Edart: redefining marriage
A while back, there was a discussion going on in the comments to this entry between akatonbo, wodhaund, and I concerning a reformation of legal marriage. I'd sort of started on a secondary post to ball all of it together, but that kind of fell by the wayside. I recently got to looking at the post again (actually, someone at work questioned me as to the substance of my political and social beliefs) and thought that having given it a lot of reflection, I might be able to write something better, and more in-depth.
Rather than just diving in, though, I thought it'd be better to list the criteria necessary for a "better" (in my eyes) and (this is important) broadly acceptable definition of "marriage".
1: The term "marriage" must be replaced with a term that identifies the legal and practical nature of these unions, rather than the religious heritages of such unions. The term must also lack religious connotations. "Domestic Personal Partnership" was one such proposal. I prefer the term "consortship" as an easier word that describes the relationship between the two involved.
A significant part of the problem that the Religious Right (and not-so-far-Rightists, for that matter) has with "gay marriage" is that marriage, at least in the Christian Church (and the Jewish, Muslim, and LDS church, if I remember aright) is a union that is spiritual and religious in nature first - and they believe that the only acceptable spiritual and religious union is one man and one woman. It is not seen as a secular union, except insofaras the couple live together in this mundane world.
This creates not one, but two problems.
First, the term "marriage" pushes the buttons of the people who are religious, and whose religious texts dictate that "marriage" is between one man and one woman. And while many of the more liberal on this subject argue that we shouldn't let bronze-age religious texts dictate our laws, they are forgetting one important fact:
About 70% of the U.S. population identifies itself as part of a monotheistic religion. And over 40% of the U.S. population is devout enough attend services regularly (at least once a month). (Statistical abstract of the United States)
We cannot create an effective, just, and fair application of the law by trampling on the sensibilities and beliefs of that large a portion of the polulation! Whine all you want, but that's the plain and simple truth.
Whether or not you like the idea of religion, the way in which it is used, or a particular faith or subfaith, having that many people follow a particular faith and be devout enough to devote at least some time to it means that you cannot simply ignore them without creating an enormous amount of chaos and disorder, far more than is healthy for society.
Second, the use of a religious term, i.e. "marriage", stacks the deck against those of us who are not particularly religious (or not religious at all), as well as those of us who do not follow the Judeo-Christian religions. What meaning does a religious term have for those of us who aren't followers of a given faith? None!
Additionally, the term "marriage" and its traditional connotations do not always reflect the reality of marriage as it is practiced today. We have romantic marriages and economic marriages and shotgun marriages and marriages due to responsibility, and so forth.
Because of these, it is better by far to eliminate the religious aspects of the term marriage and replace it with a term that reflects the practical and (more importantly) legal nature of such unions, while also denying the Religiosi their strongest argument against granting equal rights.
2: These legal unions must recognize and automatically conflate with religious unions - including those not termed or precisely parallel to marriage (e.g. handfasting)
This goes back to that "oft-forgotten" point I made earlier:
70% of the population follows a Judeo-Christian religion, and 40% of the population attends services at least once a month.
Like it or not, this means that there is a majority of the population who believes - or follows a faith that believes - that walking down to the altar is the union - i.e. the civil side is secondary. More important, though, are the legal and economic consequences of these religious ceremonies: once married, the bride and groom become a single unit (at least, that's the idea). The law must recognize this, and it must also ensure that people cannot use the religious aspect of their particular union, be it marriage, handfasting, or whatever, to evade the socioeconomic consequences of the union. In particular, if such a union is dissolved (and most religions do have means by which to do this, even if they squirm about it a lot) the members of the former union must be required to do right by their former partner - even if the religion does not require them to do so. Failing to require this damages society as a whole (by potentially creating an underclass) and would place women (especially) in a precarious position due to their religion...or that of their families.
"But the women could always leave the faith!!!"
Yes, they can. In theory. But the pull of religion is strong for many people. And the sacrifices that must sometimes be made to leave said religion are often severe - and hidden. This pull is strong enough that the law should be able to step in and ensure that this pull isn't used to bind and/or harm the wronged or weaker partner.
On the other side of the coin, the law should not recognize only "marriages" as being socioeconomic unions, but also other types of religious unions. The best example here is handfasting. Although a handfast has different terms and different meaning from "marriage", the net result is the same: two persons become a single socioeconomic unit, whilst retaining their own identities. Sounds like a legal union to me, even if a handfasting is significantly easier to dissolve than a Judeo-Christian "marriage".
