[QUOTE=Budget Player Cadet]
I have literally never heard it used in any other way. That’s the problem. Literally never.
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To paraphrase, ‘But I have no idea how Nixon got elected…none of MY friends voted for him!’. Because you haven’t heard it doesn’t mean that people don’t make it. You simply need to get out more. I have libertarian friends who think and say this all the time and aren’t homophobic in the least. I don’t necessarily think that the government should be involved in the issue for that matter.
But because I don’t THINK the government should, doesn’t mean that I don’t understand the realities of the actual real world situation, which is why I don’t make this argument and in fact support fully the government putting it’s nose in to correct what I see as a huge injustice. But I can understand how someone could and does make this argument while not being homophobic or even against gay marriage, especially if that someone is a libertarian fanatic who is putting philosophy ahead of any other consideration.
It has validity, since people tend to live with a long-time (not lifelong anymore) partner of the opposite sex and to have children with this person, but you can’t really assume a traditional family unit nowadays. Having children from several successive marriages is almost the norm, for instance.
Our expectations about marriage have massively changed to. We marry for love, and “until the issue of who is washing the dishes more often do us part”. We might not want children even if we’re married (and can make sure it doesn’t happen), have no issue having them without being married, and being born out of wedlock isn’t an absolute disgrace. We want gays to be able to marry. Spouses are assumed to be fully equal, and to work out decisions together (seriously, that was considered a massive issue re women rights : who is going to have the last word in a major decision if both have an equal say and disagree?), and so on.
So, I don’t think invoking tradition in support of mariage is a good argument. Especially if you support gay marriage.
And another solution, perfectly valid, would be to not grant any special recognition to whatever kind of unit you happen to think is “more deserving” than others.
Apparently you think that special recognition is warranted when two unrelated people sign a piece of paper which is essentially the only thing actually required, with the only social expectation being that they’ll probably live together for a duration measured in years. Expectations and requirements were massively different in the past (including the expectation that an adult should be married to begin with), and it isn’t obvious to me at all that the institution of marriage absolutely needs to survive despite these massive changes.
Marriage simply isn’t anymore what it used to be, not by a very long shot, and not just because gays can marry. Proposing to just stop to recognize it officially seems a perfectly valid and sensible position to me.
That’s not what I’m saying. I’m saying that spouse DO inherit. Whether they “must” or not, under the law of pretty much every country deriving from the Anglo-Saxon common law, they do. From what you say, even in your country “in the absence of children the spouse gets everything.” Again, if there is no official documentation, but one or more people claiming to be the spouse, who gets the property? Who decides who is the “real” spouse?
Having a will does reduce but not eliminate the fighting. I’m not familiar with French law, and perhaps in your country the situation is different; stateside, wills can be and are invalidated. If a will is thrown out in whole or in part (e.g., fails to meet legal requirements, made obsolete by familial changes, or contested on grounds of lack of capacity or undue influence), it’s almost always too late to allow the testator to redo it, so the assets are distributed under the laws of intestacy regardless of the intentions of the testator.
I didn’t say it would cause societal collapse. It would, however, cause enormous disruption UNLESS a whole bunch of other laws get changed at the same time. We could change the inheritance laws to remove the spouse as a “default” heir, and we could change the way wills are prepared to make sure they are never invalid and always carry out the testator’s intentions. We could rewrite the laws governing who has decision-making authority in case of incapacity; we could abolish spousal privilege; we could rethink the laws regarding paternity and divorce and familial relationships. In other words, we could redo our legal system pretty much from scratch; it would be technically possible (not really feasible, but possible).
Given the existing legal structure, however, the abolition of state-sanctioned marriage would make a hash of things, and that is true in any complex society in which state-sanctioned marriages have existed.
Again, I don’t see the problem. If marriage isn’t state-sanctioned, there’s no spouse, so spouses don’t inherit, and there’s no need to decide who is the real one.
