Neither Holy nor Matrimonial

Given the liberal content of my previous posts, you will probably not be surprised to know that I wholeheartedly support legalizing same-sex marriage (as well as legal rights and protections for homosexual, bisexual, and transgendered persons). However, in the proverbial mundus perfectus, I again propose something far more radical.

In the United States and most other countries today, the concept of “marriage” has a twofold meaning: the relatively simple legal definition, detailing benefits and shared financial and visitation arrangements between most often two different parties; and the complex, varied traditions of most cultures, societies, and religions,  such as the associated Christian commandments and beliefs, the Islamic tradition, the Church of Latter-day Saints traditions, the general American belief in a loving marriage, and the traditional custom of arranged marriage in many cultures worldwide. Using the same word for both a legal union and cultural bond is quite misleading, and quite possibly the root of many of the current moral and legal debates on the issue.

I propose that the entwined concepts of legal union and cultural marriage should be, as it were, divorced. The word “marriage”, and the cultural and social values associated with it should be struck entirely from the law books. Instead, the federal government should provide for a “legal union” between any two consenting citizens with all the same benefits and rights presently granted to marriage. (“Civil unions” in the United States presently do not offer nearly the same standard of legal rights.) What is or is not a “marriage” is for prevailing and other cultures to decide, not the government itself, which should be concerned with legal matters. Under this system, gay and lesbian couples would enjoy the exact same rights and status as heterosexual ones, but the government would still not be granting “marriage”, a cultural institution over which it has no inherent power, to homosexual couples, so the so-called moral concerns of the conservative right would be suddenly made baseless. #

kjk

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8 responses to “Neither Holy nor Matrimonial

  1. I agree with you that marriage shouldn’t be a legal term (I wrote a post on that here: http://tiredami.blogspot.com/2010/12/why-marriage-shouldnt-be-legal-term.html), but I think that your concept of civil unions having the strength of marriage kind of misses the point that you brought up: why is government involved in marriage in the first place? Why does it care who is in a relationship with who? Using civil unions instead of marriages would solve a few problems with marriage (e.g. discrimination against homosexuals), but would still set up an arbitrary set of people (precisely two people) that would have to make a binary decision about whether their relationship was going to be legal or not, and give arbitrary rights to those who chose to make it legal (like different tax laws), while denying those who don’t. Why bother with civil unions? Why not take it one step further?

  2. That is a well-written article; you make quite a few good points. Perhaps legal unions should be much more customizable – between an arbitrary number of people, like a trade agreement, or with specific options for things such as tax laws. However, I believe that given that the vast majority of Americans at one time or another wish to enter into a binary legal contract of a very similar nature to current-day marriage, there should be a clear, inexpensive way to do so without a legal mess. Upon reading your post, I agree as well that this specific contract should be either flexible, to accommodate varying needs, and also not the only option. But surely the option to enter into a *legal* union does couples no harm?

    • As mdl points out below, the problem with allowing fully customizable civil unions is that they would be easy to gain. What if someone decided to marry every citizen of Mexico–would they all become American citizens, sharing income with the one person? Marriage (or civil unions) would become completely gameable and used for monetary, not amorous, reasons. If people really want a legal title, the government could allow marriages which give absolutely no legal privileges but are officially kept on record. And as to it doing couples no harm, I think that it does, in fact, do some couples harm. I wrote about this more in the article, but basically, in forces couples to commit (or not) in a binary matter; it reinforces the notion that couples are financially one person and thus that the woman need not work; and it gives monetary advantages to those that do marry, thus hurting those that don’t (they’ll end up having to pay the missing taxes through some other means in order to keep the government’s budget constant).

      • In response to the Mexican citizens, see my article ‘Opportunity’.
        Yes, the contract could be used for monetary as well as amorous reasons. I see no problem with this. Legal marriages happen for this reason today, and relationships have been used exploitatively, for monetary or other gain, since they have existed. That doesn’t have anything to do specifically with my proposal.
        “it reinforces the notion that couples are financially one person and thus that the woman need not work”? This is a cultural, not a legal, philosophy, and thus again is irrelevant to my specific proposal.
        Specific monetary *advantages* as opposed to financial rights and contracts associated with marriage aren’t really significant enough to make marriage a lucrative arrangement on its own, and it’s not even really that much more beneficial. Yes, there are tax credits, but they’re not really that significant to the legal matters of marriage in general.

        Again, if there was no form of legal union explicitly enshrined in law, many/most couples would just draw up such a legal contract anyway, but it would just be more costly and more open to exploitation through differences in less standardized contracts.

        In addition, private contracts unrelated to civil or legal unions cannot grant visitation rights, or we would see such contracts being drawn up between homosexual couples.

  3. kjk :
    That is a well-written article; you make quite a few good points. Perhaps legal unions should be much more customizable – between an arbitrary number of people, like a trade agreement, or with specific options for things such as tax laws. However, I believe that given that the vast majority of Americans at one time or another wish to enter into a binary legal contract of a very similar nature to current-day marriage, there should be a clear, inexpensive way to do so without a legal mess. Upon reading your post, I agree as well that this specific contract should be either flexible, to accommodate varying needs, and also not the only option. But surely the option to enter into a *legal* union does couples no harm?

