May 2004

Abstract:
Civil unions of all sorts are possible. But let's not call them "marriage".

In the summer of 2004, U.S. society is again in the midst of a hubbub over a social issue where more heat than light is generated by the discussion – this time concerning the future of the institution of marriage, and the nature of domestic unions. As is usually the case with societal discussions, emotional attachments to points of view have clouded the discussion and given it an adversarial character, where each input is either "for" or "against" a given position. This type of head-butting has become so ingrained in U.S public discussion that most Americans think adversarial debate is rational. (It's not, but that's another essay.) Here I'll suggest a relatively straightforward resolution of this issue. (Later update: see also a note on this subject from May, 2012.)

False and Real Issues

The public debate has been dominated by the question of "homosexual marriage." It appears that a majority of adult Americans are against this concept; yet a large majority favor allowing "civil unions" among two persons regardless of gender. The different attitudes in these views evidently result from the use of the term and concept of "marriage." Marriage, in the U.S., is in part a religious concept. Among the major religions prevailing in the U.S., marriage is considered a sacrament or its equivalent; an institution established by God for his purposes. It is not easy for religions to change their interpretations of what they consider God's will, to suit current social trends. Nor is it wise or necessary for those who want change to challenge such religious concepts, because the apparent conflict between homosexuals' desire for official sanction of their unions on the one hand and religious interpretation on the other is sham, and is not the issue – the conflict derives largely from an insistence on the use of the term "marriage." Use another word and this false issue melts away. The real issue is about giving individuals the right to create binding unions that are fully recognized in law. The time has come to free civil law regarding unions from its religious roots, and for state and national law to, so to speak, divorce "marriage" from its religious shackles and to free individuals to associate as they please, by contract under civil law.

Religious Laws?

Our national legal and constitutional history has been dominated by traditional Christian views, in spite of the putative separation of Church and State. It can be argued that by insisting on the historical Christian interpretation of marriage the State is violating the constitutional proscription against establishing a religion. In order to secure for its citizens their right to pursuit of happiness, including full freedom of association, and particularly the right to form unions of their own choosing, the State must break free from these religious impositions, to free itself from the limitations of the religious definitions of marriage and establish its own secular legal standards for interpersonal relations.

A Better Way

1. Why call it "marriage"?
It is a tactical error by proponents of "same-sex marriage" to insist on using the word "marriage" to describe and legitimize same-sex unions. Why needlessly offend millions of religious traditionalists by asking them to redefine one of their most cherished concepts: the traditional family. The concept of "marriage" has had a recognized meaning for literally thousands of years; it has meant the institution of the family wherein a man and a woman reproduce and raise children. This institution has been, and still is, a core concept in world religions, a holy sacrament in Christianity, and attacks on it simply ensure that the discussants quickly assume a war mentality, defending their positions at all costs while attacking the opponents'. This is not fruitful. Better to leave the term "marriage" behind and move forward.

2.Contractual basis for all unions
Individuals in the U.S. already have the right to establish contractual relationships with one another. The key step now is to place all personal legal unions on a secular and contractual basis. If we set aside the offending term "marriage," with the religious baggage which it brings into the discussion, is there any reason why any two persons should not contract with one another to live together and take on specific responsibilities toward one another? No reason at all. And what of any group of adults – whatever their number – who wish to contract to live together and hold each other responsible under the law? No reason why they shouldn't. In fact, such contracted unions have a firmer basis than many marriages, where the partners often don't quite know what they've agreed to.

If recognition of the need for contractual relationships is the first step in updating our system of domestic unions, the second step that needs to be taken by lawmakers is to make contracts the bases for all domestic unions, whether they are nontraditional or have the form of a traditional church wedding. In other words, a couple (or whatever combination of folks) are legally united or mutually obligated when, and only when, they have signed a legal contract to that effect. And they are united or obligated to the extent and for the term that is specified in the contract. The upshot of this is that religious functionaries like priests, rabbis, mullahs and ministers will have no authority related to domestic unions (unless they're notaries), other than to perform a ceremony for those who wish it. The actual union should in all cases depend on the terms of the contract. No doubt standard contracts would be quickly developed which define the most usual rights and obligations, though the contract could be shaped to suit the wishes of the partners.

3.What will it take?
Such arrangements should be covered under "Personal Relations Contract" law. Various terms (other than "marriage") will be used to describe such arrangements, because the nature of the arrangements will vary with the partners' desires. "Union" is one such word, but many contracted relationships may be of a looser nature. Personal Relations Contracts will define each partner's rights and obligations. Under such law, legal relations can be established between any two or more individuals, specifying their mutual rights and obligations. More importantly, only relations secured by a legal contract would be legally recognized.

Federal and state laws will need to be revised to implement the concept of fully contracted domestic arrangements. Existing traditional married couples may of course remain under the terms of their current arrangement. New law should only apply to new unions, or to existing partners who wish to place their partnership on a contractual basis. The term "marriage" should eventually be reserved for religious use. Catholics, for example, who wish to marry in the sight of the Church and of God, will do precisely what they have done for hundreds of years – have a church wedding. The new twist is that the church wedding will have no legal meaning unless it is accompanied by a proper contract. But the Church will readily work the contract process into the ceremony, which will make everyone happy.

Consequences

The core argument made by homosexuals in this issue has been that they have been unconstitutionally deprived of equal rights to marry – or unite with – the object of their affection. Note that acceptance of this argument, and acceptance of the proposal of this paper, necessitates that we extend this right to all who have nontraditional objects of affection. Thus, a Mormon, Muslim, or animist – or any one at all – may have more than one "object of affection," and must be given the same right to form unions with these persons. Approval of polygamy follows necessarily from acceptance of the argument advanced by proponents of same-sex marriage. In fact it's easy to make the argument that the traditional definition of marriage – one man and one woman – has two elements: the element of number and the element of gender. Of these two, the gender restriction has been historically inviolable, whereas the number restriction has been flexible. In other words, permitting marriage between two men – which has not been permitted in any known society – is a much more radical idea than permitting marriage among, say, a man and several women, which has been historically common, was a biblical practice, and is practiced today in a number of modern societies. It's clear that union between any combination and number of adults must be accepted by the same reasoning, once we void the traditional gender limitation on the grounds of equal rights to fulfill one's love by legal union.

In short, the result of implementing the ideas in this paper will be that in the future a large variety of domestic groupings, including polygamy, will become common and accepted.

However...

However... the current drive by homosexuals for officially recognized unions has been a drive for precisely "marriage," not for other forms of "domestic partnership." The reason for this is that the traditional institution of marriage, designed to bring new citizens into the world and to provide a legally responsibe setting for their care and upbringing, has long enjoyed certain official rewards and advantages, which are now coveted by persons wishing to get a share of this largesse. Taxes have been lowered, in the – now outdated – recognition that one salary had to feed a number of mouths, and the "breadwinner"'s pension has typically been payable (at least in part) to the surviving spouse, who was busy raising children and therefore was not vested in any pension plan, and who would not be prepared to seek employment at an advanced age. We should ask whether such benefits intended for the traditional marriage have any relevance to same-sex or multi-partner unions, or indeed whether they should apply any longer even to traditional marriage. My conclusion is that such benefits, which constitute a great cost to society, are best limited to the situations for which they were originally intended, i.e., for families with a single breadwinner where the other partner foregoes full-time remunerative work in order to raise children. In short, it's more in line with modern economic realities to further limit such benefits than to expand them to new domestic groupings, such as homosexual or multi-partner unions, to which the original rationale in no way applies.