Marriage: Two Hypotheticals

Great Debates
1

Okay, the topic of this thread is marriage generally, not SSM in particular. There are two distinct hypothetical propsals brought up in it separately; the first is relative to any and all marriages, and the second is not exclusive to SSM. The thread is explicitly NOT about how marriages and civil unions regarded as two institutions governed by a single set of laws might or might not be a good idea, and any discussion thereof I would ask not be pursued in this thread, and if it is, be treated as an attempted hijack of the thread. The two proposals are incommensurate with each other, and I’d ask they be considered separately. I’m only raising them together to avoid a plethora of marriage-related threads in GD.

I am going to begin with a personal anecdote. For most of my life I have known a rather unique fact about my mother’s parents. They were married in the Presbyterian manse in my home town on New Years Eve, December 31, 1907, without a marriage license. A few hours later, January 1, 1908, marriage licenses became mandatory in New York State; they were the last couple married in our county, and possibly in the state, without a license. They chose to do this because Grandpa was vehemently opposed to the government arrogating to itself the power to decide who might and who could not marry.

A comment in the Magellan thread in the Pit contrasted two situations, one where an opposite-sex couple and a same-sex couple obtained marriage licenses, the other where the OS couple got theirs but the SS couple were denied one. And with my background it occurred to me – the thing they have in common is that the couples applied for a license to engage in a Constitutionally guaranteed fundamental right.

Proposal #1: Eliminate all marriage licensing laws. A couple marries as always, by declaring before ‘the community’, as represented by two or more witnesses, their intent to marry and undertaking vows to each other that summarize their commitment in marrying. A religious wedding could add to this what ritual the church/synagogue/mosque expects. If they wish to make a public record of their marriage, they can provide the local clerk or registrar with a record of the event.

The legislature can make laws of who may not contract marriages, e.g., minors unable to make a mature commitment, people already married who would be committing bigamy, etc. Though this sounds very much like licensing, it is not a distinction without a difference – the exceptions which the legislature may make must have a rational basis to be passed, and anyone not excluded by them is free to marry without anyone’s consent. That to me is the key point: not whom society approves of the marriages of, but couples who willingly choose to join in marriage, should be the ones who choose.

The second proposal here notes that even before the Goodridge decision, there were differences in what marriages states permitted and recognized: a cpuple below marriageable age in one state but above it in another; first cousins wishing to marry; etc. SSM added fuel to an already smoldering fire.

While I think the overwhelming majority of Dopers agree that SSM should be legal everywhere, in point of fact it is not, and not likely to become so, barring unforeseen SCOTUS action, in the near future. So while we’re all waiting for UPS to deliver our ponies, here’s an interim solution to the states-don’t-recognize-other-states’-marriages problem.

Federal law under the provisions of Article IV requires that each state shall give FF&C recognition to the marriages of residents of other states who may be temporarily present in that state. I.e., if two 16-year-olds legally married in TN, or first cousins from MS, or a same-sex couple from NY, should be vacationing in FL, where (for purposes of this hypothetical) none of their marriages are valid, they may check into a hotel as married couples; if one requires hospitalization, the other may act as next-of-kin; etc. If one owns land or shares of a FL corporation and dies, leaving the property to his spouse in his will probated in his home state, FL will give effect to that bequest. This is not saying that you can marry in NY, move to FL, and require FL to recognize your NY marriage. It’s saying that the sorts of inequities people have been pointing out are not to be enforced against couples legally married in their state of residence.

As an INTERIM measure, does that make sense? More importantly, can it get passed?

2

I think both are reasonable ideas, but neither has much of a chance of political success.

The first won’t convince any on the anti-SSM side to go along with it; they want to be able to determine who gets to be married. And it will be framed as “abolishing marriage” or “making marriage illegal” or something like that. Political non-starter.

The second will be opposed by the same people who oppose SSM, and will probably be attacked as insufficient by strong proponents of SSM. They will both (rightly) see it as a weakening of the moral superiority of their stance. No one thinks this is going to end up in a long-term uneasy alliance between SSM-states and non. Making concessions is just admitting defeat.

3

On the first proposal, I don’t think it makes sense by itself. For example, if you don’t have marriage licenses, and if it is not required that marriages be registered, how can the legislature prevent anyone (underage, etc.) from marrying? And if a marriage doesn’t have the force of law based on a license, how can the state dissolve the marriage, or deal with custody of children, or any other legal issues? Maybe I’m just not clear on your proposal. If there are no marriage licenses, what is a marriage?

