Gays, Straights and marriage laws: a modest proposal

Great Debates
1

In the great state of Fenris-topia, the benevolent dictator and Grand High Poo-Bah is about to address the nation:

Grand High Poo-Bah Fenris:

Ladies and Gentlemen, citizens of the glorious country of Fenris-topia. an issue has come to my attention that needs addressing: One of our founding principals is “Equality of Opportunity” and, well, frankly the current state of marriage laws doesn’t fit that principal. Certain groups of people are getting special treatment from the state, while others can’t join their group. This is wrong and, as benevolent dictator, I have the power to correct it, and throw any member of my powerless, figurehead parliament who disagrees into the scorpion pit. Thus the following (and this goes for ALL marriages, straight or gay): The state will no longer sanction, approve, deny, affirm or condemn marriages. Any marriages. Gay, straight, lesbian, transgendered, whatever, the state, as of now stands neutral. Here’s how Fenris-topia will deal with marriages in the future:

Inasmuch (I’ve always wanted to start a sentence with “inasmuch”!) as marriage consists of two parts: the lovey-huggy-touchy-kissy-promise-before-God-and-man-commitment stuff and the contractual stuff, I’m going to deal with this in two parts:

First: The lovey-huggy-touchy-kissy-promise-before-God-and-man-commitment stuff. As a person, I love all of you, my loyal subjects. I’ve been invited to your wakes, bar-mitzvahs, weddings and births. However as Grand High Poo-Bah, I must follow another of our founding principles: “It’s None Of The State’s Goddamned Business!” Who you choose to have a commitment with is simply none of the state’s business, except to insure that it’s between consenting adults. The commitment part of marriage is between you, your spouse, your family and friends (if any) your church (if any) and your God (if any). Frankly, the state doesn’t care, nor will the state venture an opinion about which form of marriage God approves of. Any member of the powerless, figurehead parliment who thinks to officially condemn a marriage based on what she or he thinks God approves of would do well to remember that scorpion pit. The only caveat to this is: Taxes. Two people sharing a household should be able to get a tax-break. Therefore, any two adults sharing living quarters for a year who choose to, may file jointly. Both guys? We don’t care. Man and woman? We don’t care. College roommates? We don’t care. Two people who don’t have any emotional commitment, and are only doing this for the tax break? We don’t care. The state doesn’t care how you feel about each other: share a household for a year, file jointly, get a tax-break. The mushy stuff’s up to you.

Second: The contractual part: The substance of the contract is your problem, not the state’s. The state will insure that the contract is enforced, however. If you want to draw up a contract guaranteeing your spouse the right to visit you in the hospital, great, the state will back you. You want to draw up a pre-nuptial agreement? Great, the state will support you. You want to give the other person power of attorney? Great, the state will support you. The state will not, however, force you into a contract where the state decides the substance of the contract. One size does NOT fit all. State-sponsored marriage licenses are now abolished for everyone. My belief is that the state has no business judging which relationships are valid. And up 'till now, the state has been. I’m sure that even now, some enterprising young lawyer is writing up a “standard” marriage contract that covers the contractual stuff that two people can sign. That’s about it, Fenris-topains.

Thank you, and good night.

Any questions, comments or lynch-mobs with flaming torches, feel free to comment.

Supreme Glorious Despot, Benevolent Dictator, and Grand High Pooh-Bah,

Fenris the First

2

Marriage is about the transfer of property.

Marriage is about the raising of children.

Marriage is about the transfer of property to those children.

Who inherits when someone dies, O Grand High Poohbah? Is that also none of the State’s business?

Which part of it are you going to eliminate, the property transfer, or the children? If the children, you’re gonna end up with no constituents in a single generation, like the Shakers.

If the property, I’d hate to be one of your tax collectors.

(and how come every time I type “Poohbah” it keeps coming out “Poohbag”?)

