Splitting Marriage: Civil Unions

English: A woman makes her support of her marr...

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In an earlier essay I argued in favor of splitting marriage and focused on the creation of theological unions. Each religious institution could define its own theological union in accord with its doctrines, thus allowing people to exercise their religious freedom. However, the theological union would have no legal status—thus allowing people to exercise their right to freedom from other peoples’ religions. Marriage as currently practiced does have numerous legal aspects that range from tax status to hospital visitation rights. On the assumption that these legal aspects are worth preserving, I propose a second type of marriage. At the risk of some confusion, it could be called a “civil union”—but I am not wed to this name. I am also open to the idea that some or even all of the legal aspects of marriage are not worth preserving and would certainly consider arguments to that effect.

A civil union of the sort I am proposing would actually cover a variety of legal relationships and would allow people various options. I base this on the idea that people should, in general, have the freedom to define their legal relationships in this context.

Those who prefer a more traditional approach could select the full traditional marriage civil union with all the legal obligations and rights that compose current marriage. In terms of who should be allowed to engage in such unions, the answer would seem to be that it is open to all adults who are legally capable of giving consent. Thus, this would exclude civil unions with turtles, corpses or goats.  The basis for this is the right of legally competent adults to enter into legal contracts. As I see it, the legal aspects of marriage (such as joint property, insurance coverage, and so on) are merely legal agreements that hold between adults and the sex of the individuals seems to be irrelevant. As such, same-sex civil unions would be just as legitimate as different-sex civil unions. People engage in business contracts with people who are of their same sex all the time and the legal aspects of marriage are rather similar to a business contract—most especially in matters of divorce.

In addition to the “standard package” based on traditional marriage, people could also create more personalized contracts of union. This would involve specifying the legal obligations and rights that define the union. In terms of why this should be allowed, it is absurd that the marriage merger is a one size fits all deal when any other contract can be custom made. As such, I propose that people can create contracts of union that would allow couples to specify the legal aspects of their civil union. While many of these would be drawn from the “standard package”, these could also include tailored specifications. For example, a contract of union might specify the division of property that will occur in the case of divorce. In fact, given the high divorce rate, such contracts would be rather sensible and would save considerable problems later on.

Given that the legal aspect of marriage are based on a contract, it seems reasonable that many of the rights and privileges should be open to people who are not in a union. For example, people should be able to designate the people who get to visit them in the hospital.

It might be contended that this approach to marriage fails to consider the role of religion in marriage. My obvious reply is that this is exactly right. The religious aspects of marriage should be made distinct from the legal aspects, which is why I proposed the religious union as well.

It might be objected that this contract view of marriage would sully the sacredness of marriage. This proposal would seem to reduce marriage to a legal contract and, of course, people might enter into such unions for impure reasons such as financial gain or to get a green card.

The easy and obvious reply to the sully objection is that marriage has already been well and thoroughly sullied. Hence, replacing traditional marriage with a civil union would hardly sully it. To use an analogy, adding a bit more dirt to a mud puddle is not going to sully its purity, for it has none.

In regards to the impure reasons, it is obviously the case that people engage in traditional marriage for such impure reasons. Thus, this would make civil unions no worse than traditional marriage.

As a final point, it can be argued that marriage is defined by the state to encourage a certain type of marriage and in accord with traditional rights. The easy reply to this is that the state can still encourage marriage types by specifying the contracts and that an appeal to tradition is a mere fallacy.

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20 Comments.

  1. Doris Wrench Eisler

    Too many categories is stultifying and confusing and actually defeats accommodation. During the same-sex marriage controversy and before it became legal anywhere some gays were arguing against gay marriage because it is conventional and, likely, because many saw evidence that is often a sham.
    They have the right and privilege not to marry. But some wanted legalization both for benefits and societal respect. But there are also those who, for instance, may have been good Catholics or Protestants before they realized who they really were, and do not want easily to give up their religious affiliations and spiritual aspects of their lives. They would like to marry in a religious ceremony. It is too easy to say religious bigotry is legitimate and that religion has to the right to exclude. Religious grounds are tenuous because it is based on the claim to know the mind of God. However, the issue can’t be settled by legislation, or legislation alone. It takes time and controversy but we must maintain the hope that, for the good of all, ancient religions will eventually accommodate all human beings as human beings and perhaps focus on the ethics of relationships instead of sexual apparatuses.

