Marriage Equality. What is the Second Best Solution?

The Supremes are to hear two cases this week (California’s Proposition 8 and the Defense of Marriage Act) that will speak directly to the issue of marriage equality. The issue is an interesting one for conservatives and libertarians. Traditionally, social conservatives have embraced states’ rights and heterosexual marriage. The problem, of course, is that states’ rights has produced a patchwork of laws, some recognizing marriage equality, some providing for civil unions, some doing neither (or even explicitly prohibiting gay marriage). What is a conservative to do? Should one forget states’ rights and  turn to the feds and the Defense of Marriage Act?  This would make the support for states’ rights look more tactical than principled (similar problems exist in marijuana decriminalization).

Libertarians have it a bit easier. For some, states’ rights should prevail and the resulting legal patchwork is simply a reflection of different preferences. One is always free to move to a state that matches one’s preferences. Others might support federal action, as long as it resulted in the expansion of liberty via marriage equality.

In my mind, getting the government out of the business of marriage would be the best solution. Civil unions could be available for all consenting adults seeking to defend their property rights. If some couples with civil unions wished to get married, they could be free to do so. Religious organizations, as private associations, could make their own decisions regarding who could be married, based on their own doctrines. Marriage would not be the strange hybrid of law and religion that exists today.

Of course, getting the state out of the business of marriage is not going to happen. So what is the second best solution?

5 thoughts on “Marriage Equality. What is the Second Best Solution?

  1. “In my mind, getting the government out of the business of marriage would be the best solution.”

    Pragmatically, it might happen. However, it would be an extraordinary disaster – much worse than we have now. Consider this scenario:

    Government gets out of the business, and now offers only civil unions. Religions determine who gets married according to their own strictures. Everybody is happer right? Seemingly, so , but let’s delve deeper into a common problem today.

    Husband (H) and Wife (W) get married – both are committed Roman Catholics, bear three children, live life in the Church, seemingly happily. One day, H falls head over heels for an office worker (sure, this never happens, but go with it for now), and petitions the Church for an annulment. The Church denies it, and H leaves the Church in disgust. H then petitions the government to grant him a divorce, divide the property, etc., based on the fact that he is no longer Roman Catholic and the canon law governing marriage does not apply to him. Will the government say:

    1. Sorry – you were Roman Catholic then, chose to get married and be obedient to that faith – you’re stuck in that Church, and moreover, the Church laws against adultery and bigamy would apply, so stop sinning, move back in with W and get over it; or

    2. You have the right to individual autonomy, and even if you did bind yourself in the past, religion is part of that autonomy, and once you have chosen to leave the Roman Catholic Church, it no longer applies. Here is your divorce – enjoy! – and sorry Roman Catholic Church, he’s outta there.

    If you think it would be “1”, well….

    No…nobody could possibly think 1 could occur. We would be right back where we started, as we are now.

    1. If there are only civil unions, not civil marriage, then there is no such thing as civil divorce. One partner withdraws from the civil union contract and pays appropriate damages to the other. Yes, it’s the same process as occurs now in divorce, but the state isn’t calling the arrangement “marriage,” so it isn’t dissolving the “marriage,” just the civil union.

  2. Most of the people I know who support same sex marriage (in fact all except one) support de-regulating marriage entirely – allowing any number, gender, age, kinship to marry. Is that your position? What happens to the children in such a world? Collateral damage? And when you throw in purchased eggs, sperm, and surrogates, who determines who the “real” parents are? And what their responsibilities might be?

    1. No. The notion here is delinking civil unions (legally binding agreements between consenting adults that regulates property rights) and marriage. The existing laws on child support etc. would remain in place. There is no proposal here to eliminate family law.

      Since we have separated civil unions and marriages, what of marriage? Here, religious organizations can apply their own standards in determining whether a couple can be married. The church I go to would not marry same-sex couples. It would also not marry individuals who were not committed to the core theological positions adopted by the church.

      Religious organizations already apply their own standards, and there is a great deal of variety. Indeed, even in states that permit same-sex marriages (like Connecticut, where I live) this does not translate into a right to be married by any religious institution one choses.

  3. Marc and Jason,

    In reviewing all of your arguments and the original post, I note the following:

    1. The status you discuss is already 90% complete, de facto, if not de jure. Whether one calls it “civil divorce” or “withdrawing from the union”, they are precisely the same thing now – a distinction without a difference. Civil marriage is simply a contract – divorce simply a dissolving of that contract. Those states now recognizing same sex unions simply recognize the reality of most states’ laws.

    2. In regard to religious institutions, the laws as it has become really makes their ceremonies more or less meaningless from a legal standpoint. Essentially, religious institutions are already free to define marriage however they wish, but have no ability other than persuasion of conscience to enforce. Perhaps this is as it should be, but it is this way, regardless of any law which would relegate the definition of “marriage” to a legal institution.

    3. In regards to “paying a fine”, that is essentially how it stands as well. Couples getting divorced split their assets, establish child support, etc.

    Essentially, then, the argument to establish civil unions must be about permitting same-sex couples (and anyone else who does not fall under the “harm” principal) to have access to the same legal rights as m/f couples, is it not?

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