Why Civil Marriage?

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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  1. Avatar Will Truman
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    Great post, Mark. I have little to add. I’ll go ahead and write a bit that re-inforces things you’ve said. Then another that touches on something else.

    Marriage covers a whole lot of ground that you could take care of through private contracts, but for which the latter would be messy. Getting people to fill out something as simple as a Living Will or DNR request is tough enough. Getting people to sign contracts for every nook and cranny is even more daunting. Even if we had standard issue contracts… we have standard-issue DNR’s and Living Wills. People just don’t follow through. Or they don’t see the importance until it’s too late. This is a great “Nudge” policy.

    The other thing is that there are various things that are exceptionally hard to handle on a private basis because they’re inherently government matters. The first, which affects few but is really important to the people it does affect, is immigration status. Marrying a citizen doesn’t grant you citizenship, but it does really help unite couples in important ways. We could have open borders, which many here would advocate, but realistically that’s not going to happen. We could have a policy wherein everybody can bring one foreigner over and marriage needn’t have anything to do with it, but I personally would prefer that this privilege be granted primarily on the basis of starting a family. The familial thing you refer to: it says the spouse is family and so it’s like bringing over a relative of another sort.

    There are two tax issues. The first is income tax. This can be settled with or without marriage. Some people pay a “marriage penalty” or whatnot unless they file separately. My wife and I are beneficiaries, though, because she works and I don’t (generally speaking, the more parity of income, the less likely taxes are going to benefit you by filing jointly). I don’t think this is unfair because my wife and I are, as far as I’m concerned, a unit. Taxing her as though she were single ignores the unpaid work that I do. The fairest solution would be to allow us to tax each of us individually at half her wage. That might work. But I don’t feel particularly guilty for the tax benefit we have, even if I understand JM’s frustration.

    The other tax issue is the estate tax. Here again, my wife and I are a unit. That’s not her money; that’s our money. It would be absurd to suggest that I should pay an estate tax or a gift tax for spending on it. It’s… well… anti-family to suggest that. In my view. Yet we do want estate taxes (don’t we?) when the money is being passed off to someone else. There is no way to tax one without the other except for something akin to marriage or a proclamation that these two people are uniquely bound as a unit rather than a partnership or some sort.

    If you work hard enough, maybe you can come up with some solutions to a lot or most or all of these issues. Or… we can have marriage.Report

  2. Avatar Jaybird
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    This is one of those questions that I’m certain that we don’t have numbers for but I’m going to ask it anyway.

    When a straight guy gets married, his insurance rates go down because the actuarial tables say that he’s going to start driving more carefully with his spouse in the car.

    Is this the case for gay marriage as well?

    (An assumption I’m making that I think will mess this dynamic up: I am pretty sure that the majority of SSM weddings are between guys who are at least 25 (when your rates go down anyway) and probably at least a decade older than that who have been with a partner for a good long while… as such, I am suspicious that only a small percentage of SSM weddings involve someone 23 and 20 as compared to DSM weddings. How wrong-headed is that assumption of mine?)Report

    • Avatar greginak in reply to Jaybird
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      I can’t imagine there is anywhere close to good data on this, but it will be interesting to see in a few years.Report

    • Avatar Will Truman in reply to Jaybird
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      says:

      This is where I sorta get anti-market. I have issues with some of the bases through which insurance companies discriminate, even when they are backed up by actuarial tables.Report

      • Avatar Cardiff Kook in reply to Will Truman
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        I think this is a valid concern, but one with dangers whichever way you go. Let’s say for example that a company found that Asian drivers actuarially have a higher average loss cost than Hispanic drivers, all else being equal. The danger of these types of rating or underwriting plan is obvious. It perpetuates discrimination.

        The flip side though is that the market doesn’t give a damn. It will effectively reward the company that insures more Hispanics and less Asians. This could be intentional, as the company could set underwriting guides and prices that are actuarially sound, or it could be accidental based upon where and to whom the company markets. Companies that market in Spanish or to Hispanic prone markets will strangely thrive. Prohibitions against this rating factor will effectively lead to distortions and inefficiencies in the market.

        I use this example because I assume everyone agrees we shouldn’t discriminate based upon this factor.

        The factor that companies do use that many take issue with is credit status. A factor which is outrageously important, much more so than driving record, age, sex, miles driven and marital status.Report

    • Avatar Cardiff Kook (yeah, it is me) in reply to Jaybird
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      says:

      I’ve seen thirty years of actuarial data and I do not remember ever seeing data on gay drivers or gay married drivers. I have not finished my first cup of coffee yet today. Maybe another thought will rise with the sun.Report

    • Avatar Dan Miller in reply to Jaybird
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      says:

      Is it that married guys drive more carefully? Or is it that the type of person who gets married is also the type of person who drives more carefully? If the latter, that seems like it would be more likely to apply to gay couples as much as straight ones, although I obviously have no data to test this theory.Report

  3. Avatar greginak
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    says:

    Good stuff. James Joyner over on OTB had a recent post where he went over some of the legal/contractual parts of marriage. I think they mostly related to property ownership.

    I’ve always found the “get the gov out of marriage” one of the least useful and silly statements made about SSM. Not only does it miss all the important legal stuff you mention but it implies that somehow people would go even more nutzoid over marriage than they already are. If people can’t handle SSM how are they going to handle changing marriage even more.Report

    • Avatar Will Truman in reply to greginak
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      Were you referring to Doug’s post? Though I think Joyner has talked about it at some point. I know that Taylor has. All I can find for Joyner is this.