  2. “The easy and obvious reply to the sully objection is that marriage has already been well and thoroughly sullied.” – not least sullied by the religious and their descriminatory ways. So it is a bit rich for the religious to play the sanctimonious card.

    Your proposal sounds sound. I’d vote for that.

  3. Why, pray tell, does the state want to regulate marriage contracts? Like a good lawyer who never asks a question for which she does not know the answer, I can answer that.

    For sure we must be impressed with how much income the legal profession garners from failed marriages and estates of dead family members. It’s not untypical for an estranged father who was once modestly wealthy to be forced into bankruptcy by legal fees incurred to secure visitation rights; especially in jurisdictions where a legal aid society pays the single mother’s legal fees.

    Forbid, then, that we should suffer some abstract philosopher to make some logical, workable proposals that would have the effect of reducing GNLP (‘Gross National Legal Product’).

  4. Boreas:

    I’m very ignorant about U.S. law (I assume that you write from the U.S.).

    Why would a father who is paying child support need to hire an expensive lawyer to get visiting rights? I would think that paying child support gives you almost automatic visiting rights: that at least is my personal experience.

    Besides the fact that most mothers are pleased to have a free weekend when the father takes care of the child.

  5. swallerstein,

    “Why would a father who is paying child support need to hire an expensive lawyer to get visiting rights?

    I would think that paying child support gives you almost automatic visiting rights: that at least is my personal experience.”

    Well, depending on jurisdiction, the answer would be no. In a family court (usually in camera) the mother can argue that the father’s presence is harmful or upsetting to the children. It can be very difficult to get visiting rights if the legal guardian of the children has reasons they want little or no contact from the parent.

    It’s something that can be horribly messy, both for men and women. There are men who just want visitation rights so they can get close enough to the mother to beat her to death (this is quite common). Then there are women who use their children as pawns in a pain game.

  6. Mike,

    What’s wrong with your whole idea is there is a vast canon of existing law that covers marriage, and even cross jurisdiction recognition of marriage.

    There is an issue in America that shouldn’t be an issue, and that is the constitutional separation of Church and State. Some of the religious have never been happy with this, as they want Jesus on their cornflakes, they lack the realisation that the purpose of disestablishment is to protect the religious. In the case of America the disestablishment was to stop the Episcopalians (Church of England), from using the law to prescribe, proscribe and persecute other Christian groups. Variously across Europe the dominant Church in a jurisdiction would use its’ dominance to make life very miserable for the religious minorities – Catholics, Protestants, Presbyterian and Jews all had a taste of it. Which is why many fled to America, to escape religious totalitarianism.

    Religion and marriage (the legal institution) do not mix well. In Ireland the Catholic Church had immense power. The constitution was essentially drafted by the Catholic Archbishop, John Charles McQuaid. And while it did not expressly persecute other congregations, they did not get a look in. (For a time while Ireland had been under English rule, the law did expressly persecute Catholics and Presbyterians – the holy war in Ireland that still simmers and occasionally bubbles, is to a certain extent over the fear of revenge for this period). While divorce and contraception were permitted by the other Christian churches, while they were in McQuaid’s Catholic country they were allowed neither – by civil law – and since there was no disestablishment this was Catholic law or McQuaid law.

    Legally you could not divorce in Ireland, but there is an Irish solution for every Irish problem. You could go to England and get divorced there, marry someone else and then return to Ireland where your new marriage would be legally recognised. But not completely recognised – and that lack of complete recognition contained many very nasty snags.

    In terms of marriage, the state should only ever concern itself with the material aspects of marriage and never with the metaphysical.

