Although I agree with John Mace that a simple rewrite will fool no one, and with him and Miller that this will definitely just send a message of “The gays want to destroy marriage!”, even ignoring the issue of gay marriage, I can’t help but feel there’s no great reason for a one-size-fits-all legal institution of marriage, as currently exists. Any consenting adults should be able to enter into all kinds of legal contracts (some of which might be called “civil unions” or “marriages” or whatever by different people, depending on how they care to use the term), and perhaps some standardized forms of contracts will be particularly popular, and perhaps the government will decide to accord special benefits to those who agree to certain things in their contracts, but I don’t understand why there should be a single specific legal notion of marriage; I can’t think of any laws which need to refer to marriage, as such, rather than more directly to whatever is truly relevant to the law at hand, which may be different in a tax law from a child custody law, and so on. If a man, his sister, and his high school sweetheart agree to enter into some kind of legal union with various resemblances to the sorts of things currently associated with legal marriage, why shouldn’t they be receive some of the corresponding legal benefits currently associated with legal marriage, according as to how closely the terms of their union accords with the motivation for such benefits?
Not all couples marry in a religious ceremony, but all marriages are civil unions in the sense that there is social and government recognition. Marriages do have a legal concept. I think it is all semantics. Same sex marriages or unions need legal recognition, that’s the point; they don’t need the religious aspect. I am not suggesting same sex couples not have a religious ceremony, only that it is not necessary. There is also the concept of common law marriage which doesn’t even require a marriage license.
I live in the Bible belt and didn’t have a problem locating a nonreligious Justice of the Peace. I didn’t get married in my home, so I don’t know the laws regarding a home ceremony in my state.
By finding a judge, or JP, or clerk, or whatever, who recognizes an obligation to keep his own religious beliefs *out * of it. You found one that did not.
By asking the clergy you wish to do it to do so. The denomination involved will have its own rules about what marriages it recognizes as being “under God” - for instance an Episcopalian or UCC churches outside of Massachusetts. Or a splinter Mormon sect for a polygamous one, for that matter.
But only the *legal * marriage will give you the *legal * rights associated with being married.
You get married in a state which does not require that the officiant have some religious affiliation. California allows people to be deputized to preform marriages for a day. The requirements seem to be:
http://www.acgov.org/auditor/clerk/ceremony.htm
I have been to weddings where a family friend was the officiant.
You can always have the wedding ceremony wherever you want, on whatever terms you want, as long as you also go to the courtroom at some other time to make things official in the eyes of the law. Basically, keep the party separate from the paperwork. There’s no reason the two have to coincide; indeed, if you want to split the legal institution of marriage from the religious one, it’s hard to see why you would want them to.
(Though I do think it’s silly that the state law should give the right to legalize marriages on a “Are you a representative of a church?” basis. But if you want a nonreligious wedding, there’s nothing stopping you.)
You are conflating two different institutions. There is a legal institution of marriage and there is a religious one (well actually there are multiple religious institutions since we have multiple religions).
Each state has a specific list of requirements that must be met in order to form the legal institution. If you don’t meet those requirements, than you don’t have a valid legal marriage. Most states require some type of witnessed ceremony as one of the requirements. And these states have decided to allow a religious ceremony to fulfill the requirement. But whether or not you choose a religious ceremony to kick-start your marriage, you still end up with the exact same legal institution as somebody who chooses a non-religious ceremony.
Conversely, just because you have a ceremony in a church, that doesn’t mean you have a valid legal marriage. You still have to meet all the other legal requirements to form the marriage. And if you don’t, the state may well rule that you do not have a valid legal marriage.
For example, let’s say two people get married in a church that doesn’t recognize divorce. They also fulfill all the othe requirements to form a legal marriage. These two people, then, have both a valid legal and a valid religious marriage. Now, let’s say they get divorced and go on to marry other people. Because their church is against divorce, they choose to have a civil ceremony. Now, as far as the state is concerned, these people have valid legal marriages. As far as their church is concerned, the second marriages are invalid. Because the institutions are completely separate, what makes a valid religious marriage and what makes a valid legal marriage are completely different issues.
There are countries where religious marriages are also legal institutions, but this is generally not the case in the US. Your proposal, thus, amounts to just a name change. From a legal perspective, I think this adds an unnecessary amount of complexity to civil law.
That’s okay if you don’t see it as a real issue; I see it as a small one.
None whatsoever, and given that you don’t care to predict any ramifications, I see this as a non-starter.