3

DDG,
I see SOMEONE’S forgotten about the scorpion pit. I have no doubt the Grand High Poo-bah has considered your problem, (because he considers all problems, except for the driveways/parkways one and the three words that end in GRY), and it seems, under this new proclamation, who your property is given to after you die isn’t the state’s business. I don’t see how Fenrisopolis’ laws regarding children will be changed. If you participate in the making of a child, you are responsible for the child until he or she reaches the age of majority, as you were under the old system, regardless if you were single, married, divorced, or living in an underground bunker with your anti-government millitia. (Note to self…bring anti-government millitia in underground bunker to Grand High Poo-bah’s attention at next cabinet meeting). I don’t see how that would change.

4

DDG
It seems The Poohbah would have all of those issues decided case by case, based on the contract that they drew up before marriage.

Upon further consideration, the Poohbah might even decree that parents fill out a form spelling out what happens in any number of foreseeable possibilities.
::keeping my can of raid handy in case he disagrees::

5

In reverse order:

I can’t answer the ‘Poohbag’ question, but I keep typing Ppoh-Bah, so maybe something’s going around. A committee will be formed to investigate this further.

On to more substantive matters, however:

Property will not be eliminated. Neither will children. The non-elimination of children is a principle that I hold dear. :slight_smile:

Inheritance: If a person dies with a Will, the terms of the Will will be carried out. If a person dies without a will, the state will reluctantly get involved, skimming of court court costs and/or 1% (I’m willing to debate the amount) of the inheritance, whichever’s greater, to cover expenses.

Transferring property to children: I’m not sure I follow, could you explain in more detail? (I’m not being facetious)
Are you talking about paying for your kids college/food/clothes? or Inheritance? That wouldn’t change: parents would still be required to provide for their children, regardless of state recognition of the parent’s commitment to each other. I like Freedom’s idea that would encourage (possibly through tax-breaks) parents to draw up some sort of form for emergencies (who they want to care for the kids if they die, etc), but again, this mostly won’t change.

Raising children: There will be some sort of tax-credits for raising children (I haven’t worked out the details), but, while I personally think it’s the best situation for children, marriage doesn’t have to figure into the raising of children. Unmarried couples, gay/lesbian couples who, under Fenris-topia’s old system were unable to marry but still adopted, etc. can also have and raise kids and will also be eligible for those tax-credits. Other than that, nothing much will change.

By the way, Captain Amazing the country’s Fenris-topia, the capital city is Fenrisopolis.

Grand High Pooh-Bah Fenris

6

Of course, my lord. I was merely referring to Fenrisopolis’ own child support policies, which as you know, are more generous than out in the provinces.

I think it would also be fair to assume that, with the abolition of “marriage”, all those privilages of the state reserved to married couples will also be abolished (except for that tax break), so, instead of saying, “Only a married couple can adopt”, for example, it would be decided on a case by case basis.

7

How can I move to Fenristopia? Is it like Narnia, found in the back of a wardrobe?

I think the marriage rules of The Magdalene People’s Republic might read a lot like yours.

DDG - your arguments make no sense.

Marriage is about the transfer of property? How many cows were in your dowry?

Marriage exists as a vehicle for the transfer of property to children? No, that’s what wills are for.

The “who inherits when someone dies” question really is none of the state’s business. Make a will. Leave your $$ to your third cousin twice removed and your local animal shelter. What does marriage, marriage certificate, or state sponsorship of the union have to do with it?

Why does removing issuance of a state marriage license necessarily mean getting rid of wills and children? Please elaborate.

8

Your Grand High Poo-Bahness:

Were the proposal written by anyone but someone with your wisdom, charm, good looks, and ability to have dissenters thrown into the scorpion pit, I would suggest that it could be considered to be throwing the baby out with the bathwater.

Almost a year ago, a similar proposal was discussed in this thread (which I cite not only for the relevance of its discussion, but also for its being one of the few instances where my darling sister, Green Bean, actually conceded the side of an argument that I was on was correct – though not necessarly because of the weight of my arguments).

