This is mostly me thinking aloud.
1. Society’s institutions were mostly created by heterosexuals for heterosexuals.
2. Many of these institutions can only deal with relationships that are formalised with the state by means of marriage.
3. This causes all kinds of problems for same-sex couples who are denied access to marriage.
4. There are two obvious solutions: allow same-sex couple access to marriage, or change the institutions so that they can deal with relationships that aren’t formalised by marriage.
5. Changing the institutions of society, while desirable, is a huge, radical change unlikely to win widespread support. Even if this change could be brought about, it would take a great deal of time and same-sex couples would continue to suffer while the status quo lasted.
6. Allowing same-sex couples access to marriage is a relatively minor adjustment, and enjoys far more popular support.
7. Allowing same-sex couples access to marriage doesn’t rule out the possibility of changing the institutions of society in the future.
8. Therefore, allowing same-sex couples access to marriage is desirable.
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That pretty much describes how and why I came around to supporting gay marriage instead of trying hard to change the larger society with all of its structures first.
While everything you say is valid and true, I think you’re kind of missing the point. Same sex marriage is an equal rights issue: even if marriage had no benefits whatsoever and was purely a symbolic union, it would still be wrong to deny to one group of people something that we, as a society, value.
Ah, well this is where the more-or-less comes in. I’m not particularly in favour of marriage, and but for the reasoning I outlined above, I would prefer to ensure marriage equality by abolishing marriage for opposite-sex couples.
Hunh. I fall into the “abolish marriage for opposite-sex couples”, as well, I guess. I’m sceptical of any institution that ties religioun and government together, as marriage often does. Until either the church or the state gets out of the picture, I can’t help but see the whole thing as circumspect and controlled by biased factions. If, for instance, religion was not involved, it’s likely that gay marriage would already be legal.
I’ll name that tune in three.
1. Some same-sex couples want to get married.
2. There is no good reason why same-sex couples shouldn’t be allowed to get married.
3. Therefore, allowing same-sex couples access to marriage is desirable.
I think you pretty neatly summed it up there, Daran. Although it can easily be argued that the institution of marriage is deeply flawed, that’s really not the issue here. Eating McDonalds food is bad for you, but if they banned gays (or blacks, or women, or fill-in-the-blank) from eating at McDonalds we’d all have something to say about it, right? This isn’t about isn’t whether marriage is good or bad, it’s about equality.
Tasmania has opted to provide state recognition for a wide range of caring relationships, sexual and non-sexual, same-sex and opposite-sex, with, I understand, a rather à la carte approach to rights and responsibilities (although some of the former are tied to some of the latter).
This relationship registration scheme operates in parallel to an unreformed heterosexual-only marriage system, and (because some areas of marriage law are handled at a federal level in Oz) doesn’t currently allow for complete legal equality. But in another political/juridical setting it would, and given a few years to bed down in Australian law, it still may.
I’m not sure this counts as the kind of wholesale institutional reform you would regard as a better alternative to same-sex marriage – I get the impression you’d rather move away from legal registration all together, right? Anyway, I do like its reach (although I’d rather see something like this system PLUS same-sex marriage).
Does this kind of proposal find less support than a simple expansion of marriage to include same-sex couples? Was that true in Tasmania? Well, I’m half a world away, but my impression is that separating the issue of legal recognition from “marriage” (and from gay rights, as such) took a lot of the venom out of the debate, and narrowed the appeal of the opposition.
Is the state recognition of non-marital relationships particularly difficult for other institutions to accommodate? It’s still early days, but maybe the Tasmanians can tell us. Any Aussies reading this thread? For what it’s worth, I would expect some teething troubles as various institutions get to grips with their altered legal responsibilities, but we’re not really talking about anything completely new, here – just a more flexible application of the rights and responsibilities associated with marriage. It doesn’t strike me as impracticably radical, taken on its own terms.
With a moral panic underway in the US, though, and with legislative and legal efforts there heavily focussed on same-sex marriage/civil unions as such, I don’t think there’s much chance this kind of approach will get a serious hearing, at least for the moment.