John,, the reason we rehash this debate is, in my opinion, that y’all have never put forward convincing arguments why it’s a bad idea to get the government out of the marriage business. Did you read the linked NYTimes article? I think it puts forward a strong argument that I’d never considered before, and frankly, the problem currently is that this particular incredibly useful set of rights is linked to a tradition that shouldn’t be the government’s concern. Get the tradition back into the private sector where it belongs, and the way is cleared.
Miller, it’s a political disaster now only because the homophobes are winning. When they see the tide is turning against them, they’ll leap at this proposal in order to avoid a worse defeat in their minds. This is, IMO, the proposal that will take place first: they’ll be able to accept civil-unions-for-all long before they’ll accept marriages for gay folks.
Whether political expediency ought to be considered I’ll leave to others; but the idea that expediency works against this proposal strikes me as unrealistic.
Daniel
You didn’t address this to me, but I’ll take a stab at it.
It’s a meaningless statement to say “get government out of the marriage business.” What happens if two people mingle their property and one person defaults on a loan? Can the creditor go after the mingled property? What happens if the two people decide to break up and have a dispute over how to divide the property? What happens if they have a custody dispute? All these questions at some point are going to end up in front of the government to resolve. What the legal institution of marriage does is it creates a default set of answers to these questions. You’re also free to a certain extent to contract around these default answers if you want to.
We have a number of legal institutions that provide default rules for anytime people mingle property for a specific purpose. If you and your buddy decide to engage in a business, you can do so as a corporation or a partnership or an LLC. We have trusts and conservatorships for other purposes. What is so different about marriage that it shouldn’t have a legal institution as well?
And don’t forget probate law - a legal marriage creates a presumptive right to inheritance of property, a religious-only procedure means nothing there. And don’t forget medical care - a legal marriage gives the spouse the presumptive right to make care decisions, a religious-only procedure means nothing there either. Without a legal institution, how could there be anybody to fill those roles?
I don’t see what the confusion is - at my wedding, my wife and I were quite clear about which form we were signing would go to the parish office and which to the county clerk, and about when the priest was speaking as a clergyman representing the church and when as a person deputized by the state to perform the legal procedure. Maybe it’s just not that clear in other denominations’ liturgies.
When the tide is turning against them, we won’t need to compromise any more, so we won’t need to use this tactic at all. Which works fine for me, I have no problem with the government managing the business of marriage, and would prefer to continue in that practice (with access for everyone) than try some bullshit semantic shellgame.
I do think you’re right that we’ll see civil unions for all before we see marriage for all, although I very much doubt that we’ll get rid of government sanctioned marriage at the same time. More likely, we’ll have civil unions anyone can have, and marriage that only straight people can have. I’m not really sure how I feel about that. On the one hand, civil unions would fix a lot of the social inequities of not having government recognition of gay unions, and the sooner we have that sort of policy in place on a national level, the better it will be for millions of gay folks. On the other hand, a seperate-but-equal policy is not acceptable in the long run, and I worry that a compromise on civil unions will defuse the forward momentum of the movement for total equality.
Eh. Practically speaking, it’s not something I’m going to have to decide on for years and years, so I don’t worry about it too much right now. It does bother me to see this put forward as a viable alternative for right now, because pushing this agenda at this time would be political suicide.
I can give you one wonderful reason why it’s a terrible idea to “get the government out of the marriage business”: deadbeat dads – and for that matter, parents of either sex who abandon children. Women without resources who abandoned career for husband and children, now left to support themselves. People who have conveyanced gifts to those they thought they were in love with permanently, now trying to get them back.
The legal functions of marriage are two: to regulate the legal possession of property (real and chattel) in relation to a household, and the provision of care for children. Perhaps it does “take a village to raise a child” but the primary onus of providing for his or her care is on those who brought him or her into the world and in doing so assumed that responsibility.
You folks seem to have identified a problem with how marriage is regulated in this country, but your cure seems to be the equivalent of curing hangnails by amputating the arm.
Polycarp
I believe that child support currently is demanded from fathers who are not married to the mothers. So I am not sure how legal marriage is really part of this except for the presumption that the husband is the father regardless of biology.
Words outta my mouth. It’s a terrible idea to link obligations to biological children to marriage.
Brightnshiny, your objection ignores my belief that government marriage should be replaced with civil unions available to any two consenting adults, as I said above.
Daniel
OK, I have to admit, it didn’t occur to any of us who wanted a legal wedding without religion to travel to a state that provides for those. As a practical matter, if you want to invite friends and family, and if the closest state that allows nonreligious ceremonies is far away, this might not work.
>Please, how do you get a legally married without religion involved?