    If civil unions were nothing but a contract between n >= 2 people it would be one thing, but many other laws were written that inherently treat a marriage / union in a special way, for instance, Social Security survivorship benefits. And since these rules are socially understood to apply to actual marriages it’s important that they not be gameable. For instance, suppose an elderly widow with substantial Social Security payments decides that before she dies, she’ll enter a “legal union” with her 2-year old great-granddaughter (or her 18-year-old granddaughter, no matter). What a wonderful outcome for them – (Great) Grandma dies two years later and for the next (80) 60 years, the child gets a check from the government as a “widow”! Nor would it be necessary to pretend this is a romantic union – if it’s not a marriage who says it has to occur among a romantic couple? Or heck, how about *I* marry that great-grandmother – does she even have to consent? Or know about it? Isn’t it a cultural notion that the parties involved in a marriage consent to it?

    The point is, these legal unions as they appear in our law books are *inherently* based on a cultural idea. If you truly believe that marriage has no place in law, you would have to accept that all laws concerning marriage would have to be completely removed, not edited to concern marriage-by-another-name. In that case, a marriage becomes nothing but a private contract and thus must obviously be allowed in any configuration whatsoever. And yes, the fact that marriage is binary is a cultural convention – one that is not inherent to all cultures, either.

    That’s what makes gay marriage such a tricky issue for those who believe that marriage is defined out of the Judeo-Christian tradition and excludes gay couples – not only is the tradition fairly clear, but the tradition actually matters to the societal notion of marriage! Which is why I think a lot of pretty liberal politicians have favored the notion of “civil unions” that are allowed for gay couples to be an acceptable compromise, when what many gay couples want is to call what they have a marriage. I come down on the pro-gay marriage side of this because (A) the notion of marriage *is* informed heavily by tradition, but (B) that is no excuse for allowing traditions that treat people unfairly from influencing our laws. So we should start from tradition and follow it to its moral and fair conclusion: unions between two people, personal romantic partnerships, but for anyone barring a clear and specific societal interest against such partnerships (such as incest).

  4. No matter what restrictions on marriage there are, it will still be gameable and has been gamed on multiple occasions. However, for your particular example of Social Security survivor’s benefits, that’s simply not how they work. To quote ssa.gov, “The earliest a widow or widower can start receiving Social Security survivors benefits based on age will remain at age 60.” Social Security benefits are primarily for the elderly, and a revised definition of legal union would not change this.
    And yes, as with *any* legal contract, informed consent is required for both parties – the 2-year-old great-granddaughter could not legally consent to a contract of this nature, and such a union would not be formed without the consent of the grandmother. This is not a cultural but a legal concept.
    I believe the legal concept of marriage as it stands today – joint filing of tax returns, bank account sharing, visitation rights, etc. – should definitely have a place in government. What I don’t believe is that this legal arrangement should be associated de jure with such an cultural, moral concept.

    • “Gameable” means two different things. Marriage is gameable now in the sense that people can enter into insincere or facially illegal marriages and manage to get some benefits out of it, possibly until someone notices or makes a legal challenge. That’s always going to be the case with any law of any sort.

      But if you remove the cultural notions from the legal notion, it becomes gameable in a whole different way. My Social Security example was not the best (I admit, didn’t do my research on that.) So let’s take extension of medical benefits. If this is to be expected of all “legal unions” we are effectively allowing people to extend their benefits… wait. Sorry, let me phrase it from the other perspective. We are requiring everyone else buying insurance to fund those who choose to depart from social norms and use this privelege to extend their benefits to those who wouldn’t ordinarily receive it. So I’ve got to pay, now, for a person with a desperately sick and elderly mother who decides Medicare isn’t good enough and “marries” her to extend the benefit, or who wants their adult child covered, or simply marries pregnant teens by the dozens to help them out. I think it’s reasonable to postulate that society would demand protection from such practices which would currently be seen as abusive. So then we have to revise laws requiring extension of benefits to obey certain other rules, like (1) only allowing you to extend to one “spouse” at a time, (2) not allowing you to extend to blood relatives, (3) not allowing you to extend to minors, (4) requiring the declaration to be mutual. Maybe that’s enough, maybe people would demand more, like a sworn statement of love and responsibility, who knows. But then the cultural connotations have been removed from the label of the relationship and placed directly in the laws. I would think that’s a step backwards, not forwards, not to mention how much time, effort, and money it would take to make these changes.

      So this leads to the same logical conclusion. If you really want to remove the cultural notion of marriage from the law, you have to be willing to remove all meaningful privileges of marriage in the law.

  5. As I said before, the straightforward economic *benefits*, in the form of tax credits and such, are not the main motivation of a legal union. It’s rather the facilities such as sharing of bank accounts and joint tax return filing that provide the major incentives for a legal present-day marriage.

    Actually, Medicare doesn’t work like that either. Quoting medicare.gov, “Generally, you are eligible for Medicare if you or your spouse worked for at least 10 years in Medicare-covered employment and you are 65 years or older and a citizen or permanent resident of the United States.” You can read the medicare.gov eligibility page (http://www.medicare.gov/MedicareEligibility/Home.asp?dest=NAV|Home|GeneralEnrollment#TabTop) more closely if you want, but it does not mention any eligibility for spouses of persons insured under Medicare without an age floor.

    Private insurance is a different matter. It is probably from the examples of private insurance that you take the case of spousal extended benefits. However, most private insurance plans work under a higher risk implies higher premium paradigm. If more people are covered, there is more risk, and premiums will necessarily be higher.

    In general, this widespread “system gaming” you forsee would not hold up in a court of law, under the concept of legal union as I have defined it. In addition, your requirements (3) and (4) would actually be necessary for a legal union, as it would be a contract with mutual informed consent like any other, and minors cannot give consent. The privileges of marriage can be transferred to a more general ‘legal union’ without any significant removal.

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