    In fact the whole creation of the Church of England revolves around the issue of marriage. Henry the 8th, fidei defensor (defender of the faith – Catholic faith – although he retained the title after deciding to split from Rome and establish an English national Church.). The split was over Henry’s need for a divorce – and not over doctrinal issues. And that there would literally be civil war if he could not. The mayhem and persecution that followed is very strong argument for disestablishment. And even a good argument for the persecution of religious who do want establishment.

    Personally, I do not believe in persecuting relgious people, but I believe they’re are instances where they’re asking for it.

    Interestingly, an issue that is threatening a fissure in the Episcopalian Church is again, like in the time of Henry, an issue over marriage. In this instance the recognition of same sex marriage. It’s notable that some Episcopalians have after many hundreds of years put aside their differences and become Papists, over the issue of same sex marriage. Interesting again, since there’s a good chance the pope is gay. (The pope has recently said there isn’t a gay mafia in the Curia – this is probably true, and that in fact the entire Vatican is one big gay mafia – the largest closet in the world.)

    A problem with the religious, is they’re often like the man with a hammer in his hand, who sees every problem as a nail – and their particular hammer being the perfect solution. When, what inevitable happens is the prang their thumbs as well as everyone else’s.

  7. JMRC:

    I think that the problem is that people get married with absurd expectations, that love lasts forever, that they have met the RIGHT PERSON, etc.

    When reality hits, they become disillusioned and bitter, turning against their once idealized partners, as ex-believers turn against religion and become fanatical New Atheists.

    If people entered relationships with reasonable expectations, they would be less bitter if things don’t work out and in better psychological shape to work things out, which takes negotiating ability more than blind and idealizing love.

  8. In all my philosophical travels, I’ve not often met someone who actually knew of what they speak. Not often do I hear myself mutter ‘I didn’t know that’. Until now… Reading JMRC is humbling.

    But lemme risk ignorance to say ‘A rational government would provide a boilerplate marriage contract with tick-boxes for including tit or tat, and a clause whereby the parties can bind themselves to arbitration. So… out with the lawyers and in with the priests or pastors.

  9. This is a discussion that really is poorly served by examination in a vacuum.

    Both sides act as though marriage is one thing just because it has one name. That’s just false and it’s an artifact of the fact that sex once almost inevitably led to pregnancy. It is impossible to have an honest debate on the subject until both sides accept the reality that marriage serves several very different functions, with an especially bright line dividing childless couples and parents.

    1.- Marriage is not about sex. It is not about living together. For childless couples it is about the commitment to become a single, life-long unit together. Some of the legal ramifications of marriage, such as familial visitation rights and co-mingling of property are important to this process, but the social necessity of access to support structures imbedded deeply in the culture for childless couples is relatively slight. Thus, even with religious couples, you will see that participation in social support structures like churches is greatly reduced BY THE RELATIONSHIP. Childless couples simply don’t feel the need for that depth of social access.

    2.- Seen in this light it becomes easier to understand why the religious right is so vocal about marriage. The strongest churches, the growing churches, are the ones that do the best job of providing support and social integration for parents and their children. This is especially true of parents of young children. Catholic churches and evangelical denominations in the United States do a good job of this. My own denomination, the United Methodist Church, does not.

    Truth be told, the fundamental function, the ANCIENT function of religious organizations of all kinds is just this social integration of families with children. All of society suffers when religious institutions lose sight of that marriage-related function. If one looks at this relationship of marriage and religion it becomes interesting indeed to note that a de-emphasis on religion in public life, a burgeoning diversity of religious voices, and an increase in the rate of divorce are all happening at the same time in our recent history.

    Perhaps marriage does not stand alone as an element of culture, but is integral to many interlocking elements.

  10. “But lemme risk ignorance to say ‘A rational government would provide a boilerplate marriage contract with tick-boxes for including tit or tat, and a clause whereby the parties can bind themselves to arbitration. So… out with the lawyers and in with the priests or pastors.”

    That’s a horrible idea. Negotiations work best when the parties are at arms length. I can hardly think of a less arms length negotiation than the negotiation of a marriage contract.

