"The Spouse's Obligations Aren't Just Sexual"

Wednesday, March 09, 2005

"The Spouse's Obligations Aren't Just Sexual"

The debate over same-sex marriage has reminded--or taught--people that marriage entails numerous and occasionally burdensome legal obligations, as well as rights. Unfortunately, this is a point that is still mostly overlooked in arguments about same-sex marriage, but it is reflected in two particular arguments one sees reasonably often.

First, there's the position that civil unions should be OK, but marriage should be limited to mixed-sex couples. The idea is that the important thing is making the legal rights and obligations equally available, and that since the label doesn't matter for practical purposes, we should leave "marriage" alone as a sop to people who want to "defend" it for religious/social purposes.

Then there's the anti-equality position that says that same-sex couples can achieve the equivalent of marriage by arranging for the legal rights and obligations via private contract. This isn't true, as it doesn't apply to the obligations that third parties owe to married couples and even some contracts between partners might be held unenforceable, particularly in states with Hate Amendments. But whatever its merits, at least this argument recognizes that marriage is more than symbolic and is a legal as well as a religious and social institution.

This article doesn't have anything to do with same-sex marriage. But it is a reminder of what the law thinks about marriage.

Since 1993, the husband had refused to take meals with his wife or even eat food prepared by her. He also refused to celebrate holidays with her, did not attend her father's funeral in 1997 or the funeral of her nephew, who was killed in the Sept. 11, 2001, terror attack on the World Trade Center, the judge said.

Except for sporadic instances, the husband also stopped talking to his wife, the judge wrote, adding that he has been unwilling to sleep in the marital bedroom for more than 12 years.

The bit about not sleeping in the "marital bedroom" might have been decisive, except that the judge found that the wife may have "condoned" the husband's sexual abandonment. Under the circumstances, it's hard to blame her. But the law in New York has generally said that to get a divorce on the grounds of abandonment, you must be abandoned either literally (i.e., your spouse physically takes off) or sexually. The new ground in this case is the concept of "social abandonment."

The legal obligations and rights of each person in a marriage have changed over the centuries--I don't think there's a state in the U.S., for instance, in which I would still be permitted to force Mrs. California to have sex with me. But, changed though they may be, the obligations and rights are still there. When you vow to love, honor, and cherish (or obey) in sickness and in health and so on, you're making not just a promise before God, but a legally binding contract.

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