Finally, New York legalized gay marriage. I'm happy gay couples are now treated the same as straights, but the victory will be bittersweet. After all, gaining the ability to marry means being subjected to state control over your personal contracts. ... I wish the state would get out of the marriage business. Marriage should be a private contract. Legal issues that marriage raises --like inheritance, alimony, visitation rights in hospitals --can be handled through voluntary contracts between consenting adults.On the surface this seems like a reasonable stance, one to which I must admit I used to be party to. There are just a few big problems with this.
First, the marriage contract itself confers upon the participants approximately 1 400 rights and privileges that they did not have while single. Furthermore, not all of these rights can currently be secured by private contract. As such without state-sanctioned marriage same-sex couples cannot possibly have all the same rights and the lengths to which they must go to enumerate and obtain the available rights via private contract would be onerous.
Second, issues concerning inheritance, health-care decisions, and child custody to name a few become more open to lawsuit under private contract. There is I believe in the case of terminally ill individuals a greater incentive, and greater possibility of success, for relatives claiming their rights as the next of kin to invalidate such same-sex private contracts through the legal system. While marriage does not eliminate such problems (see Terry Schiavo case) it does severely mitigate them.
Third, when such conflicts do arise how are they resolved? They go to arbitration which generally means they end up in court. Yes, it would be nice if all contracts were honored and all parties acted in good faith; but even if that is the case there may be some instances where the meaning of a contract is open to interpretation. Even Ayn Rand realized this and set up such a quasi-governmental system in her book Atlas Shrugged:
We are not a state here, not a society of any kind -we’re just a voluntary association of men held together by nothing but every man’s self-interest. I own the valley and I sell the land to the others, when they want it. Judge Narragansett is to act as our arbiter, in case of disagreements. He hasn’t had to be called upon, as yet.Randian naivete aside, even in the world of private contracts it is assumed that disputes will arise and a method for resolution is put in place. This is an activity for which the judiciary already has the infrastructure, precedence, and experience necessary. So why make this more difficult than it needs to be? While Stossel’s vision isn’t totally without merit, it is without practicality.
Incidentally, I have seen this line of thinking as an argument against the extension of marriage to same-sex couples. That is, same-sex couples should simply sign a mutually agreed upon contract*. Such reasoning has never been very convincing to me since anything less than full marriage rights cannot, by definition, confer full marriage rights upon its participants.
Oh and by the way, congrats to my home state.
*as if marriage itself isn’t a mutually agreed upon contract
3 comments:
I understand your point, but I think with some legal changes by a state legislature the issues you raise could be resolved without needing an official license or registration system. A legislature could basically allow couples to create a super domestic partner agreemenn that is private but gives the same rights now enjoyed by licensed marriages. Including things like the ability to put your partner/spouse on your healthcare plan. Just create an all in one private contract. Honestly, some of the benefits given to married people should be eliminated as well though.
This is the approach that several state legislatures have undertaken over the previous few decades, but I see a few problems with this. First, several of the rights enumerated above are federal rights and therefore state legislatures could have no effect on them. Second, there is the possibility that domestic partnerships established in one state will not be recognized in another, whereas this problem does not occur with marriage. Third, it seems rather foolish to create a parrellel system of domesstic partnership, which is marriage except in name only, and thereby create a system with its own case law and legal history that could very well diverge from existing law.
I am somewhat reticent to mention one more objection but I will anyway. I believe it was not your intention to do so, but the suggestion of creating a parallel domestic partnership system echos the "seperate but equal" laws of our past. I would like to avoid having that issue fought out in the courts again.
I do think I have a solution of sorts. It seems to me that many religious groups object to the use of the word marriage for gay partnerships in part because marriage has religious roots and we can't redefine what God has ordained. I think any cursory look at the history of marriage would disabuse a person of that notion; marriage has long been viewed from antiquity as being a legal vehicle for maintaing property rights amongst the aristocratic classes. But let us ignore that and simply say "Fine, churches may have the word marriage. Henceforth all state sanctioned partnerships, whether heterosexual or homosexual, will be known as 'civil unions' and may only be performed by secular authorities. Churches may perform 'marriages', but marriages will not, as a matter of course, be recognized as a civil union." Seems like an unnecessary compromise, but one that only changes the use of a word and does not take away rights from anyone.
As it stands now, not all marriages are recognized as marriages. Most states refuse to recognize same sex marriages in states where it is permitted, so for all practical purposes same sex marriage, civil unions, and domestic partnerships are the same, you might get it recognized in another state you might not. The Federal government recognizes none of them. I do think eventually the Federal government will have to recognize same sex marriage/same sex union whether by recognizing state laws or on contractual grounds, its a matter or time. I would be fine with a state allowing people to create domestic contracts that are enforceable, and they would have the option to register it or not, either way you get the same rights. Illinios right now has a civil union that allows both gay and straight couples to enter into. What if they opened up marriage to gay couples and kept civil unions to. Thus take your pick, get a civil union or marriage either way you get the same rights, and on top of all this, register your marriage/civil union if you like or just create it by private contract, either way same rights. This might be the ultra libertarian view.
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