3: At the same time, these legal unions must not require a parallel religious union.
This goes back to #1. We're trying to get the religious aspects out of the question. Requiring a parallel religious union to the creation of a legal, socioeconomic one would defeat the purpose.
Furthermore, there is that 30% of the population that is not Judeo-Christian, and another 30% that isn't particularly devout. Requiring that portion of the population to go through a ceremony that does not hold any real meaning for them - be it a wedding, handfaasting, or otherwise - is violative of their freedom of religious belief. Not to mention that requiring such smacks of theocracy, as well as none-too-subtle manipulation.
4: These legal unions must be completely open to any combination of sex, gender, and sexuality. Futhermore, the rights and responsibilities of the members of these unions towards one another and towards society should not vary based upon differences in any of these.
In socioeconomic and legal terms, whether a union consists of a man and a woman, a man and a man, or a woman and a woman doesn't really matter. It still has the same net effect: the two become a single entity that is (presumably) stronger than the sum of the parts. About the only question is whether this union is able sexually produce members of the next generation, or whether they have to go "outside the plumbing". Given the options now available to people who want to have children, this question is, in fact, moot: A marriage is not deemed weaker due to the sterility of one of the members (although in most states, learning of the sterility after the marriage is grounds for divorce). In vitro fertilization and adoption are both still available to partners, and in the future, it may be possible for scientists to create an artificial womb for the child as well. If these options are available to infertile straight-straight couples, then they must be available to non-straight-straight couples.
Furthermore, the fact is that homosexuality and bisexuality exist, and they're not aberrations peculier to humans: dolphins, which are the animals closest to us in intelligence, exhibit homosexual behaviour quite frequently. Such behaviour has also been observed in other animals - penguins and felines spring to mind, but I know there are others too.
It has also been shown, conclusively, that a person who forcibly denies homosexual or bisexual behaviour, or has that behaviour forcibly denied to him or her, is much less happy, in the long term, than one who is "out of the closet". Because overall happiness improves the socioeconomic productivity of a person, this is a considerable argument in favor of allowing freedom of sex/gender/sexuality in legal socioeconomic unions.
5: The unions must not require a specific reason for their formation. Nor can the allowable reasons for their formation be restricted to a "laundry list". Nor can there be a list of "unacceptable reasons".
Putting "duh?" here would be trite, wouldn't it?
Okay.
Simply put: Restricting these unions to specific reasons leaves open the possibility of later slipping in a restriction that once again puts religion back into the formula. There is also the problem of listing out all of the possible reasons for which a union should be allowed....or all of the reasons for which it shouldn't. I'm no Julius Iuvanus, and as laudable as his goal was, it is impossible in today's society. Too many people.
6: The legal unions should carry about the same rights and responsibilities as present "marriages" do. The responsibilities are especially important.
The legal responsibilities that are associated with marriage have developed over a rather long time. They have acrued to marriage because society has found that these responsibilities are necessary in order for the proper functioning of the marital household, as well as the proper functioning of society.
Removing these rights and responsibilities would be rather redundant, as lawmakers and courts would eventually be forced to write them back in. The simple fact of the matter is that they work, and they're vital to the continued health of society, and thus they should be kept in.
7: The new unions should not allow polygamy at the present time.
This is where my (Burkian) "conservative" side rears itself: The changes I am proposing in how society looks at interpersonal unions are fairly substantial. The shift in view on the role of religion in society is similarly substantial. I am a firm believer in the principal that there is only so much change a society can absorb in one dose before the unrest and imbalance caused by the change begins to outweigh the benefits of those changes. It will take time for society to find its new Balance after enacting these changes. Once this is done, or nearly so, then polygamy can be talked about.
There is another argument against allowing polygamy right off the bat: the general level of responsibility present in today's society is nowhere near high enough to allow polygamy to be broadly available. There is still far too great a danger that polygamy will be used among many people whom should not be in such a relationship becuase they are ill-equipped to handle the responsibilities that go with it. Heck, there are still lots of people who are ill-equipped to handle the responsibilities of monogamous relationships, and you want to legally sanction them having multiple ones? Because of the preponderance of reedless people, allowing polygamy at this time would cause more harm than good, even though it could be very good in some select cases.