On the second proposal, I don’t much are about it personally. I am not interested in getting married until the federal government will recognize it. I think that would resolve all these issues that you raise here.
Roddy

4

I think #1 is a distinction without a difference. I suspect that when marriage laws were being written OSM as the only case was just assumed, and that I doubt anyone specifically meant to exclude SSM - not because they would have welcomed it, but because it was not considered. I don’t know how marriage laws are written, but I suspect they assume all can get married except for the kind of specific cases you mentioned. So the most part a license is not permission (the way a drivers license is) but just a recognition of the legally recognized state of the now married couple. People who get married don’t take written tests or road tests.

As for #2, are there any examples of a same sex partner being excluded from the hospital in another state? It happens all the time to residents of states without SSM, I know. Once the DoMA gets ruled unconstitutional (I’m hopeful) we can see.

5

As far as number 1, it seems you want to change the order of events from:

[ol]
[li]Apply for License[/li][li]State checks that you meet marriage requirements[/li][li]State issues license[/li][li]You have a ceremony[/li][li]Your marriage is now recognized by the state[/li][/ol]

to

[ol]
[li]You have a ceremony[/li][li]Apply for Recognition[/li][li]State checks that you meet marriage requirements[/li][li]State issues Recognition[/li][li]Your marriage is now recognized by the state[/li][/ol]

Which strikes me a useless reordering of steps.
As far as step number 2, are we sure this doesn’t already happen? I know a couple of lesbians that traveled to Massachusetts, got hitched, came back to Georgia, and that was enough for both of them to get out of contracts that had “you get married” as an out clause. (If you’re curious, they were housing contracts at the college they attended. They were both in-state students).

6

[QUOTE=Polycarp]
They chose to do this because Grandpa was vehemently opposed to the government arrogating to itself the power to decide who might and who could not marry.

… And with my background it occurred to me – the thing they have in common is that the couples applied for a license to engage in a Constitutionally guaranteed fundamental right.
[/QUOTE]

IMHO, this begs the question. Your grandfather’s idea of marriage was obviously not one of a tyrannical government outlawing same sex marriage, but outlawing a man and a willing woman, both of age, from getting married. He, almost certainly, never considered same sex couples as being capable of entering into a marriage.

The second part of your OP further begs the question of whether same sex unions are “marriages” as defined under law, common law, your grandfather’s law, or any other.

IOW, let’s at least admit that we are attempting to redefine the term “marriage” which has existed for hundreds, if not thousands of years. It is still the union of one man and one woman in most states in this country, statutorily, by common law, and by constitutional law in over 30 states. To pretend that it means and always did mean something else is disingenuous at best. When your grandfather bitched about government licensing for marriage, he didn’t mean that two guys should get married: he meant that he should be able to marry the girl he loved without permission from the government.

Now, maybe it is time to change this definition. But let’s frame it honestly. The debate IS about changing the definition of the word; not about some abstract government imposition that the populace hated.

7

On the second point, before the same-sex marriage issue came to public attention, recognition of marriages was considered the textbook example of the Full Faith and Credit clause. One state might not let you marry on account of your age or relatedness, but if you got married in another state that did allow it, every state would recognize you as married, as required by FF&C. Some states tried to claim the existence of a “public policy exception” to justify not recognizing interracial marriages, but this was rightly smacked down by the courts.

And now we’re going through it all over again.

8

Again, begging the question. The anti-SSM side will likely be on the wrong side of history, but this isn’t a valid debate method.

9

IOW, you can’t say that the debate over same sex marriage is the same as the debate over interracial marriage. I mean, you can say that, but there are clear differences which nobody needs to point out. Each needs to stand on its own merit without debaters saying that they are obviously the same.

10

Not everyone here is as bright as you. Could you please explain those differences and their relevance?

11

If you would drop the snark, I will. At the outset, there is the obvious difference that opposite sex interracial couples are capable of natural procreation.

The lean of this board is clear. I’m not going to get in a pissing match, nor do I mean to insult anyone here. I’m keeping my comments limited to what is raised in this thread.

12

The key similarity is that no one has proposed a rational objection that doesn’t depend on an arbitrary religious doctrine, or upon a personal “yuck” factor (“They have sex with their whats?”) or on tradition (“We didn’t do it this way when I was a young’un.”) You mention (later) the reproductive issue, which has been consistently debunked, given that millions of infertile couples are happily and legally married.

The overwhelming similarity is that the objections to both were based on bigotry, and nothing else. No rational argument has ever come forward.

Today, the best that people can do is the tradition argument. That’s the one that people are relying on most, and which shows the least obvious bigotry. And it’s nothin’! Society changes all the time. What does “tradition” mean in a Future-Shock society?

13

#1 just seems pointless to me. #2 seems like settling for less when the pro-marriage side is winning. And neither will do a thing to mollify the opposition, which is fundamentally unreasonable and driven by hatred. Compromise with people whose sole goal is to hurt you is pointless and self destructive.

No, because marriage hasn’t stayed the same for even a hundred years, much less thousands. It wasn’t so long ago that black + white marriages were unthinkable, and where marriages amounted to a slave contract where the husband owned the wife.

