Friday, 28 November 2008

Lucy Lawless and the politics of gay marriage

"I grew up being taught that marriage was sacred... Then I would look over at a relative with a black eye meted out by her husband in the privacy of their sacred matrimonial chamber and the bruises on her child, and I knew that was bullshit. There was nothing holy there."

So said Lucy Lawless during the recent anti-Proposition 8 rally in California. She is one of those campaigning in favour of gay marriage, although with some reservations: 'I can't think why gay people should necessarily want it, but if they want it with all its strictures and ownership over one another, then let 'em have it.' Lawless has called marriage a feudal institution which ought to be phased out.

Some feminist or other once made a point that got me thinking. She argued that, in the political movement advocating that gays should have an equal right to marry, a more radical critique of marriage has been lost. Only thirty years ago, feminists subjected the institution to stringent scrutiny - particularly the unequal relationship of financial dependence that tends to be part of marriage.

Feminist criticisms of marriage go something like this. Marriages often produce babies, and the need for a whole lot of unpaid work. This work tends to fall to women. There are a bunch of reasons for this, ranging from inconsiderate individual husbands through to a workforce which doesn't do much to accommodate pregnant and breastfeeding women - but the net result is that women tend to become financially dependent on men.

Once you're dependent on your husband in this way, you're reliant on him to be nice to you. If he stops being nice - if he can't or won't support you adequately - you're in trouble. Your only option is to leave the marriage, and if you're taking the kids with you, you face doing the work of two parents by yourself and a high likelihood of poverty. These structural problems of marriage don't go away simply because spouses are the same sex. If there are kids involved, someone still has to take care of them, risking financial dependence in the process. Lawmakers in the US are explicitly aware that marriage is in large part an economic arrangement. Tax incentives for married couples aim to encourage solo mums to get hitched, because once they're married, they become the financial problem of their husbands. Whether or not their husbands meet their financial needs is a whole different matter, and no concern of the state.

All this being said, it's hard not to empathise with gay and lesbian couples who want the right to get hitched. I'm not gay. I don't know what it's like to feel anxious about holding my partner's hand in public. I don't know what it's like to get quizzical looks when I introduce the person I love to friends or family. I don't know what it's like reading hateful letters to the editor about the kind of person I am and the kind of moral decay I supposedly cause. But I can understand the symbolic appeal of marriage, especially for those who have been denied it. Marriage is an institution thousands of years old. As its proponents laimc, it is integral to the fabric of society.
To get married is to make others see and acknowledge the validity and the worth of your love for your partner.

In my ideal world, gay people wouldn't need to claim the right to marry in order to have their relationships or sexuality accepted - no one would. In this ideal world, getting married would not entail signing up for the possibility of dependence or mistreatment which can be incredibly difficult to escape. If the right to enter into the sacred union of marriage is to be extended to gay couples, we ought to ensure that it is a right worth the having. In the words of Lucy Lawless, 'Only love is sacred, and heterosexuals don't own that'.


M-H said...

A lot of feminists (including me) argue that there should be a state-sanctioned legal union, civil union, whatever you want to call it, available to everyone. This would confer the responsibilities and rights of what we now call 'marriage' on anyone who entered into it. Then there should be the additional option for people who wished to get married in a church or temple or whatever. That would get the current religious confusion over what is essentially a civil matter out of the way.

Hugh said...

Feminist criticisms of marriage go something like this. Marriages often produce babies

Feminist criticisms of marriage aren't limited to ones that produce babies, from my understanding.

Anna, the scenario you've outlined above, as far as I can see, has zero to do with marriage - it's entirely applicable, with the same problems and pitfalls, to a woman who forms half of a hetero couple in a de facto relationship (or for that matter a civil union).

I would argue that some of the problems you've described do go away when the relationship is a same sex one - there's no societal expectation that a gay man or woman will be financially dependent on their partner.

M-H, the situation you have described is the status quo, at least in New Zealand, and with the (IMO) minor exception that marriage and civil union are called two different things (despite carrying the same legal ramifications).

Anna said...