>By finding a judge, or JP, or clerk, or whatever, who recognizes an obligation to keep his own religious beliefs out of it. You found one that did not.
Well, this wasn’t an option in the example I cited. In Pennsylvania, in the jurisdiction in question, the State chooses the judge, and the State chose a judge with deep convictions about the importance of religion in wedding ceremonies.
>Please, how do you get a legally married without religion involved? and how do you get religiously married without law involved?
>You are conflating two different institutions. There is a legal institution of marriage and there is a religious one (well actually there are multiple religious institutions since we have multiple religions).
Well, I proposed the two should be different institutions, and think to various degrees that governments and churches and society conflates them. While as I say I didn’t think of traveling to states that allow performing wedding ceremonies without religion, it is at least somewhat of a challenge to have a legal wedding without a religious one. And it is news to me that churches would perform a wedding that wasn’t legal. This brings up an interesting question. Society has some interest in treating married people differently from single people - in other words, marriage means something. So, if you can have a big public event that looks and smells and sounds like a wedding, and yet the couple are legally still single, isn’t that a sort of fraud? And do churches really willingly do such a thing?
Now you’re just simply ignoring what has already been pointed out to you several times in this thread. They already are two separate institutions. Just because the state allows the witnessed ceremony to be a religious one, that does not make the legal institution of marriage somehow the same as the religious one.
No, government does not conflate them–you are the one trying to do it. Your misunderstanding of the legal system is simply not reality.
No, it’s not a fraud, because the government isn’t interested in whether your religious marriage is real or not. It would only be a fraud if you purposely tried to represent yourself as legally married in order to defraud someone–maybe to bilk a lender out of money.
I don’t know how to make this any clearer. The government doesn’t go around investigating theological doctrines, so it has no way to tell whether someone’s religious marriage is valid or not. That’s why the legal institution is completely separate. There are clear rules on what makes a valid legal marriage–and whether or not there is a valid religious marriage is completely independent. You can keep saying that the two are somehow the same, but that doesn’t make it real, and if you don’t want to accept that you are in error, there’s simply no point in having this discussion.
(Note: I haven’t researched tribal laws, and it’s possible some tribe does have a legal institution of religious marriage, but no state has one)
Ah, ok. I misunderstood your argument because of this “get government out of the marriage” business stuff. That’s not what you’re arguing–you basically want a marriage with a different name and different membership requirements. That’s not getting government out of the marriage business, that’s just altering an existing legal institution.
>Now you’re just simply ignoring what has already been pointed out to you several times
>you are the one trying to do it
>Your misunderstanding of the legal system is simply not reality.
>if you don’t want to accept that you are in error, there’s simply no point in having this discussion
Bright, are you irritated at me? Why?
Look, I’m asking an earnest question here. I have been to a number of weddings, and as far as I know they have been both religious and legal. I never had the slightest clue which one a ceremony was. If these are completely separate things, how does everybody else know the difference? Am I the only one here who thought the two were related somehow? I’m not sure why this might seem to you like some kind of attitude problem on my end, but to me weddings really do appear to be executed as both legal and religious events.
Some people here (including you and Polycarp) seem to have misunderstood the proposed change.
Right now, there is a religious concept of marriage, which has no legal bearing, and can be between couples of different sex or the same sex. There is also the legal marriage, which is available to opposite-sex couples only (in almost all states). Then there is a civil union, available to everyone.
The problem with the current situation is that the law discriminates based on the sex of the people involved. I think the ideal proposal is to have the government not discriminate and offer the advantages conferred with the legal marriage, to everyone. Since the word “marriage” seems to be hopelessly entangled with the religious concept of a man and a woman, make the government’s contractual union not be called that. Make the union be called something else, such as the already existing “civil union,” and give it ALL of the current privileges of legal marriage, including child support obligations, hospital visitation, insurance benefits, and survivorship rights.
ETA: My understanding is that current civil unions don’t provide these rights.
It’s so logical that the only argument I’ve seen against it, is that it’s too idealistic for the normal dumb-ass population and they won’t accept it.
Ok, I didn’t mean to be snippy. My apologies. Let’s approach this a different way. You think religious and legal marriage are the same, and you want to make them distinct, correct? What specific changes do you think need to happen in order to accomplish this? My intent here is to show you that any changes you think need to happen either already have happened or are unnecessary.
I am in Pennsylvania, and have performed 5 marriages. The commonwealth recognizes the Universal Life Church which ordained me when I clicked “Yes”. The marriages I have performed have lacked discussion of religion, centering more on discussion of love and happiness.