      The idea was all the rage in certain circles back when I first started blogging (2003 or so). I spent a lot of time pooh-poohing privatization.Report

    • Avatar Just Me in reply to greginak
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      What do you mean by “I’ve always found the “get the gov out of marriage” one of the least useful and silly statements made about SSM. Not only does it miss all the important legal stuff you mention but it implies that somehow people would go even more nutzoid over marriage than they already are. If people can’t handle SSM how are they going to handle changing marriage even more.”? And who are “they”? And who here said that they couldn’t handle same sex marriage?Report

      • Avatar Will Truman in reply to Just Me
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        I think the “they” was in reference to the general populace. Not to you in particular.Report

      • Avatar North in reply to Just Me
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        says:

        Yeah, to put it bluntly even if you concede every principle behind removing the government from marriage the odds of the population ever accepting that marriage benefits be stripped away from them and instead be made available by a civil contract thing is somewhere between the odds of me going on a swank steamy hot date with Fred Phelps and the probability of my being able to flap my arms and fly to the moon.Report

        • Avatar Just Me in reply to North
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          I am sure that many years ago someone said the same thing about interacial marriage in the U.S. and SSM. Though I do concede the point. Its not happening in our lifetime.Report

  4. Avatar Maribou
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    says:

    I could be wrong, not having read the original threads that the commenter was commenting on, but based on my own discussions with single people, this objection isn’t really about “why not private contracts?” but about “why not the so-called slippery slope where it is warranted? Ie, why not recognize and subsidize ALL KINDS of relationships that positively affect society on a large scale?” [Note: she does seem to be saying why not private contracts? But I still mean the things I said, so I am going to post this anyway.]

    When I was a kid, I thought that common-law marriage in Canada worked such that any two people who lived together as adults had all the same privileges as married people after 7 years… even if they were siblings or something (for whatever reason, rural PEI has a lot of elderly bachelor / spinster sibling pairs…) The point wasn’t the nature of the relationship (that falling into none of your fishing beeswax territory), it was the mutual care aspect of the relationship. And the state was responding favorably to a situation that was liable to benefit the state. (Canada being a welfare state, anything that encourages people to look after each other helps all of our wallets via reduced need.)

    I was really bummed out when I found out (at about age 15 or so – quite late!) that I had apparently made such common law rules up out of whole cloth :(…

    So I guess my point is, why COULDN’T an adult petition for these rights? Why couldn’t we someday have some kind of “mutual commitment” registry that people could voluntarily be part of? A set bigger than marriage (by any definition), but partaking of similar privileges/subsidies/whatever? For me, that sort of thing is a positive slippery slope that I really wish we WOULD slide down… for emotional as well as calculated reasons.

    Anyway, there are all sorts of objections to such a scheme, but really none of them have to do with it not being fair that single people don’t get the same breaks paired ones do. I mean, the original commenter identifies as single, but in her comment quoted above, she makes a strong case that in any frame *other* than the legal one, she is, precisely, NOT a single person – she has equal obligations as those a spouse or parent would have.Report

  5. Avatar Fnord
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    There has never been anything to prevent a single man and a single woman from entering into a sham civil marriage in order to obtain tax benefits, at least not as as long as they both agreed to make the sacrifices and take the risks required by civil marriage.

    Perhaps true as to the tax benefits. Except for the consanguinity issue Maribou points to. Emphatically not true for the immigration benefits Will mentions.Report

    • Avatar Maribou in reply to Fnord
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      Right? I will not go into all of the crap the gov’t put me through to prove Jay and I were really married (hint: the requirement to file taxes jointly or prove that we really loved each other despite not doing so was only the tip of the motherfishing iceberg). Suffice it to say, the barriers to immigration benefits are many and obnoxious. Were I not in a position of extreme relative privilege, they would’ve been even more daunting.Report

      • Avatar Will Truman in reply to Maribou
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        My sister-in-law married a foreign national. To complicate matters, it’s the second time she has done so. They let him move here, but for the first year and a half he couldn’t get a job. Residency? Okay. A job? A bridge too far, I guess. And his children still aren’t allowed over and it’s been four years.Report

        • Avatar Morat20 in reply to Will Truman
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          One of my best friends married a foreign national. He met her here in the US (she was here on a work visa and already applied for citizenship). He was flatly told, when they got married a year later, that it was just faster and less painful all around to just have her stick to her pre-marriage citizenship path.Report

      • Avatar Fnord in reply to Maribou
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        says:

        And when you put it like that, I would think that, for all that the purpose of the policy is to be a “privilege…granted primarily on the basis of starting a family,” I would bet most people would be better off if the practical implementation of the policy was more transparent, objective criteria about shared residences, assumption of financial responsibility, etc and less having the INS judge whether people really love each other.Report

  6. Avatar Maribou
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    (Also, the crap? A 2 year process. AFTER immigrating on a fiancee visa in the first place. There were many times when I wanted to shout at various immigration officials, “I WOULD NEVER MOVE TO YOUR HORRIBLE COUNTRY IF I WEREN’T PLANNING TO COMMIT MY ENTIRE LIFE TO THIS PERSON!!!!” (I don’t feel that way now. But the culture shock was rather painful at first.)Report

    • Avatar Maribou in reply to Maribou
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      (Well, I kind of do feel that way now. I mean, I don’t think it’s a horrible country any more. But if Jaybird died, I would be back in Canada within a year or at latest after all the cats died. Which really gives a certain ironic tang to all things immigration-related.)Report

