Whenever the subject of gay marriage is debated, there are those who ask why government is involved with marriage at all. The reason is because we the people have drug it in, and it’s too deeply entrenched to be taken out.
Let’s say a couple divorces and a property dispute erupts over who keeps what. How would you resolve it? Take it to court? Courts make rulings based on law. Law comes from governments. Thus, remove the government from marriage, and there will be no laws for the courts to rule on.
Or say someone dies, and doesn’t leave a will. The spouse will claim that they automatically inherit everything, or almost everything. But what if a child of the deceased claims the inherence? How do you settle that without marriage laws?
What about child custody disputes? Again, who gets primary custody, and who only gets visitation, is determined by courts, who, again, rule on laws, which are passed by governments. If the state and federal governments have nothing to do with marriage, how would disputes like this be resolved?
Also, a big reason that gay and lesbian couples want state sanctioned and recognized marriages, is so that they can gain certain legal privileges and protections granted to married heterosexual couples. But take the government out of it, and now, not only do the heterosexual couples loose government protection, the governments (state and or federal) would no longer be in a position to grant them to homosexual couples since they would be having nothing to do with marriages any more.
Well, you could reduce governments roll in marriage, if people would simply create their own personalized contracts covering the stuff you mentioned when they enter into a relationship, rather than having a “once size fits all” approach of government sanctioned marriage. And there you don’t HAVE to have relationships have special rights in the name of the law, just treat everyone as individuals.
Most of the proposals I have heard for “getting the government out of marriage” would replace the legal concept of marriage with some form of “domestic partnership” which provides the legal framework for community property, inheritance, child custody & support, et complex cetera.
Under this concept, “marriage” would be entirely a religious concept, between the parties and their church, if any. Hence, the government is out of marriage, but heavily involved in the legal and financial affairs of the parties through the “civil union”.
There are no serious proposals to “get the government out of marriage” by repealing the whole concept.
The problem with that is that a contract only binds the parties to it; it doesn’t bind anyone else. Marriage is a status that confer rights that are good against all the world.
For example, suppose Joe and Mary are married. If Joe is seiriously injured in a car accident, Mary would have the primary decision-making power, and unless she abused that power, no-one else could object. But if all Joe and Mary have is a contract that just binds them, and Joe is injured, then Joe’s blood relatives have a stronger claim in law to decide Joe’s treatment and so on.
Same with intestacy - if Joe and Mary are married, and Joe dies without a will, Mary gets a certain amount, as a matter of law. If they’re not married, a contractual agreement between them may not defeat the claims of Joe’s blood relatives under intestacy laws.
The other problem is that if marriage is left to churches, then couples who do not have religious beliefs (or do not have compatible beliefs that would allow a religious ceremony) would not be able to get married.
A rose by any other name would smell just as sweet, no? I don’t understand what difference does it make whether it’s called a domestic partnership or a marriage when they both boil down to the same thing.
Marriage has never bene entirely a religious concept in western civilization. In fact religion doesn’t have to play any part in marriage in the United States.
People already have these sort of informal, “personalized” contracts. The understanding that exists between two people who choose to engage in some kind of emotional commitment is a kind of understanding between two separate parties. Therefore it is a kind of contract.
BUT it is not a legally binding one. And for all of the reasons above stated (and many more I’m sure) legal recognition is vitally important. The law and government (as the body which creates and enforces the law) exist solely as a way to resolve disputes between two parties. George is in a coma, his partner wants to keep him on life support, his parents want him to die naturally. Who has final say in this matter? Will your “personalized contracts” take this into account? Will they take into account every possible crisis and conflict that can come about?
You know what marriage really is? When it comes right down to it marriage is all about saying I choose this person to be the most important person in my life. The wishes and rights of my partner come before everyone else’s. They have the ultimate say in every matter for which I can’t speak myself. I wonder how many young people would rush into unwise choices if they realized that?
And stop hating on government so much. Just think how bad life would be without it.
Both cases can be handled by simply making voluntary contracts override the concerns of blood relatives. And include in the contracts what will happen if one party dies or is incapicitated. Simple as pie.
Also, Wrenslinger, I don’t hate the government at all; in fact I am employed by it. I really don’t care either way if governments has a dedicated marriage law or not, I just think normal contract law can handle this situation - just write the contract to be at least as inclusive as current marriage law,(but with the added benefit of personalized customizing) and then it could handle a relationship just fine. Heck, even include in the contract
That pie is anything but simple. Marriage is a status, not simply the result of a contract, and it covers by default a wide variety of circumstances. Trying to do away with it and replace it with simple contract law will require dozens or hundreds of extra inclusions. A legal contract trying to cover all the bases currently absorbed by marriage could run to hundreds of pages, trying to spell out exactly what should happen under every imaginable circumstance.
Besides, as has been pointed out already, you can’t “make” a voluntary contract override the concerns of blood relatives or anyone else. John and Mary (or Adam and Steve, for that matter) can sign whatever contract they like, but how does that compel a third party (a relative of one of the contractees, an employer considering extending health benefits to a worker’s “spouse”, a probate judge, a child-services social worker, etc.) to play along with any of the terms?
Once a couple gets marital status, though, the courts, government agencies, and regulated insurance companies cannot ignore that status.
If marriage was just a matter of property rights, then forming a standard legal partnership (or even a corporation) with two members would suffice. Except it isn’t.
The general rule is that private parties cannot contract out of public statutes, unless the statute itself allows for it.
Suppose you have a statute for substituted decision-making in the case of someone on life support that says something like this:
"In the event a person is not capable of giving consent to medical treatment, the following people have the power to decide:
a) the person’s legally married spouse;
b) if the person is unmarried, the person’s parents;
c) if the person is unmarried and the person’s parents are not alive, the person’s siblings."