No, there are not. They are very, very similar issues right down to the rhetoric used by the opposition. And both opposition positions are equally baseless and motivated by malice.

Nonsense. Some are, some aren’t. Are you proposing that infertile or childless marriages be forcibly broken up?

14

  1. One would prove the existence of a marriage the way one proves the existence of any contractual arrangement. I simply suggested the government might establish registries for the convenience of couples wishing to have proof on file. And illegal marriages would be prohibited in the same way as any illegal contract is.

  2. pb[jtgain**: Stop posting here (briefly). Reread the first paragraph, up above proposiion #1 (you can ignore the no-Magellan-hijack request part). #1 is about ANY marriage. #2 is not specifically about SSM – I recall someone noting that a state in the Upper Midwest refused to acknowledge the marriage of a couple moving there who were first cousins. Granted it’s predominantly about SSM, but it intentionally covers any difference in marriage laws.

Oh, and by the way, that initial anecdote? Grandpa wasn’t talking about SSM, he was talking about government regulating people’s private lives generally. And when New York legalized SSM a couple years ago? They were not changing an institution that has existed for hundreds or thousands of years, they were changing one that had existed for just over ONE hundred – that of opposite sex couples being licensed to marry by the state. I will lay you odds that there was a same-sex couple which considered themselvves ‘married’ in Greenwich Village prior to 1908 – and guess what? They were!

  1. Der Trihs; What part of repeated and emphasized INTERIM solution did you miss? It’s not intended in place of universal SSM, but UNTIL universal SSM, to dliminate the worst problems, like someone hospitalized while traveling/vacationing in a state where his/her marriage is not recognized.

Finally – do feel free to argue SSM here. Just because I specifically said the topic was broader than that shouldn’t stop you all.

15

Both of these assertions are simply wrong.
There was never a time when one could not imagine inter-racial marriages. It was, in fact, the thought of such marriages that prompted fearful whites in the U.S. to create the anti-miscegenation laws. There has never been a time in the history of the U.S. when inter-racial marriages were forbidden by the federal government or even by all the states. There have been periods where a majority of states prohibited such marriages, but there have always been states where they were permitted, so a claim that “marriage” excluded inter-racial unions has no basis in fact. (And this without even bothering to look at all the other nations that never had anti-miscegenation laws.)
Similarly, there is no long tradition in which a wife was considered chattel to her husband. There have been periods and locations where laws were crafted or interpreted to look on wives in that fashion, but they are sporadic blips in history and do not reflect any long, continuous tradition in English Common Law. (Blackstone did have a pernicious influence on the interpretation of laws regarding women’s rights and marriage, but his interpretation lasted only a bit over 100 years, from 1765 to the late nineteenth century, and was overthrown by legislation that directly controverted his interpretation.)

From one perspective, jtgain is correct: we are redefining marriage in a way that was really not even considered prior to the 1970s and was not discussed at length before the late 1980s. That said, the consideration and the discussion have moved forward and the change in meaning has already occurred. Given that the meaning has already changed and given that the new understanding of both the word and its full meaning are rather rapidly expanding through our society, I would hope that the courts would notice that change in their decisions.*

On the other hand, in my view, the Full Faith and Credit Clause of the Constitution should have already been applied to anyone who has married in any state where such unions are legal.

  • I would still prefer that the courts rule narrowly in such cases. A broad judgment on any of these issues will result in constant whining from those opposed to SSM that “activist” judges “imposed” the laws. It will be better, in the long run, if the several states (through their legislatures or through referenda) and Congress recognized SSM as the will of the people.
16

I don’t know about that. Blackstone didn’t make up coverture. It was pretty consistent legal doctrine in England from the late middle ages until the end of the 19th century under most circumstances.

17

I think you and I disagree on just what qualified as treating a woman like a slave (I was thinking more the 1950s, not the 19th century), but it really doesn’t matter much since your statement just underlines my main point: that marriage is not and hasn’t been some unchanging monolithic tradition for thousands of years.

18

Blackstone certainly did not make up coverture. In fact, he may have formed his views from the way in which it was being interpreted in the middle of the eighteenth century. What he appears to have done, however, (much like the current opponents of SSM), is to look around at the way he saw the world in his day and extrapolate back that is had always been that way through history.
The “things change” argument is valid, but holding up his error as the way it “always” was simply perpetuates his error.

19

Well, there was no coverture in the 1950s. Women could vote and own property and have jobs and everything.

There was discrimination against women and sexism and all that. But in the 1950s, women weren’t considered property.

20

In some places, in some ways.I recall complaints from women around then about all the financial & legal things they couldn’t do without going though a man, and how much power a husband had over his wife. They didn’t even recognize raping a wife as a crime.