I sort of advocate this, in that many of the “moral” arguments against same sex marriage are religious or traditional in nature, and I am uncomfortable with the government needing to be involved in deciding what is allowed and what isn’t based on this. I do not see a compelling public service need that overrides this.
I would rather see marriage as a purely private matter (religious or not, that is nothing to do with me nor the government, and the various religious or secular institutions that wish to get involved can discriminate as they please, assuming they do not fall foul of the constitution). There would be a standard personal contract available that would handle the various legal aspects (inheritance, taxes, hospital visitation, power of attorney, immigration, etc), and this could be filed with the government.
That said, to some degree this is just semantics, meant to try and get around the powerful tradition “marriage” conjures up that makes it difficult to update. Politically, such a scheme would be dead on arrival, as it is too easy to spin as “taking away our traditional marriage” (which I suppose is true, if you do not consider marriage officially sanctioned by the government as real).
Presume that the legal benefits and responsibilities of marriage do not change (you know, that shopping list of 1500 or so things associated with marriage that gets trotted out every time gay marriage is debated) simply because we simplify the reuglation of marriage. If those need changing, that is a separate argument.
Presume that marriage is a bilateral contract, one between two people, for purposes of this discussion. This is not ruling out polygamous marriages (using ‘polygamous’ denotatively and properly, and not implying the patriarchal polygyny that the term has come to connote), but a multilateral contract is clearly distinct from a bilateral one. If John and Martha get divorced, there is no longer a marriage – but what happens if Alice divorces Bob and Ted and Carol? Are they still a three-person marriage? Why or why not? What if Carol then divorces the others – do they suddenly become a same-sex couple, when they were heterosexual men sharing wives? It can get complex, and therefore needs separate law. I’m not viewing this morally but in terms of legal issues raised.
Because marriage is a legal state with responsibilities as well as rights, I feel there should be a solemnization of some sort – which could simply be the act of a notary or the county clerk witnessing the commitment. My thought here is that there needs to be a third party attesting to the fact that the marrying parties knowingly entered into a marriage with knowledge of what they were committing themselves to. We have a formal transaction for closing on a house purchase; we require formal commitment under oath in court for waiving of right to counsel. I think that a couple planning to marry should be required to be advised of the consequences of contracting to marry, by a person designated as a proper officiiant, to be sure they are aware of the commitment. Definitely simplify this, have a wide range of possible officiants, but be sure they are forewarned before making the commitment. (Yeah, most people will already have thought about this, but the point is that everyone deserves to make a knowing commitment.)
Are you going to put any limits on who can marry? What about two fourteen-year-olds in love? How about Lolita McNubvile, 13, and Chester D. Molester, 40? What about people with mental disabilities? What about siblings, or grandfather-granddaughter combinations? This is not the slippery slope argument – until a dog, Lexus, or toaster is able to undertake a legal contract, you can’t get married to one. But think through whether you want limits, and if so what they ought to be under this freer system. Barb and I will have been a couple of sorts for 50 years next year – we met in the fall of 1960. But we didn’t decide we wanted to tie the knot until 1974 (and married five months later). She was certain even then, in 1960; I needed a few years to grow up first. I’m not altogether averse to teen marriages – but expecting therm to become independent families too young is a recipe for failure. Think through what is the proper judgment call to make here, and why it’s proper, not just from a child protection standpoint, but from a rights standpoint as well.
Throw a sop to the “sanctity of marriage” people – the “covenant marriage” laws of a few states may be the proper pattern. If you’re going to extend equal rights to all, be sure you mean all – including those who hold that a ‘proper’ marriage is a lifetime bond between one man and one woman. Make sure they have a way to legally make that commitment distinct from civil contractual marriage.
I’ve snipped most of your excellent post because I’m too lazy to respond properly right now. Under my proposal, only persons able to enter into other contracts–persons over the age of 18, in other words, or emancipated minors–would be allowed to marry. So no to the two 14-year-olds, and no to Chester & Lolita. As for persons with disabilities, it would depend on whether they were judged competent to enter contracts of any sort. If it’s someone who has previously been judged incompetent, obviously not.
I don’t care about incest between consenting adults.
Minors are able to enter into binding contracts – with the consent of the adult having custody. To me, this makes sense – the 14-year-olds can’t elope, and Lolita can’t contract with Chester, but if two mature 16- or 17-year-olds can convince their parents that they’re certain they want to make the long-term commitment, then allowing it to happen with parental sign-off makes sense.
One note in this regard: the nuclear family is nearly a 20th-century phenomenon. Extended families are historically more accurate – a couple marries when they’re ready to, but lives with or alongside one set of parents. There is nothing in law that specifies that a new married couple must therefore constitute a separate household – it’s a cultural phenomenon, not a legal mandate. Some massaging of the concepts is needed here – but the picture of a young-adult farmboy bringing his bride home to join him in working the family farm alongside his father is at least as ‘normal’ as the idea of a couple going off to start a separate life together.
That’s pretty much what happens, here. You apply for a marriage license, then you go to anyone licensed to perform marriages, and it’s done. Is it different anywhere else? They’re making a big fuss in PA, but has anyone’s marriage actually been “taken back” or is it just a bunch of hyperventilating?
Some states will only allow either clergy or state officials (such as a judge) to perform the solemnization. If people want to change that to allow any notary to certify a marriage license or get rid of the solemnization requirement entirely, I’m fine with that. I just don’t understand what people mean when they say “get government out of the marriage business.” None of the proposals in this thread actually significantly change the legal relationship between government and the married parties.