If Joe and Mary aren’t married, and Joe’s in a coma, then Mary has no legal power to make a decision, regardless of what any private contract says. The statute gives that right to Joe’s parents or siblings. Joe and Mary can’t by contract take that statutory right away from Joe’s parents or sibs (unless the statute itself had a clause recognising such contracts).
If George gives a living will and durable power of attorney to his partner, his parents have no say in the matter. The law already provides for this. For the most part, you can right now by contract or other means accomplish most of what the law currently confers to married couples. And many gay couples do just that. About the only thing right now you can’t do via contract is survivor benefits for Social Security and government pensions (although some states and municipalities do that too).
That’s why most of the arguments being made in this debate are about societal recognition of the relationship.
Please see here for a report from the General Accounting Office listing 1049 “federal laws
in which benefits, rights, and privileges are contingent on marital
status.” They categorize them thus:
Social Security and Related Programs, Housing, and Food Stamps
Veterans' Benefits
Taxation
Federal Civilian and Military Service Benefits
Employment Benefits and Related Laws
Immigration, Naturalization, and Aliens
Indians
Trade, Commerce, and Intellectual Property
Financial Disclosure and Conflict of Interest
Crimes and Family Violence
Loans, Guarantees, and Payments in Agriculture
Federal Natural Resources and Related Laws
Miscellaneous Laws
Please take a good look through this document. It really gives an excellent picture of the scope of the rights and privileges gained by signing a marriage license. The same package would be simply unattainable by contract.
I could care less about societal recognition of my marriage. Just recently, my partner and I had to give up our plan to buy the house we currently rent because without the ability to file taxes jointly, the interest deductions wouldn’t have been sufficient to justify the purchase. The inability to be married under the law affects us in significantly detrimental ways, and it does so frequently.
OK, why don’t you explain to me how gays are denied the benefit of Intellectual Property laws and Indian laws. Because I can tell you as a practicing IP lawyer who has studied Indian law pretty extensively, they aren’t.
You assume that every jurisdiction in North America has the same laws for living wills and durable powers of attorney. There can be considerable variation from jurisdiction to jurisdiction on whether these provisions are available.
As well, these types of things can in some cases be challenged by next of kin of the deceased, on grounds such as undue influence, mental incapacity and so on, in a way that the marriage status cannot be. In the case of an individual whose family has never accepted the relationship, which does happen for gay & lesbian couples, the illness or death of one partner can trigger litigation by the family trying to set aside the contractual arrangments to exclude the partner. It’s not unknown for that to happen in the case of a married couple as well, but the burden on those trying to wrest control away from a spouse is much greater.
Some time ago, there was a thread here with a link to a news story of a gay couple that illustrated this point. (In consideration of the hamsters, I’m not going to try to search it out.) They had been in a long-term relationship when one of them died. The parents of the deceased had never accepted the relationship and were able to claim his body, over the objections of his partner. The parents held a funeral at an unknown location and refused to tell the surviving partner where they had buried him. Can you imagine the heartbreak not to even know where one’s deceased love is buried? That simply could not happen if the couple were married.
Sure, and their are variations in state laws as to the rights of married people. So what? If you don’t like your state laws on living wills, write your state rep.
Right. A devise to a spouse has never be and can’t be challenged in court for undue influence. Tell that to Anna Nicole Smith…
To straights too. Particularly when it is a wealthy family and the spouse is considered a “gold-digger” or “gigolo”
Did the deceased have a will?
And it can happen to married straights if the deceased directs the parents in his/her will to be responsible for the estate.
To MGibson’s point, the difference is simply politics. Those who don’t place religious value on marriage could care less (about what the state calls their relationship), provided their legal protections aren’t eroded.
But a substantial portion of the population considers marriage “sacred” based on religious tradition, not legal tradition. Changing the legal reference to “domestic partnership” allows all equal protection under the law, but preserves the religious sanctity of marriage.
What about external factors like health benefits? What would there be to make your boss give your domestic partner benefits? They wouldn’t have to sign the contract. And without the weight of the government telling them that they must honor the domestic partnership, the employer might find it cheeper to only insure the employee.
Or, say the government got involved a little and said that employers must now treat domestic partnerships the way it use to treat marriages. Now that you’ve eliminated the need to buy a marriage license and find someone with power invested by the state to marry people, and now that you’ve eliminated difficulties and possible repercussions of getting a divorce, it would be too easy to make up contracts saying X and Y are now domestic partners, purely in order to gain medical insurance for one of the partners.
To guard against this, the government would need to define what kind of contracts are valid domestic partnership contracts, and which ones aren’t. But wait, that defeats the whole purpose of the people deciding for themselves what a marriage is.
Let’s say you view marriage benefits as flowers, and the government as a weed you want to pull out. The “weed’s” roots are too deep and entangled around the roots of the flowers. You pull out the weed and you’re going to rip out most or all of the flowers along with it.
The employer doesn’t have to insure you, or your spouse, or your partner. But in fact, most big corporations actually allow “domestic partner” benefits that aren’t contingent on marriage.
It’s not that gays are denied the benefit of Intellectual Property laws or Indian laws. It’s that certain provisions of Intellectual Property law and Indian law apply to married couples and not to unmarried couples, and that couldn’t be remedied by contract:
For one example, in the document, under “Trade, Commerce, and Intellectual Property”
So if you are a gay copyright holder, and you want to pass the renewal rights on to your partner, all you have to do is make a will devising your copyrights to your partner.
I really don’t care either way if governments has a dedicated marriage law or not, I just think normal contract law can handle this situation - just write the contract to be at least as inclusive as current marriage law,(but with the added benefit of personalized customizing) and then it could handle a relationship just fine. Heck, even include in the contract