July 23, 2009

Should government stay in the "marriage business"?

From the pages of Time magazine to the Honolulu Star-Bulletin and everywhere in between, I've heard numerous calls for government to "get out of the marriage business." The heated national fracas over gay marriage has caused some to question whether government should have anything to do with marriage as a social institution. If I may paraphrase, the argument usually goes something like this:

Marriage is a church issue, not a state one. Since marriage is a private agreement between two individuals, it should not be subject to government interference. Just as one's personal religious beliefs should not be a matter of public debate, neither should someone's marriage. If the government doesn't regulate people's baptisms, confirmations, Bar Mitzvahs or other religious ordinances, what gives them the right to meddle with marriage? Most of the political-religious controversy surrounding same-sex marriage could be resolved if the government would simply stop issuing marriage licenses. This would allow states to maintain religious neutrality by not promoting or discouraging any form of relationship over another. People could define their relationships according to their own beliefs, religious or secular.
The appeal of this reasoning plays well in today's post-religious climate. Most people don't want the government telling them what to believe, who to love or how to behave in their private lives. Ceasing the government’s role in the recognition of marriage, so the theory goes, would be a way to validate gay partnerships in the civic square while protecting the religious freedom of churches and clergy. By simply removing the dreaded M-word from the vocabulary of government, we could all put away our bullhorns and go home happy.

Or could we?

These days, it's nearly impossible to discuss the civil-legal institution of marriage (namely, the kind of thing conferred by a marriage license) without opening a religious-political can of worms. Perhaps I'm naive to attempt such a feat, but instead of discussing the theological nature of holy matrimony (which in my Protestant tradition is a sacred, lifelong covenant uniting a husband and wife as "one flesh" in the sight of God) or adding my voice to the cacophony surrounding the politics of gay marriage (been there done that), I would like to address the following question: Is there any solid non-religious (dare I say "secular") basis for the government to issue marriage licenses?

The short answer is yes.

While some well-meaning libertarians and others see the elimination of civil marriage as a means of resolving the gay marriage controversy, this would create far more problems than it solves. It’s not that I believe government should be promoting a particular religious agenda or regulating what goes on in private between consenting adults. Nothing could be further from the truth. My concern is that political bickering over the issue of same-sex unions has caused us to lose sight of marriage's much broader sociological purpose beyond religious ceremonies and warm fuzziness shared between committed partners, gay or straight. In the public square, marriage is not merely about religion or sexual orientation. It's about the fundamental need for societies to gauge the comparative significance of human relationships.

To put it bluntly: Marriage provides a measuring stick we cannot do without. We can tweak it, re-think it, re-name it ("civil unions" or "domestic partnerships" anyone?) or re-define it however we think best, but until we decide that drinking buddies and pen pals should receive the same benefits and protections as couples who have pledged a lifetime of commitment to each other, government will always play a role in the so-called "business" of civil marriage. Even if marriage licenses were abolished and replaced with civil unions as some have suggested, I suspect most of the voices so loudly engaged in the gay marriage standoff would quickly re-direct their energies to the laws governing civil unions.

Let's say the government stopped issuing marriage licenses altogether and as an alternative to civil marriage, couples could create their own private contracts that would be enforced through contract law. Administering pensions, inheritances and custody battles would become more difficult, but not impossible. The bigger question would be how to legally distinguish between those who wanted an “old school” lifelong partnership type of arrangement (gay or straight) versus a pragmatic contract between drinking buddies who wanted to save money on health care coverage. Without the draconian categories of "single" and "married", what other simple criteria would employers and health care providers use to determine the seriousness of a relationship and consequently, who qualifies for benefits?

For example, if I signed a private civil contract with one of my friends who has a terrific health care plan or education benefit for "spouses", would his employer be willing to cover my medical expenses and pay for my grad school tuition since we signed a similar contract to the married couple next door? Would such a contract excuse me from testifying in court against my friend, as married couples are? If I were to obtain a “divorce” or terminate my contract with him, could I sign another contract with one of my international friends to secure U.S. residency for them, as married individuals can? What about those employers who actually DO want to provide certain benefits to an employee’s spouse (defined in the old-school, marriage license sort of way) instead of just a drinking buddy or casual acquaintance? If there were no civil marriage, would such an employer be guilty of discrimination for offering "special" benefits to certain types of contract signatories and not others?

As a deeply religious person who cringes at the conflation of God and country, I can understand why some people would like to throw the civil marriage baby out with the political bathwater. But just because the word “marriage” (a perfectly good and practical concept, even for non-religious folk) has become associated with culture war carnage does not mean government recognition for lifelong partners is a bad idea. Judging by the eagerness of gays and lesbians to obtain government validation and not merely sign a private contract, maybe there is something special about marriage licenses after all.

49 comments:

Christian MIller said...

Dear Common Loon,

Your paraphrase of “why government should get out of the marriage business” is a rather articulate statement of my personal view. I would, however, go further and say that the government should also get out of the special civil union business that confer exclusive government financial benefits and/or privileges on couples, straight or gay.

My reasons are that it is grossly unfair to single people and is not necessary.

I suggest that people will fall in love, live together, be committed to one another, have babies, be a family with or without the involvement of our government.

What is significance of government Marriage License? There is no requirement for any intent to love, live together, have a committed relationship, make babies or act “married”. What is the government achieving by granting a marriage license? A government marriage certificate is a rather hollow document, a voucher for some government subsidies and privileges.

By doing away with government marriage and civil unions and the associated benefits, you avoid the problem of “drinking buddies” getting married or forming civil unions to get benefits.

I also believe in equal pay for equal work. Employers should not be granting more compensation to married people than single people.

“…does not mean government recognition for lifelong partners is a bad idea.” Common Loon, please note that a government marriage license/certificate has nothing to do with “lifelong partners”.

Government marriage licenses are very special to gays because it would confer government sanction and approval to their life style.

Christian Miller
christiansmiller@gmail.com

The Common Loon said...

Thanks Christian for your response. While it may sound "fair" for the government to treat married and single people “equally”, here are some of the major questions that arise without the measuring stick provided by legal marriage/civil unions:

1) Should employers be permitted to offer health care for spouses/domestic partners of their employees? Without marriage licenses, how do we determine who qualifies for benefits? If employers are prohibited from insuring domestic partners, how would non-working spouses be insured?

2) Should spouses/domestic partners have the right to make medical decisions for an incompetent/disabled partner? Without marriage licenses, how do we determine who makes the call?

3) Should we do away with idea of couples filing taxes jointly? If so, this would penalize (rather than of incentivize) the sharing of household resources, which is a recipe for an even more individualistic society than we already have.

4) Should spouses/domestic partners have the right to inherit their partner’s assets without a will or without paying taxes on the inheritance? For example, if grandpa dies, why should grandma pay taxes on what she inherits from him? Without a marriage license, she would pay the same taxes on it as if grandpa left all his assets to Microsoft.

5) Should spouses/domestic partners be permitted to make financial transfers or receive gifts from each other without paying taxes? Again, this penalizes grandma if the answer is no.

6) Should spouses/domestic partners be able to receive their partner’s Social Security and veteran-benefit payments if/when they die? Without a marriage license, who’s to say grandpa’s check should be sent to grandma’s mailbox after he dies?

7) Should spouses/domestic partners be able to sponsor their husband/wife for immigration to the U.S.? If not, this penalizes Americans who marry a non-citizen.

Bottom line: Marriage licenses don’t turn bad relationships into good ones, but they enable spouses to share their resources more freely, which is a good thing in a society already reeling from the consequences of rugged individualism.

Most importantly, the welfare of children is improved when their parents have access to the benefits granted by legal marriage.

Christian said...

Common Loon,

Some answers to the specific questions you raise:

1. Health care is a big mess in the US. Quality is good but cost is brealing the bank and the distribution of cost is grossly unfair. Employers should not be involved in health insurance. They bring no "value added" to medicine. The only reason employers do it now is that when health insurance premiums are paid by the employer they are not counted as income and not taxed to the employee. Having your health insurance tied to employment is a big problem when changing jobs or losing a spouse. Each individual should have his/her own health insurance. Safer that way.

2. Each person, married or single should have a 'durable power of attorney" that specifies who is to make medical decsions in case he is unable. A spouse may not be the best choice.

3. Our income tax laws have become unnecessarily complicated. Yes, each indiviual should file his/her income taxes. It is not a big deal. Assests and their income can still be shared. Right now being married and filing jointly lowers combined taxes in some cases and raises them in other cases.