The one thing I hate about the SSM debate is the way benefits, especially medical benefits, are tied into it without question. Yes, it’s pathetic that long-standing gay and lesbian couples are not eligible for their partner’s medical benefits. What’s lost is that it’s pathetic that medical benefits are tied to your employer or your marital status at all. What difference should it make if you work for a corporation or a mom-and-pop business that can’t afford medical benefits? Should it make a difference whether you are married, not married, in a committed relationship or not, or a happy curmudgeon whose best friend is a cat? I think some gay activists are missing the ball on this. All gay people, all straight people should be able to access affordable and quality medical care.
Some religions allow same sex marriage (e.g. Wicca). Others do not. It is, among other things, a religious freedom issue.
There is really no need to have clergy as the officiants who sign marriage licenses. In fact, there’s no need for an officiant at all. Why is the ceremony the proof of the legal relationship? Simply have the couple swear to their intent to be married, have them and the witnesses sign, and file the papers. This way, religious marriage is in no way interrupted and clergy are no longer in the business of governance.
Here in Canada, same sex marriage has been with us for a while and (despite the best efforts of certain conservatives)most of think it’s here to stay. There’s been bitter debate over it for the past few years but, for a lot of people, now that it’s legal we can’t imagine a time when it wasn’t. Someday we’re all going to look back on this debate the way we now look on the integrated vs. segregated swimming pools debate – as in: what the fuck were those bigots thinking?
Is marriage flawed? Yes. Is it an antiquated religious institution? Probably. But it is still wrong to grant certain rights to some and deny them to others. That’s why when some fence-sitters here said “Well, can’t the gays have all the same benefits of marriage but we’ll just CALL it something else?” that didn’t fly. This is a HUMAN RIGHTS issue. It isn’t about marriage anymore than than the afore mentioned integration debate was about debating the merits of swimming.
i think it helps the issue to see marriage from an economic point of view. most of the institutional rights afforded to married couples have a large economic component (survivorship, taxation, health insurance). i think that the clear solution is to stop equating the social, personal, and spiritual relationship with the economic one.
let any group of people who (for whatever reason) trust each other form an as-yet-unnamed economic entity. some rights (like health insurance, maybe) could be limited to a two-person entity. that way, sibling households, parent/adult-child households, best-friends households, and of course love/sexual-relationship households (same or opposite sex) would be able to have the same economic rights as married couples have now.
but if you and someone you love want to get married, go to your church or find someone wise, and have yourselves a ceremony with your friends and family present, and then then say you’re married. if church A doesn’t recognize a marriage from church B, then…don’t join church A. church A’s views on marriage will then have no effect whatsoever on the legal and economic status of anyone at all. which is how it should be in a nation based on the separation of church and state.
Polymath is right. Marriage is nakedly economic. I’d add that it functions to redistibute weath from the unmarried to the married. The economic component of marriage (survivorship, taxation, health insurance) is funded though a subsidy from the unmarried. This aspect of marriage should be done away with. Once you look at marriage like this there’s a sense in which same-sex couples who marry are making the leap from being the oppressed to being the oppressors.
There’s one reason I don’t fall into the “abolish marriage” camp. When married parents seperate their children have the first claim on the assets of the marriage. When unmarried parents seperate their children don’t have the same claim on their parents’ assets. So a court can take a husband’s house from him and use it to provide a home to his children, but they can’t do this with a unmarried father’s house. I think that aspect of marriage is useful and worth keeping.
a court can take a husband’s house from him and use it to provide a home to his children, but they can’t do this with a unmarried father’s house.
Are you sure about that? My understanding is that child support, when imposed by a court, is independent of marital status, and that it can be enforced by any means up to and including seizure of assets.
…a court can take a husband’s house from him and use it to provide a home to his children, but they can’t do this with a unmarried father’s house.
To quote Len Cella…. “Wrooooooong!”
I am fascinated by the idea that the family home, shared by the partners and their children during marriage, is “the husband’s home” alone.
The economic component of marriage (survivorship, taxation, health insurance) is funded though a subsidy from the unmarried.
I’m not sure how you think the unmarried subsidize survivorship, but note that taxation does not fall uniformly on the married.
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I am fascinated by the idea that the family home, shared by the partners and their children during marriage, is “the husband’s home” alone.
Equity vests principally in the penis. No penis, no equity.
