go_team

I think just not legislating marriage would be by far the easiest solution to the whole same-sex marriage/civil unions/family values mess. Sure, I can understand why the government's involved, but that doesn't mean I think it's right. Not by a long shot, and especially not when there's ways of doing all the tax and property and dependency and inheritance stuff without getting the archaic, arbitrary, discriminatory, and pseudo-religious institution involved (as you already pointed out). Am I preaching to the choir yet?

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Is there a good way of designating someone(s) else to be a legal relative without having it easily overturned by biological relatives? I think something like that needs to exist, somehow. Last I'd heard, power of medical attorney and whatever the "we are the parents of this child" legal documentation is were routinely overturned by parents when people weren't legally married.

I think there does need to be some amount of off-the-shelf legal documentation provided for something as common as marriage. It doesn't have to be government-enforced: it could be something like providing easily-modifiable templates for a couple of different sorts of arrangements (temporary household, permanent household with separate accounts, permanent household with combined acounts, household with kids, multiple households with kids split between them[1]). I think something similar is currently done with wills.

I don't know how taxes would work out in my ideal world, but any change to marriage that involves flexibility in numbers or taking it out of government control is going to cause big upheavals in tax law. That's a huge dollop of inertia against most marriage law changes. (Not same-sex marriages, though, unless the tax laws are more sexist than I'd thought.)

[1] This is one of my personal squicks, but I don't think it's a good idea to not provide legal support for it.

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What with the prevalence of divorce and remarriage in U.S. society, I think parentage, at least, is a little more well-defined than "married to the biological parent of this child". However, the one book I've read on legal advice for unmarried couples warns very strongly against lying on birth certificates, to the point where I wonder how common it is for women to name their husband (or cohabiting partner) on birth certificates, irregardless of the kid's actual paternity... ick. It's also way possible (although inconvenient, and especially for same-sex couples) for unmarried partners to adopt each other's children. Speaking of adoption, however, it kinda creeps me out that it'd be easier for same-sex couples to adopt a legal parent-child relationship than even an "I can't believe it's not marriage" domestic partnership or whatever.

Your "personal squick" sounds like something I'd love to see more of --- multiple households helping to raise each other's children. I've always kind of joked that I'd have kids if someone else would raise them, and when I'm feeling really ambitious I think intentional community and lots of friends living within walking distance of each other and big child-exchange programs. I can't even begin to imagine how the law could accommodate that kind of arrangement, though. Sigh.

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I'd vaguely thought that parentage was easy if a)it followed biology, b)it followed legal marriage, even if said marriage didn't exist any more, or c)biological relatives weren't jerks. I hadn't really been keeping up with news, though, and it's the sort of thing I'm glad to be wrong about. I suspect my perceptions are skewed by mostly hearing splashy news stories.

My personal squick was stated too vaguely. Although I haven't really thought about intentional communities and godparents and pseudocousins (personal term for the kids of my parents' longterm friends when I was a kid) much, I approve of that sort of thing. Deeper and broader social support networks sound good. The squick is when kids are pulled between various households because of divorce and other relationship breakups, especially when it involves parents passing on their stresses to kids and/or not paying much attention to kids.

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I've been trying to write a comment that said that. I think that the legal documentation for marriage (or to replace marriage) should be standardized (or mostly standardized). I think this should be the case because otherwise people will neglect important aspects (such as what happens in the case of a devorse) under the assumption that such a thing wouldn't happen to them.

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I'd hope the templates would help with some of that, or with the sort of things that you just don't think of until you've been a divorce lawyer. In practice, though, I could see people thinking that it's more romantic to remove the parts about divorce or abuse or whatever.

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kuddliphish.livejournal.com

The problem is people are lazy about their legal affairs. Most people don't have wills (let alone living wills) written up. When you die (or become unable to make decisions yourself) someone has to decide what to do with your body and your stuff. Government (or at least the law) has to be involved with that, because there has to be a consistent way of deciding such things and really, that's what we have laws for. Your next of kin is generally the one who has the "right" to pull the plug and go through your personal belongings. I believe that "next of kin" is defined as parent or child unless you're married. Frankly I would hate for my parents to be the ones to decide what to do with my body, because they don't really know me as a person. Then again I would be equally uncomfortable with some people I have had as roommates doing the same. The solution in my mind is to have a domestic partner registry that works, in the legal sense, like marriage. Some kind of EASY way to declare anyone you damn well please as your next of kin. Essentially if marriage is not going to be tied up in legal stuff, then something just as user friendly should be. And the fact that marriage is not user friendly for homosexuals is plain old stupid, but a different issue in my mind from separating marriage from the law.