4. Inheritiance tax is even a bigger mess and in a major state of flux. In 2010 inheritance tax goes to zero. 2011 it is scheduled to got back up. What is going to happen is anyone's guess. The simple and fair answer is to set the exemption for everyone, married or single, fairly high say $2 million. Granny gets her half of the community property tax free (she owns it). She gets $2 million tax free from her grandpa's estate plus the rest of his estate after estate taxes are paid (but only if he does not will it to someone else). Granny will be just fine.

5. You can already gift up to about $12,000 per year to anyone without taxe consequences. This issue needs to be resovled as a part of inheritance tax law.

6. Right now Granny does not get more Social Security when Granpa dies. While he was alive, she would be getting 50% of what he was getting. For example I get $1500 each month from Social Security. My wife collects $750 based soley on her status as my wife. She does not qualify for Social Security on her own. This is teriibly unfair to old single people who may need this money more than we do.

7. Immigartion is also a big mess and worthy of its own debate. In short. I say no anchor babies and no mail order brides of convenience.

8. Welfare of children is important. Give benefits to the people who are raising the children.

The Common Loon said...

Christian,

While I admire your creativity in trying to resolve the concerns I raised without the legal status of marriage, it’s clear from your answers that many arenas of society would be significantly complicated by the abolition of civil marriage.

Any attempt to arrive at a workable solution for these convoluted issues (health care, taxes, immigration, child welfare etc) without the legal status of marriage is like boxing with one hand tied behind your back. As I said in the original post, doing away with all legal forms of marriage/civil unions creates more problems than it solves.

On immigration for example, not every American who marries a non-citizen can be swiftly linked to “anchor babies” or “mail order brides” as you suggested. If you want to get rid of marriage, you must accept the natural consequence that Americans will no longer have the freedom to marry a German, Canadian, Malaysian or any other foreigner and expect citizenship for their spouse.

In essence, whoever currently benefits from a marriage license(those who have health coverage though a spouse’s employer, those who marry internationally, children whose parents are married etc) would be negatively impacted by the extinction of civil marriage.

Eradicating legal marriage while keeping many of its rights and benefits in tact requires an acrobatic dance to have it both ways. It sounds like you want children to grow up in homes where their parents have the benefits of legal marriage, but you don’t want those same parents to be legally married.

Christian MIller said...

Common Loon,

Let us discuss this government marriage issue along two tracks. Along track one I will explain how specific benefits now currently bestowed by our government upon folks with government marriage certificates can be practically phased out or made available to people without government marriage certificates. Along track two I would ask you to address the broader issue of why you think government issues government marriage licenses and government marriage certificates.

I will start with you concern 2: Should spouses/domestic partners have the right to make medical decisions for an incompetent/disabled partner? Without marriage licenses, how do we determine who makes the call?

I submit that if a person, married or not, has any concern about medical decisions that might have to be made by others or if that person has any considerations for those people that may be forced to make medical decisions for on his behalf if he is becomes incompetent, that person should make his wishes clearly known in by means of a “living will”. As I said before, he should also have “durable power of attorney" that specifies who is to make medical decisions in case he is unable. A spouse is probably not the best choice.

It is not considerate to his family, friends or doctors to force them into the agonizing situation of having to guess “what Ralph would have wanted”. The current marriage laws do a disservice in that they make it easy for people to avoid dealing with this important medical issue. Also, the marriage laws do not eliminate ugly court battles, such as the Terri Schiavo case.

The Common Loon said...

Christian,

You seem to be ignoring the issues I raised in my last comment, so I will try your two-track approach in the hope that it helps.

Track one: As I’ve been saying all along, abolishing legal marriage with nothing to replace it raises more questions than answers, creating far more problems than it solves. To use an analogy, let’s say civil marriage is like a chicken that produces eggs (certain benefits), which millions of Americans depend on directly or indirectly. If you want to get rid of the chickens, you have to be willing to give up the eggs too.

Based on your comments so far, you want to have it both ways: yes to eggs, but no to chickens. While it might be possible to come up with a few eggs some other way (ducks, geese, quail, etc), my view is that the “eggs” or benefits currently granted by legal marriage (immigration, health care, child welfare, taxes etc.) cannot be easily piecemealed together from other sources without drastically penalizing those who depend on those benefits.

In other words, killing all chickens would result in a massive egg shortage that could not be filled by goose, quail or duck eggs (in quality or quantity). Besides, why are the chickens so terrible to begin with?

Track two: The reason why we need legal marriage documents is because wedding photos won’t hold up in a court of law. As long as we want the “eggs” provided by marriage (health care, immigration, child welfare etc), we need legal categories to distinguish between “single” and “married” people.

If everyone were classified as “single” (which seems to be your proposal), this would make it much harder for committed couples with children (formerly known as ‘married’) to share resources. It’s in society’s best interest for children to grow up in homes of married parents to the greatest extent possible; the statistics bear that out. (See my June 10 post entitled ‘Strings with no marriage attached’)

Regarding living wills and “durable” powers of attorney, those are dandy and great, but you still didn’t address the issue of married couples who DON’T have one of those. I suppose you would assume such spouses do not deserve a say in their partner’s emergency care on the off chance that the mailman knows them best. Speaking of ugly court battles, those would only become more prevalent without legal marriage documents.

Christian MIller said...

Common Loon

Track One: You say “living will and ‘durable’ powers of attorney, those are dandy and great…” Would you say that it would be better for legally married people to have such documents specifying their wishes rather than depending on laws related to legal marriage? By the way, laws related to marriage can be changed at anytime by our government.

Track Two: I do not intend to ignore issues that you raise. I wish to find where you and I have common ground so that we can have a basis for debate. Before we address your contention that “abolishing legal marriage with nothing to replace it raises more…problems than it solves.” I would like to get your take on the question: Why does our government issue marriage licenses and government marriage certificates?

The Common Loon said...

Track one: Would you say that it would be better for legally married people to have such documents specifying their wishes rather than depending on laws related to legal marriage?

Sure, I will grant that for the purposes of emergency medical decision-making, a living will or other advance health care directive would be preferable to a marriage license if you were hypothetically forced to choose between the two. However, I don’t see why people should be prohibited from having both documents, especially when you consider all the additional benefits conferred by marriage licenses.

To use (another) analogy, legal marriage is like one of those printer-copier-scanner devices now commonly sold in stores. It serves a variety of purposes and saves you the trouble of buying 3 different machines. Now, is it true that a premium-grade high-end printer can provide better printing quality than most “all-in-one” machines? Yes (the same could be said for the performance of specialized scanners and copiers), but the average citizen is not likely to buy a separate machine for each function.

The existence of specialized devices geared for a specific purpose (living wills) doesn’t mean multi-purpose mechanisms (marriage licenses) are a bad idea. As I’ve already stressed, civil marriage encompasses much more than emergency medical decisions. Living wills do not eliminate the need for marriage licenses any more than specialized printers eliminate the need for “all-in-one” devices. Both are important.

Now that I’ve answered your hypothetical question, will you please answer mine: If there were no legal marriage, what would happen in the case of couples who do not have a living will or “durable” power of attorney? From what you’ve indicated so far, your answer appears to be something along the lines of: “Tough luck. If you don’t have a living will, your spouse should not have a say because they might not be the best person to make the call.” Have I understood you correctly?

Track two: Why does our government issue marriage licenses and government marriage certificates?

Marriage documentation is a practical necessity in order to administer a standardized set of legal benefits that millions of American couples (and their children) depend on for their basic participation in a healthy society. Even the most secularized “anti-marriage” countries in Western Europe have legal categories separating singles from couples.

As I said in my last comment, “The reason why we need legal marriage documents is because wedding photos won’t hold up in a court of law. As long as we want the benefits provided by marriage (health care, immigration, child welfare etc), we need legal categories to distinguish between ‘single’ and ‘married’ people.”

Here’s my question for you: Since your proposal is to eliminate civil marriage, are you willing to accept the logical consequence that everyone would be legally classified as “single?”

Christian said...

Common Loon,

Track One: An advance health care directive supercedes provisions of marriage law, therefore in this narrow case it does not matter if a person has a marriage certificate or not. As for “all the additional benefits confered by marriage licenses”, I will eventually deal with each of these one by one.