It has everything to do with marriage. When you enter into marriage, you lose your claim on the state for an income in your own right. If you're parenting and single you can get the DPB (even despite it's limitations). If you're married or cohabiting (that is, deemed to be living in a relationship in the nature of marriage), you are the financial responsibility of your partner - it is assumed he will provide you with a subsistence if you can't raise a market income of your own. If two gay people live together, they are not deemed to be living in a relationship in the nature of marriage, so aren't forced to be financially interdependent in this way.

Anna said...

And you're right about feminist critiques not being limited to what I've mentioned, but I only had the space of a blog post to rabbit on about them ... :-)

Hugh said...

. If you're married or cohabiting (that is, deemed to be living in a relationship in the nature of marriage), you are the financial responsibility of your partner

Exactly my point! The salient factor is not that you're married, it's that you're living together. Remove marriage - that is, the state sanctioning of the relationship - and the expectations of partner support, both societal and financial, remain intact.

If two gay people live together, they are not deemed to be living in a relationship in the nature of marriage, so aren't forced to be financially interdependent in this way.

Perhaps not in the eyes of society. But WINZ will treat a same sex partner (civil unioned or de facto) identically to a different sex one when deciding whether or not to pay a benefit.

Anna said...

I think we're talking at cross purposes. There is no inherent reason why two people who love each other and live together ought to be financially interdependent.

The reason de facto couples are treated as married is that they are deemed to be married, hence the term 'de facto'. They can't choose to live otherwise because the state imposes the strictures of the marriage contract on them; ie the assumption that each will financially support the other.

Where two heterosexual people live together and have a sexual relationship, in effect the law says they are married whether they like it or not. The law does not default into this assumption of marriage when gay couples live together - they have to explicitly invoke the status of marriage by entering into a civil union.

Work and Income has policy to determine whether heterosexual people are living in a marriage-like relationship, but have no equivalent policy for gay couples (unless it's happened very recently). W&I policy is this area has been geared towards catching out solo mums having sex frequently enough with the same bloke to justify treating them as married, and thereby nullifying these women's claims to the DPB. There has never been any policy I know of seeking to catch out gay couples and impose relationships of financial dependence on them.

In short, two heterosexual people who live together and have sex are deemed by the law to be married (whether they like it or not). Two gay people who live together and have sex are deemed by the law (W&I at least) to be flatmates, unless they instruct the law to see them otherwise.

Carol said...

The NZ law now defines a defacto relationship as between a man and woman or between two people of the same sex. This is in operation for WINZ benefits, and also defines a same sex couple as in a defacto union after a certain period of time, unless they opt out.

A lot of these laws legalising defacto and same sex relationships, IMO, have a lot to do with money and property rights. Having defacto & same sex relationships formalised like this makes for less court cases and other hassles in deciding who owns what when relatiosnhps break up.

In fact, IMO, probably the whole marriage thing has a lot to do with property rights, inheritance etc.

Hugh said...

Anna, my partner recently applied (successfully) for a benefit. She was asked whether she lived with a partner, not what gender that partner was.

Now I agree with you that WINZ's goal is not to enforce some platonic ideal of what is and isn't marriage, it's to get people off the benefit. The reason they go after straight couples more than gay ones is likely to be a fairly pragmatic one - it's easier to 'catch out' a straight couple, since gay couples are likely to have more practice hiding their relationship (sadly).

Now that I think about it, this is arguably an area where it's better to be gay, at least from a financial standpoint.

But getting back to the crucial issue. We've seen that the law treats de facto and married couples identically. What I'm missing is how this treatment is a factor of marriage that is extended to de facto couples. We might equally say that the law extends the financial interdependence it proscribes to de facto couples to married couples, and that married couples are 'de facto de facto' - it makes as much sense, even if it's a linguistic mangling.

The idea that the state's assumption of financial interdepence in married couples (although not solely to married couples) means that financial interdependence is an inextricable part of marriage doesn't necessarily follow. Ultimately, whatever people may say about couples making a commitment to one another, strengthening the community or anything else, marriage is nothing more than being de facto plus some paperwork.

Due apologies to anybody here who is married or for that matter CUPed and feels I'm denigrating their bond.

For my part as you can probably tell I'm anti-marriage, although I guess I feel similarly to Lucy in that if gay couples want to do it, they should be allowed to - in the same way they should be allowed to paint themselves blue or wear top hats indoors.

