Legal recognition of marriage

This is something that was brought to mind by a current thread about gay marriage; I considered just posting this under that thread, but I wasn’t sure if this was completely within its scope and I didn’t wanna mess up someone else’s thread. :slight_smile: That said, begin rant:

Pretty much everybody is probably familiar with the debates about gay marriage, etc., etc. The arguments usually focus on “gays have the right to marry too” or “homosexuality is wrong” or other such arguments. The problem is, these generally tend to be moral or ethical debates. But as far as I can tell, the purpose of the law is not to say what is right or what is wrong, but to enforce rules which create a stable and productive society. (Which is why theft, murder, etc. should be crimes; not because they are morally “wrong”, though they probably are, but because they would tend to foster an unstable society)

That said, take the entire concept of marriage. As far as I can tell, there are two possible benefits to society as a whole: The first is to assist those who are raising the next generation, which is clearly a vital part of any healthy society. The second is to allow people to form cohesive societal units which are more efficient and productive than two individuals alone would be. Either of these two provides a concrete and potentially demonstratable benefit to society. However, neither really lines up with our current (and I believe flawed) legal definition of marriage.

Take the first–raising the next generation. Raising a child is certainly not for the faint of heart, so extending special benefits to those who accept that responsibility is not unreasonable. But if you want to argue from this, then any number of hetereosexual couples don’t qualify. If the legal, societal purpose of the concept of “marriage” is to promote raising children, then all benefits should be extended to couples regardless of gender who are raising a child (biological or adopted) and withheld from anybody without children, again regardless of gender. (BTW, implied in this perspective is removing any obstacles to gay couples adopting children; that’s another argument, but allow me to make that assumption here.) Furthermore, one could even extend this argument to more than just groups of two people who are raising a child… but that’s details, and when one makes grand, sweeping arguments like I’m attempting to, you can’t afford to deal in specifics if you want to keep at any reasonable length. :slight_smile:

There there’s the second perspective–formation of stable societal units. It is arguable that if you have two people who live together, share costs and own property collectively, this societal unit is capable of being more productive than two individuals living seperately. “The whole is greater than the sum of the parts,” and such. Again, this is an arguable and potentially demonstratable benefit to society, therefore extending legal benefits to such units would be reasonable. But from this perspective, why limit it to merely “couples”? What about two housemates who just happen to be good friends and want to pool resources? Or, perhaps, siblings who want to do the same? There’s no real reason–under this perspective–to distinguish between those sort of arrangements and a romantic relationship. Furthermore, under this perspective benefits should only be given to a unit shown to be stable–for instance, have benefits only apply once the people have been living together for X length of time, a year or suchlike. But that’s neither here nor there…

Now, you might be inclined to look at my two proposals and say that neither of those is a “real marriage”. That may be true, but we then get into the definitions of the word marriage which I don’t see as being terribly relevant. Perhaps it would be best to eliminate the word marriage from the law entirely; leave it to priests and ministers to marry people, and let the law concern itself just with legal matters… that is, what benefits society as a whole.

You may also want to point out that my proposals are unreasonable. And you know, you’d probably be right. :slight_smile: This is just how I see things, and what I think would be superior to the current arrangement. I don’t necessarily expect that making such drastic changes to the current system would be feasible; it’s the principle of the matter.

At any rate, the reason I posted this massive missive here is because I suspect that there are people here who would disagree with me. :smiley: So–I’ve explained what I think should be done with the marriage issue; is there any soul here who wouldst be so generous, as to show me how I am wrong?

I think where you might be ‘wrong’ is in confusing what makes sense with politics.

From a strictly utilitarian point of view the legal requirements for marriage should allow any two consenting adults to hitch-up. Fortunately or unfortunately ethics and morality creep into the legal process and fudge what makes sense. [sub]I say fortunately because I believe ethics and morality should be part of the legal process and unfortunately because ethics and morality can be subjective and open to abuse allowing for some warped laws.[/sub]

I would disagree to this extent - from the utilitarian POV, and looking at the points raised by the OP (raising the next generation, efficient use of resources), requirements for marriage should allow any two consenting adults with the expectation of forming a permanent union to hitch-up. Neither the purposes of properly raising children nor the efficient allocation of resources is served if two (or more) people who do not intend to form a permanent bond may get married. The actual or potential children would not have a stable home and significant resources (such a real property and pension/retirement funds) would not be effectively allocated.

So, there has to be an expectation of permanency. Siblings might pass that test, but heterosexual roommates of the same sex probably wouldn’t. I think a sexual link provided a quick-and-dirty test for an expectation of permanency - with sex tossed in, one can find all of one’s basic needs within the marital relationship. Other things can establish this expectation of permanency, but the law does not have to be all-inclusive - for example, a 14-y.o. may be physically and emotionally mature enough to drive a car, but the law can still say that the large majority of people won’t be mature enough to drive until they are 16, so that kid can’t drive.

Anyhow, applying the sex rule, I think marriage should be limited to heterosexual or same-sex homosexual couples or groups.

Sua

Marriage should be legally derecognized. It would remain as a churchly institution with no legal status in and of itself.
Couples (or threesomes for that matter) should be allowed to enter into contractual arrangements of their own design. These should be recognized on the same terms as any other contract. The number or gender of the people involved should not be specified or mandated by the government unless the government can show a material interest in doing so (as with any other form of contract)

Couples (or threesomes, etc) would not HAVE to create contracts, and many would not (I would not) but those who want them could do so.

CoParenting contracts should definitely be legal and should have legal force, including both responsibility and authority.

AHunter:

Perhaps. But marriage as an institution has a social purpose, two actually: to arrange for the care of some of those unable to support themselves at present, and to dispose of property in a way that furthers (1).

Typically, a married person will desire to provide for his or her spouse and children, whom he or she loves. The laws enable this to be done with ease; intestate estates automatically pass this way, and a will so providing is nearly impossible to challenge in probate. This enables hopefully adequate provision to the minor children, not yet of an age to support themselves, and to the wife, whose career may have been sidetracked to raise the children and who may have preschool children whom she and the deceased man may prefer not to have to go into some sort of daycare so she can work. (The same would hold true in the rare but extant marriages where the woman is the primary breadwinner and the man is primary caregiver to the children.)

In the more common state of a parent dying after the children are grown, it is generally his wish that his or her estate go to the surviving spouse and/or the children, and again the laws so provide.

This does not mean that society endorses any given faith’s opinions about marriage, just that it agrees with that religion to the extent that marriage is a desirable social institution. Just as “Thou shalt not kill” and “One who maliciously, with forethought, in cold blood takes the life of another except as provided in Section 43.2, “Defenses,” shall be guilty of murder in the first degree” are not mutually dependent but agree with each other.

Basically what Sua and Poly said.

Recognition of the institution of marriage imposes obligations on others. One obvious example is insurance.

Marriage - or civil unions, or whatever you want to call them - serves the civil purpose of efficiency. Be because of biological or cultural impulses, humans tend to form (hopefully) permanent unions with persons with they share romantic, emotional, and sexual attachments. It is simply easier and less expensive if the state says, “OK guys, ya wanna spend your lives together. Well, we have this great package deal of mutual rights and responsibilities. It acts as a contract that has evolved, over the centuries, to cover just about every imaginable situation you whacky kids may find yourselves in.”
CoParenting contracts and the like certainly can be made, but the marriage package covers most things, and is a lot easier and less expensive that drafting the same contract over and over.

Sua