Posted by
Playful Walrus on Wednesday, December 17, 2008 5:17:20 PM
"Love is love." That is being used by some protestors against California's marriage amendment, voted in as Proposition 8.
Well, of course X = X. But what is the logical argument, if any, implied? It seems to be "The love I have for my same-sex partner is no different than the love you have for your opposite-sex partner, therefore, our relationship should be licensed by the state as marriage just as yours can be."
I'm sure I'll be corrected if I am wrong.
First of all, California law deals with "love" exactly twice[1]. In neither case is marriage or domestic partnerships addressed. There is no legal requirement that spouses or domestic partners actually love each other. You can get a marriage license or a domestic partnership with someone you loathe. I don’t advise it, but it is legally possible.
Biblical promises that Jesus loves us aside, none of us can really be sure whether or not one person loves another person. In some cases, we can make a good guess based on our experiences with how they treat each other. The people at the county office who issue marriage licenses are unlikely to be able to objectively prove whether or not you love the person with whom you are getting the marriage license. Fortunately, they don't ask.
It also strikes me that if you’re going to use "love is love" as an argument to change the legal definition of marriage, you should also have a legal definition of love in state law, as "love" means different things to different people. We don’t have a definition of love in state law. But that is okay, because we don't base public policy on whether or not any two adults love each other.
If we were to accept the implied argument, wouldn't that mean that any relationship where love is claimed should be licensed as marriage if requested? After all, if love is love, then that means that platonic friends who love each other should be able to be married to one another as far as state licensing, no matter how many there are. Close family members (even without incest), or people carrying on an extramarital affair, or people who regularly engage in group sex with each other - all should be able to claim state marriage licenses for their relationships, no?
Also, how does anyone know for sure if the love in one relationship (say, bride-groom) is equivalent to another (say, same-sex partners), especially if they've only ever engaged in one kind?
"Love is love" can’t be the basis for state marriage licensing if we are going to keep any order. Fortunately, licensing is based on objective facts that are a matter of public record: one adult or emancipated female and one adult or emancipated male, neither one currently in a licensed marriage, who are not closely related. There's no requirement or restriction involving love or sexual orientation.
Ultimately, since state marriage licensing is not about love, the argument is irrelevant.
I plan on addressing more of the common arguments and slogans in subsequent posts.
Previously:
Marriage Neutering and Gender Distinctions
Two Bad Arguments Against Prop 8
Legislating For Feelings
Shall We Vote on Your Marriage Now?
[1] California Government Code section 421.7.
"I Love You, California," a song published in 1913 with lyrics by F.B. Silverwood and music by A.F. Frankenstein, is an official state song.
Insurance Code:
Section 10110. Every person has an insurable interest in the life and health of:
(a) Himself.
(b) Any person on whom he depends wholly or in part for education or support.
(c) Any person under a legal obligation to him for the payment of money or respecting property or services, of which death or illness might delay or prevent the performance.
(d) Any person upon whose life any estate or interest vested in him depends.
10110.1. (a) An insurable interest, with reference to life and disability insurance, is an interest based upon a reasonable expectation of pecuniary advantage through the continued life, health, or bodily safety of another person and consequent loss by reason of that person's death or disability or a substantial interest engendered by love and affection in the case of individuals closely related by blood or law.
(b) An individual has an unlimited insurable interest in his or her own life, health, and bodily safety and may lawfully take out a policy of insurance on his or her own life, health, or bodily safety and have the policy made payable to whomsoever he or she pleases, regardless of whether the beneficiary designated has an insurableinterest.
(c) Except as provided in Section 10110.4, an employer has an insurable interest, as referred to in subdivision (a), in the life or physical or mental ability of any of its directors, officers, or employees or the directors, officers, or employees of any of its subsidiaries or any other person whose death or physical or mental disability might cause financial loss to the employer; or, pursuant to any contractual arrangement with any shareholder concerning the reacquisition of shares owned by the shareholder at the time of his or her death or disability, on the life or physical or mental ability of that shareholder for the purpose of carrying out the contractual arrangement; or, pursuant to any contract obligating the employer as part of compensation arrangements or pursuant to a contract obligating the employer as guarantor or surety, on the life of the principal obligor. The trustee of an employer or trustee of a pension, welfare benefit plan, or trust established by an employer providing life, health, disability, retirement, or similar benefits to employees and retired employees of the employer or its affiliates and acting in a fiduciary capacity with respect to those employees, retired employees, or their dependents or beneficiaries has an insurable interest in the lives of employees and retired employees for whom those benefits are to be provided. The employer shall obtain the written consent of the individual being insured.
(d) An insurable interest shall be required to exist at the time the contract of life or disability insurance becomes effective, but need not exist at the time the loss occurs.
(e) Any contract of life or disability insurance procured or caused to be procured upon another individual is void unless the person applying for the insurance has an insurable interest in the individual insured at the time of the application.
(f) Notwithstanding subdivisions (a), (d), and (e), a charitable organization that meets the requirements of Section 214 or 23701d of the Revenue and Taxation Code may effectuate life or disability insurance on an insured who consents to the issuance of that insurance.
(g) This section shall not be interpreted to define all instances in which an insurable interest exists.