Because DoMA wasn't bad enough...
"WASHINGTON, July 30 - President Bush said today that federal government lawyers are working on legislation that would define marriage as a union between a man and woman."
So much for states' rights, let alone recognizing other countries' laws.... though really, people who really want to reap government benefits for their relationships should just ( Read more... )
Suppose it is decided that legal marriage will be re-defined as independent of both social and physical gender. How much of the current law relating to marriage will need re-writing to remove gender bias, for example in child custody and alimony after divorce? If not much, then surely it is possible right now to hire a lawyer and get "married" without using a standard marriage contract; so much for the DoMA and other such objections! Just take out your pocketbook and fund a pro-bono website providing the necessary legal services.
Otherwise, if a great deal of law will need to be re-written, is it worthwhile to re-define legal marriage? Would it not be much simpler and cleaner to provide a standardized non-secular civil-law "partner-union" contract yielding much the same legal standing as marriage?
Now consider the people who are currently advocating such an option. Will they be willing to call their contractual relationship something other than "marriage"? "Oh, no, we're not married -- it's a slightly different contract, a connubium I think the lawyers called it." Or will there be much contentious debate? In some ways, I can see the current debate in the courtroom as an attempt to gain social recognition by a flanking maneuver, in much the same way as the "religious conservatives" are attempting to use the law for their social purposes. Unless one is willing to claim the legal benefits and yet call it something other than marriage, it smacks of hypocrisy to argue that the "religious right" is abusing the law to enforce their own social constructs.
Suppose such a "connubium" were to become easily available. Will the the courtroom and bedroom were kept divided? -- so that sexual relations and mating are not regulated by a connubium? After all, we are talking about a new legal device which is not susceptible to the usual social and common-law norms; adultery might remain reserved for the married. That brings up the question, although a connubium grants legal standing, what are our expectations for the social and moral consequences of entering into a connubium? Should I expect partners to raise their kids right, to attend the PTA, to bring their partner hot soup when they are sick or pull the plug when they fall into a coma? Of course I know bloody well that married people break all such rules with horrible impunity, but that does not dispel my expectation of right and good and proper behavior. In that case, the religious right certainly has a point -- marriage is an old convention and has a lot of baggage, so exactly which bits of that baggage do you want to throw away and which bits are you wanting to keep? Ignore the "poster-child" gay couples who are now suing to obtain legal marriages, and consider the shitheads -- do we have consistent expectations of their proper ensuing behavior sufficient to agree on further refinement of a connubium? Further refinement is the essence of the law!
The religious right out on the fringe are vocal and can drive legislation. They are also rabble who may be ignored outside of political debate. Concern yourself only with ordinary people, the great middle. Asking them to re-define marriage (their own marriage!) to allow homosexuality or polygamy or adultery... can you say you are not asking them to break their own morals? And if you provide a separate legal option and are willing to call it something other than marriage, the question of your moral expectations and theirs and mine still arises, and there is no apparent consensus (or even much discussion, it seems) on that topic.
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The problem with "civil union", "domestic partnership", and other "I can't believe it's not marriage" contracts is that they aren't recognized as uniformly as marriage --- I happen to really like the "hey baby, let's incorporate" model but there's nothing to make employers give health insurance to your incorporated partner like they're required to give them to a spouse.
I posted this twice (three times, now) by mistake because I'm a spaz, and promptly forgot the rest of my point. Oh well.
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Jen and I had a short ceremony conducted by our high-school biology teacher (who is sorta a father-figure for Jen) followed by a big party. I'll admit, Jen had a hard time finding a place to hold this ceremony, but she did find one. At this point we were not yet legally married. (If we had been married, our health insurance via parents would have evaporated, and our health insurance via grad-school didn't kick in for another month). So we went on honeymoon, not legally married, but certainly acting married and hence treated as such by everybody. A few days before leaving for grad school, we went to the courthouse and filled out some paperwork. In a little pavilion near the courthouse, Jen's younger brother conducted a stand-up improv-comedy version of the usual ceremony (I would relate the vows we swore, except I was laughing too hard at the time to remember) and signed his name at the bottom -- done.
So, Jen and I were first married solely by social convention. Then by legal paperwork, in a ceremony conducted by an ordinary citizen and witnessed by ordinary citizens (our moms, if I recall). We are still not married by any religious authority. That's reasonably civil and secular.
Jen and I will be back in Alaska in a few years. If you propose to Peter, then I will happily fly you both up and request an encore performance from her little brother :-) I am afraid, though, that to receive the legal and financial benefits you desire, you will need to tell your employer and/or various branches of government that you are "married". But don't worry, I won't tell your friends or family.
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If in a few years I could go to Alaska and perform the same rituals with a girl and have it legally recognized, I might take you up on that offer. Maybe by that time I'll have more patience for dealing with all the social assumptions about what it means to be married, but for now I think staying unmarried does more to promote respect for all relationships, rather than just the legally or religiously legitimized (also, the idea of being called anyone's wife makes me cringe, but that's more of a personal qualm than anything else). Likewise, maybe in a few years I'll have regained enough respect for our government to feel comfortable telling them anything about my private life, but I'm not feeling too optimistic about that prospect these days either.
I have considered exploiting my dual nationality to marry Peter in the Netherlands, where same-sex marriage is legal, without telling the U.S. government about it, but that just seems kinda silly, especially since I don't attach much value to being married beyond the legal and financial benefits.
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Ah! My apologies for my incorrect fractional quote; I should have been reading more carefully.
...the idea of being called anyone's wife makes me cringe...