      • Avatar Burt Likko in reply to Maribou
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        I’m curious, Maribou, what is it that still disaffects you about the USA to this degree? From my perspective, the US and Canada are about the closest two cultural cousins of any two nations one could name on the planet.Report

  7. Avatar Just Me
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    Let me give a little back story here. I have a parent who due to the after effects of a brain surgery had issues dealing with reality and taking care of themselves let alone my sibling who still needed someone to take care of them. At the age of 22 I took over the sole support of both of these people. The sibling was on social security as one parent was already retired. The parent I support was never declared disabled, in fact, would never allow anyone to make that declaration. This person has a fear of the government and just about everything and everybody else in the world due to the after effects of the brain surgery. For 18 years I have taken financial responsibility and the day to day care. I was able to claim head of household which helped at tax time due to that fact. I was never able to put this person on my insurance or have any of the protections afforded to a couple who are legally married. I was fine with that. That is the way the world is and you do what you have to do for those you love.

    Recently this parent had a medical emergency, even though I am the child I had no automatic rights over their medical decisions. I had to have a piece of paper signed allowing me to have a doctor discuss any needed care and treatment.

    Enough about me. On to the points on why marriage in its current form is really necessary. I asked an honest question. I don’t understand why the government would be involved in two consenting adults contractual obligations towards each other. This was not a dig at SSM or oh I’m a homophobic who just doesn’t want SSM to occur. I could care less who anyone marries. As I explained in another post my mind wandered and I wondered. Why do we have marriage? And why is marriage in its current form? You can take the you’re just against gays right off the table right now, at least if directed towards me. Just so that is out of the way and we all understand each other. Note: this is not directed at Mark in any way, I thank you for your explanations and insights.

    I can see perfectly logical reasons given above as to why the taxes were tied into marriage. Do we really think though that those sound like logical reasons today. We don’t promote two parent households, in fact we bash anyone who says that children are better off if they are raised in families with both their parents together. I believe sometime this summer or fall a Republican made the point that single parents were more likely to need government assistance, I don’t remember that going over too well either. Why? Because, today people feel that women are their own people. They are perfectly capable of taking care of themselves and if need be any children they have. They don’t automatically assume that because you are single you are going to be some welfare mom sitting at home popping out babies and eating ice cream watching soaps.

    I’m not sure how the preferential treatment really stops people being forced into religious based marriages, I would think there are plenty of women who have been “forced” into marriage. Forced as into I am escaping from the familial situation I grew up in so I am marrying the first bloke and escaping (so they think) a bad situation. Or as in I got knocked up and if I didn’t marry him I would never live it down or my parents would disown me.

    I never really thought about marriage cementing the family. Though if marriage is technically a contract that the government has determined the specifics of then how would another contract not work. Though as I think about it, if the current marriage contract works why change it. Hmmmm, something to ponder as I fall asleep.

    (3) To the extent civil marriage (a) provides a social good, (b) requires one or both of the spouses to sacrifice rights they would have in the absence of civil recognition, but (c) requires both spouses to enter into it freely, then some form of government incentive is necessary to make it worthwhile for both spouses to enter into it. This one made me think. Are you saying that if the government didn’t incentivize marriage that people would not engage in marriages? Marriages provide a social good so we want people to be married so we then incentivize them to do something they would otherwise not choose to do on their own? I’m not sure I read that one right, it is late at night so I will just see if that is clarified some.

    Being the child of an abusive family situation growing up I can verify that government sanctioned marriages do not change the fact that spousal abuse still occurs in marriages. I would only wish that it did and if it did never would my fingers again type “Why does government regulate marriage?”.

    I agree two people can get the same benefits if they enter into a sham marriage. But alas even when SSM passes I still won’t be able to marry my parent in any sham wedding. Therefore until the day I ask to be given guardianship, which I will not because as they say it’s not illegal to be crazy, I can not force guardianship on someone who does not agree to it, I will still be afforded less benefits (combining my income with the parents lack of income at tax time) and rights after 18 years of taking care of my parent than two people who decide they want to pool their resources as a couple for some reason. Being former military that is not something I am unfamiliar with. You would be surprised how many marriages that happen before the spouse is deployed or goes over seas are sham in order to get extra benefits. Not all and not the majority, but it does happen.

    As I mentioned on another post, I was really curious what is the rational for why the governments regulates marriage. And I was curious as to how it became so ingrained in our American way of life, the intertwining of rights with said government sanctioned marriages.

    I am not trying to take away anyone’s right to be married or saying that somehow we should change our way of life here in America. But I don’t believe in well this is how we’ve always done it and it would be too hard to change either. If the reasons for doing something are still strong today as they were when something was initiated then fine. If they aren’t then maybe questions should be asked and musings should be shared.Report

    • Avatar Maribou in reply to Just Me
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      It’s intertwined in the American way of life because it’s intertwined in the fabric of western civilization (a fabric in which all of the founding fathers were thickly robed). There were political / governmental benefits reserved for married men in classical Athens, to name only one of a myriad of examples. I agree with you that just because it’s been that way for a long time doesn’t mean it should always be that way; I think on a historical time-scale things have been shifting for a long time and will continue to shift. But it’s not like “oh, this just happened in the last 200 years, it’s easy to get out of the habit,” you know? Millennial habits take a long time to break. In the meantime, I think it’s important to work actively to improve what can be improved, rather than trying to shoot the moon.Report

    • Avatar Kim in reply to Just Me
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      You ought to get guardianship, fwiw. Write up your own damn contract on “what I will and will not do, what circumstances, yadda yadda.” Just in case you do need to make decisions.Report

    • Avatar Mark Thompson in reply to Just Me
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      says:

      First, thank you for sharing your very personal story and background.

