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.