Plenty of people die without a spouse and nodody is trying to determine who should be considered their “real” spouse for the purpose of inheritance (their current lover, the woman they have been married with for 25 years before divorcing, etc…). Partners just are ignored in this case. I don’t see why it would be a problem lacking a state sanctioned marriage.
Same here, roughly. But it works both way. It might be the spouse who will go to court to have the will invalidated, for instance, hence depriving whoever the testator really wanted to inherit (let’s assume for instance a 20 yo golddigger marrying a 80 yo with terminal cancer for a caricatural exemple). I don’t see why it’s in any way better with him as the “default” heir. Whoever is the default heir, it can be litigated and someone can end up shortchanged against the expressed will of the deceased.
That’s frankly the same argument always used when changes are proposed. See for instance my example of the arguments against equality of women within a marriage. Just not workable, because spouses eventually will disagree and everybody will be litigating over whether or not buying a house, or about how the kids should be educated. Or we’ll have to write all sort of laws to prevent this issue from happening. Same argument used against polygamous marriages, too.
But “that’s too much work” isn’t a good argument anyway, IMO. And I think that the necessary changes are quite often overblown, mostly because people just don’t like changes.
Why should we do that? I’m not sure why you have a problem with invalidating wills designating the spouse as heir, but aren’t worried that wills can be currently invalidated when they don’t designate the spouse as heir. May be laws should be changed so that wills are never invalid and always carry out the testator’s intentions, but that’s unrelated to marriage. I see no reason why the sexual/romantic partner must be protected at all costs regarding inheritance, and why you’re not arguing for rewriting laws right now given that, children, or an unmarried lover, or any number of people aren’t protected from litigation (by a greedy spouse, for instance).
Absolutely no need to do that. Again, plenty of people aren’t married, and this doesn’t seem a major issue. And there are people who are married but probably wouldn’t want their spouse to have such a decision-making authority.
I’ve no clue what spousal privilege is. But let me make a guess : it’s something that my partner doesn’t benefit from if we aren’t married, and somehow we manage to live with it, and you’re not overly worried that this lack of “spousal privilege” is going to harm either of us. But somehow think it would be of upmost importance if we had signed a paper at the town hall.
Hmm…no… Again, no need to. No spouse means obviously that the non-existing husband can’t be considered the father by default. Same as the current situation for an unmarried mother. No need to rewrite anything. And obviously no need to rethink laws about divorce, since without a marriage there isn’t a divorce. Again, absolutely no need to rewrite anything. And familial relationships??? What do you mean by that.
Nope, it would be perfectly feasible because there’s mostly nothing to change or rewrite. Proof is that tons of people live without being married, with or without a live-in partner, and it doesn’t create any massive issue in their lives.
Your belief that rewriting laws would be necessary, in my opinion, stems for the fact that you believe marriage would still need to be possible if it didn’t exist, that a new set of laws ought to make possible to be exactly in same situation, benefiting from the exact same privileges and protections, and without having to do anything (like for instance writing a will, or designating someone to take decisions in case of incapacity). In other word, I think you’re assuming that a marriage status should exist even if there wasn’t such a thing as marriage.
You see, we might come from a different background. I’ve 4 brothers, and out of them, only one is married even though another has children and yet another has been living with a woman for 30 years and counting. I’ve attended to exactly 4 marriages in my life (I’m 49). Amongst my relatively close friends, only two couples eventually got married, both after having living together for more than 10 years, both after having children, both solely for tax purposes, and both divorced in short order. Almost all the others nevertheless have long time, live-in, partners. Somehow, given this background, I’ve a hard time thinking marriage is a necessary institution.
