A Proposal For Privatizing Marriage


Jon Rowe

Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer.

Related Post Roulette

125 Responses

  1. Avatar Sam says:

    So if for instance, two chaste, conservative, doctrinaire Roman Catholic, cisgendered nuns who happen to be biological sisters (Sisters who are sisters) want to enter into a “civil union” they would be able to do so just as a gay couple, a biologically related brother and sister, or an unrelated male and female could.

    I wasn’t aware that derision could drip from a proposal through to a laptop, and yet, here I am, soaked to the bone.Report

    • Avatar Glyph says:

      What are you getting derision from? It seems to me that a lot of the practical everyday problems that gay marriage is intended to fix (like the fact that a gay person was not able to visit their spouse on their deathbed or make emergency medical decisions for them etc.) are faced equally by any single adult who is straight (or gay) and celibate/asexual/widowed/un-romantically-partnered for any reason.

      Rather than having the state care about things like “love” or “sex” (neither of which is technically necessary to have a marriage), isn’t the practical thing to have the state say “any two adults can sign up to enjoy and exercise the legal rights and responsibilities of taking care of each other” since adult two-person reciprocal partnerships can save society and the state a lot of legal and financial headaches?

      Note that nowhere am I considering the practical question of how easily this framework could be implemented.

      I’m just asking why, given the givens, it’s not theoretically an even more ideal and inclusive scenario than what we have now (leaving aside plural or poly arrangements as, arguendo for the purposes of this discussion only, simply too complicated to be handled under currently-existing legal frameworks).Report

      • Avatar Sam says:

        It seems to me that a lot of the practical everyday problems that gay marriage is intended to fix (like the fact that a gay person was not able to visit their spouse on their deathbed or make emergency medical decisions for them etc.) are faced equally by any single adult who is straight (or gay) and celibate/asexual/widowed/un-romantically-partnered for any reason.

        Are you asking why single people can’t be treated like committed people?Report

        • Avatar Glyph says:

          Hmmm, not exactly.

          I am asking why people can only be committed, from a legal POV, to a person that they are (supposedly) swapping fluids or sweet nothings with.

          Why should the state care, if they supposedly are doing either of these things or not and which, again, need not be present in “marriage”?Report

          • Avatar Sam says:

            I’m sorry, but I’m continuing to not grasp your question. If you’re saying that two friends are essentially just like a couple and should receive legal recognition as such, well, then, I guess we can have that conversation?Report

            • Avatar Glyph says:

              Yes, that is what I am saying. I’m surprised it’s so opaque. Refer back to the bit you quoted, into which you seem to be reading derision (and I perhaps cluelessly do not.)

              It wasn’t fair that gay people couldn’t be married, when straight people could. Having marriage depend upon certain kinds of sex, or the ability for the pair to procreate, were not germane to the issue, since marriages with no possible progeny were already A-OK.

              What I take the OP to be asking, is why “romance” or “sex” need be involved in the question at all, since they need not be in the relationship, and those concepts aren’t the State’s business anyway.

              “The State” is that thing we all do together, mostly regardless of our own personal beliefs. Ideally, it seems to me that we’d want it to be as neutral as possible, when it comes to matters of religion or conscience or personal preference.

              So taking the marriage institution we already had (which, remember, came from a State that was theoretically separated from Church, but frankly, those two are still often seen sneaking around each other’s back doors) and saying, it no longer has to be (man + woman) but can now be (man + man) or (woman + woman) was certainly the easiest way to further open the franchise up; but if the *social benefit* of “marriage” (meaning a standard package of legal rights and responsibilities to one other) is reducing uncertainty and increasing stability in a society and its citizens (by designating a standard simplified legal arrangement of two people who can each serve as reciprocal proxy for the other in many medical and legal and financial matters), then it’s not clear to me, at all, why we want to use “romance” or “feelings” as the State’s yardstick for that.

              So, why not have the law simply allow any two people who want to be “married”, whatever we call it (the name isn’t important to me), to do so? What is the logic for excluding the “sisters who are sisters” from any goodies that being married in the eyes of the law would get them, so long as they are willing to accept the legal responsibilities (and the potential financial cost of divorce) as well?

              If it’s called “civil union” and it’s important to the couple that they have the word “marriage” instead, the church (or religious/spiritual/political/accreditation organization) of their choice can perform whatever ritual is required for that by their lights.

              As long as everyone can take a bath, what do I care if you take yours with a holy man and call it a “baptism”?Report

  2. Avatar greginak says:

    But this doesn’t answer some questions. If people get this civil union does every other state and court in the union have to accept it? Do hospitals have to accept it the same way as they accept marriage now? If no then the CU is just a lesser contract that doesn’t seem to serve much purpose.

    Marriage is fine and always has been. The concept works great and has a long established legal and cultural history.Report

    • Avatar Jon Rowe says:

      The answer to the question is “yes.” Abolish the word “marriage” and replace it with “civil union.” The real theoretical problem with my proposal would be achieving this. Now that we have same sex “marriage” uniformly nationally legally imposed, the state by state “civil union” approach would be, indeed unworkable. We’d have to have a similarly nationally imposed “civil union” imposition.Report

      • Avatar greginak says:

        So this is just changing the word marriage to civil union. Redefinition doesn’t really change anything. A bit of white out and problem solved!!!

        This isn’t about marriage, it’s about protecting what some people see as the meaning of a word.Report

        • Avatar Will Truman says:

          Changing the word and expanding it to any two people such as siblings. (Or maybe more than two, but that gets trickier.)Report

        • Avatar Jon Rowe says:

          That’s a good point. And, it seems to me, the crux of the issue. If it’s about screwing over gay folks, that’s not a good argument. On the other hand, if it’s about a good faith belief in what is metaphysically sacred (something over which much blood has been shed) then that’s actually a proven solution. “Christianity” (the meaning of which is greatly contested) becomes “religion” (something over which can more generically be protected).Report

          • Avatar greginak says:

            Well i agree i have a good point. ( insert smiley face here)

            Question: Has a lot of blood been spilled over the definition of marriage? Gosh knows religion have spilled mega-gallons of blood over every other darn thing.

            Your proposal seems a lot more radical then just expanding marriage to include same sex unions. FWIW i think there is big difference between civil marriage and religious marriage. Civil marriage is a contract and nothing more. Everything else people put on on it is their choice, whether that is love or religion or being bonded for all frickin eternity. Civil marriage works just dandy so i’m not sure i see the purpose of just trying to call it something else.Report

            • Avatar Jon Rowe says:

              ” Civil marriage is a contract and nothing more.”

              I don’t think this is right. When I buy a cup of coffee from Starbucks that is a “contract and nothing more.” Civil marriage on the other hand is a legal institution that is in fact, as I noted a bureaucratic morass. (Something prudent folks might actually want to steer away from as opposed to join.)

