Proposal 1 is along the lines of what I long considered to be the way this should be done. There would be no license, which is a way of seeking permission to enter a contract, there is only the contract, which is just a civil marriage contract unrelated to any religious or other types of marriages. The legislature determines what the limits of these contracts are, for instance that you must be a certain age, and you can enter only one such contract at a time. That’s it, that’s all, you don’t even have to tell anybody about it, it wouldn’t matter unless there was a dispute.
The second proposal would only make a difference if the contract didn’t specify the state laws that it is to be interpreted under, and only then if there’s a dispute. Otherwise the state has no need to be recognizing marriages.
I suspect that Poly’s proposals will appeal to nobody and therefore won’t be passed. We seem to be in a winner take all situation. Interesting really.
Sorry for being thick, but how would the IRS know that the couple is truly married? In other words, could they demand that there be a record of the event somewhere? Similarly for any other third party. Why was marriage licensure started to begin with? Were there concerns with fraud?
2nd proposal: I’m wondering about unintended consequences and borderline cases. What about vacation homes? What about the retired couple that spends three months a year in Florida? I’m not saying the proposal can’t work; I’m just not sure about how it would work.
Agreed. Most countries do not have marriage licenses; the details of how does the government decide whether to recognize a marriage as valid or not vary from location to location - the core issue is whether marriage is or is not government business and, if it is, which marriages should be valid. Whether you have to ask for permission to marry or forgiveness for having done so is irrelevant to that core issue.
Point 1 is what I suspect might happen in some states where opposition to SSM is strongest, if there ever were a federal court decision compelling all states to apply marriage laws to SSM.
Point 2 may indeed be what happens as some states permit SSM and others don’t. There is a great deal of historical precedent in other contexts.
This is a popular understanding, but, respectfully, it’s not at all accurate. FFC applies to judgments, not marriages. States routinely denied recognition to out-of-state marriages that did not comply with their own standards on age, consanguinity, and race. Public policy exceptions were often, but not always, upheld in court. Laws prohibiting interracial marriage were struck down on anti-discrimination grounds, not FFC. Cites here, here, and here.
The problem with this is that marriage had already become a much more fuzzily defined concept even without SSM.
Consider four examples (and let’s say all four couples are a man and a woman):
The Smiths: Got a marriage license and had a church wedding thirty years ago. Have three kids together and own a house.
The Johnsons: Have been living together for thirty years but have never had a wedding ceremony. Have three kids together and own a house.
The Allens: Got married last week. Have no children and are currently living in two separate cities and each has their own bank accounts. Are looking for jobs and a house that can allow them to live together.
The Browns: Were married ten years ago. Separated five years ago but have not got around to getting divorced. Have no children. Live in two different cities and have independent bank accounts. Both are dating other people.
I think everyone agree that the Smiths are married by every standard people would recognize. But compare the Johnsons and the Allens and the Browns: which of them are married couples and which are not? What standard do you apply?
I don’t think that the requirement for a marriage license in #1 is all that profound in terms of the who, what, where, and when of marriage. Your grandfather bitched about having to get a government permit to get married like my old man bitched about having to get a government building permit to build his deck. Marriages and decks were no different the day before or after a permit requirement: Just the government can collect a fee and know who is doing what.
But before the license law in New York, marriage had a definition in law. You couldn’t marry your sister, your brother, or a 4 year old before or after the law. A guy couldn’t marry another guy before or after the law. Full Faith and Credit in marriage laws were to account for minor differences; not large ones in violation of state public policy.
I see that your larger point was about government intrusion into private, personal decisions. But you understand how casting such a wide net would allow for pretty much anything? Anything can be a protected right if you describe it with broad, flowery language. Such a wide net allowed married women to be beaten for many years because it was thought that those were private marital matters.
There are other threads about the SSM debate, so I will leave that alone. I just wish that the Godwinizing of these threads would stop. (Bigot being the new Hitler) I fully admit that 50 years from now, opposition to SSM will be viewed the same as opposition to interracial marriages. But I submit that they are not the same, and that name calling only serves to stifle debate: which is exactly its intended purpose.
On what Constitutional language do you base this statement?
And if you think that the word “bigot” is in any way equivalent to “Hitler”, you need to go re-read your history. Here’s a hint: The vast majority of bigots never killed tens of millions of people.
It’s come about through SCOTUS decisions to make sense of the broad language in the constitution. Obviously if I have a Nevada brothel license, that doesn’t mean that all 50 states have to recognize it and let me open a brothel on Park Ave. in New York City. But if I get married in Las Vegas, and move to New York, the marriage laws are similar enough that I don’t need to get remarried in New York.
It stifles debate in the same manner. Instead of talking about the issue, it is a personal attack, and redirects the argument to matters that are irrelevant to the issue.
Oh, Polycarp, I think I would have liked your grandfather.
Why is it so hard for so many to understand that there is a difference between a contract and a religious ceremony? And the government should only have an interest in the contract part?
The government doesn’t require a religious ceremony for marriage. And it further doesn’t enforce or recognize all contracts. Ones that are illegal or against public policy aren’t enforced. This is more begging of the question.
They might…or they might not. You don’t believe that there are clear differences between a white man and a black woman wanting to marry each other versus two guys wanting to marry each other?
Now, those are the same if you make the circle “Two people who want to marry.” But that would also include marriages to children. So we have to draw the circle more narrow: “Two adults that want to marry.”
Again, we can craft any right with broad, flowery language, but it doesn’t change the fundamental idea that marriage historically never encompassed two people of the same sex, and any arguments in favor of a change should logically accept that it is a change and not merely a Loving type of argument.
I think I would have, as well. My great-grandfather had a thing about daylight saving time. He never went along with it - if you went to meet with him, you did so on “God’s time, not the government’s”. He was something of a power in his community, so people did go along with his idiosyncrasy.
This may be a clear difference, but not a significant one. What these marriages share in common outweighs the one difference.
Consenting, competent adults
Desire legal protections marriage provides
Desire tax relief marriage provides
etc.
The only difference is the gender of the people. While that may seem like a huge difference to some, before the law it should not be. Most laws, not counting those that deal specifically with issues of discrimination and the like, are gender blind. In this way the issue is very similar to the Loving case. The law that barred mixed-race marriages goes against the fact that laws should be race-blind, except for those dealing specifically with racial discrimination issues. This is where the similarities to Loving are key- eliminating an unnecessary bias in law (gender or race “tests”).
Nothing of value is added to justify including a gender bias in marriage law. Administratively the fix is easy (simply changing wording) and adds no new legal complications (such as polygamy does).
There was never a time when one could not imagine same-sex marriages. It was, in fact, the thought of such marriages that prompted fearful straights in the U.S. to create the anti-SSM laws. There has never been a time in the history of the U.S. when same-sex 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 same-sex unions has no basis in fact.
You’ve stated that they are obvious, and, since you brought it up, to you they must also be relevant. To many of the rest of us, they are neither. You’ve been repeatedly asked for clarification, despite the obviousness. Can you provide some?
Again, we can dream up distinctions with whatever language we like, but in fact you’re wrong in even implying that interracial marriage has always historically been more acceptable than intragender marriage.
To repeat the only distinction you’ve offered to us as significant and relevant: