Gays...are you sure you *want* to be "married"?

Great Debates
1

I came across an interesting letter to the editor in this month’s issue of Reason (a libertarian mag, very pro on gay rights obviously.)

The author was a gay man, and he had an interesting perspective. He argued that having state sanction for marriage subjects the partners to all the intrusive legislation and regulation that the state imposes on married partners.

He went on to note that “nothing in the law prevents gay couples from owning property jointly, creating enforceable partnership agreements, powers of attorney, medical proxies, or any number of other legally binding agreements that define and document the nature of the relationship.” He noted that this would be following the examples of “thousands of practicing polygamous families who, rather than lobbying for polygamist ‘rights’, simply lives their lives in peace.” Basically, his argument is that the absence of government intrusion is a blessing.

Now, it’s true that marriage as sanctioned by the state provides a certain set of rights and obligations between the partners, and it may be very convenient to simply have the state sanction and get that set as a bundle of rights. But as a future attorney presently taking Business Organizations and knowing a little about property and partnership, I suspect we lawyers could create a document package that would convey the same rights as married couples enjoy without imposing the government’s intrusive regulation.

As I’ve previously stated, it’s my personal opinion that the state should butt out of personal relationships and neither sanction nor prohibit any form of relationship in which peaceful people which to co-exist. I’m 100% for equal treatment of hetero and homosexual relationships. But there are two ways to equalize it. Might it not be better to strip away the state sanction for hetero couples than to extend such sanction, and the intrusive laws that accompany it, to homosexual relations as well?

2

As I’ve previously stated, it’s my personal opinion that the state should butt out of personal relationships and neither sanction nor prohibit any form of relationship in which peaceful people which to co-exist.

So incest is ok with you?

Thirty four year old men marrying 12 year old girls because “that’s how it’s done in the old country?”

3

Argh. I did say “peaceful” people, meaning to exclude relationships maintained by force. As a 12-year-old girl cannot legally consent to any binding contracts, that couldn’t possibly be done in a world where marriage was defined by the contractual relationship of the parties.

As a matter of fact, incest is OK with me, but that’s hardly the point of this thread and if you want to get into that start another thread please.

Christ, suggest that people should be free to form their own relationships and you get Giant Squid arguments on the first reply :rolleyes:

4

Better clarify: by incest I meant between consenting parties, which would have to be adults. I think I implied that by my post, but I want to make sure there’s no confusion. Again, I don’t mean to make this about incest, that ain’t the point.

5

(1) Lawyers and partnership agreements cost money. (So do weddings, but these can be tailored to suit budgets.)

(2) A partnership agreement is not going to get your same-sex “spouse” through immigration.

(3) A partnership agreement is not going to guarantee you a right to enter your partner’s hospital room, if he or she is incapacitated.

(4) A partnership agreement will not grant you tax advantages which may accrue to married couples in your jurisdiction.

… for a start.

6

… and because I’m feeling grumpy:

(5) the state should grant equal rights to citizens, regardless of their choice of partner: if YOU have the right to marry who you choose, than so should I.

7

Rex:

I’m not sure what the debate is here. If the US legalized gay marriage tomorrow, gays would still be free not to marry if they so chose. I’m sure you realize that.

8

That’s exactly what I said. I advocate the position that government should not sanction any relationship, and that people should be free to form whatever relationships they want and tack on the niceties via contract law. “Marriage” would cease to exist as a legal term, and would be replaced with a bundle of contractual agreements made by the parties effecting the desired rights and obligations.

Yes indeed-y. What I’m attempting to debate is whether marriage is really worth fighting for, since it means government intrusion into personal relationships, which can easily be shaped through contract law and partnership agreements without government meddling.

Point (1): I guarantee you it would cost very little to prepare a fixed set of agreements that mirror the marital relationship, and then sell that service to any two (or more) people who wanted to have the set of rights and obligations traditionally associated with marriage. The lawyer would only have to prepare it once, then he could simply sell the package deal to the couples wishing to be joined. It would simply be a set of prefab forms. Hell, I don’t know why such a thing hasn’t been done yet, and I’m tempted to do it myself if I were in a place where there’d be demand for it.

Point (2): Frankly, I don’t think there should be such a law in the first place. If we removed state sanction for marriage altogether, as I advocate, there wouldn’t be. There’s already enough room for fraud in that law, as several sitcoms have demonstrated over the years, that we ought to be rid of it.

Point (3): I don’t know what the hospital’s practices might be, but perhaps they’re outdated. For one thing, this is obviously an extremely rare occurance, and not one you would commonly worry about. For another, I find it hard to believe that a hospital would really be strict jerks about a rule and forbid entry to the sick man’s partner. I am not certain, but I have to believe that you can designate a person in writing as “next of kin” or some such thing, and get around this. If not, the obvious solution is to get the hospitals up to speed on the 21st century, not to try and get government involved.

Point (4): I would abolish those tax advantages had I the opportunity. As it stands, it’s a mixed bag at best. For some, marriage helps with taxes, for some it penalizes. You don’t even need to bring homosexual couples into the discussion to critique the marriage taxation laws, it’s my opinion that they ought to be done away with for treating couples different than singles. There’s an archaic favoritism shown towards families in this country that is wrong regardless of your position on homosexual union. The government has no business encouraging or discouraging family formation.

9

RexDart, I have some sympathy to your libertarian position that the government should not be involved in the business of regulating marriage and relationships.

However, the fact of the matter remains that at this point in time, significant legal impediment stands in the way of gay couples achieving the same equality as married or de facto heterosexual couples under the law of your country (and mine). Not all of these barriers can be circumvented by an agreement drawn up by lawyers.