I agree that marriage is convenient for people who are happy with the “standard” set of protections/privileges that go with it. But besides the fact that I don’t think that the privileges are necessarily warranted, besides the fact that I believe other people should be able to benefit from the same advantages, it doesn’t go without its own set of problems. To begin with : divorce litigation. And unwanted legal consequences (the wife discovering that her husband has huge debts she’ll be liable for, the husband that he’s the legal father of his wife’s lover’s child, the greedy second spouse litigating against the children of a first marriage, and so on…). Seriously, in my opinion, people marry for two main reasons, neither of which make a good case for a state-sanctioned marriage : for the status and recognition it brings and for the tax breaks and privileges. And some for even more superficial reasons (because you’re supposed to if you love someone, or because of the wedding ceremony).
But mostly, I think that marriage is an institution adapted to a former state of affairs, and that if it didn’t already exist, it wouldn’t cross our mind to create such an institution given our current society and mores. Marriage is the creation of a time when it was completely unacceptable to have a relationship out of wedlock, unthinkable to divorce your spouse, inconceivable to have children out of wedlock, abnormal to not be married by 25. Don’t let me start about being gay. We could perfectly drop the thing altogether and society would do just fine.
When I think of it, a “marriage light” might be currently more adapted to our current way of life. Some 20 years ago, France passed laws allowing an homosexual union that granted some, but not all, of the rights married people benefit from without creating much obligations (for instance, it is dissolved immediately at the request of either partner, there are no common assets, etc…). Net result : overwhelming success, but only 5% of the people engaged in such an union are homosexuals. It seems that it was the kind of union people thought was adapted to their needs and expectations. Given the large number of people involved, it’s still in place despite the adoption of gay marriage as an alternative, a “marriage light” of sort. Which it wasn’t expected or intended to be.
Well, one of the big reasons for the case against DOMA was that since Edith Windsor, married in Canada but not allowed to be married in the US, was not considered to be married, she had to pay $363,053 in estate taxes. That’s a massive issue.
I don’t know the situation there but here we don’t think that people sharing their assets should have to pay massive inheritance taxes when one dies. I’m not sure if registered domestic partners can avoid tax in the states - but if they can, they are still in a legally recognized relationship.
In the US this mostly only is a problem if you are rich, but the principle holds.
Domestic partners might avoid state taxes, but in the eyes of the federal government they’re unmarried.
(This is one of the several reasons why the word “marriage” is important and why “civil unions” were an unsatisfactory solution. Every jurisdiction that created “civil unions” and “domestic partnerships” had a different idea as to what they were, so you can’t assume a civil union is portable, even among jurisdictions that have civil unions. Even if a civilly united couple only travels in jurisdictions that have some form of same-sex union, a “marriage lite” civil union won’t necessarily be recognized in an “everything but the word marriage” jurisdiction, and it may be that neither’s unions are recognized in a jurisdiction that only has marriage. But as far as I know, every jurisdiction that has same-sex marriage automatically recognizes same-sex marriages from elsewhere, without any guesswork or examination of what exactly marriage means in the other jurisdiction.)
Nobody is trying now because we have a bright-line rule: your spouse is the other partner in your state-sanctioned marriage. (That’s apparently the rule in France, too, if I read you correctly.) If the entire concept of state-sanctioned marriage disappears, then that rule no longer stands.
I think part of the difficulty we are having discussing this is that I have spent my entire life in a common-law jurisdiction. A huge part of our legal system is precedent and case law and common law–many U.S. states, e.g., have a statute explicitly adopting “the common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First” (that would be 1607) as the basis for their laws. Statutes and newer decisions have modified this basis, sometimes beyond all recognition, but it’s still there, still underpinning our legal system. That common law and the case law built over the centuries assumes the existence of state-sanctioned marriage, however, and it is often a fundamental assumption. If state-sanctioned marriage disappears, then that mass of precedent is no longer relevant, meaning a huge part of the system of law simply doesn’t exist anymore. What replaces it? We’d have to build a new system.
In civil-law jurisdictions like France, I gather the situation is very different, so you may not face the same hurdles.
See what I said about common law and the weight of precedent above.