It's a little weird too, because if you separate marriage from the law then only people with religious ties (a church to get married in or by) will be married, which I think would be unfortunate because I don't think of marriage as having all that much to do with religion.

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I know marriage isn't going out of style (let alone the law) any time soon. My practical solution is to let religious institutions have their monopoly on "marriage" and whatever it entails, and to separate out the legal benefits currently associated with the ceremony into something purely civil and purely secular, and open to anyone who wants to sign up. That way the religious conservatives can have their "one man, one woman" arrangement and don't have to freak out every time someone brings up "gay marriage", and everybody can have the benefits relatively easily. People who want God in their relationships can have it, just not in any legal sense, the anarchists can have state-free purely ceremonial ceremonies for their families and friends, and everybody else can have whatever blend of the two they want.

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I wonder if religious conservatives don't really understand that their churches are allowed to make restrictions above and beyond the legal ones. A lot of churches already refuse to marry people who aren't members or who haven't had premarital counseling or who are cross-religion. I'd think the extension would be obvious.

(I'm going to call the legal package, if there continues to be one, "legal marriage" and whatever the participants call a marriage "marriage" (unqualified), but I'm stubborn and stuff.)

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I would hazard to say they understand perfectly well (the Catholic Church has been doing exactly this for decades at least), and don't care one whit. Religious conservatives, at least those of the virulent stripe I dislike so much, believe that their morals are right and thus everyone else must follow their code, with it imposed by legal force if necessary. What's good for them is good for everyone. They believe that writing their morality into law would create a more virtuous society. To these individuals, laws against murder and laws against homosexual activity are the same in kind if not in degree.

I have some other thoughts on this topic, but they're not well-formed enough to commit to electrons yet.

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I was going to say more or less exactly the same thing --- regardless of whether religious conservatives know they have powers above and beyond the law, that's not the issue for them. The issue is that they want to extend those powers beyond their congregations to the general population, and that's where they start rubbing me the wrong way bigtime. Jerks. (Also, but mostly just to be snarky, I'd have to say that the Catholic Church has been doing stuff like this for much longer than decades. So has Judaism: "convert or you can't marry in the synagogue" was the general rule for a loooong time, and that's only been changing in the more liberal/reformed synagogues, and only relatively recently on the big scale of things. Hell, the Mormons have had similar restrictions on marriage for much longer than mere decades, and they haven't even been around that long!)

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I think you're overly cyncical. I also think you're probably right. *sigh* I prefer a n-tiered system of morality (things bad for everyone, things bad for my group only, ..., things bad for me only) to a 2-tiered one.

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neonelephant.livejournal.com

Yeah, that's great. But who's the metamoderator?

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Sometimes you have to work for evidence to support a position, and other times it falls into your lap. This is a perfect example of what I was talking about in my previous post.

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I wonder about that too. A lot of people are really stupid. A lot of people probably never stopped to think about it. I know I never though to think about it until my mom told me that Josh and I might have to look a long ways to find a Catholic priest/church to marry us because I'm not Catholic. I just assumed we'd decide together where we wanted to get married--I didn't think about the church having a say.

Also, I think that politicians are milking people's stupidity for their own advantage. It helps them to push an agenda called "family values." And if you are a politician who can name an issue "family values" and get behind it, then you have a real advantage. How could anyone be against "family values" (unless s/he knew what it really meant)?

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Did you know Matt and Carolyn? I can't remember if they were before your time or not, but they had a Catholic + non-Catholic wedding in a Catholic church. I think it involved more counseling and talking with priests than the average Catholic wedding. They'd probably be good advice people.

I'm going to start promoting baby-chainsawing under the name of "Family Values" one of these days.

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pmb.livejournal.com

"I'm pro-Family values and I chainsaw babies"

or

"chainsawing babies: a true family value"

or

"Love your family? Love the lord? Why aren't you chainsawing your baby?"

or

"Love means chainsawing babies"

or

"Spare the chainsaw, spoil the baby"

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akjdg.livejournal.com

Yeah, chainsaws!! Screw the civil union crap, its about the chainsaws, baby!! (Or perhaps not baby anymore, as the case may be).

Notes:

1. I don't really think you should screw the civil union crap. I just got carried away with the chainsaw thing.
2. I agree it is absurd to try to legislate this on the federal level (Bush continues to redefine 'Republic-fuckme-an' for me. I thought they sucked before...) The state level is somehow less repugnant (only mildly nausating?) but I'm more inclined to say 'pity the fools that live there', myself regrettably included.
3. Pround to be reply #23 on this thread.

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pants-of-doom.livejournal.com

I'd like to see more people use wills, and be able to name someone for power of attorney. I think a lot of older single people would name close friends, rather than someone they're dating, and I'd like to see better structures for that. I'd also like to see people's decisions stand up to their parents' desires in court, but while I'm wishing, I'd like a vegan ice cream, too.

