Why do we have the legal concept of marriage?

Great Debates
1

First let me say I am not opposed to same-sex marriage per se.

But presumably there is some advantage to being (legally) married rather than just being a couple, otherwise homosexuals would not want the category extended to them.

Well, why do we need such a special class at all? Why should anyone–hetero or homo–receive special treatment under the law?

Now those who are in favor of restricting it to heteros will say it is necessary for children. But the law already has to deal with an enormous number of parents who are NOT married … to each other. So what difference does it make? (legally, I mean.)

There is the question of property–and who gets what when two people who have been sharing resources for years split up. But there is already contract law for that. And, if the parties’ sexuality should not be a factor, why should sex be a factor at all?

If I live with a woman for so many years, she becomes my common-law wife and if we split, it will get treated like any other divorce. Well, why should it be any different if my buddy and I share a house for so many years? Why does what we do–or not do–in the bedroom have anything to do with it?

How about benefits extended to dependents? Instead of making the marital status the basis of such extensions, how about basing it on … oh, I don’t know … whether the person is actually, truly your dependent? So my disabled buddy who I take in to live with me, who doesn’t work and can’t work, would get a insurance and my so-called wife, who works and has her own means of support and is not dependent on me, is therefore not my “dependent” and does not get insured by my employer.

Then there is taxing people differently on this basis. Do I need to say anything on this?

I think the whole concept is outdated.

2

Well, when you marry someone, you are designating that person as the one who will make critical medical and financial decisions in the event you are seriously injured or ill, for starters. You could designate that person as having your power of attorney in the event of your incapacitation, I guess, but that’s just one benefit of marital status. Trying to come up with a contractual equivalent for all such benefits would be laborious if not impossible.

3

This is a widely held misconception. Common law marriage exists in only 15 states. In 5 of those states, no new ones are being created; only those in existence as of a certain date in the past are recognized.

4

You are basically asking two questions here, based on your OP:

  1. Why do we bother having marriages?

  2. Why doesn’t it count as a marriage when your buddy is your roommate for a few years?

The answer to the second is relatively simple - he’s not treated as married to you becuase you never married him, and because common law marriages were never designed to auto-marry same-sex couples.

My impression of common law marriages were to ensure that the woman ‘got taken care of’ if there was a falling out or, say, a death of the hubby. It was basically society stepping up and saying “okay, there was no paperwork, but we know what was going on here.” Back in the day it was of course never assumed that men would be in this sort of dependent relationship (or that hetero couples wouldn’t), and so it was only rigged to kick in when it was a hetero couple. There’s no particular reason it couldn’t be re-rigged to work for SS roommates, except it would squick the hell out of a lot of men to think that they might find themselves ‘accidentally married’ as a result of it. (Or alternatively we could stop having common law marriages at all, which as Hello Again notes is already happening.)

Other than the issue of common law marriage, there isn’t anything sexist or anti-SSM about the situations you ask about; the reason the “buddy” doesn’t get the benefits is because he’s not married. In theory you could have a female roommate who would also not be treated the same; the distinction between them and your self-sufficient wife is that you did marry the wife. That’s not an insignificant distinction when you talk about marriage benefits.

So yeah, I’m not impressed by the “why is my buddy not my wife” questions. As for the "Why marriage at all aspect of it, the answer is that marriage is a relatively novel contract between two people, which (nowadays in the US anyway) lets two common civilians relatively easily conjoin a whole heck of a lot of things, including finances, property, parentage, inheritance, and power of attorney. It’s basically a package deal contract that is designed to encode the really old, traditional form of marriage. (Give or take that bit about the woman being property.) Why do we still have that? Well, it’s because a lot of people still want it. People like the idea of conjoining property and living in a house with the person they love and having kids and sharing some of their stuff and all that. And as long as they do, some form of marriage will probably be around. (There’s no reason that it needs to exclude SS couples, of course.)

5

Marriage is a fundantamental social reality. Why should the law ignore reality? It would make itself irrelevant by doing so.

6

We have a legal concept of marriage because ever since courts and magistrates have existed, they have been asked to adjudicate disagreements where marital status is relevant. The Code of Hammurabi has parts about marriage.

7

To a certain degree, we have a legal concept of marriage because we have a legal concept of property, and a legal concept of family.

Marriage, as a legal institution, allows for the creation of new family units, and the continuation of control over property.

8

Marriage predates all human law, and likely predates Homo sapiens sapiens. Although we don’t know for sure what sort of mating system our earliest Australopithecine or Homo erectus ancestors had, it is very likely that our mating system arose before we became fully human. When we look at our primate relatives, we see a wide variation in mating systems, from gorilla harems, to organgutan solitude, to chimp groups to gibbon pair bonds.

Our social system is most like that of gibbons, in that we have more or less permanent mating partners, the difference is that these mating partners don’t defend territory together against other mating pairs, but live in a larger group. It’s kind of an unusual setup for mammals, much more common is the gorilla system where one male lives with several females and defends his right to mate with them against other males, or the solitary system where a mammal will live alone except during mating season, or the chimp system where groups live together and constantly jockey for mating rights.

So the legal concept of marriage, along with the religious concept of marriage, exists to recognize instinctual human behavior. We have laws and religious concepts about parenting too. But if we laid eggs in the sand and left them to hatch on their own, we’d never have developed any laws about parenting. No one would care.

9

There are thousands of them.