Hence your responses to the points I raise – “I would abolish…”, “I don’t think there should be such a law in the first place…” – however admirable, serve as small comfort to gay couples living under the current law. So the answer to your question, “Gays…are you sure you want to be married?”, would remain an emphatic, “yes”.

10

Oh, incidentally…

**

**I am aware of a couple of partners and associates of law firms in my city who claim some expertise in the drafting of personal agreements for gay and lesbian couples. However, I don’t believe they sell “package deals”. Off the top of my head, consider:

  • property rights
  • inheritance of property
  • joint purchase of property and financial contributions to the running of a household
  • adoption of any children
  • provisions governing division of property and surviving rights in the event of a relationship breakdown
  • how to define a relationship breakdown, since “separation” and “divorce” are not readily defined
  • whether certain equitable presumptions which apply to married heterosexual couples apply in the present case

Besides, what makes you think a “set of prefab forms” comes cheaply? Consider a simple conveyance of property – a type of transaction carried out daily by commerical law firms. Large firms will of course maintain a large database of “precedents” (“fill in the blank” contracts) which they select from and then tailor to suit particular transactions, but this process still costs their clients big bucks for a middling conveyance. Consider a lease agreement – again, firms will have a set of lease precedents to chose from, but the negotiation period prior to settling on the terms of the agreement, the drafting of the agreement and the execution of the transaction itself costs big money for a large lease. Add on top of this the work of maintaining precedents so that they are consistent with changes in the law and you have a very costly exercise. “Prefab forms” certainly don’t come cheap in the legal world.

What, by way of comparison, do married couples have to do? Just get hitched! (Or in the case of de factos, just shack up and you’ll accrue certain rights.)

**Okay, now I know who I’m coming to see if I need some legal work done in the US. :wink:

11

I think it gets down to the basic “pursuit of happiness” thing. Some citizens are not free to pursue happiness the same way others are, and it’s wrong.

I’m sure the government is going to say that they’re free to not recognize things about another government, but with our historic good relations with Canada, we will come out looking like jerks regarding our refusal to acknowledge the gay couple that tried to enter under “family” status.

On the other hand, I’m glad someone has the 'nads to go up against us. Eventually, right will overcome wrong. This is the start of the journey.

12

There actually was a recent thread that had an article that took the stance of the OP’s friend. For the life of me I can’t seem to find it.

13

The ONLY debate is about equality of CHOICE, not whether all available choices are right for everyone or not.

The Gay Marriage debate is about discrimination first and foremost; marriage is the MacGuffin.

14

Narrad, the difference between a property conveyance and what we’re talking about here is signifigant. For one thing, property law is absolutely archaic, and state common law of property often still uses concepts from 600 years ago when a property conveyance required handing a clump of dirt to the new owner in front of two young boys. Plus, there is a certain “adversarial” character to a land sale, and the parties might want to negotiate against each other for terms that modify the default rules. Then there are the title searches, which cost time and money.

In this scenario, the prospective partners are not adversaries, and partnership law is relatively modern, straightforward and simple. If you drew up the basic documents such as to effectively mirror those of married partners, you would probably need very little tweaking to accomodate the individual clients. A simple partnership agreement would take care of all the property and contribution issues, and provide for the method of dissolution (partnership agreements have the option to create conditions under which a dissolution is wrongful, in which case the wronged partner is compensated for the damages he endured out of the partnership’s assets, so they can mirror no-fault or fault-based marriages as the parties may prefer – if it’s a rightful dissolution, or no-fault to use divorce language, there’s a default rule presuming a 50-50 split, so again it’s much like the dissolution of a marriage.)

As for the cost…well, I know attorneys in town that sell basic bankruptcy packages for Chapter 7 (liquidation bankruptcy) that cost around $500-$600 dollars. I see no reason why the gay union partnership documents would be any more expensive than that. Now that’s pricey for some people, but not very much compared to the money most people blow just on their wedding day, not to mention that marriage licenses aren’t free. Partnership agreements (unlike corporations) don’t have to be registered with the state, so the lawyer fees would be the extent of the cost.

Marriage (in terms of the legal viewpoint, not considering the moral or spiritual ones which surely are none of the govt’s business) is simply a relationship under which the state says “you’re married, so conditions A, B, C, D, and E all apply to you by default.” If you want those conditions to apply to you, you can get married. “Marriage” simply represents the bundle of rights and obligations by which those people will be bound, and is utterly meaningless (to the law) outside the context of that list of pre-defined terms as set forth by the state. But marriage is not the only way to adopt any or all of those conditions, and freely contracting parties have the opportunity to agree to them outside the context of what the state calls a marriage.

Again, I’m not suggesting that the present inequality of choice is right, rather I’m suggesting that rather than fight to be governed by the intrusive laws of the state, gays might want to find other means to mirror the marital relationship while we work on getting government out of everyone’s lives.

15

I know three people who with in the next year and a half are getting married (not to each other)

One is a gay couple. and honestly out of the three couples getting married, I see the gay one lasting.

As a Straight guy, and as a common sense guy. I personally think that any consenting adult couple should have the oppurtuninty to marry

16

That’s all well and good, but doesn’t really address the nature of this thread, which concerns marriage as a legal concept, not the validity of the concept of gay marriage.

Personally, I think both Rexdart and Narrad are right. As a libertarian, I think the gov’t needs to get the hell out of the marriage business altogether. People’s personal relationships are none of their business(or rather, it shouldn’t be). But as a realist, there doesn’t seem to be much chance of that happening. Given the laws already in place in this country, I’d say that legalizing Gay marriage and making it identical to hetero marriage is the only right thing to do.

17

Strawman.

All of the inheritance and property rights that Narrad mentioned above can be done through simple contracts. That’s what a marriage breaks down to: a blanket power of attorney contract.

I’ve always felt that gays have felt left out simply because they cannot use the term “marriage” to describe their relationship.