To most people, marriage is an important social institution. In a marriage the spouses have certain mutual roles and obligations with regard to each other. These include legal rights and duties, social expectations, emotional expectations, and, in many cases, religious expectations.

What the proposal suggests is to disassociate the legal aspects from the other aspects, and more seriously, open the legal aspects up so that the parties have unfettered discretion in defining the legal relationship.

In actuality, the legal aspects of marriage are largely distinct from the other aspects. Although the state can require one spouse to financially support another, it cannot require emotional support. Although we have a social expectation that spouses will set up a household together and act socially as a couple, this cannot be enforced. And the only connection the state has with the religious institution of marriage is that it permits clergy to solemnize marriages.

The problem with the proposal is that the legal institution of marriage includes important protections for the spouses and any offspring from the union. Although there is some ability to change the terms of the marriage contract with pre-nuptuial agreements, even those are enforced by the courts only after an examination of the circumstances of the marriage.

When a couple gets married, they do so with the expectation that the marriage will succeed. It is difficult to go through the process of forming a contract that will deal adequately with all of the possible circumstances under which the marriage could fail, particularly as the parties would be bound by the initial contract years or decades into the future, when the parties are most likely in a very different situation than they were at the time of the marriage. Also, with the possibility of power imbalances and emotional interdependence in couples, the negotiation of a fair marriage contracts a very difficult thing.

I believe that the answer to the problem of what to do about same sex-marriage is not to diminish the institution of marriage to the lowest common denominator of marital or quasi-marital rights that anyone who objects to same-sex marriage would reasonably agree to. Rather, it is to extend marriage, with all of its rights and responsibilities to all those who wish to partake in it.

However, since you proposed it, your Grand High Pooh-Bahness, I agree with and enthusastically support your proposal without reservation.

9

Whereforartthou this Fenris-topia?

All Hail His High Poobah-Ness!

(I dunnno, “poobah” came out just fine for me.)

Esprix

10

Since it’s actually spelled “Pooh-Bah” something’s horribly wrong! I’m not only forming a committee, I’m also going to organize a task force!

Fenris

11

What about Polygamy?

12

Hurm.

While I’m pretty vehemently opposed to Poohbahcracy as a form of government, I can’t help but agree with the admitedly benevolent Fenris here.

Emotional commitment is great, and should be encouraged. Religious or ceremonial recognition is cool as well. However, the attempts of various governments to recognize and regulate marriage are pretty spotty, and the Big Spot, so far as I’m concerned, is the arrogance of passing from “recognition” of marriage, to saying that only “recognized” marriages are valid, to refusing to recognize any class of mariages that any legislator has ever objected to.

There’s more to it than that, though. How many people have ever carried health insurance on their family? Lots? Good. Didja notice that most policies will only cover a “legally married” spouse? Betcha did. Ever seen an apartment lease that specified that only married couples could share a bed? Much more rare, but they’re out there. All this intrusiveness devolves strictly from that “legal recognition” nonsense. When it goes, so will the questions about marrigae status on every form.

Now, it probably seems to some people that I’m against marriage, but that’s not the case. I have, in fact, performed marriages for a number of people. I merely don’t think there’s any benefit to making it subject to public policy, rather than private contract.

13

Not that I would ever disagree with a Grand High Pooh-Bah, but isn’t reducing marriage to the status of private contract just promoting family lawyers to contract lawyers, and opening up the whole she-bang to unfettered legal wrangling? Geez, let’s just dump some blood in the water or run the ambulances through the streets instead, it would be something to which we could at least sell tickets and reap some much-needed moo-lah for the state… :wink:

Seriously: I agree with Billdo (got that one permanently saved? :wink: ) that the solution to the issue isn’t to reduce the legal concept but to reform it and overcome the objections based primarily on religious grounds to allowing the institution of marriage to be accessed by more than couples that include one man and one woman.

