“With Gay Marriage Comes Gay Divorce” - A Rebuttal
In what will hopefully be an ongoing segment, I would like to shine a spotlight on some of the arguments those against inclusive marriage are advancing. In the wake of the Vermont vote and Iowa ruling, the sky-is-falling fears of the marriage exclusionists have blossomed into full on doomsday predictions. To counter the rhetoric, I would like to select a sampling of the arguments and rebut them. The first I would like to address involves concerns that gay marriage would lead to legally confusing, socially upheavaling, and child destroying gay divorce.
This is an argument that is somewhat new to me, but that I have already encountered twice since Vermont's vote yesterday. It goes something like this:
I'll be for it when gays/lesbians, when entering the marriage[,] are obligated to choose which of them is viewed as the male and which is the female in the eyes of the law. In the real world[,] men and women are treated differently in the eyes of the law when it comes to divorce, dividing assets, alimony, child support, etc [. . . .] [T]he gay community wants all the benefits without having to risk the drawbacks. Agree to one choosing the male role and one the female role in the event of a divorce, and you have my FOR vote.
User 'zilla' on debate site ConvinceMe
It was probably not this individual's intent to reinforce the heterocentric point of view that in a relationship one has to be the "man" and the other the "woman". Many same-sex couples battle with the assumption that one must take on a traditionally masculine role while the other adopts the feminine role. No couple, gay or straight, should be forced to integrate these social mores into their relationship unless they mesh with their own individual choices. A couple is free to divide the jobs between the partners in any way they personally see fit. While this is somewhat tangental to the point this individual was attempting to make, I did want to address the damaging stereotype.
The crux of this person's argument rests in the concern that the legal system is ill-adapted to deal with the implications of a same-sex divorce. The position suggests that females (presumably) are favored at divorce, often gaining child custody and support, alimony, and favorable asset division. This view was reinforced by a second individual, who e-mailed me in response to my analysis of Iowa's ruling:
In this case, [I]'m just wondering about the social implications. Let's say since gay marriage is legal, that means gay married couples can adopt as a couple. Now what happens to custody when a gay couple decides to get divorce[d]. Who gets primary custody? In "traditional" marriage right now, the social precedent is that mothers are the better than fathers to raise kids, but how will the courts decide when there are two mothers involved?
Anonymous
To both individuals, I want to clarify an apparent misconception with how our courts deal with divorces both opposite-sex and same-sex. While it may be a social precedent that mothers receive custody of children born during a marriage, this is certainly not the current legal precedent. While there is no single determinative element as to who receives custody, the decision is always made based on what is in the child's best interest. A number of factors including the parents' financial positions, relationship with the child, proximity to the child's school, history of criminal or abusive conduct, time able to spend with the child, and stability of home, as well as, in some cases, the child's preferences are all taken into account. This would not change simply because a same-sex couple rather than an opposite-sex is seeking a divorce.
While it may seem that women are favored in custody hearings, it is not simply due to their female anatomy. Courts simply prefer the roles that woman, often due to pressure from social norms, tend to adopt. If the roles were reversed, as in an opposite-sex relationship where the mother works and the father stays at home with the children, the father would be the one to receive the supposed preferential treatment.
The same is true of asset division, child support, and alimony. A non-working, child rearing partner tends to receive a more preferential division of wealth. As a matter of public policy, we want to ensure that an individual who was completely financially dependent on his or her ex-spouse is still cared for following divorce. This is never simply based on the individual's sex, but on his or her role in the relationship.
When it comes to same-sex divorces, all of the same factors are still relevant. There would be no legal confusion when the court faces two mothers or two fathers because, again, the sex of the parent is not a considered factor. Rather, the partner who is better able to provide a home that would be in the best interest of the child would be granted custody whether that parent is gay, straight, male, or female.
It is an unfortunate truth that half of all married couples — same-sex or opposite-sex — will decide to divorce. Our society has grown and matured to the point that we understand the reasons behind such a decision, and have adapted our legal system in order to ease the transition for the individuals and for their children. Marriage inclusion will not cause upheaval in our courts like some seem to fear it will. And if we ever face a question for which we have no answer, we will figure it out when we get to it. That, simply, is how our system of laws works.
If you have your own response to this argument, whether you agree or disagree with me, be sure to share it in the comments section. Any debate should be cordial and well-reasoned, but all viewpoints are welcomed and uncensored.
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