I don’t worry about that because the testator knows up front that a will that leaves a spouse or minor child destitute while passing assets elsewhere is going to be invalidated. Unwarranted failure to support a spouse or child is a crime. It’s not just an unethical act, but a failure for which you can be sent to prison while you are alive. Your death doesn’t make it less of a crime, but changes the remedies available to the courts.
Again, perhaps a difference of common-law versus civil-law, or perhaps merely the differing societal expectations. Here, it would be a major issue. The percentage of the population who have a governing document is small; the percentage for whom that document could be located within our fragmented health care system is even smaller.
Spousal privilege covers who can testify, or can be compelled to testify, in legal proceedings. Does it exist in your country at all, married or otherwise? It can still be a big deal stateside.
Divorce is about splitting common property. If you share your life with someone, but don’t actually share any property or other assets, then maybe you don’t need divorce (although in that case, what did you actually share?). For a couple who did share a home and household goods, or a retirement account, or whatever else they’ve accumulated, there has to be some way of dividing those assets, whether you call it divorce or give it some new name. Again, we’ve got a great mass of case law differentiating divisions between spouses from divisions between business partners or paramours or others not sharing a state-sanctioned marriage, which would require substantial revisions.
That covers a whole range of legalities. For example, our law specifies that if you become mentally incapacitated such that a guardian or conservator needs to be appointed, at the very least your spouse must be informed of the action and given the opportunity to intervene. The law assumes a spouse, if s/he exists, can be readily identified. The spouse’s life may change drastically as a result of decisions made by the conservator (selling off the family home, e.g.), so it is only right that they have a voice. The law could be changed to offer those same protections to “partners,” but it hasn’t.
Nope, I am not saying that marriage should exist. I am saying that our system of law assumes a maximum of one spouse who can be readily identified from state records. If that assumption is no longer true, then the system, at best, hiccups.
Consider, e.g., that my spouse is entitled to be covered on my health insurance, and my employer will pay part of the premiums. (I realize that is probably totally irrelevant in France, but stateside it is a very common way to obtain health insurance). My spouse is entitled to that; my employer won’t pay for my domestic partner or live-in lover or other relations. The state laws covering insurance use the term “spouse.” What does that mean, if “spouse” cannot be defined?
So long as do many people do wang to take advantage of civil marriage why bother going through any of this trouble? Civil marriage has always existed, lots of people want to be civilly married. What’s the actual problem?
I’m not sure. This is one of those topics that pops up every few months but I have to admit that the OP was a novel way to approach it. Usually someone comes by with the bright idea of changing all marriages into civil unions believing that uttering those magical words would suddenly placate the anti-gay crowd. Or you find the get-the-government-out-of-marriage types who either adhere to some political philosophy resembling libertarianism or those who are concerned that the govt. is getting involved in a religious affair failing to realize that you don’t need a religious ceremony to get married in the US. This is the first time I’ve ever heard it suggested that the get-government-out-of-marriage argument was homophobic.
It might not have been explicitly the topic of a thread, but it’s pretty clear to me that at least some support for “get-the-government-out-of-marriage” is because those people will do anything to avoid government sanctioning SSM.
What I’m asking about specifically is the extensive contortions that Clairobscur is going through, and I’m getting hints that this is the case with him. There’s no logical or good policy reason to eliminate civil marriage altogether; there’s plenty of good policy reason to extend civil marriage to same-sex couples. To get to where Clairobscur seems to want to go seems pointless unless there’s something else behind it.
The “Get government out of marriage” issue is perceived entirely based off of who’s winning the “government” part.
If traditional-marriage supporters were winning everywhere - getting gay marriage banned, passing constitutional amendments to ban gay marriage, having traditional marriage recognized everywhere as the only recognized form of marriage - then you’d see gays and lesbians calling for “government to get out of marriage.”
The side that is losing the government battle, wants the government out of marriage.