              “Everything else people put on on it is their choice” are what is, in fact “a contract and nothing more” (provided those things meet the legal elements of contract law, i.e., put those things in writing according to the Statute of Frauds).Report

              • Avatar Sam says:

                What is the bureaucratic morass exactly?Report

              • Avatar greginak says:

                Civil marriage is a set of rules about how money is divided if the marriage is broken, how child custody works, tax rights and who can pull the plug. The civil/legal marriage is just about various legal rights and arrangements. People confuse that with love or community recognition or spiritual stuff. But the legal marriage part of marriage doesn’t deal with any of that, it just specifies how to break the union and different legal status for taxes and such. Legal marriage is just a standardized contract. No one likes to think about it that way even if true because there is all the other stuff like love. But signing the marriage license doesn’t mean anybody loves each other or speak to God/Gods/Goddess/Cthlulu. The licensedoesn’t mean anybody approves of your marriage or isn’t darn sure it’s not going to all end in tears in a few months. It doesn’t even mean you wear rings or even tell someone you are married. The license only changes a legal status and says how to break the contract after the wife/groom is found snogging the best man/brides maid/ parents in law.Report

              • Avatar Jon Rowe says:

                “People confuse that with love or community recognition or spiritual stuff. But the legal marriage part of marriage doesn’t deal with any of that, it just specifies how to break the union and different legal status for taxes and such. Legal marriage is just a standardized contract.”

                Then why not just in a legal sense, call it a “civil union”?Report

              • Avatar North says:

                Because the state was there first.Report

              • Avatar Murali says:

                Because its not particularly civil?Report

              • Then why not just in a legal sense, call it a “civil union”?

                Then aren’t you just conceding the original point that what you want is marriage (expanded to include any two people)?Report

              • Avatar Sam says:

                Because those are marriages too? Even if they’re being done differently than you’d prefer.Report

          • Avatar Morat20 says:

            On the other hand, if it’s about a good faith belief in what is metaphysically sacred

            So no Christian sects support gay marriage?

            Because what you’re really saying is “what SOME religious members of SOME religious sects think is sacred, even if people sitting on the pew next to them disagree” which seems an awfully weird thing to decide to privatize marriage over.

            Why should we privalege the feelings of anti-gay marriage Christians over pro-gay marriage Christians? Why should we side with one over the other in a dispute that takes place entirely within their Church?

            Because marriage has always included far more than a religious institution, and religious folk know that — Catholics don’t throw a fit that thrice-married men get married again, or that atheists get married.

            Privatize marriage seems to be entirely about changing the entire civil institution to protect SOME — not all, SOME — members of Christianity from some nebulous, ill-defined ‘harm’. A harm they can’t even agree on internally even exists, as some Christians celebrate gay marriage and others don’t.

            This really seems to be an attempt to prioritize anti-gay Christians over the rest of Christianity.Report

            • Avatar Jon Rowe says:

              I have no desire to do that. Though, guilty in the sense that I think we can treat such equally with the other side, what we desire.Report

            • Avatar Lenoxus says:

              The way it works is this: every faith gets veto power rather than approval power, and everything left has to be unanimously supported. That’s why we don’t have a national flag anymore, because of Jehovah’s Witnesses.Report

      • We’d have to have a similarly nationally imposed “civil union” imposition.

        Is this purely hypothetical, or are we concerned with how this happens? Since marriage laws have always been set state by state (with the federal government only getting involved to prevent unconstitutional discrimination), I think this requires a constitutional amendment. I suppose federal laws (IRS regs, etc.) could be changed to replace “marriage” with “marriage or civil union”, which would allow each state to change over to civil unions if it chose.Report

      • Avatar Don Zeko says:

        As an aside, I agree that the all-civil-unions approach is unworkable post-Obergefell, but it didn’t have to be so. Kennedy could just as easily have reached the same result by applying well-established equal protection doctrine to the issue. Thus no fundamental right to marriage is found in the relevant due process clauses, and no barrier for states to switch from marriage to some other thing, so long as gay and straight couples are treated equally.Report

  3. Avatar Sam says:

    Do you consider all marriages performed in all churches to be marriages? Or only certain marriages performed in certain churches?Report

    • Avatar Jon Rowe says:

      I actually don’t consider the question. My position is if someone wants to view a union as “marriage” that’s between them and their conscience.Report

      • Avatar Sam says:

        Then what do you care if people are married by the state?Report

        • Avatar Jon Rowe says:

          I don’t.Report

          • Avatar Sam says:

            Then why change the definition?Report

            • Avatar Jon Rowe says:

              Because in a pluralistic society what “I” care about isn’t dispositive. It’s also what “you” and “others” care about too that matters.Report

              • Avatar Morat20 says:

                So you’re gonna take away marriage to please the anti-gay Christians, what about the pro-gay Christians? Aren’t you screwing them?

                Because really, if the word ‘marriage’ used with gay couples is so harmful to anti-gay Christians, isn’t the stripping of marriage entirely from the state (and coming up with an entirely new system) even MORE harmful to pro-gay Christians? You’ve just told them, through the power of the state, which side the State is on.Report

              • Avatar Jon Rowe says:

                Take “marriage” away from “who”? That word was never governments’ to give.Report

              • Avatar Sam says:

                Can you show me the deed to the word?Report

              • Avatar Morat20 says:

                It wasn’t? Really? Since when?

                Admittedly, I’m talking about Western history but “marriage” ranged from property transfers (very, very, very big on the State side of the equation) to geopolitical deals.

                That changed a bit when women stopped being effectively property, but the State has been involved in “Marriage” in the Western world since, oh, Henry the VIII at the earliest. (Honestly before that, but I feel Henry makes a pretty good example of how ahistorical your belief is).

                Religions have a ‘religious marriage’ yes. But there’s always been a legal, civil side.

                So now you’re trying to take away a thousand years of Western tradition to salve SOME religious folks, over the objections of other religious folks? Are you sure you don’t have some other motive?

                Because as best I can tell, you want to remove ‘marriage’ from the state — despite it having been there for centuries — all because some members of some religions are upset that some people are getting married. Despite the fact that doing so would upset centuries of tradition and upset OTHER people — including members of that same religion you’re catering to!

                None of that makes sense. I mean, maybe if you believed all religious folk were anti-gay marriage AND that ‘marriage’ has existed in it’s late 20th century state for all of recorded history, then maybe it hangs together.Report

              • Avatar Jon Rowe says:

                You don’t get my position. But that’s okay.Report

              • Avatar Morat20 says:

                That’s why I’m asking you to explain it.

                So far you’ve stated that “marriage” belongs to “religion” and not “the state”. But historically, you’re…wrong. It’s been intertwined for centuries.

                So your argument — “remove marriage from the state” means upsetting centuries of common law and cultural concepts. Why? Why should we do this? What do we gain for the cost?Report

              • Avatar Jesse Ewiak says:

                “Take “marriage” away from “who”? That word was never governments’ to give.”

