Time to Abolish Marriage
Gay marriage
A sure-to-be extensive and grueling legal struggle has gotten underway in California, as pro- and anti-gay marriage factions begin the long and winding road toward a widely-predicted Supreme Court decision on that issue. As with many other things in life, who will win? That’s right, the lawyers. We can all rest assured of that. Too bad nobody realizes that there is a much simpler, more elegant, fairer (to all parties concerned) and cheaper way to resolve this issue once and for all: simply get the state out of the business of marriage.
This one is blindingly simple. Marriage is a religious institution at its heart; in the United States, we have a little thing called the separation of church and state. Therefore, it follows that the state has no business getting involved in marriage. It remains a matter for religious communities and their churches, mosques, synagogues and temples to deal with as they see fit. And thus it remains an essentially private matter, right where it belongs.
The state’s concern lies in contracts. In centuries past, the state wormed its way into the marriage business for the sake of consolidating its authority over individuals’ lives. But regardless of the history, today the state is mainly concerned (or should be concerned) with who is due how much money when someone dies, who enjoys what hospital visitation rights, and who gets a tax break on what basis—the stuff of contracts and legal arrangements. And note that there is absolutely nothing inherent in any of these things that relates directly to love, companionship, commitment—the types of things normally associated with marriage in the popular and the traditional mind. That is why those types of legal arrangements have been, are and will continue to be created for non-romantically involved individuals.
The state is concerned with contracts, and should remain concerned with contracts. The recent rash of controversy surrounding gay marriage points to the fact that the state has no natural role in observing, registering, regulating or legitimating the kinds of private phenomena that give marriage its real significance.
Regarding the legal consequences, Elisabeth Eaves has given some insight:
Abolishing state marriage would raise a number of questions of the who-gets-what-when variety. Throughout much of history, marriage was a business contract, and though we eschew that notion in our romantic times, money is still pretty much what the legal paperwork is about: Who inherits, who gets dental benefits, who gets what when a relationship is dissolved.
These things, though, aren’t that hard to work out. We already legally recognize next of kin, and write wills to determine inheritance. It wouldn’t be a huge leap to allow every person to declare a benefits-receiving partner of his or her choice–who could be a romantic partner, an elderly relative or an ailing friend.
Under the new regime, if someone wishes in the future to register with the state the kinds of legal rights and the type of legal relationships that now characterize heterosexual marriage, they will be able to do so, between themselves and one other person of the same gender (whom they may or may not be romantically involved with), with multiple other adults (thereby dealing with the issue of polygamy, which is surely on the historical heels of the current gay marriage debate), with relatives, etc. The government shouldn’t care who wants to establish what arrangement with whom, just that it’s registered for public knowledge and benefit.
Those who would raise complaints about this “astounding assault on tradition” (which isn’t even as much of a tradition as they like to think), simply need to be pointed in the direction of Sweden and Holland. Not exactly failed states.
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I would agree, in that the government should get out of the marriage business, leave it to churches totally. The way to get around the “who-gets-what-when variety” is expanded the partner ship contract, and have them filed, no license needed, just file your partner ship with the court register, or county register which ever. Within the assistance area of government, if someone needs assistance with their family, you could continue the area of going after child support from absent parent, parent being defined as the one having the baby and the one contributing to having the baby, as within the partnership or outside of a legal partnership. Churches could continue to offer the religious marriage ceremony within their belief structure not going against their own beliefs. But the marriage would have no affect on the individuals legally with in the court or government system. Only filed and registered partnerships would, and those could be between a man and man or woman and woman or man and woman. Sure their would have to be a few laws re-crafted, but hey, isn’t that what our legislative branches of government both state and federal are for and don’t they do that all the time, amend to change laws or expand them? Let them really do some work for once.
Great ideas, Charles. The legal and social system already has all the essential qualities needed in order to make it work. There is no question that abolishing state marriage would represent a shift in the nature and character of society, but then again, so did abolishing segregation.
Plenty of legislation and legal paradigms were overturned as a result of the civil rights movement. But that didn’t stop people from deciding that it was the right thing to do.
In many ways, the issue of gay marriage goes far beyond gay rights, and speaks to some important legal and social structures that need to be rethought. For that reason, the effects of the current gay marriage movement will be felt for many years, regardless of the short term outcome.
Much of this whole debate is moot anyway. I’m always appaled by the denial of equal rights. I can understand why some traditionalists might be finicky about calling it “marriage” but that doesn’t mean they don’t deserve to get “married”.
Either way the court is right in overturning a majority vote against a minority. Mob rule does not a democracy make.
Has the court over turned the California amendment? I hadn’t heard that, yet, if it does, the issue is mute. But then if it does overturn a states right to regulate it’s self, even on defining marriage, then the only option many see is a constitutional amendment to the US Constitution. And the only way that could happen is if the republicans that are out there fighting to gain power to win election and take congress away from the democrats win. The two issues that shouldn’t be issues in the up coming elections, are abortion and gay marriage. If the court continues to legislate, democrats will lose elections, and republicans will win, and they will work on creating a constitutional amendment and pass it. Once that is done, the court has nothing to say on the issue.
[...] in legal rights relating to inheritance, insurance, taxes and a plethora of other issues is to abolish the concept of civil “marriage” altogether and replace it with contracts that the state can recognize. The softer aspects of [...]