    Not to mention, people’s religious beliefs change. Your idea creates situations in which non religious people will be legally bound to the dictates of religious law. Which we should remember, tends to be utterly vile in virtually every respect. Someone should not be bound to the dictates of a religious institution they reject because thirty years ago they loved someone foolishly, and believed a religion that turned out to be a lie.

  11. Lee Jamison,

    “The strongest churches, the growing churches, are the ones that do the best job of providing support and social integration for parents and their children.”

    Lee, do you know what holy wars are over? It generally is not doctrine but materialism. Churches can socially and ,crucially, economically integrate their members. But this also means excluding those who are not members of their church.

    And in a society where the churches are very strong, this eventually leads to a totalitarianism as bad as anything from the former Soviet Block.

    The European Catholic Church, in the countries it once dominated, the Church is now a shadow of its’ former self. The simple reason is at the height of its’ power, in Catholic countries like Spain, Italy and Ireland, if you displeased your local priest, he could impoverish you and have you socially and economically excluded and have your children taken from you and put into the homes of staunch Catholics, who would wash your children’s brains until the only thing contained in their minds would be Ave Maria and the Hail Mary on an infernal repeating loop. In Spain, under Franco, the local priests acted as the police of the police state. They sent people to their deaths.

    “Truth be told, the fundamental function, the ANCIENT function of religious organizations of all kinds is just this social integration of families with children.”

    Argumentum ad antiquitatem;an appeal to tradition. In capital letters no less.

    I’ve had this discussion before with self described conservative Catholics. And the simple question that usually stumps them or at least gets them to make small concessions, is “would you like to go back to the 1950s?”. And it’s funny; they kind of do and kind of don’t. They’d like other people to go back to leading the simple faithful life, but they don’t really want to do it themselves. And they don’t particularly want a Catholic priest dictating every moment of their lives. But it’s kind of romantic for them to have the priest dictating every moment of everyone else’s lives – just as long as it doesn’t encroach on their freedoms.

    The truth about the 50s was the simple faithful people were not all that simple. Most lived a very false life – they didn’t believe in all the stuff about extraterrestrials and eternal live in outer space. But if they didn’t present themselves as going through the rituals they were punished. Now they can’t be punished by the priest, they don’t have to pretend they’re “faithful” and “simple”. Their lives are more honest and authentic.

  12. Boreas,

    “But lemme risk ignorance to say ‘A rational government would provide a boilerplate marriage contract with tick-boxes for including tit or tat, and a clause whereby the parties can bind themselves to arbitration. So… out with the lawyers and in with the priests or pastors.”

    Marriage, like Donald Rumsfeld said of Democracy, is messy.

    There’s no perfect legal solution. Some jurisdictions will leave you change for a slice of pizza and a beer out of 20 dollars, for a no contest divorce. But, if it is contested, and there are children, property, and money involved, then the lawyers can take your shirt. Beware of lawyers, sometimes they will take a course of action that maximizes their fees.

    The whole mistake is thinking anything can be perfect – like expecting a marriage to be perfect. There never will be ideal laws, or relationships, or anything. Utopian solutions often lead to institutions – and I believe it was Marx said (Groucho), who wants to live in an institution.

  13. Patrick and JMRC,
    What am I really saying? It’s rather simple: let people use a template to design their own marriage contracts including review and exit points. Which is where Mike is going with his comments.

    Actually for any good agreement of anything, there is a provision about when or how to end the agreement. As for the ‘help of lawyers’, those people are a terrible drag. What good does it do children of a single mother to have their father go bankrupt because of legal fees? Besides union negotiators would do a better job than lawyers, or priests would be much less expensive (a few farthings in the plate from time to time).

    I’m not asking for perfection. I do say ‘The fact that it is messy is no reason to make it an expensive mess.’

  14. After the mother of my son and I split up, the almost inevitable bickering about how best to raise our child and how to deal with visitng rights began.

    Instead of wasting money on lawyers, we both decided to see a very prestigious child psychologist and to abide by her decisions.

    Along with our son and my ex-partner’s new partner, we saw the psychologist as a group and then one by one.

    After getting to know each of us and our boy, she set down schedules for visiting, as well as certain principles for regulating his upbringing and for our dealing with each other.