                Then maybe Christian’s shouldn’t have spent the last century lobbying for benefits and tax loopholes due to the fact they were “married.”Report

              • Avatar Sam says:

                I fail to see how our newer, more inclusive marriage model doesn’t satisfy your apparent interest in a pluralistic society.Report

              • Avatar Jon Rowe says:

                “I fail to see how our newer, more inclusive marriage model doesn’t satisfy your apparent interest in a pluralistic society.”

                It’s analogous to government having a definition for what is controversially, in a specific sense, sacred to more than a nominal number of folks. I.e. it’s not governments’ job to determine whether Mormonism is “Christian.” But government grants rights under a more generic concept: “religion” of which Mormonism is protected.Report

              • Avatar Sam says:

                Which is why allowing for gay marriage under the umbrella of marriage gets us closer to your goal, not farther from it.Report

              • I don’t think Jon is denying that, @sam .Report

              • Avatar Sam says:

                @gabriel-conroy It sure seems as though he is. I’m not getting anything inclusive from his position at all. If anything, it seems as though his goal is to unmarry as many couples who don’t pass his apparently preferred religious litmus tests.Report

              • Avatar Morat20 says:

                From a comment he made to me lower down, his goal appears to be primarily ideological (something about exposing that marriage is mostly a bunch of legal stuff, instead of some sacred union. Something he apparently feels is hidden from most Americans? I dunno).

                He’s cloaking it in “This way we can protect those Christians who are upset over this” but that’s transparent BS, insofar as there are also Christians who are deeply happy about this.

                Honestly, it appears he’s using gay marriage to grind his libertarian ax in a particularly dumb way, because he’s basically arguing “Think of the poor bigots!” as cover for trying to futz with one of the parts of government (all that legal stuff he seems to think Americans don’t know the government does when it comes to marriage) that Americans are perfectly happy with.

                In the process, he’s appealed to a fallacious history of marriage, he’s tried to federalize marriage as shrinking government, he’s tried “separate but equal is better”, he’s decided to prioritize one section of Christians over another, and has basically made a giant muddle that makes it impossible to figure out if he even has a point in there other than, for some weird reason, he dislikes the fact that the state government recognizes marriage in the first place and he’s happy to use any tool at hand to try to change that.

                A quest that is, of course, doomed to laughable failure.Report

              • @sam and @morat20

                You both seem to believe that Jon is some homophobe bent on denying gays rights. I’ve “known” him from blogs for about 6 years or so, and I believe that’s a false belief. While I haven’t read everything he’s posted during–and there’s been years at a time when I didn’t take the chance to read him–I feel it’s safe to say that his beef is with marriage and the way it seems to tie the state and religion together. His beef isn’t with gays.

                ETA: I’m not saying I agree with Jon, just that he’s not the raging anti-gay person you seem to think he is.

                [A second ETA]: Not that I don’t understand how this post, taken in isolation, might lead you to believe that of him. There seems to be a lot of people joining the “get religion out of marriage” bandwagon now that ssm is legalized. But Jon was doing this long before it was so popular, and prior to ssm being legal, divorcing the state from the religious aspect of marriage was actually a strong argument for expanding equal access to marriage.Report

              • Avatar Morat20 says:

                I suppose you could take my words that way, if you were illiterate.

                In fact, I was very clear — multiple times — to state that his entire point is that he has an ideological ax to grind (his libertarian beliefs) that he’s using gay marriage as an excuse to whip out.

                At worst, he’s cheerfully using bigots as cover, since one of his stated rationales is that it’d all be a lot nicer if we just let the anti-gay marriage Christians keep the word marriage, and change ‘marriage’ to this other thing he’d prefer a lot more for [libertarian-ish reasons. They really don’t track, since the end result is federalizing marriage under a name change, but he also explained he wanted people to be aware of the “morass” of government behind marriage] reasons.

                His position is pretty incoherent, to be honest. There’s implied historical assumptions in there that are false, he seems to feel married Americans are unaware of the government’s involvement in marriage, and he really doesn’t seem to want to admit that his solution requires government to basically act on one side of a religious split. (Continuing with the status quo is…continuing with the status quo. Playing fun games with labels is basically saying the government holds the beliefs of anti-SSM Christians over the pro-SSM Christians).Report

              • I actually agree with a lot of what you’re saying about the challenges to Jon’s argument. I mostl don’t agree with this part of your comment: “Playing fun games with labels is basically saying the government holds the beliefs of anti-SSM Christians over the pro-SSM Christians.”

                Now, if you’re just arguing that’s the logical implication of what Jon’s saying, then I guess I have to reluctantly agree that that’s one way to look at it. But there seems in your and Sam’s comments to be an assumption that Jon is advancing his argument in bad faith and as a roundabout way to promote bigotry against gays. If that’s not your point, then I apologize for misreading you.Report

              • Avatar Morat20 says:

                Ah, no. I’m not saying it’s bad faith. I’m thinking Jon hasn’t really thought that part through. Because I don’t think he really cares about the feelings of anti-SSM Christians, nor to the messages his changes would send towards religions.

                He’s very focused on the whole “get government out” bit.

                I know quite a few Christians who are very much pro-SSM — including some who were involved in SSM ceremonies long before the government recognized them as valid marriages.

                And if the government were to do as Jon suggested, they would view that as an attack — that is, they would view the government as siding with the anti-SSM folks against the pro-SSM folks, basically interjecting itself into a religious argument already unfolding.

                How could they not? If the government continued as it always had, that’s one thing. But to go and make fundamental changes to marriage, including renaming it? It would feel entirely like the government felt the beliefs of anti-SSM theists were more valid than those who were pro-SSM.Report

              • Avatar Morat20 says:

                Eh, my opening line was a little combative. Suffice it to say that if you think I called him a bigot, I either wrote horribly or you read horribly.

                Doesn’t really matter which. I’ll categorically state that at NO point between my initial reading of this post and “now” did I think he was a bigot.

                I thought he was a “GET THE GOVERNMENT OUT OF MARRIAGE” libertarian who was using the recent ruling as an excuse to whip out his pet hobbyhorse, which I felt then splintered underneath him the more he talked.Report

              • Fair enough. I’m still not sure what I think of Jon’s argument (I’m still not sure I understand it) but at least I know where you stand, and it’s not where I had accused you of standing.Report

              • Avatar Will Truman says:

                @sam and @morat20

                You guys seem to be making this a lot more complicated and intricate as it is. In the status quo, either you’re (legally) married or you’re not. He wants to change it to “civilly united” (or somesuch) and you can declare yourself married or you can say that you’re not married and what you say will have no bearing, or truthfulness or falseness, in accordance with the law.

                In the OP he presents two siblings who want the rights and responsibilities of marriage but may not want to actually say “We’re married” or have to answer yes if asked “Are you married?”