Anna said...

You're not compelled to share your money with your partner (until you're divorced, ironically), but there are many circumstances in which you are deemed to be dependent on your partner (ie, if you lose your job but your spouse is working you can't get the unemployment benefit, because it is assumed he/she looks after you financially) and spouses are means tested in various ways against one another (eg, NZ Super is paid at a lesser rate to married people than single people because they are assumed to be sharing). Carol is completely right about property rights underpinning marriage, I think.

Thanks for that link, Carol - W&I have moved with the times since I last looked! I'll be interested to see how this plays out in practice. I could be completely wrong, but I suspect that W&I benefit integrity investigators remain attuned to catching out heterosexual relationships. There's lots of case law they can draw on to do this, but I suspect there's little or none to assist with busting gay relationships. Different sets of criteria have been used to impose married status on hetero solo mums in the past (so many nights spent together and meals shared per week, for example). It's difficult to imagine what criteria would be used to impose married status on gay people - particularly since gay people can't legally marry in NZ.

Christina said...

The Property (Relationships) Act was amended in 2002 amm

My understanding is that these amendments required the changes in Work and Income policy that Carol highlighted (and no, I'm not sure how this has worked in practice).

The Act states quite clearly that a 'de facto relationship' includes hetero and gay couples, and lists a series of 9 criteria the court can use to decide whether the couple, are in fact, 'de facto'. (pun intended!)

So now I guess we have situation where a gay couple can be legally considered to be 'in fact' part of an institution (marriage) that they cannot legally enter into!

muerk said...

I agree with Anna on the point that the State has started to determine if you are essentially married whether the couple likes it or not. Although people can go to a lawyer to rearrange financial affairs, marriage is now the default when two people live in a sexual relationship.

For me personally, as a Catholic, I see marriage as a sacrament which is inherently about having babies. My religious idea of marriage and the State's idea of marriage are becoming further and further distanced from each other.

It's the same word, "marriage", but the meanings of it are now quite different.

Anna said...

The issue of comparing gay relationships to a marriage status they can't legally enter is an interesting one.

Christina, the criteria you in the Act you've linked too are really interesting. This sort of fairly typical 'hit list' - living together, sexual relationship, financial interdependence - have been criticised in feminist literature for a variety of things prior to this legislation - enforcing women's dependence, being monocultural, being heterosexist, etc. If they were these things before 2002, it will be interesting to see how they play out when applied to gay relationships. They're intended (I assume) to be a guide at the point of relationship dissolution.

There are lots of weaknesses with these criteria, of course (even though there is leeway to emphasise some over others). If I worked on an oil rig for however many months of the year, I might still consider myself in a relationship with my partner, although not sharing a residence with him.

I think it's important to note that the criteria in this Act are not the ones used by W&I to define a de facto relationship (

That's important, since W&I is the agency which determines whether people who cannot support themselves have a right to a subsistence from the state. W&I use only two criteria to determine (in theory), with a lot of 'symptoms' of marriage which can be used to help determine the two criteria. The 'flags' which signal to W&I that they should investigate someone for claiming benefit while being de facto continue to come from the same criteria. This is presumably one reason why the vast majority of prosecutions for benefit fraud in relation to marital status have been against heterosexual women.

Something I noticed when living in a provincial city until recently was that, in large part because the lesbian community was small, women knew each other well and drifted in and out of relationships, but often retained very close relationships and flatted with one another. Measured against the criteria in the Act, you could see this falling into a hetero definition of marriage, but I'm pretty sure that's not how the participants think of it!

Hugh said...

As I pointed out earlier, even if Work & Income were to pursue gay relationships with equal vigor to their pursuit of heterosexual ones (hooray for equality!) they'd still probably have a lower 'catch' rate, since many gay people are, through sad necessity, skilled at concealing their relationship.

Anna said...

Muerk - to my surprise, I actually agree with you, and it's a Catholic thing! I'm currently not married. I don't consider that my relationship with my partner is in the order of marriage (which is partly because I'm not in full agreement with marriage - we're talking about the sacrament here - although I respect it and the people who choose it). I don't want to be considered to have slipped into marriage because I've simply hung around in a de facto relationship long enough - it's both against my wishes, and distorts the meaning of marriage held by those people who subscribe to it.