Maybe I’m ignorant about what “solemnization” means, but I think the proposal in this thread is we let the couple decide how, where, with whom to solemnize it, and the government just goes “OK” when people say they’re married, and doesn’t worry about if the solemnizing agent was licensed. Which is a bit different then Vegas which still needs licenses.
I think doing away with this license requirement would expand religious, and personal freedom.
I think you are conflating the license requirement with the solemnization requirement. Not all states require a license for you to have a valid marriage (such as common law states). In some states, such as California, you must register your marriage with the state (this would be your marriage license requirement).
Solemnization is a separate issue. Most states require some type of witnessed ceremony (although, this too may not be required in some common law states). Some states are very flexible about who is eligible to conduct the witnessed ceremony, and some states limit it to either clergy or state officials.
As for the solemnization itself, I haven’t come across a state that has very stringent guidelines as to what happens in the ceremony. Mostly, both parties to the marriage just have to agree in front of the solememnizer that they are entering into a marriage.
On reread: I see that you are talking about licensing requirements for who can solemnize a marriage? I’m not opposed to expanding who is eligible to conduct a solemnization of marriage. But that doesn’t get government out of the marriage business. In California, for example, you’d still need a marriage license for your marriage to be valid.
Well right now the government generally has the role of deciding who can solemnize weddings, and who get’s licensed to marry.
I think the licensing requirements should be totally done away with. Leave it to the couple’s conscience to decide what would sufficiently solemnize their marriage. Then once solemnized in their own good conscience they report it to the government so taxes, and whatever can be updated.
I mean different couples might have different ideas. Maybe one couple wants a traditional church wedding, and maybe one couple wants to wait till a luscious spring night when the air is just right to make love under the full moon in bed of rose petals and pledge their love to each other.
This would be similar to how wills work in many states. A number of states require a witness to the signing of a will, but they don’t require the witness to be a licensed official.
However, there are all sorts of things which the state requires a licensed person (such as a notary public) to solemnize. So, I don’t really view it as a big deal that you need a license to solemnize the marriage, but I am amenable to expanding the number of people who can get that license greatly.
You can still do this now (assuming that the rose petal ceremony doesn’t violate public nudity laws or the like). All you need to do is find a licensed official who’s willing to officiate at the rose petal ceremony.
We have laws saying who can and cannot marry. If you say that anyone who can enter into contracts can get married then you’re saying the same thing - because we have laws establishing who can enter into contracts.
The argument here seems to be that the law should be changed so that gay couples can get married. I agree. And should a couple be able to get married in a civil ceremony with no religious affiliation? Again, I say yes, but as far as I know, that’s already legal. So I’m not seeing what the bigger argument here is.
Most people who say “Get the government out of the marriage business” actually seem to mean “Get the government out of the wedding regulation business.” Skald came up with a simple solution: Make marriage a specialized form of contractual agreement, and let anyone who can legally enter into a contract marry. I got him to fine-tune his definition slightly by bringing up the saner of the ‘slippery slope’ objections.
I think it’s not exclusively the gay marriage question, but the whole concept of “Big Government is able to decide who can be legally married and who cannot” that has aroused people.
Your post reads to me as if you have a misconception about contracts. The government regulates who can enter into a particular contract based on the type of contract and the parties to a contract. Making something into a “contract” doesn’t mean there are no rules about who can enter into it.
If this idea took hold, it would theoretically legalize multiple marriages and incestuous marriages as well as gay marriages. I think most supporters of gay marriage would not be happy that you’re equating these marriages and you’re certainly not going to be winning them any new support by doing so.
If you’re going to rewrite the laws on marriage contracts and say “any two people can get married” but then add a list of exceptions like “unless one of them is under a certain age” and “unless one of them is already entered into another marriage contract” and “unless they are related to each other” then the anti-gay marriage argument will be why are those exceptions okay and an exception that says “unless they’re both the same gender” isn’t? Which pretty much brings us right back to the point we’re at now - arguing that same-sex marriage should be allowed.
I don’t think you’re going to want anyone to be officiating at the rose petal ceremony. Kind of deadens the romance, you now, having that third person following you around on the luscious spring nights until the right one rolls around.
Of course, the way I reckon it, there’s “married”, and there’s “married according to the state” - and one could easily “get married” by whatever esoteric method you like - and then when you go to turn in your marriage licence, at that point the person who takes it and logs it counts as the ‘solemnizing officiant’ himself, by the virtue of actually taking the license, and that’s the point at which the state considers you to be married. (You might want to do it on the same day, to simplify remembering the relevent dates, but it wouldn’t be strictly necessary; the state doesn’t mind you doing marriage-like activities in the meantime anymore, at least not in the US anyway.)
I don’t think that any other person prior to the point the liscence is given to the government is necessary or relevent, as far as the state is concerned - and if the officiant/solemnizer is to have any official role, such as appraising the people in question of their legal responsibilities or getting them so sign a waiver or whatever, the only viable way to ensure that that occurs is to have it happen at the state office where the license is received anyway.
Ok, but how is this different than what we have now? You can pretty much do this already. In California, you could do your rose petal ceremony and then head on down to the county clerk’s office, fill out your marriage license, and then have the legal ceremony right there (well, you’d need an appointment).
Interesting thing which I didn’t know: poking around at the Los Angeles County Clerk’s page, you could actually be deputized for a day to perform marriage ceremonies. So, if you wanted someone other than clergy or the government to solemnize your marriage, it seems you could do that as well.
Maybe there’s something I’m missing, but it appears that according the OP, the government’s curiousity about what you do before arriving at the clerk’s office may vary by region - though admittedly my read of it was that you’d be okay with just the rose petals, but if you had your buddy fred sign the cert between there and the office then you’re SOL.