                I have two friends from back in Deseret, Simon and Paige. They met; they fell in love; they quickly determined that they were for keeps. They moved in together as soon as they could, and he became the de facto father to their children.

                This was ten years ago, when the private sector and some governments were doing the whole “civil union” thing for gays. They said “Hey, we’re straight, but we want that!”*

                Which is to say that they wanted the rights and responsibilities of marriage (at least, at that precise point in time). For whatever reason, though, they did not feel themselves ready to be married. They felt that would come in time, but that time was not yet. They wanted a wedding down the line and something that meant something to them.

                Alternately, Paige and Simon could have gone the exact other route. In fact, that’s sort of where they were leaning more recently. If they become civilly united, she will lose some of her government benefits. Their tax situation will change not in their favor. And the whole debate over SSM sort of turned them off of the notion of government recognition anyway (their view being “We shouldn’t get married if gays don’t have the right to” — though that’s obviously moot now).

                Rowe’s proposal, and ones like it, offer a solution for Paige and Simon. And at little cost to anyone else because the rest of us could get “married” and “civilly united” at the same time if we so chose. But we wouldn’t have to. Paige and Simon could separate the two, two sisters would be able to never get “married” in the social or religious sense but be civilly united for legal reasons, and other couples still could become “married” but tell the state “We want no part of that.”

                Personally? I’m not really sold. I am coming around on the notion that people maybe should be allowed to file for “civil union” in lieu of marriage, but there’d be no legal distinction and the benefits would be mostly psychological (or psycho-social). But beyond that, I want the government involved in marriage for mostly conservative (or certainly anti-libertarian) society-shaping reasons.

                But I’m pretty sure that’s the argument that Jon is making. I see little reason to assume that it’s some sort of stealth bigotry or stealth libertarianism. Rowe is a pretty straightforward fellow (who was a part of this site long before any of the three of us were) and there’s not much reason to believe he doesn’t say pretty much what he means.

                (I’m probably not going to be checking these threads, so if you reply to me and want me to see it, please @ me.)

                * – In case it’s not obvious from my later comments about them, they are staunchly pro-SSM and if you’re inclined to interpret that as Mormon or redneck resentment of gays getting “special privileges” you couldn’t be more wrong. They considered it an outrage that gays were not allowed to marry.Report

              • Avatar J_A says:

                What your friends want is a PACS ( https://en.m.wikipedia.org/wiki/Civil_solidarity_pact ). A marriage lite version that is definitely different from marriage (or from civil unions that are “equal-to-marriage-except-the-name”)

                Created in France for the benefit of gay couples that couldn’t get married, it ended being extremely popular with straight couples that wanted an intermediate stage, while keeping marriage as an option for the future. 94% of PACSs are opposite sex.

                I would strongly support PACSs in the USA. I think they meet a social role. However, I don’t know how you would establish them in this country, given that they wouldn’t be portable from state to state. A pacsed couple in CA would suddenly become single in OR. it would be the whole gay-marriage in-some-states-conundrum-again.Report

              • Avatar Sam says:

                I continue to struggle with the idea that there’s something wrong with the current arrangement. It seems to allow for more people than ever before to get what they want. The issue that the state is too intertwined with marriage is something that is literally tripping very people beyond @jon-rowe up. And I continue to not be impressed by the idea that simply because he was able to work out his own arrangement, the entire world should shift its view to his. I see nothing compelling about the proposal being made.Report

              • Avatar Stillwater says:

                I continue to struggle with the idea that there’s something wrong with the current arrangement.

                I guess there’s broadly two types of arguments offered at this point: 1) the state has no “right” (or legitimate authority, whatever) to pass legislation restricting the “rights” of individuals (determined by properties which exist conceptually prior to or independent of the state), and 2) a utilitarian/consequentialist argument that society is better off with a state that doesn’t meddle in individual’s private lives (or whatever).

                Personally, I’ve never been remotely persuaded by either argument except in the context of accepting something like libertopia, which I in turn reject since it strikes me as an unattainable idealization.

                But all that’s pretty easy for me to say since I’m not a libertarian.Report

              • Avatar Jaybird says:

                I continue to struggle with the idea that there’s something wrong with the current arrangement.

                This time last year, this was a bigoted statement.

                Today this is an open-minded one.

                I am confident that we will see this become a bigoted statement again.Report

              • Even when it was a “bigoted” one, the clear solution was to remove the bigoted aspect, not blow the whole thing up and start over.Report

              • Avatar Will Truman says:

                I’m fine with the current arrangement, more or less (as mentioned, I’d be opened to having a civil union option for couples that don’t want to get married to one another or who are presently not eligible to). I gave you an example of how offering the arrangement might make people who are not Jon Rowe happy (or happier), but you ignored it and instead return to Jon Rowe and your perception of Jon Rowe’s issues.Report

              • Avatar zic says:

                Well, you know that I believe a woman should have as many husbands as she can handle.Report

              • Avatar Murali says:

                Which often ends up as zero right?Report

              • Avatar zic says:

                I know a few woman who can probably handle three of four.Report

              • Avatar Murali says:

                Good for them!Report

  4. Avatar Francis says:

    marriage — metaphysically sacred institution that it is.

    Agreed. Which is precisely why any two people who want to enter into one get to do so.

    “If on the other hand, the instruments of private contract alone will not suffice and one needs to join a comprehensive state oriented legal institution, join it under the auspices of the above defined “civil union” and leave marriage alone.”

    Great idea. The Libertarian Party and the California Republican Party should push to strike the word “marriage” from every place that it exists in the California Codes and replace it with “civil union”. Let’s have those two great political institutions make a big point of telling everyone in this great State that they can no longer get married and that everyone who was married is now civilly unionized. (If they are going to massacre the English language they might as well go all the way and use ‘unionized’ instead of ‘united’).

    They can even go for a ballot initiative. That would be totally entertaining.Report

    • Avatar Jon Rowe says:

      Yes. That’s why I don’t think such as it stands is a “state and local” thing. Rather, if privatizing marriage is a solution to a problem, it’s therefore a national thing.Report

      • Avatar Morat20 says:

        What problem is it solving? Some people don’t like gay people to get married? That’s a problem to be solved why? I mean let’s face it — anything any government does will result in some people disliking it. That’s how people work.Report

        • Avatar Jon Rowe says:

          The problem of those people’s conscience who don’t believe same sex couples are “married” in the sense that certain Christian people might not be Jehovah’s Witnesses are “Christians.” The problem is to grant equal protection under a more general rubric.Report

          • Avatar Jesse Ewiak says:

            And people’s conscience didn’t think interracial marriages were marriages either once upon a time.