      I do hope you understand that I considered your concerns to be quite serious and worthy of consideration – had I felt otherwise, I would not have written a response (and if I had, it would have been full of hyperbole and sarcasm).

      Obviously, I don’t presume to know what would and would not have been helpful in your particularly difficult situation. However, it seems to me that your situation puts forth a good argument for stronger caregiver rights and tax treatment rather than an argument against the utility of civil marriage and/or preferential tax treatment for civil marriages.*

      I’d also add that the medical situations I was referring to above are more situations where the person is incapacitated in some manner, whether in a coma without a living will or having been adjudicated an incompetent, or simply unconscious in an emergency situation. Importantly, AFAIK, absent such a situation, civil marriage does not give a spouse any particular rights over the patient’s medical decisions, so I’m not at all certain the rights conveyed by civil marriage would have been relevant in your situation.

      On to some of your specific points:

      We don’t promote two parent households, in fact we bash anyone who says that children are better off if they are raised in families with both their parents together. I believe sometime this summer or fall a Republican made the point that single parents were more likely to need government assistance, I don’t remember that going over too well either. Why? Because, today people feel that women are their own people. They are perfectly capable of taking care of themselves and if need be any children they have. They don’t automatically assume that because you are single you are going to be some welfare mom sitting at home popping out babies and eating ice cream watching soaps.

      I’m not at all certain that we bash those who say two parent households should be promoted. Regardless, I’m certainly one who is of the opinion that they are in fact generally preferable to single parent households from a welfare of the child perspective (with a very important exception being two parent households where the two parents aren’t getting along or, worse, have developed an abusive relationship with each other). But beyond that, positive (and important) evolutions in attitudes towards women’s autonomy do not undermine the social rationale for encouraging two parent households, particularly when it comes to the issue of public expenditures I noted in the OP. Those attitudes, however important and welcome, do not change the simple math involved – a single parent household still has worse economies of scale than a two parent household, no matter how hard the single parent works. Worse, the reality is that a single parent is severely limited in the job opportunities she can pursue or accept in a way that is not present in a two parent household – private day care and after care programs are expensive, and even they have limited hours, and public day care programs frequently have even more limited hours. This means that a single parent can only take jobs during those hours, and doesn’t have the schedule flexibility to work overtime or work the extra hours so often needed to get promotions. The number of jobs that both allow employees to maintain restricted hours and pay enough to adequately cover private daycare/aftercare expenses and proportionally higher living expenses is exceedingly limited. This issue is only compounded when you consider that two parent households enable both spouses (not just the one) to have a good amount of flexibility in the types of jobs they can accept since they have the ability to divide childcare responsibilities.

      I’m not sure how the preferential treatment really stops people being forced into religious based marriages, I would think there are plenty of women who have been “forced” into marriage. Forced as into I am escaping from the familial situation I grew up in so I am marrying the first bloke and escaping (so they think) a bad situation. Or as in I got knocked up and if I didn’t marry him I would never live it down or my parents would disown me.

      I wouldn’t say that it stops people from being forced into religious-based marriages, just that it provides a disincentive to forced or abusive marriages. More importantly, though, it brings such marriages into the sunlight, providing victims of forced or abusive marriages with a legal remedy they otherwise would not have. More on this below.

      I never really thought about marriage cementing the family. Though if marriage is technically a contract that the government has determined the specifics of then how would another contract not work. Though as I think about it, if the current marriage contract works why change it. Hmmmm, something to ponder as I fall asleep.

      In many instances, another contract would work just fine – indeed, whenever someone enters into a pre-nup or post-nup, they are effective entering into just such a contract. However, my point with the “default terms” argument was that marriage is an incredibly common type of contract that usually involves relatively unsophisticated (in the legal sense) parties. As such, the reality is that absent civil marriage laws supplying default terms (which, again, can frequently be amended in a pre-nup or post-nup if the spouses so agree), all but a handful of marriage contracts would be wholly insufficient to cover many common eventualities of marriage, ranging from ownership interests in property to estate distribution to acts that might constitute a breach of contract (ie, cause for divorce) and remedies for such a breach.

      The other thing that these default rules help to increase, which I didn’t explicitly reference in my OP, is the likelihood that a marriage contract that deviates from these default rules has been fairly negotiated and bargained for rather than being the product of abuse or one party’s disproportionately strong position. This is because pre-nup and post-nup laws frequently require that both parties be represented by separate attorneys before entering into the agreement. The extent of this increased likelihood is certainly open to debate, but that this requirement has at least a marginal effect seems indisputable to me.

      Are you saying that if the government didn’t incentivize marriage that people would not engage in marriages? Marriages provide a social good so we want people to be married so we then incentivize them to do something they would otherwise not choose to do on their own? I’m not sure I read that one right, it is late at night so I will just see if that is clarified some.

      Being the child of an abusive family situation growing up I can verify that government sanctioned marriages do not change the fact that spousal abuse still occurs in marriages. I would only wish that it did and if it did never would my fingers again type “Why does government regulate marriage?”.

      I am, first of all, terribly sorry to hear that you grew up in an abusive household, and apologize if my remarks on this subject are in any manner offensive or insensitive.