The government cannot police responsibility on an individual level in this sort of thing. The people aren't ready (in general). And it is much preferable ban it completely, even though some few people are able to handle it, than it is to try and get the government to weed out the people who are unqualified.
There's also a nasty religious angle: traditionally, polygamy has meant one man to many women. This has the effect of lessening women, making them less than they can be (and ought be). It also has been an instrument of oppression of women. We still haven't moved past this (FLDS, hello?), so I think it not mete to sanction such abuses.
A third reason also exists: too often these days, "polyamorism" is seen as an excuse for one partner to screw outside the relationship.
In effect: there are some people out there who are willing and able to be in a polyamorous relationship. However, for every person who is both willing to be in one and able to handle the vastly increased burden of responsibility, there are 99 who want a poly relationship but who are either unwilling or unable to accept the increased responsibilities, or who simply don't recognize that these responsibilities exist. The harm that can be created by these 99 far outweighs the benefits acrued to the few who can handle the responsibilities. And, as stated above, it is not the government's place to try and figure out who is responsible enough and who is not.
Disclaimer: I'm basing this on second and third hand experience. I've not heard tell of any study to actually measure this (although defining "readiness for responsibility" is beyond the scope of any study, I think.
8: The language and structure of the unions should be such that, at such a time in the future when society in general has matured to the point of being able to handle polygamous unions, they can be seamlessly incorporated into the law. Such unions, when finally allowed, must be mutually reciprocal (i.e. entry into a polygamous union requires that all members of the union agree).
Although I do not believe that society as a whole is ready for polygamy on any sort of scale, especially not in conjunction with the dramatic changes already proposed here, there will come a time that we are ready, as a culture, to handle legally sanctioned polygamous unions. Incorporating such into the body of law should not require a massive undertaking to rewrite the law (an undertaking that will undoubtedly cause a huge uproar from the minority who are not ready, and will also undoubtedly lead to mistakes on the part of the lawmakers). Instead, it should be easy and painless. When the time is right.
The reciprocity requirement is simply a protection for society as a whole, as well as for the individual members. A person who poaches upon another's relationship damages the other partner without that partner's consent and, in many cases, knowledge. A reciprocity requirement would prevent this sort of pass-along harm.
I think that about covers the requirements I can think of, although I'm sure I missed a few. My next assignment would be to write an actual law incorperating all of this, but that's still somewhat above my pay grade...and experience.
Rather than just diving in, though, I thought it'd be better to list the criteria necessary for a "better" (in my eyes) and (this is important) broadly acceptable definition of "marriage".
1: The term "marriage" must be replaced with a term that identifies the legal and practical nature of these unions, rather than the religious heritages of such unions. The term must also lack religious connotations. "Domestic Personal Partnership" was one such proposal. I prefer the term "consortship" as an easier word that describes the relationship between the two involved.
A significant part of the problem that the Religious Right (and not-so-far-Rightists, for that matter) has with "gay marriage" is that marriage, at least in the Christian Church (and the Jewish, Muslim, and LDS church, if I remember aright) is a union that is spiritual and religious in nature first - and they believe that the only acceptable spiritual and religious union is one man and one woman. It is not seen as a secular union, except insofaras the couple live together in this mundane world.
This creates not one, but two problems.
First, the term "marriage" pushes the buttons of the people who are religious, and whose religious texts dictate that "marriage" is between one man and one woman. And while many of the more liberal on this subject argue that we shouldn't let bronze-age religious texts dictate our laws, they are forgetting one important fact:
About 70% of the U.S. population identifies itself as part of a monotheistic religion. And over 40% of the U.S. population is devout enough attend services regularly (at least once a month). (Statistical abstract of the United States)
We cannot create an effective, just, and fair application of the law by trampling on the sensibilities and beliefs of that large a portion of the polulation! Whine all you want, but that's the plain and simple truth.
Whether or not you like the idea of religion, the way in which it is used, or a particular faith or subfaith, having that many people follow a particular faith and be devout enough to devote at least some time to it means that you cannot simply ignore them without creating an enormous amount of chaos and disorder, far more than is healthy for society.
Second, the use of a religious term, i.e. "marriage", stacks the deck against those of us who are not particularly religious (or not religious at all), as well as those of us who do not follow the Judeo-Christian religions. What meaning does a religious term have for those of us who aren't followers of a given faith? None!