            Fish ’em.Report

          • Avatar Don Zeko says:

            I’m a bit foggy on how this works. Isn’t there already a well established distinction for most conservative religious believers between civil and religious marriage? Conservative Catholics, for example, wouldn’t recognize people that remarry after divorce as having been married in the religious sense, but such people have been able to get a civil marriage for quite some time. If people with narrow definitions of religious marriage have managed this for so long, why do we need to change things just because gay marriage is part of the mix now?Report

          • Avatar Morat20 says:

            Why is that a problem to solve? Should we kick out all the blacks, because some whites consciences are offended by the mixing of races?

            And where do you draw the line? I mean you’re willing to overturn centuries of common law concepts to appease a minority of people right now.Report

      • Avatar Francis says:

        So the libertarian solution to salving the feelings of a vocal (but shrinking) group of Americans is to federalize the issue?

        The constitutional basis for this law would be, I presume, an extraordinarily broad interpretation of the commerce clause. Indeed the commerce clause reliance would be so broad and so violative of a sphere of law that traditionally has been deferred to the states that it easily could lose at the Supreme Court. And if it won it would serve as the basis for a massive increase in power of the federal government in other areas of traditionally state law, quite possibly reversing Erie Railroad.

        And libertarians support this? Are you kidding me?Report

  5. I’m not sure this really answers the objections to privatizing marriage – it’s not really “privatizing” anything, just changing the legal terminology.

    The idea of separating terminology for civil and religious marriage has certainly been around for awhile. Believe it or not, a post suggesting exactly that “compromise” – from a committed liberal, no less – was one of the very first posts on the original League of Ordinary Gentlemen site. As I recall, that post was viciously mocked in those parts of the conservative blogosphere that picked up on it (not you or anyone who has ever been directly tied to the site), and held up as proof that “the Left’s” ultimate goal was nothing less than the destruction of marriage.

    But honestly, I’m not sure it achieves much, and at this point, there’s not really any incentive to pursue it. Practically speaking, the term “marriage” for civil marriage has become so engrained in the popular vernacular that I don’t think changing the legal terminology would alter how people refer to it colloquially.Report

    • Avatar Don Zeko says:

      I could see a version of this proposal that isn’t just a name change, in which rather than having a more or less pre-set basket of legal privileges that attach to married couples, we got rid of all that and just let people contract privately to match whatever romantic/life arrangement they had in mind. This is a terrible idea, IMO, but it does have far more policy substance to it than changing the name to appease the sensibilities of anti-gay religious believers.Report

      • The trouble with that, of course, is that marriage is more than just a set of privileges between two people – it’s also binding on third parties in many significant respects – visitation rights, intestate distribution priorities, some medical decisionmaking, etc.Report

        • Avatar Don Zeko says:

          @mark-thompson certainly, that’s exactly why I think it’s a terrible idea. Well, that and that it increases legal transaction costs for a ton of people for no obvious reason, since it would require people to get legal help to design their legal marriage relationship from scratch.Report

  6. Avatar Burt Likko says:

    Policy A: “Marriage is a union of one man and one woman only. That’s just a matter of definition, not changeable by politics.”

    Policy B: “Marriage must become a union of two adults, of any combination of sexes. “Changing the definition,” if that’s what you want to call it, is just a matter of fundamental fairness.”

    Policy C: “There should be no such thing as marriage: civil unions for everyone! That way we don’t have to address that the traditional definition and fundamental fairness are necessarily in conflict.”

    Once upon a time, Policy C was favored by a group of people who believed that by diminishing the power and scope of the exercise of state power, social friction could be minimized. For lack of a better term, let’s call these people “Social Libertarians.’ And Policy B was favored by those who prioritized equality as the primary good delivered to individuals by civic institutions, including but not limited to the government. For lack of a better term, let’s call those people “Social Liberals.” And Policy A was favored by a group of people who believe that social continuity was an inherent good and change for its own sake was dangerous and weird and to be avoided and it only just happened as a pure coincidence that the social change that Policy B would enact was aesthetically displeasing to them. You can call these folks whatever you want, although you can imagine what I would call them.

    I notice that since Obergefell, quite a lot of people who used to advocate Policy A have massively switched to advocating Policy C. I’m not at all sure what the Social Libertarians think of this although I know if I were among that number, I’d distrust the motives of my new-found “allies,” and given the change in the legal and social landscape that Obergefell represents, even if I had been inclined to see value in Policy C before, I’d question its utility today.

    Which is to say, I find the state of affairs in which Policy B has become the law of the land to be both pleasing and in no particular need of modification.Report

    • Avatar nevermoor says:

      Agreed 100% (though I would describe “C” as the “achievable social justice” position at a time when gay marriage seemed unattainable as it allowed people to couch bigotry in terms of religious beliefs).

      C is also a perfectly workable system (though, as you say, unnecessary now that we have B)Report

    • Avatar Damon says:

      Well, as a resident libertarian/anarchist,

      I’d go with Policy D: Any individual or group may choose to marry, with the normal associated benefits as they are currently defined. You can call it marriage or not. For the purposes of gov’t benefits/etc. you can call it a civil union if you want. I don’t think people will much care as long as they get the benefits/etc. they are due. Some smart lawyer can draft up a few boiler plate forms for folks to fill out and you can go down just like at the dmv, and get a certificate.

      Then again, we could end the entire concept and remove any gov’t involvement / benefits/etc.Report

      • Avatar North says:

        Well the path lies before you. Muster the libertarians and convince the masses to vote to remove the state from marriage. It is truly a revolutionary and historically unprecedented idea. It may take a while to convince them though. You will need a lot of pampletts I suspect.Report

        • Avatar Damon says:

          Truly it is daunting. But look at the sea change with SSM.

          But I suspect we’d find some odd alliances against us. Can you imagine the irony of the gays and the christians on the same side against this proposal? The hypocrisy would be delicious. If I had a spare 100M i’d fund that just to get a taste of that.Report

      • Avatar Morat20 says:

        I’d go with Policy D: Any individual or group may choose to marry, with the normal associated benefits as they are currently defined

        When marrying three or more people, and one falls ill — who has the power of medical attorney and can make the medical decisions? That’s not “as they are currently defined” and that class of problems is the sum of my issues with polygamous marriages in terms of legal recognition.

        Those “normal associated benefits” are arranged as an exchange between equals — “I give you mine, you give me yours” sort of deal. I can make medical decisions for my wife and vice versa. The second you add in even a single other person, the logic collapses.

        If you can propose a solution that does not require a lawyer to handle it before hand or a court to handle it after, I’m all ears.

        But a bog-standard, sign-here and you’re done default arrangement doesn’t seem currently possible for trios or more. You certainly can’t keep the equitable part. A trade can be done for two people automatically, but not for three or four or ten.Report

        • Avatar Damon says:

          “If you can propose a solution that does not require a lawyer to handle it before hand or a court to handle it after, I’m all ears.”

          Clerk of the court to one of the group desiring to marry each other: “Now, you Sally, who do you choose to make decisions for your care if you cannot yourself. Please check this box or write in a name. You may later make a change via our online system.” I’m sure there’s some smart lawyers who can jury rig up a draft document for us to test out.Report

          • Avatar Morat20 says:

            And you’ve just violated “equitable” and opened up the gates for a lawsuit from whichever spouse got the shaft, power wise.

