Marriage as a social contract

Great Debates
#1

I looked for a thread like this (briefly). If one has been started, I apologize.

In another thread (which I can’t link…sorry), Clairobscur was asking why we should afford the benefits of marriage to homosexuals, and not include polygamists or any other group that wants these benefits.

Then I started thinking about that big ol’ dude who was adopted by the Presa Canario lawyers in San Francisco. I also thought that one answer to the legal aspects of marriage might be adoption of your lover/lovers. No, this doesn’t account for our society’s acknowlegement of love and romance between people in same-sex relationships, but would cover inheritance, hospital decisions, and some other legal issues.

So what are your thoughts? Should we give anyone the right to bond legally, regardless of numbers, sex or any other conceivable configuration? If not, where do we draw the line?

For the record, I’m undecided, but leaning toward giving that right to anyone.

#2

There are some older thread on this.

I like the idea of legal next of kin. You declare a single person your legal next of kin - they have to accept. Most of the rights and responsibilities of marriage would work - but only one way. To work the other way, that person would need to declare you their legal next of kin. This would allow for polygamy - it would also permit alternative households (a widow with children and her divorced best friend set up house together - with no hanky panky cause who cares about hanky panky.)

However, any change in marriage (with the exception of letting gays marry) would involve major rework of the individual laws involved and isn’t really practical.

#3

Well there was what seemed to be a rather bigoted individual here recently who touched on a valid concern. Unfortunately, he used it as a shield for his beliefs rather than a problem to be understood and worked at.

The problem is;

What is the purpose of marriage under law?

Is it to raise kids? Is it to create some mini-corporation?

I think it’s simply a way of coping with what has become a common phenomenom, which is that sometimes two people fall in love and make a bond to share their lives.

If we are to recognize and extend benefits to such an entity as a household: such as the unlimited marriage exemption, tax benefits (in some instances) health care coverage, various rights of survivorship and departure, and do this for heterosexual couples, than by what mechanism can we reasonably refuse to do this for homosexual couples?

Of course, religions are free to construe marriage as they will, and need not recognize anybody they don’t wish to, but I can’t think of any reasonable scenario for excluding gay couples who wish to share their lives from the legal benefits, conveniences, and protections that marriage provides.

The only argument that I hear that even approaches reasonable sense is the question of children.

Is it reasonable to assume that the main purpose of marriage is procreation, and since a gay couple is probably less likely to procreate (just a guess) they therefore should not receive the same benefits?

I don’t think so. Times have changed. There’s adoption and surrogates. There really is nothing stopping a gay couple from having and raising children if that’s what they want.

And really, this doesn’t matter, because heterosexual couples receive the benefits of marriage whether or not they procreate, and, they recieve additional benefits when they have a child.

An interesting conundrum is that if we are to exclude gays from the contract of marriage becuase of nonprocreation then wouldn’t it be fair to also exempt them from school taxes and such?

If they are not getting the benefits, why should they foot the bill?

A gay couple getting married is simply an alternate way of doing things. It is no more beyond the natural order than a childless couple’s adopting is.

Should we deny an adopted child status as heir, and the legal protections of having a responsible guardian simply because it is not that couple’s genetic offspring?

The very same arguments apply towards denying rights to an adopted child as they do towards gay marriage yet you hear no one calling out to strip the rights of adopted children, and you hear nobody saying that under law it really shouldn’t be their child.

Personally, I draw the marriage line at any couple of legal marriagable age.

There are serious problems with the ramifications of multi-partner marriages, which make such an arrangement a very different thing from the tradittional, and it would need to be treated differently is such a thing were ever to become legal.

But, there really is no reasonable objection to same sex marriage under law.

#4

Scylla said, “There are serious problems with the ramifications of multi-partner marriages, which make such an arrangement a very different thing from the tradittional, and it would need to be treated differently is such a thing were ever to become legal.”

Well, the homosexual union is very different, too. But I don’t think that should keep gay couples from marrying. I’ve never had a problem with polygamy, in itself. (The child-bride thing is an issue, but that’s another thread). If a group of people want to sign into a contract that makes them financially and legally responsible for each other, it should be within the law to do so. We have families with natural children, adopted children, and foster children all under one roof. It doesn’t seem like much of a stretch to create blended families that are legally bound to each other, regardless of how untraditional it may be.

#5

So how about a hypothetical case: A married Heterosexual couple can’t have children because a fertility issue. They invite someone to share their lives, they’d expand the marriage if allowed by law. The new partner gets the wife pregnant. All is happy and smiles, but legally all is a mess. If they were all married and then under law all equally parents, wouldn’t the situation be clearer and wouldn’t the child’s interests be better protected?