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clairebaxter.livejournal.com

While it is easier to get good sorbets (including chocolate sorbets) there are also good vegan "ice-creams". My favorite is Soy Cream's mint chocolate chip. (Not to be mixed up with Soy Dream, which is vile.)

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clairebaxter.livejournal.com

Oops. I forgot to mention Tofutti "ice-cream" (and tofutti cuties) which are absolutely great in every flavor. It's hard to do a good vanilla, but they do.

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kungfupolarbear.livejournal.com

well marriage is a contract.. so that's where contract law comes in.. and state legislature can interpret how they want to view certain types of contracts (real estate, etc.) .. so on those grounds the states do have a right to legislate how they use the contract, but I still say that the Federal government does not..

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amoken.livejournal.com

The point is that marriage should not be a contract in and of itself. The parts of the marriage idea, as it now stands, that are legally binding already have other legal representations. You can make all sorts of contracts to bind two people in just the same way.

There are the implied parts, namely mating and companionship, to marriage which should not be legislated. I agree that if we allow marriage to be its own kind of contract then of course the states can legislate how that contract works. My argument is that these portions of the contract get legislated when they shouldn't, to the point where they want to legislate the genders of the parties involved, whether mating is allowed with those not involved in the contract, and so forth. These are personal decisions, and could easily be put into other contracts if the parties so desire. These should not be legislated by the state.

And of course, marriage was originally either a religious institution or a (rather concrete) symbolic union of two groups (kingdoms, tribes, whatever). If we separate church and state, the former doesn't count. The latter does have to do with the state, but we frown on that behavior in the US now, so we can't use that excuse either.

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kungfupolarbear.livejournal.com

Yeah I was just explaining the rationale. You do have an excellent point about the church/state seperation coming into play.. hrmmmm!

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kungfupolarbear.livejournal.com

From what I learned in my law class, it SHOULD be up to the state to determine marriage laws. For instance, Vegas has different marriage laws than many other places in the country. You can get married and have it anulled there while only being a resident for like 5 days - other states require you to be a resident for 6 months before getting an anullment. Taking stock in that example, it should be up to the states to determine what they want to do with marriage. I'm trying to have faith in the legal system here.. that Bush won't get his way.. but yeah damn does that tick me off. If anything else he is alienating gays, and even some republicans who are for states rights. Maybe this means he won't get re-elected...

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I rather like this thread of discussion, so I'll try to stir the pot a little more. Please forgive me for my minor disrespects, which are only intended as goads to the intellect and not the heart.

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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If a purely civil and secular equivalent to marriage were available to anyone who wanted to sign up, I'd propose it to Peter tomorrow. I want the legal and financial benefits but not the social expectations, which give me the willies (and let's not get started on the religious stuff, shall we?) I want the law to govern inheritance, taxes, dependents, and all that crap, and leave the morality to the individuals involved (if only it could be that simple!) Relationships are not one-size-fits-all, and least of all in the social-moral sphere. I don't need people thinking they understand my relationship to my partner because it's called "marriage". If anything, I'd rather not have anything to do with the word.

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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If a purely civil and secular equivalent to marriage were available...

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 a purely civil and secular equivalent to marriage were available to anyone who wanted to sign up...

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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...to anyone who wanted to sign up...
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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You make me want to look up a detailed list of what a marriage legally entails. There are a lot of things which I know it does entail but I don't know precisely which are purely social and which are legal.

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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...a detailed list of what a marriage legally entails...
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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Is the link social or legal?

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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The link between marriage and sex is (obviously) both social and legal, although it's somewhat blurred by the issue of procreation (although I don't think anyone would seriously propose banning marriage for infertile heterosexual couples...) Marital/spousal rape is a really good example of the interaction between social and legal expectations about marriage and sex. In general, even when it is legally possible for spouses to charge each other with rape, it's still very hard to get a conviction, even more so than with other acquaintance rape cases. I think that says a lot about the power of the social expectations of what marriage means sexually, right there. According to this essay (the first thing that turned up when I plugged "marital rape" into Google, it wasn't until the 1970s that the definition of rape as "a man forcing sex on someone other than his wife" really began to be challenged (in the U.S., at least) and spousal rape only legally became a crime in all 50 states in 1993 (ick!), and there are still various exceptions in 33 states (double ick!)

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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Marriage law is fairly gender-symmetric in the US, as far as I know. Marriage custom, on the other hand, is most definitely not: see typical divorce rulings on the custody of children and alimony.

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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Hmmm... this comment sounds almost temptingly like flame-bait. But perhaps this comment is also serious. I presume your sincerity.

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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