I’m not going to get into a long historical and philosophical discussion of marriage and its legal necessity. All of you who jumped on poor DDG should back off; his basic thesis was correct: marriage exists primarily to define property rights, including the property right of the man to the woman, an admittedly archaic notion in our society. Of course, in the current day and age, where DNA testing can establish paternity without much difficulty absent the legal presumptions inherent in marriage, removing the legal institution would probably not cause difficulties for the issue of intestate property dispersal. Show me a piece of matching helix and you can have your 1/30th of Daddy’s estate (my, my, Daddy DID get around, didn’t he?).

But our government confers on those who marry certain advantages over those who ‘live in sin’, that is, who don’t subject themselves to the lovely fun of a divorce (oops, sorry, I lived in California, they call it ‘dissolution’) proceding when ending a relationship. It does so because it WANTS you to get married. So let us determine if there is an advantage to two individuals promising to stay legally bound to each other forever unless they want to undergo nasty courtroom nonsense that justifies the state involving itself in what would otherwise be a private religious and/or contractural issue.

In this regard, I have only one observation: children.

Anyone who works with children knows the devastating effect that having parents split-up can have on a child of those parents. There is an emotional tie between parents and children that is not easily left to private contractural determinations. And unlike the parents, who presumably don’t need to be paternalistically chided into acting in their own ‘better’ interests by the state any more than they should be forced to wear a seat belt while in a car, the children have no say in the situation. By encouraging couples who plan on having children to enter into binding contracts of perpetual togetherness, the state does what little it can to help ensure that children will not suffer the difficulties of adjusting to split parents. Private contractural law simply wouldn’t be adequate to handle this issue.

And, so, I humbly suggest that, in the state of Fenris-topia, the Grand High Pooh-Bah rethink his decree, and, instead, reform the legal institution of marriage, allowing all who wish to be married to enter into marriage, with all the appropriate perquisites and responsibilities appurtenant thereto, with any modifications to that institution the Pooh-Bah thinks necessary, such as making it harder to GET married in the first place. :slight_smile:

14

I agree with every part and parcel of the post DSYoungEsq made just above. (Now there’s a point to archive! ;))

I would add one final item, though. Customarily in past history, it has been the man who supports the family, while the woman’s position has been to care for the home and be primary caregiver to the children. This does not impugn the abilities of a working wife and mother or the caregiver of a worthwhile husband and father, but simply observes a traditional division of labor.

As such, inheritance and filiation laws recognize the needs of the minor children of a marriage and the woman who has declined gainful employment outside the home in favor of devoting her energies to the maintenance of the home, by ensuring that adequate provision is made for them if the putative husband dies, runs off to Vegas with his secretary, or whatever else might terminate the relationship. In short, it’s the state meddling for purposes of providing for care for those who are not in a position to provide for themselves at that particular point in time. (Certainly she can go get her M.B.A. and outearn him – but she’s been out of school and raising their kids for the past 14 years, and doesn’t have the cash reserves to support herself and kids while she’s doing it.) It may be debatable whether such things ought to be the state’s business – but historically they have been.

Now, if two men and three women decided to set up a polygamy, or two women fall in love and decide to have a child together (with the assistance of a turkey baster), that is arguably not the state’s business. But provision for the homemaker/caregiver and for any minor children of such relationships presumably ought to be, has been, and I would argue needs to be something in which the court system (as opposed to the state as bureaucracy) is entitled to be involved.

Oh Lord High Pooh-Bah, I bring before you Hephzibah. She has borne 18 children to Virgil the Weaver, and if she has been a touch shrewish to him, one can certainly understand what dealing with 18 kids wanting that brand of cereal (16 different brands – two sets of two agreed!) might do to cause it. Virgil has just been charmed by Lady Elaine and has run off to do her bidding. What recourse does Hephzibah and those 18 brats have in Fenris-topia?

15

**Grand High Poo-Bah Fenris wrote:

This is wrong and, as benevolent dictator, I have the power to correct it, and throw any member of my powerless, figurehead parliament who disagrees into the scorpion pit.**

A scorpion pit?? That is just soooo Twentieth Century!

