It’s a few days into the trial of Perry v. Schwarzenegger concerning the validity of California’s Proposition 8, and many now view this as a potential landmark case that will eventually find its way to the Supreme Court.  The Supremes have already felt the need to interfere in the procedural elements of the trial by prohibiting live streaming video, a somewhat unusual step for the Court to take, so it’s pretty clear that some justices already have an interest.

This case, or a similar one in the near future, will seek to define the status of marriage in the United States in the future.  Unfortunately, most people on both sides of the issue appear to be incredibly short-sighted in their plans.  No matter which side wins this case, marriage law must continue to evolve, because the issues that are being raised now won’t go away and create many new potential issues to be resolved in the future.

Before I get to those, let me state my solution simply and clearly.  The government should get out of the “marriage business.”  Marriage should not be a legal “right” for anyone.  Quite simply, marriage is and should be a private matter, which the government has no reason to regulate.  After all, most people do not have their marriage directly overseen by the government.  Marriages are generally private ceremonies that take place in churches, parks, homes, etc.  No one should need a government license to allow two people to make promises to one another or to allow a priest, minister, or private citizen to perform a ceremony that is simply a public declaration of that promise.

As for all the current legal benefits of marriage, those could be retained through a standardized contract (which could be altered where necessary or desired), which any adult parties can enter into, if they are competent to do so.

Do I think this solution is likely to be adopted any time soon?  No.  The complex state of current marriage law would require the rewriting of huge numbers of statutes, and that would serve as a barrier prohibiting a long-term solution like this.  In the end, my proposed solution would probably be more efficient than decades of court proceedings dealing with various issues, but large government structures do not have a reputation for adopting long-term policies when they can get by with quick fixes.

Why would I propose such an idea in the first place?  What is the rationale behind it, and what benefits will it have?  First, let’s look at it from a historical standpoint, then we’ll address some legal issues, and finally we’ll consider the moral dimensions of the problem as they will almost certainly evolve in future years.

The History of Marriage Law

Most people don’t realize that for most of the history of Western civilization, the government had little to do with marriage.  Two people would verbally consent, and they would be married.  Some cultures had a ceremony, but that was often optional.  No need to register anything with the authorities.

Why do we register our marriages with the government?  Because of the Protestant Reformation and the Catholic response to it.  Yes, that’s right — marriage registration was invented by one religion trying to fight another religion.  In 1563, the Council of Trent (a meeting that instituted many of the policies of the Counter-Reformation against the Protestants) started requiring all valid marriages to be officiated by a priest and witnessed by two other people.  This was part of a set of tactics to undermine the validity of Protestant religious practices.  According to the new policy, Protestant marriages would be invalid, because they were not overseen by a (Catholic) priest.

The Protestants, of course, fought back.  They passed their own state registration acts to validate their marriages, most notably beginning under John Calvin in Geneva.  The Catholic Church alone would not determine valid marriages; the state now could declare who was married and who wasn’t, thereby getting around the Catholic policy.  From then on, state registration requirements would be the norm in many parts of Europe.  By the 19th century, the religious component had become secondary in many places, as European countries began adopting laws that allowed “civil marriages” that did not take place in a church and required no clergy.  Now, the government was the primary arbiter of who could marry whom and the official registrar of who actually was married to whom.

For hundreds of years, marriage law operated under the auspices that the state had a compelling interest in regulating who could marry whom and why.  Generally speaking, the justification for marriage was the bearing of children and the formation of a family unit.  Historically, the state had an interest in promoting a high birthrate and ensuring that children were then cared for.  A marriage that wasn’t consummated with a sexual act (implicitly intended for procreation) risked annulment.

With the rise of modern medical science, procreation is obviously better understood.  Adoption, artificial insemination, various fertility treatments, and other modern methods allow for control over procreation that was not previously available.  Studies have shown that non-traditional family units, which might consist of a single parent, step-parents or adopted parents, other family members, etc. can be a reasonable environment to raise a child.  Perhaps even more importantly, there has been much greater acceptance of modern marriages that do not produce children.

Why should we retain a regulatory legal system that was instituted because of Christian religious squabbles and maintained because of a procreative rationale that is no longer the only possible goal for marriage?

So perhaps the first question that modern marriage lawmakers should ask is not — “Who should be allowed to marry?” — but rather — “What are we regulating and why?”

The Legal Benefits of Marriage

Marriage law is already essentially a bundled contract between two people.  By claiming someone as a spouse, it automatically entitles a person (and sometimes his/her offspring) to certain rights, including tax benefits, eligibility for other government benefits (like retirement, death, and medical benefits from the Social Security system), preference in dealing with personal estates where no unambiguous will is present, as well as many benefits from private corporations, such as insurance coverage, etc.  Even smaller issues like who is allowed to stay past visiting hours at a hospital are often determined by whether someone is a spouse or not.