That’s very binary. I don’t have a real horse in this race other than personal liberty, and I still think the government should get out of marriage. I don’t have the energy to devote to “gay rights,” but I have the energy to devote to personal liberty, so, yeah, get the hell out of marriage, government.
I’m not certain you’ve thought this through. Are you suggesting all privileges and responsibilities now attached to legal marriage should cease to exist?
Actually, I usually see it invoked as a means of exposing the fatuity of the “durrr, teh gayz are infringinating on mah reeligious freedumb!” talking point. If this were actually being advanced as a sincere argument, the proposal would placate the objector, but (as you note) it never does.
Heck, I’ve no problem with “civil marriage” being the government registered one with all the privileges and responsibilities, while “religious marriage” can take whatever ridiculous form the participants want and carries NO legal privileges or responsibilities. Want to dance naked during the solstice and swear mutual fealty to Baal? Want to go to church? Whatever, knock yourself out.
That’s precisily what I was arguing : that one of the main reasons people marry is to benefit from tax privileges, and that I don’t see maintaining these privileges as absolutely necessary. Nobody likes to have to pay inheritance taxes, and there’s no objective reason IMO why my spouse shouldn’t while my brother should, especially regardless of specific circumstances that nowadays can vary quite a lot from one family to another.
No, the difference in legal systems is overblown. Even though a lower court in France isn’t technically held by precedents, in practice, you study precedents in law schools because courts will follow them. There’s an overly large corpus of accepted and established legal principles, they don’t get ignored on a whim, and they’re mentioned in rulings.
And frankly it doesn’t change a thing. Obviously, marriage has a major importance in France too. A lot of laws and precedents would be voided if it didn’t exist. So what? Again, you seem to think we would need to rewrite tons of laws, but I think you’re wrong. If there’s no marriage, obviously there’s no need for laws and precedents about marriage, and laws and precedents that applied to unmarried people (now everybody) keep applying. There’s absolutely no need to do anything, unless, again, you want to recreate a status similar to marriage without it being a marriage, which of course makes no sense. Either you keep marriage or you don’t.
Maybe, but that’s a social agreement that people can reasonnably disagree with. Again, especially since our mores have changed a lot. A wife wasn’t supposed to have a job if it wasn’t necessary. And she was supposed to have been married with the deceased for her whole life. Circumstances now are strikingly different, people divorce and remarry, nobody is advised or expected to entirely rely on his spouse’s income. And you mention children but told me previously that in fact they don’t benefit from this protection in the USA. So, if two quite similar societies can disagree about who shouldn’t be left destitute by default, I guess it means that it’s not a blatantly obvious answer to this question.
Same here, I would guess. I never wrote any such document, for instance. Still, people get treated in hospitals just fine. I know sometimes being unmarried might result in your blood family getting to call the shots while you would have prefered them not to, or even your barring your girlfriend from visiting you, but first it’s unusual, and second if you suspect it might be an issue, that’s when you should write such a document.
And again you’re making the assumption that it could only be an issue one way. If it might be an issue, it’s very possible it will be the other way around : your spouse susceptible to take medical decisions you wouldn’t like (say, keeping you alive at all cost because she’s a believer). The spouse you’re in the process of divorcing and who hates your guts is still legally entitled to make the decisions, too.
Oh, I see. Yes, it exists here too. But again, there’s no obvious reason why your spouse couldn’t be compelled to testify against you but your live-in girlfriend, or your brother, could. That’s one of the privileges I don’t see as eminently necessary.
And why exactly should there be a difference between “paramours” and “spouses”? Or “retired siblings living together”? Or “second spouse”? Similar situations should be dealt with in similar ways. That’s in fact one of the main issues I have with marriage. It gives special privileges to some people while actively denying it to others. For instance, the civil union I mentioned above was explicitely fobidden between blood relatives (and the issue actually debated in Parliament, so not just because they forget), in order that close relatives couldn’t benefit from the tax-related advantages. I’m not sure why a privilege is granted for some kinds of arrangements and deliberatly denied for others. You can “fake” a marriage to get the privileges (tax breaks, green cards, whatever), but there’s no way you can get them just because your actual situation would warrant them (polyamorous unions, relatives living together…).