16

As Grand High Pooh-Bah, I say: “I don’t care.” Want a polygamy? Be my guest.

Grand High Poobah Fenris

17

Hmmmm…

You’re making the Supreme Potentate think.
<Yosemite Sam voiced mutter>
“Thinkin’ makes muh haid hurt”
<Yosemite Sam voiced mutter>
Your objections are all well-reasoned and somewhat convincing. (Billdo, your “lowest common denominator” arguement was particularly effective!)

Tell you what: Let me think about it a bit. I see your objections, but I still like my system. Perhaps there’s a way to address your concerns within the structure I’ve proposed. I’ll respond soon.

(Y’know? Having a scorpion pit is like a security blanket: it’s so much easier to reconsider your position knowing you have one as a backup if your arguements falter. I encourage all would-be despots to get one!) :wink: :slight_smile:

Grand High Pooh-Bah Fenris

18

But Poly, Virgil the weaver already has an obligation under the laws of Fenristopia to take care of Hephzibah’s brats, and to send money to support their upkeep. I don’t see what marriage has to do with it. The children are getting the support because they are his, not because he and Hephzibah wer married.

19

Ok, Grand High Pooh-Bah has considered the objections of his loyal opposition and doesn’t yet feel the need to resort to the scorpion pit.

First: With regards to children, let’s just for the sake of argument separate them from the issue of marriage. Two reasons for this: First, while a marriage may produce children, it’s not the only reason people get married, there are many “Childless by Choice” couples, and Second: All children, regardless of their parent’s marital state, are entitled to certain protections in Fenris-topia, including the right to a certain quality of life. (I’m handwaving away the mechanics of this, since this isn’t my primary topic). Rest assured that all children will be guaranteed their rights and protections, regardless if their parents are married or not. (I know that sounds glib, but it’s really not what I wanted to talk about and truly, I don’t see any protections for children of married couples that children of unmarried couples didn’t get under the old system or the new one).

Billdo commented that power imbalances could hamper a “fair marriage contract”. True, but it can also do so now with pre-nuptual agreements. My proposal doesn’t change that. He also commented that

Two very good issues, but…under my proposal, they MUST sign that contract for the marriage to exist. The process forces them to think about the consequences.

Regarding the contract no longer fitting their needs, well, if all parties involved want to dissolve or re-write a contract, I believe that’s no problem.

As I said, I’m certain that within weeks of this process going into effect, there will be “boilerplate” marriage contracts, just as there are “boilerplate” wills, and so forth. A couple would not have to start from scratch each time, but neither are they forced into a “one-size-fits-all” government controlled situation.

Despite the fact that Fenris-topia is a Poob-Bahtocracy and one of my titles is Benevolent Despot, I have some Libertarian leanings. It is up to each individual protect him or herself. The state cannot and will not protect you from bad choices (although it may try to mitigate some of the more drastic consequences). Hire a lawyer (just like you do with a will). Have your lawyer meet your partner-to-be’s lawyer. Let them hash out the details. The state may even provide state-subsidised lawyers for this purpose. It’s important enough. Or use a boilerplate contract. Again, no different than current Pre-Nuptuial agreements, except that again, I’m forcing the issue. Sound like I’m draining all the romance out of it? Good. I’m trying. Go to the clergy or have a party with your friends for the religous/romantic stuff. The state will not get involved with it.

DSYoung brings up the issue of divorce on children. I’m considering the scorpion pits for him here, since I can’t think of a way to thoroughly answer his objections without gross violations of personal liberty, but at the same time, wanting to protect children from some of the messier consequences. A few off-the-top-of-my-head thoughts. Consider these the direction I’d go, rather than specific proposals:
The state encourages marriage by giving big tax breaks to couples who sign a valid contract.