      However, I think you misunderstand my argument here, which means I was insufficiently clear in my OP. My argument is not that civil marriage eliminates abuse; instead, my argument is that it reduces the opportunities for abuse within a marriage, creating a minimal (if nonetheless still perhaps inadequate) baseline for marriage contracts. Theoretically, one may still enter into marriage contracts below this baseline, but the tax incentives, combined with the as or more important effects on relations with third parties and the simplicity offered by civil marriage are such that most couples will find that baseline a worthwhile sacrifice even for the more powerful partner.

      Nor am I saying that absent civil marriage people would not engage in marriage. To the contrary, my point is that absent civil marriage, the baseline for what constitutes a marriage, as well as any “default terms” of the contract, will be set wholly by religion and power dynamics, which historically have meant extraordinarily abusive situations. In places where there is little distinction between civil and religious marriage, women wind up effectively being treated as property – as a friend of mine who recently did a 2 year tour in Saudi Arabia likes to put it, wives in that country have approximately the same rights in their marital relationship as a couch. Simply put, absent civil marriage, the marriage contract itself becomes extraordinarily abusive. Also important is that civil marriage is necessary for there to be civil divorce, and thus civil marriage is necessary to provide spouses with an avenue of escape that doesn’t involve them being left destitute.

      To the extent a given couple, absent civil marriage, would choose not to enter into any marriage contract at all, the implications are perhaps less severe than this, but they are present nonetheless. This is because, without any legal bonds, it becomes all too easy for a parent to simply up and leave the children with only one parent at comparatively minimal expense. Obviously, prior to the couple having children, the ease of escape has few downsides and is in fact an advantage that lack of official recognition has over both religious and civil marriage; but the point here is that once the couple has children, an overly easy escape route is nearly as problematic, though for different reasons, as the general lack of escape route provided by purely religious marriage. Civil marriage seeks to strike a balance on the escape route issue between these two extremes, encouraging escape, but only after balancing the various interests involved.

      I agree two people can get the same benefits if they enter into a sham marriage. But alas even when SSM passes I still won’t be able to marry my parent in any sham wedding. Therefore until the day I ask to be given guardianship, which I will not because as they say it’s not illegal to be crazy, I can not force guardianship on someone who does not agree to it, I will still be afforded less benefits (combining my income with the parents lack of income at tax time) and rights after 18 years of taking care of my parent than two people who decide they want to pool their resources as a couple for some reason. Being former military that is not something I am unfamiliar with. You would be surprised how many marriages that happen before the spouse is deployed or goes over seas are sham in order to get extra benefits. Not all and not the majority, but it does happen.

      As I say above, I think this is a compelling argument for changing the rights and tax benefits afforded to caretakers, but I don’t think it really mounts an argument against civil marriage. Yes, civil marriages can be entered into as a sham in order to get better tax treatment, and I can understand how that gives the appearance of being unfair. Certainly, I’d also be open to ideas about how civil marriage laws could be adjusted to discourage sham marriages and to prevent favorable tax treatment for sham marriages, though I’m not sure how this could be done in a reasonably cost-effective way since you’re talking about such a small percentage of most marriages (this is a bit different from green card-related investigations of sham marriages, because presumably marriages involving a green card application are substantially more likely to be shams and have far greater implications for the government and all involved than a fairly modest tax benefit). There’s also good reason not to be overly concerned with sham marriages entered into for tax benefit purposes – civil marriage imposes a good amount of obligations on the parties to the marriage, especially once they decide to give up the sham and get a divorce. At least one of those parties is likely going to be in a worse position than they would have been without the marriage at all, a position for which a couple of years’ worth of marginal tax benefits will likely provide insufficient compensation.

      *As I alluded to above, my proposed justification for preferential tax treatment for civil marriages is not necessarily ironclad. I’m certainly open to arguments that the social benefits of such tax treatment are outweighed by other considerations; my point was more to demonstrate that there are at least some social benefits to that tax treatment. How those benefits get weighed against other considerations is a particularly subjective question that is beyond the scope of the question I’m trying to answer here.Report

  8. Avatar Brandon Berg
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    I would guess that tax treatment for married couples filing jointly is based on the traditional household division of labor, with one spouse earning the money and the other keeping the home. Hence the fact that there’s no real advantage when both spouses work full time and earn similar incomes. The idea is that one income is covering the expenses of two, and taxed accordingly.

    Why the requirement that they actually be married? Otherwise a high earner could file jointly with any low earner and kick back some of the tax savings. I kicked around the idea of a sham marriage for tax savings when I first started making real money, but realized that it wasn’t worth the risk that she might sue me for alimony or something.Report

  9. Avatar Damon
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    “The medical decisions and hospital visitations issue is an example of where simple private contracting would not work.”

    Pff. Create your marriage contract how you want, file it with the county/state/etc. clerk. Done. Spouse not availabe, that’s handled in the “alternative POA” section. Dont’ fill out the forms, revert to default postions x,y,z. Essentially what you’re complaining about is institutional inertia. That’s essentially “it would be hard so let’s not do it”. I call BS.

    “Is this tax policy discriminatory…” ALL tax policy is discrimatory in some form or another. Solution-break the connections between “marriage” and tax policy. And yes, I recognize that 1) this is hard 2) no one wants their subsidy to go away, etc., but the arguement is pure and fair….Report

  10. Avatar zic
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    says:

    There are a couple of things here that are odd.

    First, I would commend Just Me for taking care of her family.

    But financially and perhaps legally, were her choices in her family’s best interest? By opting to refrain from establishing legal guardianship/disability etc. for her mother, she chose to maintain the legal presumption of autonomy and self-reliance her mother had before surgery, and created a situation where she had physical responsibility but not the authority of legal responsibility or the benefit of assistance through the tax code, the ability to receive some support through the social safety net for medical insurance, etc. If her mother is as paranoid as she suggests, she was always in a position where her mother’s autonomy could overrule decisions, and do so irrationally.