    When she talked to each of us separately, she gave us “tasks”. Mine was to help our boy develop good values, since values (not fun or sociability) is my strong point, according to the psychologist.

    Over the years, whenever a problem in his upbringing arose, we recurred to the psychologist, who with time became another family member, so to speak.

    The psychologist astutely avoided favoritisms among the group and always seemed to have our child’s interests at heart.

  15. swallerstein,

    Yes. But everyone is not you. Many people are addicted to pain and suffering – happiness is too excessive. Warping and harming their own children they see as good parenting.

    Middle and upper-class people, often attribute their material conditions to their ability (a faculty lacking in the lower orders) to defer gratification (deferred until when?), and not to the randomness of history that places them in their particular socio-economic position. The problem is many people find their lives easier to cope with when they’re between slightly miserable to absolutely miserable. The people who needlessly start a row at something like a Christmas dinner….A rare occasion when everyone is together, and for one day should put everything aside. The feeling of being happy, is too much for them – too wild. That feeling of peace in forgiving fills them with terror – a world without war is a strange world they cannot imagine.

  16. JMRC,

    When I use the term “ancient” it speaks to things far older than a typical modern will be thinking of. I’m almost always referring with that term to pre-literate times. Essentially, though, from a sociological point of view the integrative function of religious organizations remains quite important. In my high school years the social life of prosperous southwest Houston was divided among numerous religious organizations. I would occasionally take part in events at places as varied as the Methodist Church, the Jewish Community Center, the Catholic Church, etc. Apart from the politeness of being respectful of the host traditions these events may as well have been secular (especially at the Methodist Church).

    While I agree with you about the dangers of an exclusivity in religious observance, I completely disagree about the presence of strong churches/religious organizations in a diverse religious community. I am the grandson of a Methodist pastor, brought up in the faith, but I always had friends of various faiths and enjoyed talking to them about the contrasts in the beliefs of our home congregations.

    A “strong” church is one that is not afraid of the truth, whatever it is. Dogma, the faith that is threatened by a truth not arrived at from authority, is a damn sight more dangerous than that.

  17. Steve Merrick

    Surely the issue is one of equal rights? Married people gain certain rights and privileges that the unmarried do not have. Give these rights to all people joined in a ‘union’, of whatever kind, and the matter is closed, no?

  18. Steve- Basically, yes. After that there will obviously be the follow question that will have to be addressed internally by the various churches and religious groups that refuse to call gay civil unions “marriage,” which is that future generations seem increasingly likely to see their faith as morally worthless and therefore false.

    The other issue, of course, is that some people might cynically note that heterosexuals were fine with marriage changing in all kinds of ways through history and those unions being called “marriage,” until gay people wanted to get married, at which point everyone decided to take their toys and go home. Its hard not to see the parallels between governments and municipalities that hold prayers before government meetings, until someone points out that they can’t discriminate in who gets to lead the prayers and a non Christian signs up, at which point they suddenly don’t want the prayer sessions anymore. Even if you believe that the people involved are sincere, its hard not to think that their sincerity is based on a philosophical outlook that is… strategically plastic.

  19. JMRC,

    True-there will never be perfect marriage. However, there can be better marriage. No sense in giving in just because of the perfectionist fallacy. :)

  20. I like your idea of separating marriage’s different aspects. I actually wrote an essay on this at my blog at:
    http://place-for-thought.blogspot.com/p/a-thought-on-marriage-population.html
    Which I think you may find interesting. There are more issues with marriage than just a certain amount of unfairness as to who can marry and who can’t. The expectations of a marriage are huge, which is why I think it would be wise to include a time span to the financial aspect of this union (I call them financial unions on my blog and I don’t want to unnecessarily start switching back and forth). That way a person could make life long vows, while legally only being bound for a set number of years. If they wish to continue the contract then they just re-up it when it is nearing termination(after reviewing conditions that may need to be changed) and continue as they had before. Since the union would be separate from a religious marriage the couple could even test whether or not they could co-exist financially, prior to making life long vows. It’s a scenario in which everyone wins.

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