Just here in my state, a group has identified 515 such benefits in Minnesota state statutes. (I’ve heard that they have actually identified more since then, but since they have already chosen the name Project 515, filed incorporation papers, etc., they chose to stay with the 515 name.) These include major ones like taxes and inheritance rights, which can amount to millions of dollars, down to such mundane items as same-sex partners paying more for licenses for their dogs than a married couple would. (And that is a city ordinance, not state law, so it’s not even counted as one of the 515 extra benefits for married hetero couples.

10

A major impetus for common law marriages in the US was that in the frontier days going through the legal requirements of marriage could be difficult to impossible, what with the lack of formal government in area, and a sparseness of empowered clergy or even justices of the peace. Therefore, if a couple set up a household and declared themselves married they were recognized as such. There was also an expectation that they would perform the legal niceties as soon as reasonably practical though, of course, this did not always happen.

11

I’m with you. When I was first married (my first marriage lasted 24 years) they complained of a “marriage tax” where some people would pay more tax married than if they just lived together. Then they reversed that again. But it still didn’t seem fair.

I think right now is a good time to get rid if marriage altogether. With so many unmarried couples with children and shared health benefits, etc., the distinctions are really just residual discrimination.

12

Too bad they didn’t leave a written record of their society.

Or bonobo (Pan paniscus, sometimes called Pygmy Chimpanzee) where sharing in groups makes for harmony.

It is hard to say what is instinctual human behavior. If resources are plenty then we might behave like bonobos. If resources are scarce, or perceived to be, then we might behave like gorillas. I think behavior is based on the stressors you face.

13

Except there is not and never has been a human society that did not have marriage.

If our behavior was that flexible, we see some societies with marriage, and other societies without marriage where conditions favored other arrangements. But that never happens. From farming villages in New Guinea to hunter-gatherers in Greenland, and every place in between every human society practices marriage.

There have been humans who lived in times and places of plenty, and humans who lived in times and places of scarcity, and they didn’t abandon marriage.

14

Marriage puts in place a defined collection of rights and responsibilities between married spouses should they ever separate.

That’s why there are often differences in the rights and responsibilities of married spouses upon separation, and the rights and responsibilties of cohabiting souses upon separation.

15

But not all of those marriages were one man and one woman. One man and several women has also been a popular version of marriage, where resources permitted. There are even a few instances of one woman, several men.

16

The law follows human behaviour. The fact that people pair off into reasonably durable couples, based on sex, is one of the most fundamental aspects of human behaviour. The law therefore recognizes it.

I’ve seen arguments before on this board that every couple should just design their own arrangement. That’s an incredibly complicated approach - how many people have the time and interest to do that? and to cover all of the possible issues that may arise? The law of marriage, and all the related statutory and common law provisions that apply to married couples, have evolved over centuries to cover all the common issues, and some of the uncommon ones. Marriage provides an “off the shelf” way to plug into all of those legal rights and protections.

Which isn’t to say that unmarried couples should be denied legal rights. Increasingly, courts and legislators are recognizing that people are living together without being married, and the same sorts of issues are cropping up that have arisen with married couples. Those issues are starting to be recognized for unmarried couples in durable relationships, much as for married couples. The degree to which this has happened varies considerably from jurisdiction to jurisdiction, of course.

To take one example, in Saskatchewan, married and unmarried couples have exactly the same rights under provincial law, as a result of statutory amendments passed several years ago.

17

If you are making a factual claim then you should be able to provide proof for it.

18

Well, what I said was that there are no black swans. The only way to prove it would be to cite every instance of a swan and show that none were black ones. Hard to do.

But easy to disprove, all you have to do is show one black swan. So, if there has been a human society that did not practice marriage, all you have to do is demonstrate its existence. I contend that you cannot do so, because no such society exists or existed.

It’s not an extraordinary claim, because every human society I’ve ever heard of has practiced marriage. New Guinea village farmers. Inuit hunters. Kalahari bushmen. Tierra del Fuego hunters. Aztec farmers. Yanamamo horticulturalists. Mongol herdsmen. Sumerian farmers. Romans, Greeks, Persians, Egyptians, Scythians, Sarmatians, Kazakhs, Khazars, Bulgars, Byzantines, Britons, Bretons, Turks, Gauls, Carthaginians, Khmers, Zulus, Bantus, Ibo, Fulani, Sioux, Cherokee, Kwakiutl, Athabaskan, Iroquois, Mayan, Chinese, Japanese, Javanese, Vietnamese, Koreans, Hindus, Taoists, Mormons. On every continent, in every conceivable economic and social system, but all practicing marriage. I can’t find a counterexample. Therefore, since I’ve never heard of a counterexample, I contend that all human societies practice marriage.

19

But not all of those marriages were like a gibbon pair bond. Some of the marriages were one man, several women, more like the gorilla system.

20

You are making the claim so you need to provide the proof.

I claim Klingons exist and are superior to humans. You need to accept that claim as true until you can successfully disprove it.

My two choices are not to accept your claim as true or to disprove it to your satisfaction, which you already have told me can’t be done so why bother. I have at least a third choice to think your claim is wild speculation and not bother with it.

Your claim is extraordinary because unless you have read every bit of anthropological and sociological literature that exists on social and reproductive bonding it isn’t an authoritative statement. Maybe you are quite the speed reader and have library cards from around the world (or could be a Klingon).