    Without a legal process for family members to assume these responsibilities for other disabled/mentally incompetent family members, there’s a host of abuses that would likely, which is why these things, outside of marriage, are not granted without reason and documentation. A marriage is two people joining together with witnesses and ceremony to create that legal structure before such a crisis strikes them.

    My brother will wed in a week and a half, after nearly 26 years with his partner. Through that, they’ve established a home together, they’ve dealt with his illness (he has AIDS), they’ve saved for retirement. On the presumption they would never have a legal marriage, they’ve legally planned to care for each other in a way that Just Me has not planned for her family. Yet with all that planning, Just Me, as a child and sibling, probably still has more rights then my brother and his partner would have without marriage.

    I don’t mean to be critical here; I admire her commitment to her family, and somewhat understand the feeling of not wanting the privacy intrusions that come with assuming responsibility for an incompetent parent and becoming legal guardian for a sibling. But we also live in a world where it is much easier for her to receive those legal responsibilities and gain the help of the social safety net then it would be for my brother and his partner, even after they’ve gone through the legal hurdles they’ve gone through.

    The arguments are not comparable. She chose not to do things; but those things are available to her, and as her parent’s child, relatively easy to establish if her mother is as ill as she suggests. Without the benefit of marriage (federally recognized), this is not the case with my brother and his partner; in most places, medical decision making would revert to parents or siblings, not to the partner, even with legal agreements to the contrary. If they had children or they adopted children, there would obstacles. Without marriage, their choice to form family is nearly impossible to establish throughout the difficulties they might face.Report

    • Avatar Just Me in reply to zic
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      says:

      The government can not take away my parent’s rights just because they makes bad decisions. As I was told, unless I am willing to kick the parent out on the street and have the government take over full control there is nothing I can do. I can either make the decision to take care of family or let the government do it. There is no middle ground. I was also told that the fact I came in looking for help and for options told them that that was a decision they didn’t think I would make. I guess people who try to help others aren’t likely to just wash their hands of them because it is difficult or inconvenient. They are also the ones that don’t get help from the government for that very reason.

      My parent finished raising me after the brain surgery. This was a result of a tumor that will continue and still continues to grow to this day. There will be no further attempts at surgery in the future for this condition. I am not sure how I was supposed to have planned for my taking care of my parent. Hell I was in Germany when I got the call to come back and take care of things. Not exactly sure what your point is there.

      I think you do not understand that in this country 1st amendment rights are still paramount. That even though someone makes bad choices they have the right to make those bad choices. When you go to the doctors you can refuse medical attention, even if that means you may die. They make you sign paperwork to relieve themselves of any liability, but they still let you walk out the door. And no those things are not easily available to me. I understand you don’t know my situation and can only attempt to use your brother’s situation in comparison but they are not equal. We all can only use our own life experiences to try and understand how another lives their life. That doesn’t mean that that affords us any real understanding. Sometimes it is better to ask questions than to assume that we are correct. And I would really be interested in what things I chose not to do so that I could chose them now.Report

      • Avatar Just Me in reply to Just Me
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        says:

        edit: I really don’t know which constitution rights I should be saying are paramount in this situation. I just know that people still have the choice to be who they are. Regardless if that choice is deemed a good one or not.Report

      • Avatar Stillwater in reply to Just Me
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        says:

        Not exactly sure what your point is there.

        I think her point is about the choices people can make. Your actions were determined by your choice given a range of possibilities. Gay people are deprived from acting on a choice since their options are restricted.Report

        • Avatar Just Me in reply to Stillwater
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          says:

          How is there choice any more restricted than mine was? That’s what I don’t get. I as the child taking on the responsibility of my parent had no more choice in how I went about it than a gay couple does in taking on the responsibility for each other. I would love to know what those wide ranging possibilities were. And why the government didn’t tell me I had them when I went in and asked the department of aging if there were any choices I could make that would enable me to be able to legally take care of my parent. Oh I forgot I did have one other option they told me. I could force my parent to the doctors and have them declare her incompetent and then petition the courts for legal guardianship. That is predicated on my being able to legally force the parent to have medical tests done that they don’t agree to. Maybe that was my wide range of options. As there are no good options for same sex couples to legally have the same status currently as married couples do there are no options that I have found that are provided for a child to take care of their parent if the parent is unwilling to be taken care of.

          In SSM if one partner does not want the other partner to take care of them they can not be forced to sign away their autonomy. That is the same situation for children caring for their parents.Report

          • Avatar zic in reply to Just Me
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            says:

            You don’t say who ‘they’ are, so it’s hard to know how to respond.

            Did you talk to an attorney? Social services? Your mother’s doctor? Someone is caring for that tumor and has medical knowledge of your mother’s competency.Report

            • Avatar Just Me in reply to zic
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              says:

              Yeah I can understand that. I just really have a hard time discussing someone else’s medical care with strangers so I always lean on the side of caution. But it does make it hard to have a real conversation when I do that.

              Yes I have talked to the people I need to see. And no there is nothing I can do. If my mother chooses to slowly allow herself to die that is her right. Unless she is in immediate danger of harming herself or others there is nothing the state can do or that anyone else can do. That is why I was told that I would have to kick her out on the street and she would have to be unable to care for herself before they could do anything. Then she would be in danger and they could do the necessary. The necessary being they would take control of the situation and her.Report

              • Avatar zic in reply to Just Me
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                says:

                This does not accord with anything I understand about SSI/Medicaid benefits. I do realize that competency is a matter of state jurisdiction.