Additionally, the term "marriage" and its traditional connotations do not always reflect the reality of marriage as it is practiced today. We have romantic marriages and economic marriages and shotgun marriages and marriages due to responsibility, and so forth.
Because of these, it is better by far to eliminate the religious aspects of the term marriage and replace it with a term that reflects the practical and (more importantly) legal nature of such unions, while also denying the Religiosi their strongest argument against granting equal rights.
2: These legal unions must recognize and automatically conflate with religious unions - including those not termed or precisely parallel to marriage (e.g. handfasting)
This goes back to that "oft-forgotten" point I made earlier:
70% of the population follows a Judeo-Christian religion, and 40% of the population attends services at least once a month.
Like it or not, this means that there is a majority of the population who believes - or follows a faith that believes - that walking down to the altar is the union - i.e. the civil side is secondary. More important, though, are the legal and economic consequences of these religious ceremonies: once married, the bride and groom become a single unit (at least, that's the idea). The law must recognize this, and it must also ensure that people cannot use the religious aspect of their particular union, be it marriage, handfasting, or whatever, to evade the socioeconomic consequences of the union. In particular, if such a union is dissolved (and most religions do have means by which to do this, even if they squirm about it a lot) the members of the former union must be required to do right by their former partner - even if the religion does not require them to do so. Failing to require this damages society as a whole (by potentially creating an underclass) and would place women (especially) in a precarious position due to their religion...or that of their families.
"But the women could always leave the faith!!!"
Yes, they can. In theory. But the pull of religion is strong for many people. And the sacrifices that must sometimes be made to leave said religion are often severe - and hidden. This pull is strong enough that the law should be able to step in and ensure that this pull isn't used to bind and/or harm the wronged or weaker partner.
On the other side of the coin, the law should not recognize only "marriages" as being socioeconomic unions, but also other types of religious unions. The best example here is handfasting. Although a handfast has different terms and different meaning from "marriage", the net result is the same: two persons become a single socioeconomic unit, whilst retaining their own identities. Sounds like a legal union to me, even if a handfasting is significantly easier to dissolve than a Judeo-Christian "marriage".
3: At the same time, these legal unions must not require a parallel religious union.
This goes back to #1. We're trying to get the religious aspects out of the question. Requiring a parallel religious union to the creation of a legal, socioeconomic one would defeat the purpose.
Furthermore, there is that 30% of the population that is not Judeo-Christian, and another 30% that isn't particularly devout. Requiring that portion of the population to go through a ceremony that does not hold any real meaning for them - be it a wedding, handfaasting, or otherwise - is violative of their freedom of religious belief. Not to mention that requiring such smacks of theocracy, as well as none-too-subtle manipulation.
4: These legal unions must be completely open to any combination of sex, gender, and sexuality. Futhermore, the rights and responsibilities of the members of these unions towards one another and towards society should not vary based upon differences in any of these.
In socioeconomic and legal terms, whether a union consists of a man and a woman, a man and a man, or a woman and a woman doesn't really matter. It still has the same net effect: the two become a single entity that is (presumably) stronger than the sum of the parts. About the only question is whether this union is able sexually produce members of the next generation, or whether they have to go "outside the plumbing". Given the options now available to people who want to have children, this question is, in fact, moot: A marriage is not deemed weaker due to the sterility of one of the members (although in most states, learning of the sterility after the marriage is grounds for divorce). In vitro fertilization and adoption are both still available to partners, and in the future, it may be possible for scientists to create an artificial womb for the child as well. If these options are available to infertile straight-straight couples, then they must be available to non-straight-straight couples.
Furthermore, the fact is that homosexuality and bisexuality exist, and they're not aberrations peculier to humans: dolphins, which are the animals closest to us in intelligence, exhibit homosexual behaviour quite frequently. Such behaviour has also been observed in other animals - penguins and felines spring to mind, but I know there are others too.
It has also been shown, conclusively, that a person who forcibly denies homosexual or bisexual behaviour, or has that behaviour forcibly denied to him or her, is much less happy, in the long term, than one who is "out of the closet". Because overall happiness improves the socioeconomic productivity of a person, this is a considerable argument in favor of allowing freedom of sex/gender/sexuality in legal socioeconomic unions.
5: The unions must not require a specific reason for their formation. Nor can the allowable reasons for their formation be restricted to a "laundry list". Nor can there be a list of "unacceptable reasons".
