Jewish World Review May 24, 2004 / 4 Sivan, 5764

Bernadette Malone

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States have the right to not ‘change with the times’ | Even before gay couples started wedding in the Bay State on Monday, and New Hampshire Gov. Craig Benson signed a law making those marriages null and void, New Hampshire was already more reserved than Massachusetts on marriage matters.

The "Live Free or Die" state is not just reacting with a wave of homophobia, as critics might allege. Instead, despite its libertarian leanings, New Hampshire has a long-standing tradition of "discriminating" against would-be marriage applicants that has nothing to do with hate or fear. Take, for example, the seldom-discussed topic of first-cousin marriage, a topic that leaves a bad taste in many mouths.

Unfairly, the South is the butt of most kissing-cousin jokes. In fact, data from the National Conference of State Legislatures show that marrying your first cousin is not permitted in states such as West Virginia and Mississippi, but it's completely legal in New York, California, and every New England state except New Hampshire. Surprised?

And it's not like New Hampshire just never got around to "changing with the times," as some folks would like it to do with same-sex marriage. In 2001, New Hampshire's Legislature considered legalizing first-cousin marriage, but ultimately rejected the idea, even though Albert Einstein, Thomas Edison, Queen Victoria and an estimated 20 percent of the world's population married or are married to their first cousins.

"Who cares if everyone else around us is doing it?" New Hampshire's attitude on first-cousin marriage seems to be. "It's just not a good idea, no matter how in love two cousins are." What impressive resolve in the face of peer pressure.

In refusing to marry first cousins, New Hampshire's government is expressing its opinion that marriage is not just a right and refuge for any consenting adults in love who want to take advantage of special tax status and inheritance laws. The participants have to fulfill the state's vision of what a "good marriage" means.

The first thing that comes to a lot of people's mind is that the union should be a reasonably good thing for their offspring. And just as same-sex marriage deprives children of a female mom and a male dad, first-cousin marriage carries risks for offspring. Studies show that first cousins are twice as likely as unrelated people to bear children with birth defects. Granted, it's a little dangerous for any government to get into the business of deciding who is genetically fit to reproduce. (It could start denying marriage licenses to women in their late 30s and 40s, and individuals with hereditary diseases, and then short people, and so on down the line.)

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But if protection of children were the only concern New Hampshire had about first-cousin marriage, it could have circumvented it. It could permit first cousins to marry if one partner were too old or infertile to reproduce (as Arizona, Illinois, Indiana, Utah, and Wisconsin do), or only after the couple had received genetic counseling (which is Maine's stipulation). So obviously New Hampshire's probation on cousins has more to do with its ideals about how society should be organized than the genetic risk to children.

New Hampshire's vision of marriage has lots of stipulations that other states might disagree with. The 24 states that allow first cousins to marry might be expected to disagree with New Hampshire's impingement on that freedom. Utah, which used to perform polygamous marriages, would have disagreed with New Hampshire's demand that marriage be limited to only two participants.

All of these prohibitions, taken together, make up New Hampshire's vision of marriage, which it has maintained all by its lonesome in New England for many years. Those who criticize it for failing to get with the times and recognize gay marriage logically ought to also press for New Hampshire to recognize cousin marriage (or any marriage between consenting related adults), polygamous marriage, and any other arrangement whose participants freely petition for a marriage license.

New Hampshire drew the line a long time ago, asserting its right to define what a marriage is and what a marriage isn't. That it's holding the line in refusing to recognize the same-sex marriages performed in Massachusetts isn't a mark of its backwardness or homophobia; it's the mark of a state that knows what it stands for, even if all of its neighbors are all kissing their cousins.

Comment on JWR contributor Bernadette Malone's column by clicking here.


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© 2003, Bernadette Malone