The first question to ask about these rights is — do we necessarily want to restrict all of these things to only married couples?  Let’s say, for example, that a woman is married to a man, but later separates from him.  For various reasons, she never bothers to have get an official divorce.  For decades, she lives with someone else.  It doesn’t have to be a lover.  Say it’s a female friend, or even a sister or brother.  Why should the official husband be eligible for these legal and private benefits, but the person she has lived with for decades is not?

Or, to make the point clearer, forget about the husband.  Say she isn’t married and perhaps never was.  Why shouldn’t this woman be able to bestow those rights upon her long-term companion, whether a friend of either sex, or even a sibling or other relative?  Who are we to say that this woman’s love and commitment to her female friend or sister or whatever isn’t as strong as that between a married couple?  If marriage is not, as the opponents of Proposition 8 contend, about procreation anymore, then what is it about?  If it’s about lifelong commitment, that does not have to be sexual in nature, and it could be a bond shared between all types of people, no matter of what sex, no matter what familial or other “official” relation they may have to each other.

(Note that some of these benefits may automatically be granted to living companions due to “common law” marriages in some municipalities.  Although that concept does address some of these issues, these marriages still have a great deal of restrictions on them and are often governed by the limitations of marriage law in general.)

The bundled contracts of marriage law are not something that people should enter into lightly, and neither should they be by other people perhaps not desiring a “marriage” in the traditional sense.  Instead of trying to legally redefine the word “marriage,” which admittedly has changed over thousands of years, perhaps we need to get away from the word entirely, at least in legal terms.  I know of no other precedent where legal arguments were made to change the definition of a common term on moral grounds, except in cases where such a term was patently offensive (which “marriage” obviously isn’t).

Of course, a major concern is that people might abuse a system where anyone could be “married” by simply entering into this proposed contract bundle.  Mainly, I think some would be worried that people might want to enter into such a contract just for the tax benefit.  Again, I question under what moral or legal justification should we not permit them to?  If two male friends want to commit to a complex legal contract that would allow them to get a tax benefit, why not?  Why do we require that people get “married” in order to claim that benefit?  Moreover, people already do abuse the system for such ends, so there’s no legal way we can institute a “test” to determine whether people getting married have the “correct intentions” for their relationship, is there?  I doubt that anyone would want to be subjected to some ridiculous government “test of commitment” or something in order to get married.

Another way to prevent abuse of the system would be to reconsider the benefits that are already given.  Already the tax system and other government agencies give benefits to married couples because of antiquated assumptions about family structure and dependants.  Why not restructure the system so that the benefits are given only to people who actually are “dependant” on someone else?  If two people get married, and both have independent careers, why should they get a tax benefit for simply getting married?

Of course, the previous rationale for such tax benefits was to encourage traditional family structures for children to be raised in.  Well, if we still care about such a thing as a society, make the tax benefits dependent upon having children.  Simple.  No benefit to simply “getting married,” but if children are involved, perhaps we do offer a further benefit if people are “married.”  I’m not saying I think such a system is required (or is even necessarily the best way to handle incentives for families with children), but I think we should give incentives for the things we actually want to encourage, rather than some institution created by unnecessary government regulation.

The Moral Questions — Who Can Marry Whom?

The final issue is perhaps the most controversial.  I hope that I’ve already argued convincingly that the historical justifications for government registration of marriage are somewhat weak, and that they could be replaced by a reasonable legal contract that has no particular association with private “marriage,” whatever people might want that to be or whatever private ceremonies it might entail.  I also hope that it’s now apparent that there could be benefits from allowing people to enter into such contracts without restrictions, as long as they are competent, consenting adults (just as would be required by similar legal contracts, in general).

Let’s forget same-sex marriage for the minute.  Or, rather, let’s at least assume that some of the arguments put forward by the same-sex proponents in the current legal battle are at least reasonable.  For example, for many couples, even heterosexual ones, marriage is no longer about procreation.  To argue that that is the only reason for marriage would be to restrict marriage to people who could demonstrate that they were capable of reproduction.  Infertile couples, or couples where the woman is past menopause, should therefore be denied the right to marry.  If the primary reason for marriage is reproduction, there’s no rational argument to allow such couples to marry, but to deny it to others who may also be incapable of reproduction.

Instead, let’s go with the alternative definitions that have been offered along with the current political arguments — marriage is about lifelong commitment (a problematic definition, since it seems to endorse a view that divorce should not be allowed, or perhaps heavily restricted), or perhaps marriage is about constructing a durable family unit, which may or may not also include children.  In general, what most of these definitions have in common is the view that the people involved care about each other and want to commit to each other at least for a long period of time.  Most people agree, at least in a general sense, that we should have the freedom to choose whom we want to commit to in such a way.