                But without knowing where you live and the laws there, it’s hard to have an actual discussion about the avenues available. Were this just mental illness, yes, what you say is likely true, even in liberal states with generous benefits, because we often pass our mental-health problems from the health-care system to the justice system.

                But the documented medical presence of a brain tumor would move this from the realm of mental illness to physical disability; so I’m having troubles finding rational for denying disability support and insurance. I should point out that SSI benefits can often be claimed retroactively, meaning you can get payments (in some cases) going back to the date of application if a claim was wrongfully denied.Report

              • Avatar Just Me in reply to zic
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                says:

                There was no denying of disability insurance or SSI, there was the parents refusal to seek them. In fact until a recent medical emergency which forced her to go to the hospital she didn’t have SS or Medicare or any other benefits that she was eligible for. The government considers it your right to not claim benefits. Which she did. They also then can assess penalties for such unclaimed benefits, which she will be paying when her medicare part D kicks in. I didn’t know it and neither did she, but if you don’t sign up for it when you first become eligible you are assessed a penalty for each year you don’t sign up that you could have.Report

              • Avatar Kim in reply to Just Me
                Ignored
                says:

                you don’t live where I do. But look up the gov’t folks that handle elder abuse, and maybe they can help you out. they’ll know the ins and outs of how you can help, if it’s even possible.Report

              • Avatar Just Me in reply to Kim
                Ignored
                says:

                Thanks, I did that too. I even talked to someone who runs a volunteer organization that deals with elderly issues and mental health issues. They say basically I am in one of those catch 22 positions. I can choose to either take care of her or have the government do so. I can’t choose that I take care of her and the government helps or provides me with resources. Again this is due to choices she has made, choices that leave me with fewer options and also to choices I have made. I could have made the choice 18 years ago to say no, I will not be responsible for my mother. But I didn’t and I don’t think I would change that choice today. I believe that we should do everything in our powers to help those we love, regardless. I will say though if you hear some strong libertarian leanings being expressed from me it is because this situation has made me realize how much depending on the government is not always an option. I’m not really sure that the government should have the power to force my mother to have medical care or force her to allow me make decisions that she won’t make for herself. If they could do that, could they then also force me to take care of her? Where does the line get drawn between in individual’s rights and the government’s right to force us to do things that are in our best interest?Report

          • Avatar Stillwater in reply to Just Me
            Ignored
            says:

            I would love to know what those wide ranging possibilities were.

            Yes, I didn’t say that clearly. I didn’t mean the range of options you have or had, but the range of options people of differing sexual orientations have with respect to marriage. The range of legal permissions relating to other types of interpersonal relationships (the ones you’re talking about) aren’t specifically relevant to the SSM debate (it seems to me) since the choice gay people are denied is one heterosexual people are accorded. Presumably, the types of restrictions you’re talking about would apply to a child or sibling independently of their sexual orientation. That issue, (again, it seems to me) cuts thru a different plane.Report

            • Avatar Just Me in reply to Stillwater
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              says:

              I agree. That is why when I first brought up the subject I asked why is marriage defined as it is and said that this really isn’t about SSM. It was just that the SSM discussion and my situation made me wonder if government should be determining what rights and obligations two or more consenting adults have with and towards each other.Report

              • Avatar Stillwater in reply to Just Me
                Ignored
                says:

                I get that. At some point arguments over these two issues may converge. Your earlier suggestion is that government shouldn’t be involved in the individual-contract-between-consenting-adults business in any event. Mark obviously addressed some of the problems with reducing this stuff to individual contracts, and I’m sure lots more can be said in defense of either view. It’s an interesting question.Report

  11. Avatar Shazbot3
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    says:

    I think my idea of a general form that a family of any “non-traditional” sort to become “legal family members” could fill out and file with the state that would give them some benefits would be easy to do and would solve Justme’s problem. However, the status of being a “legal family member” would have to come with some legal obligations and draw backs, too, not just benefits, to make sure that people didn’t just sign up for the benefits without really being committed to caring for the others in their legal family.

    I would allow anyone who has proven to the government a history of shared residence, shared financial commitments, shared emotional attachments (just like you have to prove to Immigration when you marry a foreigner with bank statements, pictures, letters from friends, etc.) to have all of the following legal benefits just by showing your “legal family member license” (which could look like a marriage license):

    1. Hospital visitation rights
    2. A tax benefit, maybe similar to marriage, but a bit different in cases where the legal family has many members.
    3. The right to include one legal family member on your health-insurance and one family member (the same person or not) who will get your pension benefits (you already have minors that you are the guardian of go on your insurance, regardless of marriage) if you die.
    4. The ability to share credit ratings between any two (but no more than two) of the family members, as in marriage.

    I wouldn’t allow:

    5. The exact same inheritance benefits as marriage. (Too complicated legally. Non-traditional family members will be required to make out wills specifying what to do when there are deaths and breakups of the family. So they will have inheritance rights, but they will have to specify them very concretely with a lawyer present as they file for legal family status.)
    6. The same power of attorney and decision powers in absence of DNR. (Too complicated legally. Non-traditional family members will be required to fill out DNR’s and other documents about power of attorney in case of emergency, when they file for legal family member status, e.g. who in the family is the main decision maker who has authority.)
    7. The same immigration rights. Immigration courts could be required to take legal family member status into account in immigration cases, but it wouldn’t function exactly as marriage.
    8. The same right to not have to testify against a legal family member that spouses have. (Not sure about this one, but whatever.)