For a contract to be valid, it must include a third party: the children, potential or already existing, (adoptive, surrogate, birth-children, whatever), even if the couple can’t have/doesn’t want/hates/etc children. The possibilty must be provided for in all cases!. The state will represent the children, by requiring language to the effect that “If a child joins your household, the contract cannot broken or rewritten without <unnamed legal gymnastics and perhaps a certain amount of counseling?>”.

I don’t want to ban divorce, but I understand the desire to make it harder for parents to get a divorce. Have a kid? One of the consequences is that getting a divorce is now harder. This one still needs more work.

Poly
Regarding spousal protections: I would encourage (require?) a valid contract to include language like (IANAL, so bear with me) "If either spouse gives up their career to raise their kids, that spouse is entitled to (pick a number)% of the “working” (I know, stay-at-home-parenting is work…you know what I mean) spouse’s income in the event of a divorce to compensate them for the career time they’ve given up for the benefit of the partnership and the children. I might even go as far as to require something like this for it to be acceptable to the state.

For the case of Hepzibah and the 18 urchins, I say, cut 'em in half down the middle…no, wait…that’s a different case. :wink: Seriously though. Assuming a standard “boilerplate” contract, the kids are guaranteed protections discussed above if the contract was a valid one (and even if it wasn’t the kids are still guaranteed protection, just as the children of unmarried couples are currently guaranteed protections). Hepzibah as a stay-at-home mom, would be probably entitled to (x)% of her husband’s income and (y-probably 50)% of their joint assets, after the state has taken out the kid’s share. Actually, given the gross breach of contract, she’s probably due a far greater share. Meanwhile, the High Priests of Zoroaster (Hepzibah and Virgil were devout Zoroastrians) have called the Zoroasterian community to shun Virgil and his shiksa for their loutish behavior and Virgil finds some nasty unintended legal and social consequences as his used-Carpet business dries up, since no good Zoroastrian will trust a cad who’s deserted his wife and 18 kids for a shiksa from Las Vegas.

Let me rephrase my initial proposal this way:

Marriage is not abolished. But from now on, the state does not officially recognize the term “Marriage”. A “marriage” is, by definition, either religious or social term that is loaded with far too many connotations to be a useful legal term for the state (“Marriage is a commitment between any loving group of people” vs “Marriage means a man and a woman joining for the purposes of having a family, any other combination or purpose isn’t a marriage” to name two extremes). The state neither requires or denies it. The state, does, however recognize legal partnerships between consenting adults. The two things are now completely separate. You can have one, both, either or neither. The state doesn’t care which option is chosen, except that the state will honor legal partnerships and give tax benefits to those who choose it. Clergy can still marry people, people can still live together, but for the state to recognize a legal partnership, you have to fill out a contract stating each parties duties and obligations. It’s wonderful to say “All you need is love” but the state can’t enforce that and the Grand High Pooh-Bah simply doesn’t like the current “one-size-fits-all”(all, that is, except gay people) situation.

Questions, objections, volunteers for the scorpion pit? :wink:

Grand High Pooh-Bah, His Glorious Despot-ness, Lord High Potentate, Fenris the First

20

Why are lawyers needed? You’re a despot!

You mentioned boilerplate contracts. Sounds like that is really all that is needed: One contract, which states that people – minimum of two, no stated maximum – who share a household receive specified benefits.

This contract could be signed at anytime in front of a member of any profession, or professions the Pooh-Bah decrees to be acceptable witnesses.

The benefits probably should be on a sliding scale; a single mother (if she’s a mother, the household consists of at least two people!) would get a bigger break than a childless household of two adults, etc.

The contract could (should!) also contain a clause specifying that responsibility for the well-being of any children (birth, adopted etc., their origin shouldn’t matter) rests equally on any and all who sign the contract as a member of that household. Avoidance of that responsibilty would be punishable by the Pooh-bah as he saw fit.

You could (again, should!) even require that such a contract be signed by any, or all members of a household into which a child is born. Refusal to sign would be punishable by the Pooh-bah as he saw fit.
What do you think?

jm