In any case, Sayers explores the same ideas of fearing the loss of autonomy through marriage.

And now I will stop writing about marriage in 1920s society before I get into the works of Edith Wharton, the stigma of divorce, and what happens to you in the 20s if you have extramarital sex. Hooray lifelong commitment and monogamy!

I would scale back any expectation that the Supreme Court will rule for or against fairness, love, and commitment to an expectation that they'll rule for or against fairness. It certainly makes a compelling story that the plaintiff in this case was in a very admirably traditional marriage and also happened to be gay, but that's just PR. Gay marriage should be legally recognized precisely so that gays can define it in their own individual, modern ways and still claim the protections and rights of straights like Earhart. As a Cook County judge I know said, gays need the right to marry largely so that they can divorce, i.e. so that stay-at-home spouses, non-biological parents, and children can claim statutory protection when the relationship breaks down, as it inevitably will in some cases. The rosy love-makes-a-family view has been very useful in selling the public on gay marriage, and I happen to agree with that view, but ultimately it shouldn't be any of my business whether my gay or straight neighbors are wholesome family types or swingers who also spit at each other like George and Martha in Who's Afraid of Virginia Woolf (or wholesome swingers, I guess). Marriage is a messy institution in that it's tangled up in both religious tradition and civil protections; I just hope that the Court will acknowledge that gays have the right to take part.
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