    And I would require that:

    9. All legal family members above the age of 18 be responsible for the debts (or penalties) of any legal family member who has passed away, as in marriage. (A big disincentive not to enter into this arrangement with a lot of people, unless you really mean to stay with them.)

    I’m sure there’s more (adoption?), but that would be a really easy proposal to enact and the forms and duties that you would have to take on to enter into such an arrangement would ensure that people wouldn’t enter it unless they really were committed to each other.

    I’m for it and it solves any worry about the apparent unfairness of not allowing polygamy or not allowing Justme to get legal benefits for and from his family members.Report

    • Avatar Shazbot3 in reply to Shazbot3
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      says:

      Also, I would pass a law allowing social services to, when there is probable cause to look, investigate registered legal families to make sure that they haven’t entered into an abusive and controlling relationship. Social services could then, in certain cases, make a recommendation to prosecute the family member(s) who are doing the controlling.

      Drawing up this law would be very difficult, but I think you could state conditions that would be clearly immoral and awful that we could and should prosecute, e.g. one or more adult family members is not leaving the house out of fear of punishment, physical abuse, emotional abuse, etc.Report

    • Avatar trumwill mobile in reply to Shazbot3
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      says:

      This strikes me as pretty a pretty solid idea, Shaz.Report

        • Avatar Shazbot3 in reply to Mark Thompson
          Ignored
          says:

          Thanks guys.

          Also, legal family members would have to have a right to sue for alimony (familimony?) in cases where they supported a family member, for example, while that member went through medical school, who eventually left the family (there would have to be forms for divorcing your family)and made money afterwards. To avoiid legal problems, legal family members would have to sign a form explicitly saying that they would owe future income up to a very specifically defined amount as a percentage of taxable income, except in cases where they had to leave because of abuse as proved in court.

          Socially, we would have to strongly recommend to younger people that they be very careful about entering into legal family status if there was any chance that they might want to leave and not have to pay alimony forever and ever and ever.

          In general, you would have to have legal family status come with some risks and difficulties like this.Report

        • Avatar Shazbot3 in reply to Mark Thompson
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          says:

          Also, you would have to sign a form stating that you had an unbreakable financial responsibility, up to X (which would be dictated by the state, not the family) amount of taxable income, to take care of any minors belonging to any member of the family while you were part of that family (even if only for a day), until that minor was 18, even if the parent or guardian of that minor died or left the family, even if you didn’t have any love of that minor or biological connection, and even if you left the family before that family member who was the parent or guardian died or left.

          Also, any new family member would have to be explicitly accepted in writing by every family member, via legal forms, and documented as being financially and emotionally connected to all of the other family members, and social services would have a duty to spot check for abuse in some cases, etc.

          Actually, the more and more I think about it, if these arrangements are to work, they would have to be the sort of thing that would be too heavy and consequential for most people and would be used rarely, which is maybe a good thing. Certainly, this exercise shows that you can’t just extend marriage law to polygamous and polyandrous groups or non-traditional families.Report

  12. Avatar Jim Heffman
    Ignored
    says:

    “Special civil recognition of the marriage contract ensures that spouses will have the same visitation rights as blood relatives. ”

    But why does that special civil recognition exist? And what stops such recognition from being extended to what we might call “marriage-equivalent contractual relationships”?

    I mean, the whole post kind of turns into “civil unions can’t be the same as marriage because civil unions aren’t marriage, and civil unions aren’t marriage because civil unions aren’t marriage.” You aren’t actually giving a reason why they *can’t*, you’re just describing the ways that they *aren’t*, and much of what marriage *is* depends more on social convention and grandfathering than anything else.Report

    • Avatar Mark Thompson in reply to Jim Heffman
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      says:

      Huh? I think I gave plenty of reasons why civil marriage is necessary. Nowhere in my post do I discuss the distinction between civil unions and civil marriage, nor even mention civil unions.

      The question was why marriage deserves a special legal status different from other contractual relationships. I gave a plethora of reasons for this. Amongst others:
      1. To give legal effect to the fact that the marriage contract is intended to create a familial relationship between the spouses, and in fact to create an especially close familial relationship. As long as parent-child relationships and other blood relationships are entitled to legal effect that is binding upon third parties, then you need civil marriage to ensure that spousal relations are treated in the same or better fashion. If your question is why do spousal relations deserve treatment as on a par or superior to blood relationships, then the answer is pretty obvious: (a) that’s how the parties want their relationship to be treated; and (b) spousal relations are, as a practical matter, usually even more intimate than blood relations. Though not mentioned above, there’s also the fact that (c) we need to define what constitutes a legitimate blood relationship in the first place, ie, we need to define the family unit to give legal effect to the family unit. Or are you asking why we should give legal effect to familial relations at all?

      2. Marriages will happen with or without civil marriage. But civil marriage is necessary to help mitigate the abusiveness that historically has characterized non-civil marriage.

      3. Because marriage is an exceedingly common arrangement usually between legally unsophisticated parties, and one that of necessity has massive and far-reaching legal consequences regardless of special civil recognition, civil marriage supplies default terms to the marriage contract that the parties lack the time, sophistication, knowledge, or negotiating power to specifically include in the contract. A lack of default terms in such situations is a recipe for even messier divorce litigation than we already have, and is a recipe for confusion.

      4. To encourage two parent households instead of single parent households, which are likely to require significantly more public resources.Report

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