Putting "duh?" here would be trite, wouldn't it?
Okay.
Simply put: Restricting these unions to specific reasons leaves open the possibility of later slipping in a restriction that once again puts religion back into the formula. There is also the problem of listing out all of the possible reasons for which a union should be allowed....or all of the reasons for which it shouldn't. I'm no Julius Iuvanus, and as laudable as his goal was, it is impossible in today's society. Too many people.
6: The legal unions should carry about the same rights and responsibilities as present "marriages" do. The responsibilities are especially important.
The legal responsibilities that are associated with marriage have developed over a rather long time. They have acrued to marriage because society has found that these responsibilities are necessary in order for the proper functioning of the marital household, as well as the proper functioning of society.
Removing these rights and responsibilities would be rather redundant, as lawmakers and courts would eventually be forced to write them back in. The simple fact of the matter is that they work, and they're vital to the continued health of society, and thus they should be kept in.
7: The new unions should not allow polygamy at the present time.
This is where my (Burkian) "conservative" side rears itself: The changes I am proposing in how society looks at interpersonal unions are fairly substantial. The shift in view on the role of religion in society is similarly substantial. I am a firm believer in the principal that there is only so much change a society can absorb in one dose before the unrest and imbalance caused by the change begins to outweigh the benefits of those changes. It will take time for society to find its new Balance after enacting these changes. Once this is done, or nearly so, then polygamy can be talked about.
There is another argument against allowing polygamy right off the bat: the general level of responsibility present in today's society is nowhere near high enough to allow polygamy to be broadly available. There is still far too great a danger that polygamy will be used among many people whom should not be in such a relationship becuase they are ill-equipped to handle the responsibilities that go with it. Heck, there are still lots of people who are ill-equipped to handle the responsibilities of monogamous relationships, and you want to legally sanction them having multiple ones? Because of the preponderance of reedless people, allowing polygamy at this time would cause more harm than good, even though it could be very good in some select cases.
The government cannot police responsibility on an individual level in this sort of thing. The people aren't ready (in general). And it is much preferable ban it completely, even though some few people are able to handle it, than it is to try and get the government to weed out the people who are unqualified.
There's also a nasty religious angle: traditionally, polygamy has meant one man to many women. This has the effect of lessening women, making them less than they can be (and ought be). It also has been an instrument of oppression of women. We still haven't moved past this (FLDS, hello?), so I think it not mete to sanction such abuses.
A third reason also exists: too often these days, "polyamorism" is seen as an excuse for one partner to screw outside the relationship.
In effect: there are some people out there who are willing and able to be in a polyamorous relationship. However, for every person who is both willing to be in one and able to handle the vastly increased burden of responsibility, there are 99 who want a poly relationship but who are either unwilling or unable to accept the increased responsibilities, or who simply don't recognize that these responsibilities exist. The harm that can be created by these 99 far outweighs the benefits acrued to the few who can handle the responsibilities. And, as stated above, it is not the government's place to try and figure out who is responsible enough and who is not.
Disclaimer: I'm basing this on second and third hand experience. I've not heard tell of any study to actually measure this (although defining "readiness for responsibility" is beyond the scope of any study, I think.
8: The language and structure of the unions should be such that, at such a time in the future when society in general has matured to the point of being able to handle polygamous unions, they can be seamlessly incorporated into the law. Such unions, when finally allowed, must be mutually reciprocal (i.e. entry into a polygamous union requires that all members of the union agree).
Although I do not believe that society as a whole is ready for polygamy on any sort of scale, especially not in conjunction with the dramatic changes already proposed here, there will come a time that we are ready, as a culture, to handle legally sanctioned polygamous unions. Incorporating such into the body of law should not require a massive undertaking to rewrite the law (an undertaking that will undoubtedly cause a huge uproar from the minority who are not ready, and will also undoubtedly lead to mistakes on the part of the lawmakers). Instead, it should be easy and painless. When the time is right.
The reciprocity requirement is simply a protection for society as a whole, as well as for the individual members. A person who poaches upon another's relationship damages the other partner without that partner's consent and, in many cases, knowledge. A reciprocity requirement would prevent this sort of pass-along harm.
I think that about covers the requirements I can think of, although I'm sure I missed a few. My next assignment would be to write an actual law incorperating all of this, but that's still somewhat above my pay grade...and experience.