            Because if Bob and Tina and Kim and married, but Tina gets to make the medical decisions for Bob, Kim isn’t an equal spouse.

            There’s a reason polyamorous marriages, across time, have been of the “on person, multiple spouses” view with each subsequent spouse being less and less powerful.

            Two people can trade rights and powers equitably. Three can’t. By simple math, if you’re doing it with three people you’re resulting in some people having more rights than others.

            You can whip up a workable system with Bob the man, Tina the prime wife, Kim the secondary wife and it’s easy. As long as you accept that Bob and Tina are married, and Kim is basically a legal non-entity unless Bob and Tina are in a coma. Which doesn’t really fit American law on marriages, nor the way anything is set up.Report

            • Avatar Jon Rowe says:

              If Jack, Janet and Chrissy want to have a long term threesome arrangement, it doesn’t bother me, and as a libertarian, of course, I’d never prohibit such.

              Should we recognize such under either “marriage” or “civil union”? I’m skeptical.

              The worst thing about recognizing polygamous marriages isn’t, it seems to me, the problem you raised but rather, human nature and example demonstrate polygamy is the vast majority of times one man, more than one wife, not the reverse. That necessarily equates with a shortage of woman for non-alpha male types.

              Re the medical hypothetical, let’s say one of my parents passes (I’d imagine one will die before the other). I have two brothers. We are three. Who makes the decision? Either a legal document will give one of us the ultimate say or otherwise the three of us have to work it out on an equal basis (like an appellate court; it’s good that we are an odd number; and btw, all three of us are lawyers as is Dad).Report

            • Avatar Damon says:

              And you’ve just violated “equitable” and opened up the gates for a lawsuit from whichever spouse got the shaft, power wise.”

              Actually, no, since all parties getting married/civil unionized have agreed to it.Report

            • Avatar Kazzy says:


              Have you ever been married? Most marriages are not equitable in practice, even if they are technically such in the eyes of the law.

              You are right that a boilerplate agreement would likely not mean the needs of the endless permutations a polyamorous relationship can take, but if the folks involved take the steps to outline the various protocols to be followed, I don’t see why you disallow it.

              The bigger issue, as I see it, comes from the various benefits provided by outside groups. Would an insurance company have to couple all partners if a ‘family’ plan is elected? My hunch is to say that they shouldn’t but, then again, insurance companies have to cover all your kids, whether you have two or twenty. So why not all your partners? Police and firefighters and the military are often eligible to have death benefits paid out to spouses in the event of death in the line of duty. Would this be a set payment to be divvied up however the remaining partners see fit? Or would it grow?

              We’d also have to sort out the nature of the various relationships. If John and Mary and Joe all get married, is each one married to one another, such that if one passes, the other two are still married? Or is John married to Mary and John married to Joe but Joe and Mary have no formal relationship? I suppose this will vary from relationship to relationship depending on what the folks involved want.

              Are their problems? Sure. Can they be worked out? Probably. A major road block is abandoning many of the traditional understandings we have of marriage (e.g., equity), many of which are mere fictionalized ideas anyway.Report

      • Avatar Burt Likko says:

        How is this different than policy C?Report

        • Avatar Damon says:

          You said “Policy C: “There should be no such thing as marriage: civil unions for everyone! ”

          I consider marriage and civil unions the same thing. One may be done on the courthouse steps, the other in a church, but the end result is the same.Report

      • Avatar Francis says:

        As an anarchist, shouldn’t you just simply refuse to get married? Why insist on the benefits and burdens provided by statute if you reject the very idea of government?Report

        • Avatar Damon says:

          That would be my preferred solution. Ideally marriage/civil unions would have no effect on anyone’s tax status, etc.Report

  7. Avatar nevermoor says:

    I’ll note a few things on this subject:

    1. This was my pet proposal in college to figure out who was genuinely religious and who was just motivated by “gays are icky”-level reasoning. If you cared so deeply about the religious meaning of marriage, you should want it separated from the state anyway, so that you could impose your own restrictions on it (marriage across faiths, requirement that it be done in church, whatever). Meanwhile everyone could have the same rights (the assumption is that it would be illegal to discriminate based on a distinction between “civil union” and marriage as the later is no longer a term of any legal significance). Worked pretty damn well.

    2. I find it interesting to see this cropping up now when there is no longer an equal rights problem to be solved, and therefore no legal motivation whatsoever for the change.Report

  8. Avatar North says:

    I am trying to be gentle and also brief since I am typing on an iPad. This whole proposal suggests some significant ignorance of history in that it presumes that marriage is somehow property of Christian theology. That is far from the case. From at least Babylon on the state and marriage have been fundamentally entwined. Indeed iirc Christians basically took on managing the civil aspects of it only once the Romans went into decline.

    Basically if we were to grant your reasoning my good sir it would be the religious who would be evicted and invited to select a new name for the unions they officiate without state involvement because when it comes to marriage the state and before it the crown and before that the clan and before that the club has always been in the marriage business. The robed chap at the altar of various brands and creeds has come and gone but the clerk and the paperwork has been there in the background. I see no reason the religious get to claim squatters rights.Report

  9. Avatar Murali says:

    It strikes me that marriage privatisation, even when proposed by a gay person, even after obergefell, is still viewed as a covert attack against gay people.Report

    • Avatar zic says:

      Not to mention married people who think they have a very spiritual marriage but not a religious marriage.Report

    • Avatar Morat20 says:

      Well yes. Because what’s changed lately about marriage — in the last 60 years? Interracial marriages and gay marriages. Interracial marriages are 40 years old now.

      So odds are, anyone suddenly burning with the desire to get government out of marriage is one of two things: Of a particularly rare ideology (that is, hard-core libertarian enough to want to get government out of marriage) or…against gay marriage. Odds are, someone talking about it now is the latter. There’s more of them, after all.

      Indeed, do you think this post would have been made if gay marriage was not a current issue? I am well aware some libertarians are of the mind that government shouldn’t be involved in marriages — but I’m also aware pretty much every one of them thinks there are bigger fish to fry — with a far more realistic chance of getting anything done.

      How else should it be taken? Just a coincidence that an obscure topic among hard-core libertarians just randomly popped up today, totally unconnected to a large and recent change in the status quo?Report

      • Avatar Murali says:

        Except that you know that Jon Rowe is a married gay man.Report

        • Avatar Murali says:

          And you also know that he is a libertarianReport

        • Avatar Morat20 says:

          Yeah, which means that — given that context — I can swap him into the tiniest box — that of libertarians who go so far as to want to keep marriage out of the governments hands. That just makes him a libertarian of a certain bent who seems to be frying very small, very pointless fish.