In this very narrow case depending on marriage laws to have your wishes carried out is a “bad idea”. It is sort of like having the false security of owning a life boat with a hole in it. As I mentioned above, the popular perceptions of legal marriage do a dis-service because they lull folks into believing that they don’t need to think about their advance health care. Not having an advance helth directive is extremely inconsiderate to the those folks left behind to make the medical decisions.

Turning to your question: “If there were no legal marriage, what would happen in the case of couples who do not have a living will or “durable” power of attorney?” It would be the same legal situation as with a person without a marriage certificate. As we are starting to discuss in Track Two, a marriage certificate does not necessarily mean that there is a caring spouse that one would want making decisions about your health.

If it is OK, I would like to move on to the issue of inheritance. Not inheritance tax yet, just inheritance. Many people do not have a very good understanding of how the system now works. The states have different laws, but California is pretty typical of the community property states. Each spouse has a 50% interest in the community property. When a spouse dies, the surviving spouse retains his/her ownership in 50% of the community property. The remaining 50% becomes part of the deceased spouse’s estate. By a will the deceased spouse can will that 50% to anyone, the surviving spouse, children, grandchildren, parents, a friend, or the Red Cross. There could be a situation where the family home that was community property could end up half owned by the surviving spouse and half owned by the Red Cross. If there is no will, the court will divide the deceased spouse’s estate among his family members including his surviving spouse.

If one cares about how his assets are divided upon death, a will is how to do it. Further, any major assets such as the house should be held jointly as “Joint Tenants With Right of Survivorship” or “JTWROS” for short. Then, when one spouse dies 100% of the ownership passes immediately to the surviving spouse, it does not pass via a will. This is simply accomplished by checking the box “JTWROS” on the title application.

Not having a will or not owning major assets as “JTWROS” almost guarantees a messy probate. I submit that marriage laws provide only false comfort in the area of inheritance.

Track Two. You ask, “are you willing to accept the logical consequence that everyone would be legally classified as “single?” My answer is: Yes. It would be fair. People without marriage certificates should not have to subsidize people with marriage licenses. Why does government want to give exclusive benefits to people with marriage certificates?

The Common Loon said...

Christian,

I thought we were discussing marriage vs. no marriage, but you’ve turned this into a debate pitting marriage licenses vs. living wills, as if we can only keep one and get rid of the other. This is a false choice. The same applies to your false dichotomy of getting legally married vs. having a will.

If marriage is abolished as you suggest, the problem will not be with all of the thoughtful, educated and resourceful couples who are likely to have all of their legal documents in order. My concern is for those less fortunate who, for whatever reason, are in a committed lifelong relationship and are sincerely married in the religious/social/cultural sense, but do not have the exact combination of supplemental documents you so adamantly prefer to the exclusion of legal marriage.

If not having an advance health care directive is “extremely inconsiderate to those folks left behind,” how much more insensitive is it to deny couples access to an essential civil document that confirms they are even married in the first place? Is it “considerate” to deny families the legal status that binds parents together for the sake of their current or future children?

You continue to raise the point that marriage is no guarantee that your spouse will be caring. To that I say: so what? Does that mean we should penalize the millions of spouses who are “caring” (whatever that means) by taking their marriage rights away just because there are some “uncaring” people out there?

I’m glad you’re consistent enough to admit your proposal requires re-classifying everyone as “single.” Unfortunately, such a drastic change would reflect a highly individualistic, every-man-for-himself mentality that discourages interdependence, family formation, commitment and responsible parenthood, resulting in grave consequences for society’s most vulnerable, particularly children.

Are you also consistent enough to admit you would like to see every child in America raised by a (legally) single parent?

Christian said...

Common Loon,

I thought the issue we were discussing was the question. Is there any solid non-religious (dare I say "secular") basis for the government to issue marriage licenses?

We had been going down two tracks. In track one I intended to show that each of the many specific subsidies and privileges now granted by the government exclusively to people with government marriage licenses or special civil union certificates is either counter productive, unnecessary or unfair. Further that each one should be phased out or made available to everyone.

In track two we were going to deal with the more philosophical question that you originally raised. I am personally a true believer in “old-school marriage” that is celebrated in a church with family, friends and vows of commitment. My wife and I have been married for 40 years, had a big church wedding, raised two wonderful daughters and are now enjoying retirement. To my recollection, the only time we had to show our government marriage certificate was for my wife to start collecting a monthly Social Security payment. The gay marriage debate in California caused me to ask myself the same question you had posed about the basis for government to issue marriage licenses. I could think of no justifiable basis and therefore advocate that the government withdraw from the marriage business. You, who also seems to be an advocate of “old-school marriage” came to the opposite conclusion and hence an interesting discussion.

I am advocating that the government stop issuing marriage licenses and special civil union document. Phase out all laws dealing with marriage or make them applicable to all citizens. There would be no legal classification or distinction between married and unmarried.

I would ask your view on what there is about "marriage" that motivates our governments to grant marriage licenses; marriage certificates; exclusive marriage subsidies; and exclusive marriage privileges?

I also believe in the separation of church and state. It occurred to me that my minister is actually a government agent regarding marriage. I do not like the idea that my government is involved in my church’s sacrament of marriage. I do not like as a citizen and do not like as a member of the church. The government should get out of the church and the church should not allow the government into the church. My government and my church are both in the wrong in this regard.

I would like to see every child in America raised by it biological mother and father who are married in the “old-school” fashion and who provide a loving home with no government involvement.

You express concern for those “less fortunate”. Although I believe individuals are better about making decisions about their lives than the government and I do not believe in the “nanny state”, I do believe that we are a rich enough society that we can and should help the “less fortunate”. This help should come from family, friends, church, and community. Government money should be distributed based on need married or not, and not as a blanket to everyone who happens to have a marriage license. The minister and mom and dad should counsel the engaged couple. “This is what you are getting into. These are things to think about. There are serious agreements and vows to be considered.” I do not feel that our government should be in the marriage counseling business.

The Common Loon said...

Christian,

From what I can tell, we agree on several things (correct me if I'm wrong):

1) Church-state separation is a good thing.

2) Marriage in the personal-religious sense (i.e. church weddings performed by clergy signifying a lifelong commitment in the presence of family, friends and community) is good for a healthy society.

3) Children are better off when their parents are married in the committed personal-religious sense.

4) Government has some role to play in protecting the vulnerable and helping the needy.

The crux of our disagreement hinges on this question: Is there a need to legally differentiate between married and single people? Your answer is no. My answer is yes and here’s why.

If everyone was classified as ‘single’ and no one was legally ‘married,’ there would be sweeping social ramifications that are anything but fair. Here are a few that immediately come to mind:

1) The number of people without health insurance would rise drastically since millions of Americans obtain coverage through their spouse’s employer.

2) Americans would no longer have the freedom to marry non-U.S. citizens and obtain citizenship for them. Children born to multi-national couples (i.e. American dad, Japanese mom etc) would suffer.

3) The legal ties that hold families together would be weakened. In the eyes of the law, children would no longer be the product of a recognized union but of two unaffiliated individuals. Generally speaking, the less connected parents are to each other, the worse children fare.

4) Without any legal ties binding couples together, “divorces” would become even easier to obtain. After all, nothing was ever official.

5) With less incentive to get married (in the personal-religious sense), more couples would opt for unmarried cohabitation, which statistically has higher rates of breakup and adverse social impacts (domestic violence, child abuse, poverty etc.) compared to married couples.

6) The percentage of out-of-wedlock births would become 100%.

7) Without legal marriage, we lose a valuable ‘measuring stick’ to help differentiate serious relationships from casual ones. This translates to less societal accountability for irresponsible men who father children with a variety of women. If no one is married, no one is technically cheating.

8) Abolishing marriage restricts the options of women. With spouses no longer eligible to benefit from their partner’s employment (i.e. health coverage, social security etc), women who want to avoid expensive day care and raise their young children at home would be solely dependent on their "husbands to to provide for them financially.

9) Abolishing marriage restricts the options of private employers. Even if a company wishes to freely offer certain benefits to employees and their spouses (discounts, insurance, paid leave to care for a spouse etc), they could no longer do so.

10) Spouses would be forced to testify against each other in court, as if they were purely unrelated bystanders without rights to privacy in their most intimate relationship. Categorically eliminating such a well-established legal right is pure folly.

Bottom line: Getting rid of all civil-legal recognition of marriage would lead to less marriage of the personal-religious variety. If in fact we both agree that personal-religious marriage is good for children and good for a healthy society, we should be seeking more of it, not less.