That's one of Jen's pet peeves too. She hates being introduced as "And this is my wife, Jen."
...especially since I don't attach much value to being married beyond the legal and financial benefits.
I admit to great curiousity on your views on marriage. I (and my extended family, including Jen's side) have little to no religion to speak of except for faith in family itself, so one might say marriage is a cornerstone of what passes for my creed :-) You and I have talked of marriage before (don't let Peter know ;-), and it is refreshing to hear a cogent viewpoint contrasting mine own.
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I hate the way that marriage is linked to sex. I would like to see marriage or "connubium" or something to replace legal marriage that would just be a legal contract (entailing most of the same things as marriage does now) for living together, sharing resources, and sharing families with another person on a permanent or semi-permanent basis. I don't think the government has any business regulating (or pretending to regulate) sex. I wouldn't even try to use the word "marriage" since it is so charged and since it was a word invented by the church anyway and deals specifically with sex. I can't tell you how many times it says in Genesis, "and he lay with her and she became his wife."
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Actually, that might be a good thing for me to know as well. I'm legally married, and one should always be prepared for the consequences of entering into a binding contract.
I hate the way that marriage is linked to sex.
Is the link social or legal?
I used to say that living at Mudd had jaded me; I'd seen every possible tangle and permutation of relationships. A few years ago I met a very nice fellow, in a long-stable marriage with three kids in their teens. Later we found out that, when his kids were not yet in their teens, his wife their mother had told him that she was gay. Since then, she has had the master bedroom (with her long-term partner) and he has had a separate room and his own dating life. He's rather miserable (it broke his heart) but he wanted to raise his kids and his wife threatened to use custody law and remove them from his sight if he divorced her. So he's waiting for them to reach the age of majority.
And you wouldn't happen to know anyone who has sex _outside_ of marriage?
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I'd like to know the answer to that question. It is socially. It was created originally for that purpose. When my mom was young it was legal as well, at least to the extent that it was illegal to sell any form of birth control to an unmarried woman (or man, I assume). I don't know how legally linked they are currently. For example, can a woman charge her husband with rape? I don't know. I've never heard of such a thing, but it is my belief that she should be able to.
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Other sex stuff that's still legally tied to marriage is adultery. A quick Google search suggests that there are still adultery laws on the books in many states, although they generally aren't enforced. Still, regardless of whether adultery is a prosecutable crime, I'm sure it's way up there on the list of "best grounds for divorce" (although in my opinion it should still come after domestic abuse). A similar Google search shows that fornication (premarital sex) is still a crime in seven states and the District of Columbia, and eight states and D.C. prohibit unmarried cohabitation (of males and females, anyway). I can't imagine these being prosecuted very often, but the laws are still on the books. In all three of these cases, either the law or the enforcement of the law reflects social expectations about marriage (and, you know, the decaying morals of our society and how we're all going to hell and blah-de-blah).
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Contract law is not as strong as marriage law. For instance, what about common law marriage? You can't have a "common law" contract. Similarly, it's often true that living wills and wills granting rights to non-relations can be contested by blood relatives, but grants to a married partner cannot be contested as easily. There's also a great deal of "marriage-specific provisions" in other sections of the law, including taxes, health insurance, that sort of thing.
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Divorce rulings are guided by marriage law. Divorce lawyers cannot rely on a judge to enforce social customs; those gender-based asymmetries are part of our legal system.
Common law marriage is not so simple as just living together and suddenly being married after a few years (check it out on the web, I just found a lot of neat documentation via google! :-) It started out as a legal convenience for rural communities: if a couple lived together and gave full evidence they were socially-married and would go through the paperwork to be legally-married given the opportunity, then the courts had some guidelines (laws) on when it could be decided that that couple was in fact legally-married. The Alaskan equivalent (no common law marriages in most US states including AK) is that anyone can perform a wedding if they write to the courthouse and request the correct bit of paperwork; again the point is to avoid sending people into town or judges into the villages for something as common as marriage.
In a very similar sense you can have a "common-law" contract. To enter into a legally binding contract, it is not always necessary to have the services of a pair of lawyers producing properly formatted legal documents with signatures witnessed by notary publics. If your intent to enter into a contract can be proven (to the court's relevant standards of proof), than you are indeed bound (to the extent described by relevant contract law). Sometimes this produces surprising results for one or both parties.
Contract law is not as strong as marriage law.
?? If you know someone who has legal training, please ask them their opinion of this claim!
For all these technical points of the law, I should add a disclaimer stating that I do not have the legal training to speak with authority.
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When I said that contract law is not as strong as marriage law, I meant that contractual modifications of marriage often don't hold up in court. The most common circumstances I can think of are prenuptial agreements intended to protect the property of one partner in the event of a divorce. In these cases, the common property principle in marriage law can overrule the contract. The enforcement of prenups varies from state to state, and it is changing: prenuptial agreements are becoming more solid in many cases. However, historically marriage law is stronger. I don't know for sure, but I suspect that similar contractual modifications of other aspects of marriage (child custody, etc.) might run into similar problems.
This source discusses some aspects of US custody law. As it notes, since the 1970s states have been moving toward legal rules that don't favor one gender over the other. Despite this, it also cites that only in about 15% of recent cases, males retain sole custody of the children. What a literal reading of the law says, and what the collective decisions of however many thousands of judges in the US produces, are not necessarily the same thing. Divorce lawyers may not be able to count on judges upholding custom, but in many cases those judges do.
Your points about common law marriage and contracts are well-taken. I was talking out of my ass there.
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