That’s why the banking industry opposes SSM. Two penises, equity conflict. Where should they put it every month? No penises, similar problem.
LOL
Marriage in society today always has a governmental context and sometimes has a religious context. I agree there should be equal protection on the governmental side. Of course, a lot of this is beating a dead horse. Clearly across much of the country SSM is not going to be accepted despite all the sound logic you can muster.
The religious side shouldn’t care just as long as the proponents of any given religion aren’t required to recognize the marriage in the context of said religion. At any rate, that is a battle to be fought in religious forums, not governmental ones.
In term of child support, yes. An unmarried father can pay. If he is in serious (and I do mean serious) arrears for which he has been blatantly irresponsible, then I suppose a house could have a lien slapped against it.
However, most of the time you are talking about a divorce settlement where one spouse gets the house, often along with custody, in order (at least in theory) to provide stability for the children, such as it is.
However, I’m a mom, and I didn’t get a penny from the house and I didn’t get custody either. And in general, women tend to come out poorer from a divorce than men. In fact, because of our blatantly corrupt family courts, I wouldn’t dare purchase real property till my daughter is 21. Otherwise, it would be vulnerable to being seized for his bad debts (long story).
The wording of your essay seems to say that marriage is not an institution of society. Is that your thinking? What do you consider as an “institution of society”?
Where should they put it every month?
I have an excellent suggestion as to where they can put that penis.
Some responses to comments directed at me:
That’s not what I was suggesting. The home is the husband’s if the only name on the title deed is his. A court has the power to reallocate assets if a couple divorce, but not if an unmarried couple seperate (such as this one, which is by definition “the husband’s home”). That’s my point: a court can redistribute assets members a married couple own independently on divorce, if you’re not married they can’t do this.
You’re absolutely right. Children have the right to be supported by their parents (married or unmarried). However – on top of this – children of married parents have the primary claim on the assets of the marriage on divorce. So if an unmarried couple split up the child is entitled to support. If a married couple split up the child is entitled to support *and* has the primary claim on the assets of the marriage.
A court can claim assets and use them to pay unpaid child support debts, but that’s slightly different from what happens in divorce.
nik,
A married couple may have a house that is owned by one or the other that is exempt from asset relocation in a divorce. In my state, if the house was part of an inheritance or was owned by one spouse only or the other prior to the divorce, then it isn’t included in the divorce preceedings. Of course, the catch here is that any equity accrued in the house is community property. *shrug*
My personal feeling is that marriage needs to be revamped, but that it isn’t going away any time soon. I am a proponent of SSM and of alternative lifestyles.
The home is the husband’s if the only name on the title deed is his
State laws vary greatly, but I’m not aware of any state where “But it’s in MY name!” is a trump card. Some states assume that both spouses have an interest in the family home (when my ex-husband bought a house, I had to show up at the closing and sign papers disclaiming any right to it); some treat the home as community property, with exceptions, as Mendy notes.
I understand your point about unmarried vs. married, but presumably when you talk about “the husband’s home” you’re talking about a married couple, since an unmarried man is not a husband.
in general, women tend to come out poorer from a divorce than men
Yup. Even though women tend to get the house along with custody, they become single income earners supporting themselves and dependent children. In this society, women earn less than men. Add to that the fact that alimony payments are never a guarantee and most divorced women with children find themselves financially poorer afterwards and with lower prospects of earning incomes comparable to those of most divorced men.
Oh, just to clarify, I’m not against gay marriage. I’m all for it because everyone who wants to marry should be able to in a democratic society. It’s an economic partnership and gays shouldn’t be denied those economic benefits just because they’re gay.
Nick,
I understand your concerns about marriage, but I’d be concerned about the effects of abolishing it altogether. Although marriage as a social institution is very problematic in many ways, the *legal* benefits often disproporationately benefit women. Consider Social Security survivors’ benefits, automatic rights to participate in a spouse’s healthcare plan, “community property” rules in many states that make a spouse’s income joint property, inheritance rights (that can’t be entirely annulled by a will), the right to alimony – the list goes on and on. For obvious reasons, the burden of getting rid of these rights would fall disproportionately on women.