Christian said...

Common Loon,

Yes indeed, we are in agreement on the four points you raise. Excellent.

I will think about the 10 reasons you give for government marriage. In the meantime at the risk losing focus, I will share with you a response I had made in another discussion group:

I have given thought to your question, "Philosophically, do you agree with the idea of your government defining marriage in any way shape or form and why?"

I think you are close to the crux of this issue. It is not a matter of AGREEING with the idea of our government "DEFINING" marriage. The problem is that it is IMPOSSIBLE for our government to define marriage in any way shape or form. It can define who can be granted marriage licenses, but not WHAT marriaage itself is. I would put out a challenge to anyone to come up with even a candidate legal definition of marriage that our governments might use. I am not asking for a recommendation, but just a possible government definition.

Consider the problem the government has in defining a "sham marriage" with respect to the immigration of essentially mail order brides from Russia. We may want marriage to mean love, commitment, making babies etc., but it is not workable for the government to require love or anything else as a marriage license requirement.

If the government cannot define marriage then it does not make much sense for the government to subsidize it. How can the government know what it is trying to achieve with its subsidies?

Christian MIller said...

Common Loon,

Back to your ten points.

“sweeping social ramifications that are anything but fair.” We may argue about fairness being a primary objective, but it would be tough to argue that treating everyone the same (legally married or not) is not fair.

1. Health Insurance. Health care in the US has become a hot topic and marriage is only one of the complicating factors. Overall medical care in the US is excellent. The problem is that has become so costly that it soon break the bank; how the costs are shared is terribly unfair. We have a system that combines the worst features of a government operated system and the worst features of the private sector system. A solution is to separate the two. Set up government hospitals and clinics with doctors and staff being government employees to treat people that can’t afford private health insurance. Then let the private be private. Get the employers out of the health care business by ending the tax code provision that exempts company paid health benefits from being taxed as income. Employers provide no “value added” to the health system, only more cost. Health insurance is too important to be linked to employment. It is difficult when changing jobs or getting fired or laid off and having pre-existing conditions being excluded by a future insurer. Likewise health insurance is too important to be tied to marriage for the same reasons.

2. Immigration is another hot topic. A solution for the whole mess is for US to set a strict limit on the number of permanent immigrants it will admit per year. Then each naturally born US citizen gets a once in a life time voucher to bring in one and only one person his choice. Your bride or your mother or your friend or your employee, but not all four. If you want to bring in all four you would have to get three other citizens to give up their vouchers. Then the government is not involved in deciding who are most worthy to be admitted.

3. “Legal ties that hold families together” You will need to explain. I do not see how the law can help create a good family. Our children have never seen our government marriage license.

4. Divorce is only an issue of care for the children and money. The law can’t make people live together or love each other.

5. People will get married in a church or in some other ceremony where they take vows. The statistics of which you speak confuse correlation with causality.

6. The term “out-of-wedlock” originated before government got involved in marriage.

7. I will make the blanket assertion that no law is going deter irresponsible men or women from having sex. The marriage laws do not address “cheating”. It is the “old-time” church marriage with vows is the marriage that addresses cheating.

8. If you want to financially support “less fortunate” stay at home moms, that is a separate issue. It is a waste of government money to give financial benefits to Bill Gate’s wife who stays home with their kids.

9. I addressed health employer health insurance above. I believe in equal compensation for equal work. A married employee should not get paid more than a single employee.

10. Two people could be married and live completely different lives on different coasts. Intimacy is not a condition of a marriage license. Two close friends could be sharing an apartment. I would allow every citizen, well in advance, to designate one person who would not be forced to testify against that citizen. This is an example of a right that should be extended to single people even if we retain government marriage licenses.

Your Bottom line: “Getting rid of all civil-legal recognition of marriage would lead to less marriage of the personal-religious variety.” Why?

The Common Loon said...

Christian,

My responses to your responses:

1) We both agree that in an ideal world, health care would not be linked to employment. But even with the potential for a public option on the horizon, it’s doubtful the connection between employment and health coverage will ever be completely severed in this country. Until it is, my original point holds true: Millions of Americans would lose health coverage if legal marriage were abolished tomorrow.

2) Your immigration proposal of giving vouchers to all Americans is even more radical than your government hospital idea, but I won’t get into debating it because such a solution is highly unlikely to ever be enacted. Until it is, my original point holds true: Americans’ freedom to marry abroad would be curtailed and children born to international couples would suffer if legal marriage were abolished tomorrow.

3) I’ve never said that legal marriage creates good families, only that it helps to protect families and their children (both “good” and “bad” ones, however those are defined) by giving them access to certain benefits. This does not negate my original point: If all marriages were legally annulled tomorrow, there would be fewer legal ties binding families together.

4) I’ve never said the law makes people live together or love each other, only that it helps to protect those who do. To say that divorce is “only an issue of care for the children and money” is to trivialize the destructive social impacts of divorce. If there were no legal marriage (and consequently no legal divorce process) it would be much easier for families to split up.

5) You’ve failed to account for the millions of people who get legally married, but don’t have a religious ceremony. Whether the knot is tied in a church or a courthouse, married relationships fare better in numerous ways as documented by this study:

http://marriage.rutgers.edu/Publications/swlt2.pdf

Of course, this should not surprise you since you agreed earlier that personal-religious marriage is good for society.

6) Whether we use today’s definition of “out of wedlock birth” or one from centuries past, children fare better when their parents are married, in both the religious and the legal sense.

7) Social stigma plays a role in personal decisions. If someone perceives they will be looked down upon for a certain action, they are more likely to think twice before doing it. Regardless of one’s opinion on the matter, divorce and cohabitation are far more socially acceptable than they were 40 years ago. Sexual behavior is not as “beyond our control” as you think; cultural norms are a big factor (for better or worse).

8) It sounds like you’re saying that since rich people benefit from legal marriage, we should take it away from everyone. I don’t support legal marriage because it lines the pockets of billionaires, but because it helps ordinary working families and their children. My original point remains true: If marriage were abolished tomorrow, women would suffer disproportionately to men.

9) I respect your right to oppose the idea of spousal benefits, but this does not alter my original point: Abolishing marriage restricts the options of private businesses.

10) I never said that intimacy is a precondition for marriage licenses, only that for millions of Americans, their most intimate relationship is the one they share with their spouse. Similar to your immigration proposal, I find your court voucher proposal both unrealistic and counterproductive, but my original point remains true: Spouses would be forced to testify in court against each other if marriage were abolished tomorrow.

The Common Loon said...

To answer your final question, here's why getting rid of all civil-legal recognition of marriage would lead to less marriage of the personal-religious variety:

Without any legal recognition of marriage whatsoever(gay, straight, Muslim, Jewish etc), our society would be sending the message that marriage is just a private ceremony for hyper-religious folks and doesn't serve any societal function or purpose for ordinary non-religious people.

In the case of millions of Americans who are not especially religious and do not want to pay for an expensive wedding, the benefits currently afforded are a key reason to tie the knot. Once you take those away, a lot of people will lose interest.

Since whatever remaining cultural "pressure" to get married is quickly fading, why would non-religious couples want to walk down the aisle if marriage meant absolutely nothing legally in terms of rights and benefits? Why not just save the money and move in together with no formal documentation as many are already doing?

Christian said...

Common Loon

1. I do not advocate an abrupt change. I advocate phased change. For example I would set a date for the government to stop issuing marriage licenses. I would start phasing out the benefits. One way to reduce the incentive for employers to give health insurance to employees is to allow all people to deduct health insurance costs from their taxable income. I was a small business owner. Health insurance for my employees was a major frustration and consumed a lot of management effort. Also we were not very good at it, just too much stuff to study.

2. I agree with the idea “that government is best which governs least.” I think that it is appropriate for our government to decide who should be kept out of the US (criminals, terrorists etc) but not who should be admitted in. Beyond my voucher concept I do not have a ready solution to the problem of two lovers of different citizenship. I only have a romantic faith that “true love will find a way”.

3. I am afraid that I still do not appreciate why you believe that “legal ties” are important.

4. I suggest that it is not the divorce that is destructive, but rather the causes that led up to the divorce that are destructive. I should have said that children and money are the only LEGAL issues with divorce. Families split up with or without a legal divorce.