#6

Bump, I suppose. I want to know what is so complicated that the law can’t be bothered figuring out. I has laws for multiple heirs, why not for multipe spouses?

#7

[QUOTE]
*Originally posted by Scylla *
**The problem is;

What is the purpose of marriage under law?

Is it to raise kids? Is it to create some mini-corporation?
I can answer this but only under canonic and argentinian law. The purpose of marriage according to canonic law is “the satisfaction of the mutual love and also the procreation and raising of children”. ARgentinian doesn’t state the purpose of marriage because to the civil law that is irrelevant. People marry for many reasons. That is why under argentinian law impotent or sterile people can marry.
But, you can guess, that in a catholic country like mine homosexuals don’t have the right to marry. In fact a marriage between two person of the same sex is considered inexistant.

Now my opinion. I think that homosexuals should have a quasi marriage status in which the law grants them certain rights: inheritance, social security, assistance (I don´t know the legal term in english but a couple own each other all the necessary things for living like food, housing, etc.).
I don’t think they should be allowed to adopt. My reasons are that, at least in my country, there are always more people willing to adopt than childrens for adopting. Therefore, in my opinion, a judge has to grant priority to heterosexual couples.

#8

Your conclusion does not follow from your premise(s). You’ve given no reason why heterosexuals should have priority over homosexuals in adoption. Please give a reason other than “That’s the way it should be”, or withdraw the argument.

#9

Please elaborate on what these “ramifications” are. I haven’t been able to figure out what the “serious ramifications” of multipartner marriages are that aren’t just consequences of the irrational insistence that a marriage can consist of only two partners.

#10

I guess the problem arises if the marriage breaks up. Should the non-biological parent(s) be given the same consideration as the biological parents?

#11

My feeling is that the parents who actually raise the child should have the highest consideration, whether or not they are the “biological parents”, and without regard to how many of them there might be.

#12

quote:

Originally posted by Scylla
There are serious problems with the ramifications of multi-partner marriages, which make such an arrangement a very different thing from the tradittional, and it would need to be treated differently is such a thing were ever to become legal.

Please elaborate on what these “ramifications” are. I haven’t been able to figure out what the “serious ramifications” of multipartner marriages are that aren’t just consequences of the irrational insistence that a marriage can consist of only two partners. [END KellyM QUOTE]

  1. Who owns property when there’s a “divorce” when only one person leaves?
  2. Who’s responsible for child support after a divorce? The natural parents only? All people in the marriage?
  3. Since one can’t be compelled to testify against one’s spouse, does that mean that any arbitrary group of people who are “married” can’t be forced to testify against one another?
  4. What if person A wanted to seperate from person B, but not from person C? What if person A and person B wanted a divorce from each other, but person C didn’t want either of them to leave?
  5. What’s the time limit for a marriage? Person A is 50, marries person B, who’s 25, person B wants someone younger, and adds person C (who at the time of the original marriage would have been 15). Person C, 20 years later, marries person D, who is 10 years younger. When does the marriage property ever get distributed to the children? And to which children?

Saying that the “law can’t be bothered to figure this out” as an earlier poster did misses the central issues: The law is enormously complex, and a change of this magnitude would take years, possibly decades, to work out. And it would cost a fortune. Talk “billions”. Also, the law is a reflection of social values, and varies by community. There are plenty of communities which wouldn’t want multiple marriages at all. How would their opinions be fit in?

#13

partlywarmer:

  1. When one partner leaves the marriage, the property should be divided up and partitioned with the leaving partner receiving one share and the remaining partners receiving a number of shares equal to the number of remaining partners. Adjustment to this can be made when equity requires it. This is not a new concept; it’s used in partnership law when a business partnership loses a partner. Changing existing property division laws for the multiple partner situation is not complex or even novel.

  2. Each parent who does not remain in custody of the child is responsible for an pro rata (by income) share of the support. The current formulas for computing support can be used without much modification. The current approach is to compute the total financial support to which the child is entitled (based on total parental income), apportion this amount up amongst the parents pro rata by income, and require the noncustodial parent to transfer their obligation to the custodial parent. The modification for three or more parents is (to me) obvious and not difficult at all.

  3. I see no reason why the spousal privilege should not be extended to all members of a registered multiple marriage, subject to the same limitations and exclusions the spousal privilege that currently exist. Since entering into a registered multiple marriage would run the risk of being held liable for the support of children of that multiple marriage, the benefit of the privilege is not an unreasonable tradeoff. Since I expect that the multiple marriage rate will be low, I do not expect that abuse of the spousal privilege will be a problem.

