Why Civil Marriage?

Mark Thompson in reply to Just Me 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