A Solution to the Gay Marriage Debate? - Island of Sanity

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A Solution to the Gay Marriage Debate?


Here's an "outside the box" solution to the "gay marriage" debate: If we as a society can't agree what marriages the government should recognize, perhaps the government should simply stop recognizing marriage at all.

Suppose that the government eliminated all references to marriage from law, thus making any question about the government's definition of marriage moot. If we can't agree what marriage is, then maybe the government shouldn't be imposing a definition. I don't mean that the government would abolish marriage, but rather that it would say absolutely nothing about the institution, thus leaving the entire subject in the hands of private citizens and organizations. It's the sort of proposal that a libertarian could love.

Meaning what?

Perhaps the most obvious implication is that there would be no such thing as a marriage license or any other government sanction or recognition of marriage. But of itself this would have little impact on anyone's life. Presumably most people would still get married in a church. Brides would still walk down the aisle, couples would still trade vows, mothers would still cry. There's no reason why anyone should need the sanction of the government to do any of these things. People who presently get married in "civil ceremonies" administered by a justice of the peace or other government official would no longer have that option. But they could surely find some other organization to solemnize the wedding. Perhaps we would see the creation of "secular wedding chapels" for non-religious people. Or some people might choose to pass on any ceremony, and just declare themselves married.

Perhaps I should clarify -- if the above did not make this clear -- that I don't mean that the government would forbid anyone else from defining marriage. Just the opposite in fact. The whole idea here is that each citizen or organization could use any definition that they chose for their own purposes. Most obviously, Baptists might only recognize marriages between one man and one woman; Moslems would presumably recognize marriages between one man and up to four women; and Unitarians could recognize marriages involving three men, a blow-up doll, and a goat if they chose. One insurance company might offer family policies that covered a man, a woman, and their children; another might extend family policies to cover homosexual couples; another might not offer family policies at all. And so on. The government would then only recognize marriage in the same sense that it recognizes any private contract: The government would not dictate the terms of the contract, though the courts would enforce any agreements voluntarily entered into. So, for example, if your health club offers "family memberships", the government would not say who they have to include as members of your family. But if they say that anyone who lives in your home is included, and then they refuse to accept your live-in girlfriend or gay partner or your grandmother who lives with you or whatever, you could sue them for breach of contract.

Who Wins?

A gay rights activist could consider such a plan a victory: The government would not be discriminating against homosexuals in any way. But at the same time those who oppose "gay marriage" could also be satisfield: They would not be forced to support gay marriage in any way. Whether the question is some practical benefits -- insurance coverage and the like -- or community sanction or endorsement, the issue would then be left to the free market. Some insurance companies would create policies that catered to homosexual couples, others would not. Presumably homosexuals would patronize the companies that catered to them. Activists on either side might boycott companies that took positions they didn't like.

An objection

One problem with this idea quickly comes to mind.

Today, when a couple divorces there are many specific laws and court procedures to determine how to divide the property and who gets custody of the children. But if the law does not regulate marriage, it wouldn't be able to regulate divorce either. To take the extreme case: What if someone sues for alimony, and the other person claims they were never married? If there's no government definition of marriage, how can the courts say whether these two people were married or not? More probably, what if one person wants a divorce and the other doesn't? If the government is not defining marriage, what are the requirements for divorce?

The obvious solution would be to say that couples getting married should sign a contract saying exactly what they have in mind. Some people already do this to some extent: they're called prenuptual agreements. In practice, we wouldn't expect most couples to negotiate a contract from scratch. But what people well might do is use standardized, off-the-shelf contracts. Many people today use such canned legal papers for wills, selling real estate, and the like, where all they have to do is fill in their names, description of the property, or some such details, and sign it. The same idea could be applied. It is likely that churches and other organizations that perform weddings would often create contracts for their "clients" that conform to their ideas of what marriage should be like.

Indeed, this drawback could turn into an advantage. Gay marriage is not the only area of marriage law that is controversial today. We're seeing growing debate about just how difficult it should be to get a divorce and whether divorce proceedings are biased one way or the other. A few years ago Louisianna created two types of marriage contract: the standard marriage and "covenant marriage", with standard marriage allowing no-fault divorce but covenant marriage allowing divorce only when certain requirements are met.

Marriage is often referred to as a "contract", but in America today it is a very peculiar contract: Not only are the terms defined by the government rather than the parties involved, but the government periodically changes the terms of the contract, and these new terms are then applied retroactively to all existing marriages. That is, if the goverment tomorrow changed the law to say that, say, you can only get a divorce if you can prove abuse or infidelity, people who got married a year ago with the expectation that they could get a no-fault divorce would suddenly find that they no longer had that option. Would you sign any other contract under those conditions? Like, would you rent an apartment with the understanding that whatever the apartment may be like today, at any time your landlord could decide to move the walls, shut off the electricity, or increase the rent, and you would nevertheless be required to continue to live in this apartment and pay the rent for the rest of your life?

Why not let any person or organization make up their own marriage contract, and explicitly say what the grounds for divorce will be and how property will be divided. Marriage would then be a true contract: People actually sign a piece of paper stating exactly what they are agreeing to, and none of the terms can be changed without their mutual consent.

Implications

In this short article I can't begin to consider all the possible implications. What would happen to tax laws? Inheritance? Adoption? I don't claim to have thought it all out. But surely it's a fascinating idea.

Why have we assumed for so long that it is up to the government to decide what marriage is all about, and not the couple themselves, the Church, or other private groups?

© 2004 by Jay Johansen


Comments

Rino Jul 23, 2014

I think lots of marriage fail bescaue couples think once they become marride, they do not have to do or continue to do the basic things that created the relationship in the beginning that brought them together.once they get marride and settle down, they start to take each other for granted(they become complacent).They start to disrespect each other, they do not communicute anymore, bescaue they think now that they are married they're in it for life and that their partner will stay but what they do not realise is that people have feelings and emotions and if peoples are not getting love and attention on a regular basic instead, they are getting abuse, being taken for granted, no communication etc they will no longer see the need to be with that person. couples MUST continue to show love,respect,loyalty to each other in marriage the same way they would show these things when they were going through the dating or courtship process. I know its hard but that is what it take.We have to work hard to maintain a marriage the same way we work hard to win someone heart in the beginning.

Gillermo Oct 3, 2015

I've been married a year and 10 motnhs. Our biggest test has been overcoming the temptation to quit. We are now leveling out and coming to a point where we are now considering each other. During our first year and 1/2 we were trying to please each other by doing things that we thought you should do. For example, I was dressed up with candle lights and lingirie waiting for my husband when he got home from work at 11pm. I was very angry when I found that he wanted to go to sleep after I had made the sacrafice to wait up for him. Now, I understand that he is truly tired, and we make compromises. A wise person once said, Seek to understand, and then to be understood. This is a very helpful thing to do in a marraige. Even when the other person does'nt understand you, and you sacrafice to understand them, they see your efforts and notice a difference in you and will eventually come around and adopt your maturity. Do what works for you all and not what others in other people's marraiges or what you think SHOULD work.

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