It’s just our societies giving an exalted status to a peculiar arrangement, and in fact precisely the issue gays faced (“between a man and a woman”).
And again, there’s no guarantee that your legally sanctioned spouse will be the best person to take such decisions. And as you mention yourself, other people close to you aren’t given a say, whether or not they’re impacted, whether or not your spouse has your best interests at heart. If you can take the time to sign a marriage license, surely you can take the time to designate someone freely to take decisions on your behalf in the event you’re incapacited. Be it the person you’re living with or whoever else. And added advantage, you can change your mind immediately when circumstances change.
Not going to detail the French healthcare system, but this in fact is relevant here too.
In my opinion, that means again that spouses benefit from privileges that either they shouldn’t benefit from, or that should be extended to other persons. Why should my spouse be covered, but not my 30 yo waste of space son still living in the basement or my elderly mother I’m taking care of? That should benefits all dependants, or none of them. There’s no particular reason why your working and in good health spouse should be covered while your destitute and infirm brother unable to work shouldn’t when you’re the one housing him and paying for his meds.
I fact, I’m not strongly opposed to marriage, and wouldn’t swear I won’t ever get married myself, but I do have an issue with the exalted social and legal status of marriage. I was when gays couldn’t marry, I still am. I see no much reasons for it in our modern societies, as I wrote many times, and I see it as mostly granting privileges to some sanctioned kind of (quite fleeting nowadays) arrangements and denying it to others. I must add that it’s much more pervasive than just the legal consequences. I already noted how in IMHO, responses given to posters asking for advices changed dramatically depending on whether or not the OP was married (basically, if married, “try to work it out” “make efforts” “see a councilior”, if unmarried “drop the sucker right now”).
Basically also, if I could pick whoever I wanted to inherit my stuff tax-free, I wouldn’t mind your spouse being in the same situation. As it is, I see that as you getting privileges just because your lifestyle fits better the normative model than mine, and I can’t see a good, objective reason why it should be so. My heir of choice is exactly as deserving of a tax break as yours, or neither of them are. Extending marriage to gay couples extended the number of privileged people, but didn’t make the privileges any more justified.
So, this general irritation regarding this exalted status and the fact that I actually don’t see many good reasons to keep the thing alive, or many serious issues if we dropped it lead me to argue against it. And specifically against the idea that there couldn’t be any good reason to “get the government out of marriage” apart from homophobia. I also argued for the same thing in the past because of the lack of recognition of polyamorous unions (be them western-style free unions, or the issues second spouses of immigrants face).
I’m not going to lead a campaign to have state-sanctioned marriage abolished, but I’m not going to let fly arguments according to which it’s an obviously necessary institution that only bigots would envision to abandon for some nefarious reason.
And what are the numerous reasons why keeping civil marriage is so important? Again, tons of people live their lives without ever being married, with or without partners. I’ve read “tradition” and “legal privileges”. I mentioned “social status”. None of these seem a good argument for a state sanctioned marriage. Again, if marriage didn’t already exist, I’m pretty certain we wouldn’t create the institution in our current societies. Would you bet the contrary?
I’m not sure where you find “extensive contortions”. We can get by without marriage, plenty of people do, there’s nothing “contorted” about it. No marriage, no law governing marriage, no divorce, no legal privileges and so on… Everybody on the same page. You can’t get any simpler and less contorted.
Because you haven’t heard it doesn’t mean that people don’t make it. You simply need to get out more. I have libertarian friends who think and say this all the time and aren’t homophobic in the least. I don’t necessarily think that the government should be involved in the issue for that matter.