5. I think that a statistical study would be suspect because of the difficulty of determining cause and effect. It seems to me that people who are likely to form good (old-time) marriages will tend to get government marriage licenses and have traditional weddings. As an aside, in most cases if you go to your minister to get married he, as a government agent, will require that you get a government marriage license before he will perform the sacrament of marriage. As a practical matter a couple that wants a church wedding has no choice but to get a government license.

6. If you act “old-time” married, neighbors and your children will not think otherwise. The important thing is how you live rather than a government document.

7. I agree that “Social stigma plays a role in personal decisions.” However, I maintain that “Sexual behavior is beyond government’s control”

8. There are some logic problems here. First, stopping giving is not the same thing as taking away. Second right now our government is taking away money from single people and giving it to married people. Try this: Give money to everyone. Also why would women suffer disproportionately to men?

9. I am stuck on the concept of equal pay for equal work. Otherwise employers should pay Latinos more because they are more needy.

10. I also agree that spouses should not be forced to testify in court against each other, but I would be interested to hear your reasons for supporting this view.

11. Our society and culture sends enough messages about marriage. The government does not need to send any messages. Also what is it about marriage that our government should be promoting? What kinds of marriages should our government be promoting? Should the government encourage couples to take vows?

You say, “once you take those (government benefits) away, a lot of people will lose interest.” That is a worse reason to get married than marrying a woman because her parents are rich. I do not know of any survey, but I cannot imagine that government benefits are a factor in the decision to marry in a significant percentage of cases.

“why would non-religious couples want to walk down the aisle if marriage meant absolutely nothing legally in terms of rights and benefits?” A secular wedding can be, and often is, a wonderful celebration of the exchanging of vows in the presence of friends and family.

The Common Loon said...

Christian,

If our discussion continues along its current trajectory, I suspect we will continue talking past each other because we each approach the issue with very different objectives in mind. Your guiding principle appears to be the shrinking of government while mine is the well-being of families and children.

I have two requests for you in your next comment. The first concerns the fact that I’m finding it increasingly difficult to tell if a) you understand my point of view and are merely disagreeing with it, or b) you have no idea why I think legal marriage is important to society.

You previously mentioned that my italicized paraphrase in the original post was an accurate description of your view. I would be grateful if you could make a similar attempt to paraphrase my view so I can see how well you’ve understood where I’m coming from. So my first request is for a brief paraphrase.

Second, I have a hypothetical question for you based on the fact that we’ve already agreed that children are better off when their parents are married in the personal-religious sense.

For the sake of the argument, let’s say you also agreed with the following premises:

1) Civil-legal marriage in its current form benefits children, both directly and indirectly.

2)If civil-legal marriage was eliminated and its benefits could not be reconstructed apart from laws determining who is “married” vs. “single”, children would be adversely affected.

Now to my question. Assuming the above 2 premises were in fact true, which of the following statements would best describe your view:

A) Ifthe elimination of legal marriage adversely impacts the well being of children, it should not be eliminated.

Or

B)Even if the elimination of civil marriage were to adversely impact the well being of children, it should still be eliminated on more important grounds (i.e. limited government).

Perhaps this will clarify the crux of our disagreement.

Christian MIller said...

Common Loon,

I will be traveling across the country this week and will pretty much be out of touch. I will, however, think about your questions and respond in a few days. In the mean time follows is a piece I had wirtten some time ago:
Marriage: The Unholy Alliance of Church and State

“By the power vested in me, by the state of California, I now pronounce you Husband and Wife.” declared the minister in front of the altar of God.

We have heard it so many times at weddings, movies and television that we forget the significance of this pronouncement and how it blurs the vast difference between the government meaning of marriage and the popular meaning of marriage.

The word “marriage” conjures in our minds and emotions the promise of love, caring, committed relationship, living together, making babies, families, and continuity. A government marriage license does not require or address any of those things. The couple does not even have to declare that they intend to like each other or live together. In this respect it is a hollow document, only a voucher for a bundle for exclusive government benefits and privileges. These subsidies have grown with little thought, challenge or debate during the 20th century.

There is a popular misconception that marriage in the eyes of the government is a contract between the bride and the groom. This is not quite true, “Though mutual assent is necessary to enter into a marriage, the marriage itself is a status or relationship rather than a contract, the rights and obligations of the parties thereto being fixed by the law instead of by the parties themselves” There are three parties: The bride, the groom and the government. The bride and groom merely agree (assent) to be governed by the government’s rules. The government reserves the exclusive right to itself to change the rules at anytime. No one reads the unsuspecting couple their “Miranda rights” or informs them about what they are agreeing to.

Our minister above conducting the Sacrament of Holy Matrimony is a government official, an “agent” of the State of California. There is a conspiracy of Church and State. If a couple wishes to have the Sacrament of Holy Matrimony in their own local church they will be forced, as a practical matter, to get a government marriage license in which they assent to this contract with government which binds them to whatever marriage laws the government wishes to enact or change.

The controversy over same-sex marriage should cause us to ask: Why is the government involved in marriage? Equality? Fairness? Why is the government giving exclusive financial benefits to people with marriage licenses and not to people without marriage licenses? I submit that people will fall in love, live together, make babies and perpetuate families with or without the government. Why do we want the ministers of our faith to be government agents?

I recommend that churches stop being agents of the government; that the state governments stop issuing marriage licenses or special civil unions; and that the federal government stop giving exclusive subsidies to people with marriage licenses. Benefits for all or benefits for none.

The Common Loon said...

Christian,

Hope you have a safe trip.

Your piece certainly makes legal marriage appear very disposable and disconnected from the well being of society, but it doesn't address any of the very serious implications we've been discussing at great length for the past 18 comments.

Again, I'm hopeful that your responses to the questions described in my previous comment will clarify the heart of our disagreement.

Christian said...

Common Loon

We did have a very nice and safe trip. Thank you.

Your request that I present my understanding of your position is a very interesting technique to help establish where we agree and where we disagree so we do not waste our energies arguing points where we already agree. Understand that much of what I present as your position is speculation on my part and please make corrections.

1. Church-State separation is a good thing, but it is OK for ministers to be government agents that issue government marriage certificates and for justices of the peace to conduct marriage ceremonies that have a religious flavor.
2. Marriage in the personal-religious sense is good for a society. Marriage in a personal, but not religious sense (weddings not performed in a church and not performed by a minister, but with vows of love and commitment in the presence of family, friends and community) is also good for society.
3. Children are better off when their biological parents are married in a committed person-religious or personal sense.
4. Government and communities have roles to play in protecting the vulnerable and helping the needy.
5. Fairness is important, but it is OK to force people without government marriage licenses to subsidize benefits for people with government marriage licenses. People with marriage licenses should get paid more by their employers than people without government marriage licenses.
6. Government marriage and divorce laws cause some couples to stay in a personal or religious marriage who no longer want to be in personal or religious marriage relationship.
7. Documents such as wills, JTWROS, living wills, partnership agreements etc. can provide better and clearer arrangements between two people who are in religious or personal marriage or government marriage than the bundle of provisions in marriage laws, but the bundle of these legal provisions is convenient for those who are less fortunate, less responsible, or do not care.
8. Government financial benefits are an incentive that causes some couples to become married in a personal or religious sense who otherwise would not have become so married.
9. Most married couples do not need government financial assistance, but some married couples with children do need assistance.
10. Government marriage licenses provide a measuring stick that distinguishes between those who have pledged commitment and have serious relationships and those who do not.
11. Undoing the marriage laws would be complicated.
12. Couples can have a healthy personal marriage and raise a fine family without having a government marriage license.


Your hypothetical question is tough. I would like to restate the first premises a bit to add “some”: Some children benefit from civil-legal marriage and some children would be adversely affected by the removal of government marriage benefits.

My answer could be A or B depending on the number of children impacted. How many? I don’t know. Tough question.

The Common Loon said...

Christian,

Thanks for engaging my questions and attempting to summarize my view. As far as the 12 points you listed, I am in agreement with #’s 2, 3, 4, 10 and 11. Regarding the others, here’s how I would rephrase them, with explanations in brackets:

1. Church-state separation is a good thing, but marriage licenses are needed for the vital legal purpose of determining who is married and who is not.

[In cases where a minister chooses to sign a couple’s marriage license, this does not violate the First Amendment’s establishment clause or freedom of religion since civil marriage is open to all religious faiths.]

5. It is in society’s best interests for nuclear families (consisting of parents and their children) to have access to the benefits currently afforded by civil marriage.