          Except weirdly, he’s not. He clearly seems to state government has a role in marriage. So knowing he is libertarian, not against gay marriage, but against some portion of the government’s role in marriage (to what honestly appears to be mostly the use of the term marriage — he literally wishes to rename it) I come to the following:

          As best I can tell, he sees “marriage” as a religious thing the government has gotten involved with, and thus wishes to remove it as he feels this is infringing on those who dislike it. (That removing it infringes just as much on those who are for gay marriage and religious is left un-examined, but I can assume he’d prefer to err in the favor of less government than more — that is, it’s preferable for the government to infringe by NOT doing something than by actively doing so). This is based on an entirely false view of the history of marriage. His foundational assumptions are wrong. This should lead him to reconsider his conclusions (it is possible his conclusion might still be correct, but if you have made core assumptions that are incorrect one should reconsider one’s conclusions as a matter of course).

          As a point of fact, marriage is not a religious institution the government got involved in. Marriage pre-existed modern religions, and modern religions incorporated marriage and marriage customs.

          If a Church decided to rename it’s tithe “taxes”, should the government be obligated to rename “Taxation” to avoid excessive entanglement?Report

          • Avatar Murali says:

            My point is not about disagreeing with some of his premises. My point is about people interpreting Jon, when he makes the argument, as doing so for homophobic reasons.Report

            • Avatar Morat20 says:

              That’s simpler.

              We just had a big ruling about marriage. Ergo, people are writing about marriage. As the “winner”, such as there are, of the last big thing about marriage was ‘gay people’, an article that boils down to “Let’s stop having marriages and have some other thing that’s just like it, but with a different name” is going to be understandably viewed as an anti-gay reaction.

              That Jon comes to this conclusion not through animus but prior ideology doesn’t change the fact that the sudden spurt of “let’s get rid of marriage” is motivated far more by people with said animus than without it.

              Sadly for Jon, his position got swallowed up by bigots. The company, I am sure, sucks mightily. The bright side is they’ll give up rather quickly, leaving Jon back in the weeds with a tiny minority of people, since actually doing what Jon proposes is never, ever, ever, going to happen.Report

        • Avatar Jon Rowe says:

          One nuance you missed: I have been with my “partner” who calls himself my “husband” for 17 years. We have no legal relationship for reasons that are personal. We live in PA in the US. It’s possible that the lesser bureaucratic morass of common law marriage could so apply to us, if something were to happen. If “something” does happen, we have that covered in our family and friend network without the need for joining ourselves in a legal partnership of marriage as it currently stands.Report

          • Avatar Murali says:

            I didn’t know that.Report

          • Avatar Francis says:

            A few points:

            You have chosen not to marry. That’s great. You also choose to associate the term ‘bureaucratic morass’ with people who have chosen to marry. Personally, I find that grossly insulting. My reasons to marry are as personal to me as are yours not to.

            Your claimed solution — a federal law that establishes that all marriages are actually ‘civil unions’ — is grossly insulting to those people, gay and straight, who consider themselves happily married and have no desire to cede control of the English language to a group of people who have cloaked naked bigotry in claims about history and religion that are mostly wrong. Your claimed solution is also most likely unconstitutional and is certainly inconsistent with basic libertarian principles.

            As I’m sure you are well aware, the legal aspects of marriage are not intended to affect your family-and-friend network at all, and instead establish principles by which the rest of the world deals with the pair of you. Most states, for example, have a law establishing spousal privilege. As you have deliberately foregone marriage, if you ever were in litigation your partner would likely be unable to assert privilege as to your conversations.

            If you really think that needing to litigate whether your relationship is a common-law marriage worthy of the same benefits and burdens of a recognized civil marriage is less of a bureaucratic morass than forming an actual civil marriage, I encourage you to discuss the issue with a family law specialist.

            And since you apparently have such contempt for the civil institution and its associated bureaucratic morass, why not be proudly single, come what may?Report

  10. Avatar aarondavid says:

    I think this is a great idea, as it 1. helps lessen the power of the state in an area that it doesn’t need to be in, 2. helps pave the way for poly and inner family relationships, while 3. ropeing in people who might might not be down with SSM to a more equitable future for all. I will say that I am saddened that the push back is coming from the quarter that it is.Report

    • Avatar Morat20 says:

      There’s pushback for several reasons:

      First, it’ll never, ever, ever happen. Might as well wish for a pony.

      Two, it’s based on a false premise — that is, marriage is a religious institution the government has gotten involved with, which is contrary to..well, history actually.

      Three, Jon basically just wants to rename marriage. It’ll still be the exact same power, except he wants to define it on a federal level and change the name. But all the bits and pieces will be identical, except federalized, which is not really lessening power just shifting it. In fact, you could call it increasing power because it’s being federalized rather than done by each state individually.

      So why wouldn’t their be pushback? It’s not just a wish real hard for a pony level pipe dream — it is a pointless one, as nothing would actually change except a name and where ‘marriage’ or ‘civil union’ is defined.Report

      • Avatar Jon Rowe says:

        “Three, Jon basically just wants to rename marriage.”

        I’m thinking of things more on a genus and species level of differentiation. “Civil union” could be a publicly recognized genus where the buck stops of which “marriage” would be a privatized species.

        If the folks who don’t want or think gays should be able to get married are bigoted shitheads, then yeah, there is probably no good reason to accommodate them in this regard. If we want to accommodate them, this is a way to do it while still recognizing equal rights.

        I also want to bring people’s attention to the fact that the bureaucratic morass of the legal institution that government “marriage” currently is, is nothing sacred. But, to its credit, it’s not like “social security,” in the sense that one has to OPT for it and can (as far as I understand) not do so, but rather, opt for something else.Report

        • Avatar Morat20 says:

          I also want to bring people’s attention to the fact that the bureaucratic morass of the legal institution that government “marriage” currently is, is nothing sacred.

          Why? You think they’d change it?

          “Hey, you know what? Government’s involved in your marriage! Yeah, that’s right. You get married, you can file JOINTLY. Also your spouse can visit you in the hospital! You can claim each other as dependents! You can’t be forced to testify against each other!”

          What, you think they’re gonna be surprised? That America is filled with drooling morons who have never noticed people get married outside the local church, or think that their priest compels the government to do stuff?

          That they’re gonna demand change of some sort? What on Earth do you think is wrapped up in marriage that’ll make Americans give a crap? I mean, aside from them darn gays getting married.

          Seriously, what do you think they’d actually want to change? (I’ll give you a hint. The two that’ll poll the highest are “gay people getting married” and “interracial couples”). I think your ideology is blinding the heck out of you here.

          And I love the scare quotes on social security. You’re selling the argument there.Report

  11. Avatar mono says:

    A lot of people, especially females, wouldn’t agree with that since the government is their daddy.

    But I support getting the state out of marriage. Too many of the current marriages laws are corrupt. I think alimony should be outlawed. And to all who are going to attack me, no I’ve never been married.Report

  12. Avatar George A. Chien says:

    I think this is a solution in search of a problem.