Abolishing legal marriage isn’t going to get rid of social marriage. Unless you have a very simple, low-cost proposal for replacing those rights or providing some comparable benefit, in a legal regime without legal marriage a woman in a marriage-like relationship may wind up with few legal rights against her partner. A rich woman will be able to hire a lawyer to draft ironclad legal documents, but a poor woman probably won’t even if she has the means to. Either way she may not have the bargaining power to make her partner *sign* the documents. So if her “husband” dies without a will, she’ll be stuck in court arguing with other claimants to his estate rather than being sole heir; she’ll have no default rights to Social Security benefits; and so forth and so on. You probably think all that stuff should be changed too, but “abolish marriage” isn’t nearly as simple as it sounds, and the effects could easily be anti-feminist in practice.
Keep in mind that if your replacement regime is at all complicated, poor people may wind up not taking advantage of it *at all* because of the costs of hiring lawyers and the difficulty of getting the partners to agree on a system of rules, and that will be likely to leave poor women in the lurch in terms of legal rights.
Myth –
I should have used “unmarried father’s” rather than “husband’s”. I ‘m just trying to flag that marriage gives children rights to their parent property that they don’t have it their parents are unmarried. I’m sure we all agree on this, but it’s something that tends to get lost in “lets abolish marriage” discussions.
I’m not sure I agree with Stanford Law 1L all the way though. Many of the rights listed are funded by single people (pension survivors’ benefits, rights to a spouse’s healthcare plan, inheritance rights). I object to these rights because they advantage the married and disadvantage the unmarried. Yes, abolishing them would leave some women worse off; but I don’t think that’s automatically a bad thing. It’s unfair that married women get benefits that are subsidsed by unmarried women – or unmarried men, for that matter. I think removing this subsidy would be just.
nik,
What system would you suggest in lieu of marriage as it exists? I’m just curious as to what would fill the vaccuum if marriage were to be abolished.
Mendy –
I don’t really see myself as an total abolitionist. I think some aspects of marriage should be kept and others should be done away with.
I’ve said I think giving children priority in the distribution of property on divorce is a good thing. Rights like allowing spouses to see medical records and have a say in medical care harms no-one (but I do think unmarried people should have alternate mechanisms which allow them to do a similar thing). I’ve also no problem with spouses getting inheritance rights which can’t be annulled by a will and alimony. All of that’s great – it hurts no-one, is all consentual and if people want it, they should be allowed it.
My problem is with benefits that are discriminatory against the unmarried: inheritance tax exemptions, spousal pension entitlements, social security survivors’ benefits, rights to a spouse’s healthcare plan. This all functions to financially advantage the married and disadvantage the unmarried – because the unmarried subsidise it. All these aspects of marriage should be gotten rid of. I’m not sure removing these rights would create a vaccuum.
nik,
My husband’s employer as well as mine have 401k type retirement plans. In both cases the employer doesn’t contribute at all. I don’t feel like anyone else is subsidizing these accounts other than myself and my husband, because it is our salaries that we are investing. I don’t see why I shouldn’t have the right to be the beneficiary of his 401k should he die, and he for mine upon my own death.
Since he and I both work and pay SS ( I rountinely pay more taxes than he does, and we always pay at the end of the year). I actually won’t draw his SS but my own upon my retirement. This is of course assuming that Social Security is still solvent and operational when I become of age to draw benefits.
What policies would you like to see in place? Domestic partnership for unmarried couples that confer similar benefits as marriage? Or would you do away with survivorship in SS and pensions, etc?
I *think* my point is this:
When a married and umarried person retire and claim a pension the amount they get is the same amount (per year) for the same contribution. No problem there. But a married person’s pension passes to their spouse on death, and a single person’s doesn’t. So a married person’s pension is worth more than a single person’s – even though their pensions cost the same. If the law was changed so that this subsidy was removed, single people would be entitled to more money in retirement and married people would have to take a lower pension if they wanted it passed to their spouse.
Pensions is a very arcane subject, and that’s the short version. This cross-subsidy isn’t really well-publicised, but does exist.
(There’s is a further discriminatory effect between married couples pensions where SSM is legal. A married lesbian’s pension would be worth more that that of woman who married a man [women live longer, therefore there’s a greater return because of surviorship], and a married gay man’s pension would be worth less than that of a man who married a woman [for the opposite reason].)
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