[Regarding the notion of single people “subsidizing” married people, if you are willing to use the term “subsidize” this loosely, there are numerous cases in American society where some citizens contribute toward resources used by others. Those who don’t utilize public freeways, airports, parks, libraries and universities subsidize those who do. Those who don’t raise children subsidize those who do (through public education, child protective services etc). Just as it would be unwise to eliminate these "subsidized" benefits on the grounds that they are unfair to those who don’t make use of them, the common good would be ill served by the elimination of legal marriage.]

6. Public laws play a role in the well being of families and children.

[Whenever a couple with children chooses to permanently dissolve their relationship, it should be done in a way that harms their children the least. Without laws to regulate marriage or divorce, children are at an even greater risk to be abused or neglected as a result of the fluctuating emotions and behaviors of their parents. Marriage law helps to divide the parents’ assets and responsibilities with the well being of children in mind.]

7. There is no need for a false choice between legal marriage (which covers a broad scope of rights and benefits) and more specific documents such as living wills, which are helpful supplements for certain areas.

8 & 9. Whenever a couple has children (planned or unplanned), those children will fare better if their parents are legally married.

[As is the case with any type of law (traffic, environmental, criminal), the specifics of marriage/divorce law will act either as incentives or disincentives for certain types of behavior. Unless you believe the legal benefits of marriage are so minimal that they aren’t worth debating, removing the legal/financial incentives to get married would lead to less marriage in general.]

12. The benefits of civil marriage (access to health care, immigration rights, formalized legal commitment that requires a series of steps to undo etc.) help to preserve marital commitments for the sake of any current or future children produced by such relationships.

The Common Loon said...

A couple questions regarding your view:

1) In lieu of legal marriage, you’re in favor of immigration vouchers and court vouchers, which could technically be called 'subsidies' since they designate a particular individual to receive benefits currently provided by legal marriage. How is a marriage license any different from one of these other government vouchers granting benefits to selected individuals?

2) On one hand, you seem to think the legal benefits of marriage don’t have much of an effect on the well being of society at large, and yet you claim that unmarried people are the victims of a grave injustice since they’re "forced to subsidize" these supposedly inconsequential benefits. But only one of the following can be true:

A) Legal marriage provides a substantial package of benefits which, when taken as a whole, have a significant impact on the well being of families in general.

or

B) Legal marriage provides negligible benefits to families in general and therefore, single people aren't being deprived of very much.

Which one is it?

Christian said...

Common Loon,

I think we have a pretty fair understanding of one another’s positions. Let’s take a specific position: you say, “marriage licenses are needed for the vital legal purpose of determining who is married and who is not.”

1. I would say that government marriage licenses would not be needed if there were no government marriages. If there are going to be government marriages then marriage licenses would needed for the legal purpose of determining who has a government sanctioned marriage and who does not have a government sanctioned marriage. A couple could have a perfectly wonderful personal-religious marriage without having a government marriage license.

The Bill of Rights only says the feds cannot establish a religion or prevent anyone from practicing any religion. Over the years a consensus has developed that there should be a “separation of church and state”, in other words the government should not get involved in religion.

The Common Loon said...

You're correct in saying that marriage licenses would not be needed if there were no civil/legal marriage. What we're debating is whether society is better off with legal marriage or without it, correct?

You mentioned the notion of a "consensus" on church-state separation, but I don't know of any historians, legal experts or policy makers (Republican or Democrat) who think that non-religious, legal marriages, domestic partnerships and civil unions all violate the separation of church and state.

If there's any consensus on the question of whether or not there should be such a thing as legal marriage in the first place, it's a consensus in the affirmative. Even the most secularized nations of Western Europe have the equivalent of civil unions or legal rights and benefits for domestic partnerships. Eradicating all legal recognition for such couples would be very radical indeed.

Christian said...

What we're debating is whether society is better off with legal marriage or without it, correct? Exactly.

Please consider these two specific examples of government being involved in religion and the church being involved in government.

The following is one of the suggested marriage ceremonies for mayors in the State of Michigan from its publication: “The Civil Marriage Ceremony Handbook for Mayors”

Sample Ceremony Five
We are gathered here in the sight of God and the presence of these witnesses to
join together this man and this woman in Holy Matrimony which is an honorable
estate and is not to be entered into lightly or inadvisable, but reverently and
discreetly.
________________ and ________________, have you come here freely and
without reservation to give yourself to each other in marriage?
I require and charge you both, to remember that love and loyalty alone will
prevail as the foundation of a happy and enduring home, which will be full of join
and will abide in peace.
________________, will you have this woman ________________, to be thy
wedded wife, to live together in the estate of matrimony? Will you love her,
honor her, and keep her in sickness and in health and forsaking all others so long
as you both shall live?
________________, will you have this man ________________, to be thy
wedded husband, to live together in the estate of matrimony? Will you love him,
honor him, and keep him in sickness and in health and in forsaking all others as
you both shall live?
I, ________________, take you ________________, to be my wedded wife to
have and to hold from this day forward, for better, for worse, for richer, for poorer,
in sickness and in health, to love and to cherish till death do us part.
I, ________________, take you ________________, to be my wedded husband
to have and to hold from this day forward, for better, for worse, for richer, for
poorer, in sickness and in health, to love and to cherish till death do us part.
“In token and in pledge, of the vow between us given, I thee wed.”
Now, by the authority in me vested by the laws of this State, and the office of
Mayor, which I now hold, I pronounce you Husband and Wife.
Date
Honorable Mayor
Courtesy of the City of Burton

Although I do not see anything in the Constitution that prohibits a Mayor from conducting such a ceremony. I feel having a Mayor conducting this ceremony gets the state too far into the religion business and is not consistent with the principle of the separation of church and state. Are you comfortable with a Mayor conducting this ceremony?

This second example is my church. I believe that my church is wrong to have its ministers be government agents. It is also wrong for my church to require a couple to get a government marriage license as a prerequisite to performing the sacrament of marriage. Are you comfortable with this arrangement?

If you are comfortable with these two arrangements then I fear that you and I have such different concepts of the separation of church and state that we will just have to agree to disagree on this is particular issue of the separation of church and state as it applies to marriage.

The Common Loon said...

In my view, Michigan's sample ceremony #5 does not violate church-state separation nor is it sufficiently harmful as to justify the drastic step of obliterating legal marriage/civil unions completely. Only once does the ceremony even mention a generic "God", who cannot necessarily be linked to a specific deity from any particular religious text (i.e. the Bible, Koran, Torah, the Universalist god our many understandings, Flying Spaghetti Monster etc).

To say that we should eliminate legal marriage altogether because of vague references to a generic "God" would be akin to eliminating the use of all currency based on a dislike of the traditional phrase "in God we trust." Even if we collectively decided to change the wording used in legal marriage documents or the marriage policies of one's church, this wouldn't mean civil unions do not play an important role in serving the well-being of families, children and the common good.

But I think we've gotten side-tracked. I'd be interested to hear your responses to the 2 questions I raised several comments back regarding subsidies and vouchers.

Christian MIller said...

You are correct. We did get side tracked by the church-state issue. I may not like the idea of a government official seeming to play the part of a minister at a wedding, but I admit that it is a minor problem since pretty much anyone can get a one day government authorization to marry a couple. My bigger complaint is with my church requiring that a couple get a government marriage license before administering the Sacrament of Marriage. That is not the government’s problem. That is my church’s problem. Since our discussion is about what the government should do, as opposed to what churches should do, we can leave the issue of church-state.

Even if the churches and the government separated and there was no government marriage and we had something called “Special Government Sanctioned Partnerships”, my main objections would remain.

Perhaps I was not clear regarding the idea of immigration vouchers. There is no “subsidy” since every citizen would get one. No group would be subsidizing another group. I do not know about your 17 Aug reference to “court vouchers”.

The Common Loon said...

As I’ve said before, there are numerous rights and benefits married people would lose if there were no longer such a thing as being legally married. For now, let’s deal with two of them:

1) Foreign-born spouses of American citizens can immigrate to the U.S.
2) In certain civil and criminal cases, a court cannot force one spouse to testify against the other.

In previous comments, you have said the way to keep these benefits in place while eliminating legal marriage is to allow every U.S. citizen to designate one person as a recipient of these benefits. In other words, each citizen gets one “immigration voucher” they can use on a non-citizen of their choice and one “court voucher” they can use to designate a person who would not be forced to testify against that citizen.