    Firstly, we have already lived through a Civil Union experiment in several states, including CT where I and my happily married husband live. The objections of most conservative religious people do not seem to have been about terminology, but about the recognition of our relationships in any way, shape, or form. IIRC, the “causes celebre” around cake-baking, flowers, and photography, all occurred in states where marriage equality did not, in fact, exist. The refusals to provide service were related to the “sinfulness” of the same-sex relationship, whatever it may have been called, and the perceived sinfulness of materially participating in it. The same problems would arise when people are asked to celebrate same-sex civil unions, when schools or church-related organizations or businesses own by religiously conservative people have to offer health insurance or family leave to people in same-sex civil unions. Their objections are not likely to be relieved by changing the terminology.

    Secondly, how is it a “legal morass?” Perhaps as a non-libertarian I don’t see it, but I’ve been married, legally, twice, once for 19 years, ending in a relatively amicable divorce, and now for 6 years legally, after 10 years co-habitation. It seems to me that the morass, if there is one, is rather the attempt to live without the benefits of marriage. Especially if children are involved, as has been my case both times. Legal marriage benefits me, my husband, our children, in a lot of ways. I cannot say I have felt “morassed” by it.

    Thirdly, I am, to put it mildly, skeptical of any line of reasoning that dilutes the particular nature of marriage as two loving partners facing the world together, building a home together, creating a family together. Yes, your “sisters who are sisters”, adults with aging parents, etc. could benefit perhaps from a legal status like civil union. But lumping committed gay couples into that same category is a rhetorical technique favored by religious conservatives to deny that there could be anything “marriage-like” about same-sex relationships. I have a problem with that rhetoric whenever it is trotted out, and by whomever.

    In any case, it would have to be demonstrated, or at least argued, that marriage as currently defined is a problem. So far, Jon, I don’t see that you’ve done that.Report

    • Avatar Jon Rowe says:

      Re the “legal morass” issue, it’s the 1,138 figure that comes to mind.


      I don’t favor abolishing that morass, though as a libertarian, I always encourage reform of all public systems under Richard Epstein’s dictum “Simple Rules For a Complex World.”

      If you find the morass has helped you, great. I hope you never experience a messy divorce.Report

      • Avatar greginak says:

        1138….meh. Most people will never care or use many of those. Some are trivial. Some are important, but the number doesn’t mean anything per se. Some are just a very specific listing of things that could easily be grouped together like inheritance. Focusing on the number is a way to make it seem like a giant issue when it is much much less.

        It is sort of the same way some people say there are 50K or some such gun laws. Well a bunch of those are the same law repeated in 50 states or old obsolete laws nobody uses like no shooting sperm whales with your Winchester while on your Conastoga on sundays in Kansas.Report

  13. Avatar George A. Chien says:

    Re: the number 1138. A lot of people over the decades have fought for marriage equality precisely because of those rights, privileges, and responsibilities that seem an awful lot like “features” rather than “bugs”. If you and your husband prefer not to partake of them, that’s fine, and no-one’s business but your own. I hope you never find yourself having to explain yourself to an unfriendly nurse in a Catholic Hospital. But I’m gathering that rights, privileges and responsibilities would migrate to the new status of Civil Union, leaving “marriage” to be a legally empty (however richly symbolic and emotionally resonant) status. If that’s your proposal, I don’t see how it changes anything except terminology. And if not, I don’t see how it does anything except strip legal protections from families like mine. I suppose if I were a libertarian, I would find legal protections galling. But instead of “morass”, I would picture civil marriage as a “solid ground” on which it is possible to build a “secure dwelling.”

    FWIW, my preferred solution, as a Christian clergyman and a gay-married American, would be to get churches, temples, mosques, etc, out of the legal marriage business altogether, and adopt a system like the French, where you get married, if you want to, at City Hall, then have a religious ceremony, if you want one, at your place of worship. This strikes me as slightly more workable than yours, though, of course, it would, wouldn’t it?Report

    • Avatar Jon Rowe says:

      “Terminology.” Yes. That, for some reason, means a lot of a whole lot of folks. Give “Mormonism” rights under “religion”? Fine. Give rights to “Christianity”? And then have to decide whether Mormonism qualifies as such? Not okay.

      Re your and my solution and France, how does our proposals differ other than changing what the French offer from “marriage” to “civil union”?Report

      • Avatar George A. Chien says:

        I guess I think that the French solution leaves legal marriage in the same place it has been since June 26th. It just takes churches et al out of the legally marrying business. They would remain in the blessing of marriage business, under their own terms, exactly as they are now. The Supreme Court has not required of any religious community that it change its own standards on who qualifies for the sacrament, or ordinance, or blessing that they offer. But your solution changes the legal situation of “Marriage” utterly and completely, from top to bottom, and replaces it with civil union.

        I gather from your comments, and from Will’s which you seemed to accept, that you would allow a noticeably wider range of relationships as Civil Unions. Since on the one hand you disallow “marriage” as a legal state, and on the other replace it with “civil union” with much larger parameters (siblings, parents and children, etc.) I would suggest that your proposal is noticeably different from mine.

        Using your example, instead of arguing over who is a Christian and who isn’t, we would be arguing about who is a Mormon and who isn’t, or to step up rather than down the organizational chart, who is religious and who isn’t. Wherever you choose to put the line, there will still be arguments over who belongs on which side of it.

        The issue as I see it is that people aren’t really arguing over who gets to marry as much as they are arguing over whose marriage must be recognized. Those who reject my marriage would also reject my civil union (and even more so if their marriages were also “only” civil unions.) Those who refuse to bake gay wedding cakes are unlikely to happily start baking gay civil union cakes (especially if civil union is the only legal status available for all relationships.) And those who are socially condemned and legally penalized for refusing to bake the gay marriage cake will also be condemned and penalized for refusing to bake the gay civil union cake. So I don’t see how this would be a step forward. If civil union is strong enough to protect my family, then it is marriage in all but name. But if everyone has civil union, that is the same as everyone having marriage. You are just shifting the line at which we argue.

        My solution would also not really address culture war issues. It assumes Obergefell, and accepts it. (France also has marriage equality.) But it would free clergy and religious communities from acting as agents of the state. They can refuse to do so already, of course, but must don’t refuse. Separation of church and state is always healthier for both.Report

      • Avatar Francis says:

        How do the proposals differ:

        A. You seek to deny a perfectly good word with a rich history to millions of Americans who wish to associate their emotional and legal status with that word.

        B. Your proposal is unconstitutional. No one seems to think that the French government lacks the power to enact that law.

        C. The French have a long history of laicite and a strong central State not found in the US.

        Other than that, spot on.

        As you note, terminology means a lot to a lot of folks. I’m still not sure why you think that the views of a shrinking minority of social conservatives should be preferred.Report