Anna said...

The different 'catch rate' might be to do with gay people being more practiced at concealing relationships, or gay and straight people having different sorts of relationships. I suspect it's a combination of the two. Given that gay relationships have had legal validity for only a very short time, and have a very long history of being clandestine and suppressed, it's hard to imagine that they would automatically take the form of heterosexual ones, and thus be 'caught out' by the same criteria. For example, monogamy is implicit in ideas of commitment to heterosexual relationships (even when people don't practice it). I've heard gay people critiquing it as a constricting convention of heterosexuality. If you want to catch someone out, you need to know what to look for - ie have a definition in mind. This has been the problem with marital status rules in the past (although to be fair to W&I, they've reviewed their practices) - women on the DPB have been done for supposedly being in relationships when what they've done is accept some financial support from their kids' fathers. This reflects a particular value judgment on what is a relationship in the nature of marriage, drawn from a particular set of criteria based in a particular set of institutions which define marriage in a particular way.

Hugh said...

monogamy is implicit in ideas of commitment to heterosexual relationships

I know a lot of non-monogamous heterosexual people who would disagree strongly with that statement.

Hugh said...

Oh, and Anna, another question for you - you say you don't want to be considered to be in a marriage by default, which is fair enough. Are you comfortable with the idea that this will mean people who are married are permitted certain rights or benefits that you and your partner aren't?

Anna said...

A lot of people don't much care for monogamy, but it's still implicit in the institution of heterosexual marriage. You can only get married to one person at a time. Monogamy is not implicit in gay marriage, because as yet that doesn't exist here.

I don't think rights or responsibilities should be conferred differently on people because they're married - that's why I want to ransack the whole institution of marriage. Marriage privatises responsibility for the wellbeing of partners. The important prerogative which de facto couples traditionally lacked was the right to a fair division of property following relationship dissolution. This only happens if you join your separate properties in the first place. I'd like not to have to do that.

Hugh said...

Anna, I agree, but it seems that when de facto couples are treated the same as married couples, you see this as making them married in all but name - you interpret equality, which you want, as being assimilation into the phenomenon of marriage, which you don't.

I agree with you that marriage needs to be ransacked - great expression there, by the way - but it feels awkward trying to square that with support for gay marriage, or civil unions for that matter.

Anonymous said...

I like the idea that the state uses "civil union" as its measure for all things, and has a de facto case for people that it thinks have failed to formalise their relationship. I'd be interested to see someone contest a will on the basis that they'd been denied a state benefit and therefore were CU'd as far as the state is concenred and therefore benefit from the state limits on the will terms.

I'm in a relationship where we live together but are financially independent and I think both object to the state deciding that we're "married" when we don't want to be. I've also done some amusing things with my investments in order to discourage the state from re-allocating them against my wishes. I regret the necessity, but failing to do that could cost me a bucketload of money, and if anyone loses I'd rather it was the people making the silly rules (viz, because of this I pay much less tax than I did before).


Anna said...

Yes, I do want equality, but the other way round. I want it to be possible to live with someone else without lapsing into marriage - and I also want it to be possible for those who do commit to marriage not to also commit to interdependence and all the pitfalls that entails.

I feel incredibly ambivalent about extending the right to marry over the gay community. I certainly understand the desire of those who want their relationships to be accepted; but along with that goes the potential for exploitation, even as it confers some so-called protections. Hence the fact I'd like to ransack marriage before extending its blessings any further!

Hugh said...

Personally, I just don't feel the lapsing that you do, not with the status quo, anyhow.

Here's the tricky thing. If two people do decide to commit to financial interdependence, whether through marriage or not, and then break up (and thus change their minds about the interdependence), is it appropriate for the state to enforce that earlier decision about interdependence regardless of their changing their minds?

If interdependence is always an individual choice, equal division of assets on break up will be very, very rare. And, given that men usually have more money (and are likely to for the medium term), this situation is unlikely to advantage women.