In addition to being both unrealistic and counterproductive, there is another problem with your vouchers proposal, namely, it contradicts your previous opposition to “subsidies” (which I’m defining as benefits granted to some individuals but not others). Those who do not make use of their immigration or court vouchers (for whatever reason) would be ‘subsidizing’ those who do. Your claim is that “There is no ‘subsidy’ since every citizen would get one. No group would be subsidizing another group.”

But how are these vouchers you propose any different from a legal marriage document, which is also a voucher for certain benefits and can easily be obtained by any citizen who is willing to visit their local county clerk’s office? Let’s say John is American and Jane is British. What is the difference between John using his “immigration voucher” to bring Jane to the U.S. and John using his “marriage voucher” to do the same thing? In both cases, John is using a legal document to “cash in” on a certain benefit. Those who choose not to make use of the voucher (for whatever reason) are in effect “subsidizing” those who do.

Besides, marriage benefits are not the only instance where some citizens contribute toward resources used by others. Those who do not utilize public freeways, airports, parks, libraries and universities “subsidize” those who do. Those citizens who choose not to raise children, for whatever reason, subsidize those who do (through public education, child protective services etc).

Entering into legal marriage is a choice open to every citizen. For a variety of complex reasons, some choose to make use of the 'marriage voucher’ while others do not. If a single person or unmarried couple really wants the legal benefits granted by civil marriage, they should stop by the local county clerk's office and get legally married.

Christian MIller said...

“Subsidy” is probably a poor choice of words when used in non-financial situations or “zero-sum” situations. In the case of exemption of testifying there is no cost to anyone who uses or does not use this privilege. No one is giving up anything. Everyone, married or not married, can have this privilege to designate anyone, spouse or someone else. People with government marriage licenses give up nothing.

The Common Loon said...

While I'm tempted to follow the rabbit trail of discussing your problematic proposal of universal court exemptions, I will instead ask for your response to two more questions:

1) Apart from your ideological opposition to "government marriage" on libertarian grounds, what exactly are the tangible injustices faced by single people under current marriage law?

2) How are the "subsidies" provided to married couples and their children different from other public benefits (parks, libraries, buses, airports, schools etc.) that all citizens pay taxes for but only some choose to utilize?

Christian MIller said...

It is true that our government pays out money to many special interest groups such as farmers. In general I am opposed to these subsidies. I also favor users paying for the things they use. For example roads being paid by gas taxes, airports by airport fees, buses by the riders etc. But to your specific question. I agree there are government facilities such as parks that are not fully supported by user fees. The difference is that everyone is free to use the park if they choose. They do not have to get married to utilize the park. Children of a couple without a marriage license can utilize the park.

The Common Loon said...

Every citizen is equally free to use a park as they are to get married. What is stopping them besides their own choice?

To use a better analogy, I believe that civil marriage is more like a public library. The books are the benefits and a marriage license is like a library card. Anyone can easily obtain a card if they're really serious about borrowing some books. If someone were to tell me we should get rid of libraries because they discriminate against those who don't have library cards, I would kindly remind them that every citizen has the freedom to use a library, but the card is simply a practical necessity that makes the process work better.

Going back to the central question of whether or not society is better off with or without legal marriage, we've spent considerable time discussing what the impact would be on families and children (including immigration, health coverage, legal rights, divorce proceedings etc.) if there was no longer such a thing as civil marriage. I've been making the case all along that eliminating legal marriage creates far more problems than it solves.

On the flip side, perhaps it's time for you to make the case that eliminating legal marriage solves more problems than it creates. What exactly are the serious societal problems currently caused by the existence of legal marriage and what are the payoffs of abolishing marriage that warrant such a drastic change?

Christian MIller said...

I think that perhaps following your park and library analogies may be interesting and get us nearer to the crux of the issue, but I will respond to your other questions.

You say, “Every citizen is equally free to use the park as they are to get married.” I would say, “not equally free”. Getting a government marriage license is more like the ticket to get into the park. Getting a government marriage is license is easy and not at all onerous to the vast majority of couples that intend to have a personal-religious marriage. For the rest of the folks, getting a marriage license would be not be easy, virtually impossible to some and onerous to others.

What are the problems caused by the existence of government marriage? Roughly half our population is married and the other half is single. Getting a government marriage license and having a government sanctioned marriage is not problem for those couples who want a personal and/or religious marriage. They get financial benefits and privileges. No problem for them. They are on the government gravy train. A problem is that the other half of population has to pay for these benefits. It is also unfair to many of the single people who have much greater need of those benefits. A problem for me is the government getting involved in something that does not need government involvement. After the Civil War government started issuing marriage licenses to prevent interracial marriages and then in the 1920’s used marriage licenses to facilitate efforts at eugenics. Over the years since, it has accumulated a bundle of government benefits. It is also not clear what the goals of government licenses are: incentive for what? Wellbeing for whom?

“What are the payoffs of abolishing [government] marriage that would warrant such a drastic change?” First, it does not need to be so drastic. Many of the benefits can be made available to single people who need them and phased out for married people who do not need them. A payoff is that abolishing government marriage allows for a more efficient use of government welfare resources by applying those resources where they are most needed. Abolishing government marriage is a graceful way to end the rather ugly debate about same gender marriage. Abolishing government marriage strengthens the separation of church and state.

Do I understand that you believe that the purpose of government marriage benefits is to provide incentive for people to get government marriage licenses? A purpose of a government marriage license is to discourage married people from getting a divorce? The other purpose of government marriage benefits is to help the wellbeing of children?

The Common Loon said...

The rights and benefits currently granted by legal marriage are reciprocal in nature and therefore they require the names of two people: let's call them Person A and Person B. Unless Person A designates another individual as Person B, the process does not work. Even if we decided to take the drastic step of offering all marriage rights and benefits to every single, unmarried individual (Person A), each person would still need to designate someone (Person B) as their “partner.” Thus, there is still the need for some type of legal document (call it a voucher, coupon, contract, license, agreement, whatever) to link Persons A and B together for benefit purposes.

Your proposal seems to require the government to piecemeal all the current benefits into separate vouchers so that each adult citizen would get a coupon booklet that includes an immigration voucher, a joint custody voucher, a victims recovery benefit voucher, a privileged-communication-for-testifying-in-court voucher, a family bereavement leave voucher, a Social Security, Medicare, Disability and Veterans/Military benefit voucher, a joint tax return voucher, an inheritance voucher, a spousal health coverage voucher, a hospital visitation voucher etc.

As long as you want individuals to be able to designate a partner/spouse/friend/beneficiary as their “Person B”, there has to be some type of legal document signifying this, correct?

You said, “For the rest of the folks, getting a marriage license would be not be easy, virtually impossible to some and onerous to others.” What exactly do you mean by this? The only reasons I can think of are that Person A doesn’t have the consent of Person B to partner up with them or that Persons A and B are not in a “serious” enough relationship to put it on paper yet. Please give some scenarios where obtaining a marriage document is impossible and onerous.

You said, “It is also unfair to many of the single people who have much greater need of those benefits.” Apart from same-sex couples, can you provide any examples of legally “single” people who want/need the rights and benefits of marriage but are denied the opportunity to obtain them? In particular, what are the specific monetary benefits these “single” people have to unfairly pay for?

Christian MIller said...

An example of a monetary benefit that is denied some old single unmarried people is social security. For example I get $1500 each month from Social Security. In addition, my wife collects $750 based solely on her status as my wife. She does not qualify for Social Security on her own. There are old single people who need this money more than we do and are denied it only because they are not married and do not qualify for social security.

The Common Loon said...

Ok, so maybe we need to reform Social Security eligibility but that's no surprise.

I fail to see why this scenario requires something so radical as the complete abolition of legal marriage.

Christian MIller said...

Here is how it is done. Start to scale back and or make the 1138 government benefits available to single people. For example inheritance tax is now in a big state of flux. I think next year it goes to zero for everyone. In 2011 it is anticipated that it will go back into effect, but with a general exemption in the millions for everyone that would only affect the very wealthy. An additional unlimited spousal exemption would only benefit the wealthiest of married folks. When analyzed most all of the financial benefits can be eliminated or made available to all people. Change the name of a marriage license to something like a civil domestic partnership. Get members of our churches to get churches away from requiring a government licenses before performing the sacrament of marriage. Eventually have the government stop issuing even civil domestic partnership licenses and have only a registration of partnership documentation.