  4. What about the case where person A wants a divorce from person B but person B doesn’t want one from person A? The law, now, is that person A gets the divorce regardless as to what person B wants. In a multiple context, if someone wants out, they get out (subject to obligations of support and property distribution). If the others don’t like it, tough. I think this resolves all of your hypotheticals.

  5. Generally, when a person dies, his or her estate passes not merely to his or her spouse, but is partitioned (absent a will, of course) amongst his or her spouse and his or her children. Multiple marriage would not change this; while it might dilute the children’s share of a decendent’s estate, it would not eliminate them. And we are only talking intestate succession here; nothing in this would affect testate succession, which is at the will of the testator.

Again, I fail to see the difficulty. None of these issues raise novel questions of law. If it were not for the political issues that make it impossible to discuss multiple marriage, I suspect the committee that puts together uniform legal codes for states to use could put together something for this in a year or so and (again, assuming no opposition in principle to multiple marriage) get it adopted in most states within three. The most difficult aspect will be adjusting tax schemes that have variable rates based on marital status. Given that the “marriage penalty” is already under fire, this one can be resolved simply by abolishing the marriage penalty entirely.

#14

Kellym, I thought it was obviuous. I think that being raised by a mother and a father is the ideal if they also meet every other requirement of the law.

#15

Estilicon: I’m sorry, but I don’t see how your assertion is “obvious”. Please provide evidence in support of it. Please avoid providing evidence that being raised a mother and father is better than being raised by a mother alone or a father alone as such evidence does not prove your position (and is frequently cited by people arguing in favor of heterodominance).

#16

(Sorry) and since they are much more persons wanting to adpopt than children to adopt you should do the best for them.

#17

Estilicon,

I think you’ll find that not everyone agrees that a hetero couple are BY DEFINITION better parents than a single person, a homosexual couple, or some other configuration of family. And, because most people believe what you believe to be a socieital “given” there isn’t a lot of research one way or the other.

There are more babies than want to be adoptive parents (which is, in itself, not in the least bit correct if you consider older children, special needs kids, and international adoption). So:

Only rich people should adopt, its best for the children?
Only college educated people should adopt?
Only healthy people who lead active lifestyles should adopt?
Only white people should adopt?
Only parents under 35 should adopt?

#18

I am answering as a future Argentinian Lawyer, remember cultural heritage is difficult to avoid. I’ll try to be as objective as possible
First question, no. But you have to agree that the economic position of the parents has to be a major factor to make the decission.

Second question, no. But again persons without education shouldn’t. It’s another factor that has to be considered by the judge (or the person that has according to a given country,the final decission)

Third question, no. But again if the person that wants to adopt has severe health issues he shouldn’t be allowed to adopt. The interest of the child come first.

Fourth. I can’t answer that question, race is not and never was an issue in my country. Thank god we have, we have A LOT of other issues to solve, though.

Last. No. In fact our adoption law requires the petitioner to be over thirty, unless he is married for at least 3 years (if they can’t have children the judge can lower this requirement).

The short answer is that there are a lot of factors to be considered when making a decission of this importance. I honestly don’t know the effects on the child for being raised by a homosexual couple. If you know any study I would like a reference. I do think, though, that the ideal is to be raised by “traditional family”.

#19

KellyM,

I was trying to broadly suggest the sheer quantity of laws and problems that would be subject to revision and additional problems. You’ve made a valiant attempt to answer the questions more specifically.

Before tussling a bit with your examples (IANA lawyer, but I have studied law, somewhat), what struck me is the extraordinary complexity and cost that would be added to the law for probably the benefit of no more than a couple % of the people. Who wants to pay for that? Laws that benefit almost nobody?

In wills and living trusts I’ve heard tell about – which must be common ones – when a spouse dies, everything goes to the other spouse while they’re alive. If the marriage never ends, then the children would never get anything. A marriage that never ended that did hand on its money indefinitely seems to violate the laws of perpetuity, and to avoid inheritance tax. Which the IRS wouldn’t like. If one were to disallow long-term chains of marriage, it seems like the older people in the marriage would be left unprotected in their old age. Doesn’t work for me, either way.

I note that at least in the UK, one of five things has to be true to allow a divorce, and that four of them could be tricky for multiple person relationships.

Then I was thinking about foreign travel. A, B and C go abroad, married. Every other country in the world doesn’t accept such marriages. So what’s their status abroad? Not married? Only the earliest marriage counts?

Again, it just seems like an incredible mess for little or no gain to society.

#20

Well, lets turn it around. What potential negative effects do you anticipate occurring in children raised by a homosexual couple? Do you have any studies to back them up?

On what basis? You must have a reason.