A friend of mine once got into a relationship with a man significantly wealthier than her. They broke up under fairly acrimonious circumstances. She got half of their assets, which was really useful to her in rebuilding her life during a difficult time. I'm not sure depriving her of those assets would have been helpful to her.

Anonymous said...

Hugh, there's the question of whether being helpful to her is enough to justify depriving him of his property. Viz, if the state wants to help her by giving her assets, why should those assets be taken only from one individual?

A common case is where a guy enters a relationship with (say) a freehold house and she has no financial assets but has children and maintenance is being paid by their father. It's likely that during the relationship she will receive more financially than she contributes, even counting "in kind" contributions as a SAH partner. But when the relationship ends, she stands to collect half the guy's assets.

I'm deeply ambivalent about this partly because where I live any pre-nup (or pre-non-nup) is merely advisory and is frequently disregarded by the courts. So there is absolutely no way that I can know ahead of time what the state will decide to do with my assets after the relationship ends. All I can do is try very hard to make sure the parting is amicable, which really means taking off at the first hint of trouble.

A side issue is that moving assets to mitigate the issue is difficult to do without breaking the law. Or at least violating the spirit of it. Specifically, if the tax dept can view the assets the court can reassign them.


Anonymous said...

Interesting reading these comments and the fact that these partnerships are just being discussed in terms of the financial rights/responsibilities. I am married and the financial angle is, and has always been, completely irrelevant. I have supported my husband when he has been unemployed for long periods both before we were married and after, the legal state of our relationship was never the point. Hell, if your partner (married or not) is earning a decent income and you can't support yourself then why not look to them rather than the state?? This would be a million times more preferable to me than to have WINZ breathing down my neck, which is hardly "independence".

Interesting fact that I learned from a gay friend who brought his partner to live in New Zealand, they had no trouble with immigration procedures as long as they could prove joint financial responsibilities (joint credit card etc) and a genuine relationship of some duration. This is exactly the same as for someone bringing someone they have married. This is amazing, really, and hearing it made me quite proud to live in this country. Certainly I have been discussing immigration procedures for gay couples with gay Americans lately and they have been very impressed with our laws.

Anna said...

Anon, I think it's great that your relationship is supportive in this way, but of course some people's are not so good. Right now, I'm the 'breadwinner' (oh, how I hate that word) and my partner is at home. I think this leaves him vulnerable. If I ceased to be able to support him and the kids, or turned into a tyrant and decided I didn't want to, he'd be in trouble. He's caring for kids, and has been out of the workforce for a while, and might not be able to jump back into a job straight away even if he didn't have responsibility for the children.

You're right of course about being a W&I client not meaning 'independence'. But that depends on whether the benefit you're receiving is regarded as a right (eg NZ Super) or a form of bludging (eg the DPB) - as well as whether you're being paid enough to live on.

NZ certainly is way ahead of the US in terms of our acceptance of gay relationships, if the Proposition 8 debacle is anything to go by. Interesting that your friends' joint financial responsibilities were scrutinised - this is on one hand quite non-judgmental (doesn't discriminate between homo- and hetero- couples), but on the other hand contains the problems with financial interdependence which married and de facto couples can face.

Anonymous said...

My sister is in the UK and to get residency had to "demonstrate an ongoing sexual relationship" to the immigration people. The mind boggles!

As far as the discussion revolving around money, that's largely because the govt focuses on it. Fair enough, ideally they keep their involvement as limited as possible so violence and money is a reasonable limit. But it does mean that for people like me where there's considerable disparity in financial assets there is potential for things to become really ugly once the govt gets involved. Which means I do worry about it, because it's the difference between retiring at 50 and having to keep working when I'm 60, whereas for my partner it's the difference between having to save for a house and being given one by her ex-partner. The temptation has to be there...


Anonymous said...

Moz, that is insane! When I was applying for residency in my husband's country we just submitted photos and letters that showed the relationship had lasted some time and I got the letter within a week (unlike here, which was more of a nightmare). I think the joint credit cards are just a test, they're not compulsory but seem to persuade them that you must be serious (insert rolly eyes).

As for money, this is probably veering off into different territory but IMHO there needs to be basic "compatibility" of priorities or else there will be battles ahead...