My original motivations on this topic were:
1. Stories from my single daughter who is the Army about how single soldiers in the Army get the short end of things when it comes to housing a duty assignments.
2. The unfairness of my wife getting $750 per month from Social Security (Even though we quickly got used to it)
3. The heated irrational arguments and nasty name-calling by both sides of the Prop 8 debate.

I would like to believe that most couples can do a fine job raising their children without monetary assistance from the government.

It led me to the question: Why is government involved in marriage? What would happen if government withdrew from marriage? How could it be done? From rational, fair, legal and humanitarian bases, government can be phased out. The real fight is not about benefits, incentives or wellbeing of children. The big stumbling block is emotion.

For which I do not have ready answer. A wedding is a very important ceremony to both religious folks and to non-religious folks. Church weddings without government involvement can provide a great ceremony for a religious couple and their family and friends. How does a non-religious couple get a meaningful wedding ceremony without the government? I am not so sure. Perhaps, take a cruise and get married by the captain. I don’t know. It needs some more thought.

It is a serious flaw in my argument. There is powerful emotional desire by brides to have some official sanction, celebration and commemoration of their weddings. A hint of this occurred during the few months that same-gender marriage was legal in California prior to Prop 8. License forms were changed to read “Party A” and “Party B”. Brides to-be went ballistic. As one said, “I have waited too long to be bride. I don’t want to be a ___ damn Party A.” It may not be logical, but the sentiment is genuine. In the end the government relented and the forms were changed back, but added another section for “Party A and Party B”. This issue was not about government benefits. For those comfortable with a church wedding, there is not a problem with the government withdrawing from marriage. The problem is with couples who do not want a church wedding, but want some kind of official marriage ceremony.

The Common Loon said...

If the Army’s policies for determining housing and work assignments need to be reformed, so be it. If Social Security or inheritance tax laws need to be reformed, so be it. If a religious organization or church decides that its policy regarding whom it will or won’t marry needs to be reformed, so be it.

None of these reforms require the end of all legal marriage documentation.

If I may speculate as to what the real issue is (correct me if I’m wrong), everything seems to boil down to the fact that you simply do not like seeing the word “marriage” on a legal document. This likely explains why you’re in favor of changing civil marriage into “civil domestic partnerships” and eventually “registrations of partnership documentation.” As long as they don’t contain the dreaded M-word, you appear to have accepted the necessity of legal documents or vouchers signifying partnerships between persons A and B.

As I said before, the very nature of the rights and benefits currently granted by legal marriage requires the names of two people: Person A and Person B. These rights (most of which do not involve a direct monetary disbursement from the federal government to the individual) are reciprocal in nature. Therefore, the notion of giving out 1100+ benefits to all single people would have no practical impact until each (legally) single person finds someone to designate as their Person B. The coupon book of non-monetary vouchers for immigration rights, joint custody, bereavement leave, spousal testimony privilege, hospital visitation etc. is of no practical use to Person A until those vouchers are applied to Person B. In the eyes of the law, you can’t grant someone the rights of marriage until they specify who their partner is, correct?

Therefore, the reason why we need marriage documentation (whether it’s labeled civil unions, domestic partnerships, reciprocal beneficiaries or something else) is not because it provides some sort of vain emotional boost to giddy brides, but because a multitude of legal rights and benefits (mostly non-monetary) cannot be conferred to a couple if their relationship was never put on paper with the proper consent of both individuals. The relationship between Person A and Person B needs to be formally documented for it to legally mean anything.

Wedding photos won’t hold up in a court of law.

Christian MIller said...

I agree that none of the reforms needed in our income tax, social security, health care, etc. require an end to all legal marriage documentation. I am not hung up on the word “marriage” being I used in our laws or “civil union” or “domestic partnership” I don’t want any special rights and money going to these couples under any name and not to single people. My suggestion of moving to “civil domestic partnerships” is just a step to move away from government involvement in this business. By the way, the M word is as big issue. Each side in the Prop 8 fight spent in the order of $30,000,000. This proposition was entirely about the word “marriage”.

The documents I envision are not limited to single Party A. For example your durable power of attorney could be for a colleague. In your will you might leave your half of the community property to your mother or the Salvation Army and specify hospital visitation to your spouse.

As an aside, do not underestimate the power of the emotions of a giddy bride.

Also when I was thinking about your response to my “registration of partner documentation” I did some cursory research on the Internet. I had made this suggestion on the assumption that a wife was responsible for the debts incurred by her husband. The reality is that it is not so clear, especially in the nine community property states. Take a look. The fact that I did not have a good understanding of this issue probably means that few other married people have a sufficient understanding of this fundamental aspect of marriage law. I suspect that most people that are about to get legally married do not have a clue about their rights, obligations, benefits or privileges.

The Common Loon said...

So it sounds like you're not calling for the end of all legal marriage documents, merely an increase in benefits the government makes available to single people?

Christian MIller said...

My initial positions were equal rights and benefits for those alone; equal compensation for equal work; and pass out government money based on need rather than marital status.

Yes, I would make many of the government benefits that now go exclusively to married people available to single people, but the rest I would eliminate or make available only the basis of need for example:

1. I would eliminate the joint failing of income tax for everyone.
2. I would eliminate the unlimited spousal exemption from inheritance tax
3. I would eliminate paying the spouse 50% of the other spouses Social Security.

As to the “marriage documents”, once we remove the bundle of specific government benefits, we are only left with the two parties agreeing to divide their assets in accordance with the community property laws (only in nine states). By the way, the community property states are generally those of the former Mexican/Spanish territories where the Spanish had continued with Islamic law brought to Spain by the Moors.

Another aside, I was surprised to discover that a wife’s legal last name does not automatically change to her husband’s when she gets married. She needs to file a legal change of name document.

One thought for a mechanism to satisfy the desire of a non-religious couple or a same gender couple for some formal recognition of their marriage agreement is for the government to provide a voluntary registration that would record their marriage partnership agreement is the same way that a business partnership agreement is filed that might document that any partner is can legally obligate the partnership in specific transactions.

The Common Loon said...

I'm sensing a contradiction here. On one hand, you've been trying to convince me that society has no use for legal marriage documents.

On the other hand, you've said that "none of the reforms needed in our income tax, social security, health care, etc. require an end to all legal marriage documentation."

You've also said that in certain situations, you’re in favor of changing civil marriage into “civil domestic partnerships” and eventually “registrations of partnership documentation.”

You've also said that in the case of same sex couples, you would like "the government to provide a voluntary registration that would record their marriage partnership agreement."

What's the difference between a "voluntary registration that would record a marriage partnership agreement" and a marriage license? Whatever you choose to call it, it's a legal document that records a partnership between two individuals. Do you agree?

Christian MIller said...

Consider a documentation/benefits matrix.

1. No benefits; no documentation. Works
2. No benefits; yes documentation. Works
3. Yes benefits; no documentation. Does not work
4. Yes benefits; Yes documentation. Works

Ending benefits does not require ending documentation. It just makes government marriage licenses legally unnecessary.

Registering a partnership agreement is different than getting a government marriage license. Government permission is required for couple to get a marriage license. By signing a government marriage license a couple agrees that their relationship will be governed by government marriage laws (such as community property). A partnership agreement can and does take many forms and can deal with any number of issues.

I recommend that any couple have partnership agreements. Checking the box JTWROS on a deed is just one partnership agreement. Signing jointly on a credit card account is another partnership agreement.

The Common Loon said...

Your matrix is exactly right. There can be no benefits without any legal documentation linking Person A with Person B. This is the point I've been trying to make for quite some time so I’m glad we finally agree. The converse is also true: If you want to get rid of the documentation, you have to get rid of the benefits.

Even if you tried to reconstruct some of the non-monetary marriage benefits through a system of “vouchers” conferring various rights, (including immigration, joint custody, victims recovery benefits, privileged communication for testifying in court, family bereavement leave, spousal health coverage, hospital visitation etc) this still requires some form of legal documentation.

We may disagree on whether such documentation should take the form of “partnership agreements” or “marriage licenses” but I think we can agree that both are examples of legal documents that confer certain rights and benefits between partners, correct?

Christian MIller said...

I agree

Christian MIller said...
This comment has been removed by the author.
The Common Loon said...

Perhaps we can leave it at that.

It's been an engaging discussion.

Christian MIller said...

Yes, it has been an interesting exchange. If you get the interest to pursue the topic further, drop me an e-mail at christiansmiller@gmail.com