But then the problems start to creep in.  In a recent column in The New Yorker, Margaret Talbot put the matter thus:

In 1974, . . . the [Supreme] Court declared that “the freedom of personal choice in matters of marriage and family is one of the liberties protected by the Due Process clause,” and in 1987 it affirmed the rights of prison inmates to the emotional support, “spiritual significance,” public commitment, and expectation of consummation that come with marriage. Whether these decisions necessarily entail the right to marry a person of the same sex is another matter. Certainly, it could be construed that way, and needn’t mean, as opponents of same-sex marriage sometimes claim, that the Court would then have to allow a person to marry a child, or his sister, or his dog. Constitutional rights are not absolute—free speech does not extend to obscenity, for instance—and since marriage is a contractual relationship both parties must be in a legal and mental position to agree to it. And one could argue that legitimate interests allow the state to ban incestuous and polygamous marriages, for example. (Then again, opponents of same-sex marriage argue that legitimate moral interests justify banning gay unions.) [emphasis added]

I certainly agree with Talbot that “since marriage is a contractual relationship both parties must be in a legal and mental position to agree to it,” which seems like common sense, as I’ve already outlined.  Thus, one should not be able to marry one’s “dog.”  However, at least from a logical standpoint, why couldn’t “a person marry a child, or his sister” as long as both parties were consenting adults?  One could argue that there might be psychological issues and inappropriate power relationships in such unions, but such psychological issues and power relationships are also commonplace in normal heterosexual marriage.  They are often unhealthy and sometimes deplorable, but we don’t stop other heterosexuals from marrying because some might have unhealthy relationships.  Moreover, without even getting into the issues of genetics immediately, there are often laws prohibiting step-siblings or step-parents from marrying people that they have no blood relation to.  If we’re going to police people who have no blood relationship to each other on the basis that there might be some inappropriate dynamics between the two people, I think we’ve opened a huge can of worms for preventing all sorts of marriages between random people, heterosexual or homosexual, incestuous or not.  So honestly, what business does the government have regulating such conduct in a blanket fashion, when some of those relationships may be healthier than standard — but abusive — “normal” heterosexual relationships?  If there is evidence of abuse, that can be prosecuted under various other statutes; we don’t need to restrict marriage in an illogical way.

But to get to Talbot’s other main point: “And one could argue that legitimate interests allow the state to ban incestuous and polygamous marriages, for example. (Then again, opponents of same-sex marriage argue that legitimate moral interests justify banning gay unions.)”  The parenthetical gets at the problem here.  What exactly are the “legitimate interests [that] allow the state to ban incestuous and polygamous marriages”?

The typical response is predictable.  It’s a combination of the “ick factor” and an attempt to classify all such actions as abusive.  It’s exactly the same pattern we saw (and still occasionally see) in portrayals of homosexuals a few decades ago.  According to such arguments, all homosexuals are doing something “immoral” (which in this case, usually means that the speaker finds the practice “icky”) and, besides, they are all pedophiles.

Of course, the idea that all homosexuals (or even a lot of them) are pedophiles is patent nonsense, just as the idea that all heterosexuals are pedophiles is patent nonsense.

But when one brings up incest or polygamy, even to very liberal-thinking people, their first thought is generally child abuse.  Before you react that way instinctively, first at least consider that this was how homosexuals were also portrayed for many years.

But step back a second and consider the possibilities.  What about three grown women who all love each other and have a polyamorous relationship.  Are they practicing child abuse?  Of course not.  Or think of two adult sisters engaging in a loving relationship?  Get past the “ick factor,” and you have to admit that they aren’t hurting anyone, particularly if they are merely step-sisters, perhaps who didn’t even grow up together because of the family dynamics of divorce.

And of course I probably don’t even need to say this, but there are plenty of historical precedents for both practices.  Granted, polygyny practiced with one male and multiple wives has often oppressed women, but that’s not the only possible polygamous model.  And do we really think that with all of the liberalization of women in the past few decades, most of them would voluntarily go back to such submissive relationships?  Some will, but many may want to form their own sort of group, like three or four women, or one women with two guys.  What logical reason do we have against such groups?  We could try the “marriage is only two people” definition, but then we go down the same route that the “marriage is only a man and a woman” advocates use.  There’s nothing special about the number two, at least if we’re considering “fundamental rights” (as the current movement proclaims).

As for incest, well, historically many cultures accepted and even encouraged marriage between first cousins.  Some still do.  Recent studies have suggested that the chance of birth defects among first cousins is actually lower than that in older women who have children.  If we don’t prevent women over 40 from having children, the genetic rationale for preventing first-cousin marriage may go away.  In some cultures, notably ancient Egypt, royal blood was protected from corruption by brothers even marrying sisters.  This is generally not a good idea for people who want to have children, but what about for people who don’t?  If marriage is divorced from procreation, why not let two sisters marry?  Or two brothers?  Not all incest has to be about child abuse, just as not all polygamy has to either.

In the past, Talbot was right — there was a compelling interest for the state to prevent incest and polygamy.  Among heterosexual marriages, incestuous ones tended to endanger offspring, and when marriage is primarily about procreation, that’s a major concern.  As for polygamy, one could argue that the social dynamic created by traditional polygyny was often abusive and oppressive toward women.  But what if consenting adults, perhaps even same-sex groups, want to get married now?  The same logic wouldn’t seem to apply.  If there is actual abuse occurring, we have other laws to deal with that.

Now, one could argue that there are other problems with polygamy.  For example, what about jealousy or problems in relationship dynamics among larger groups?  Well, that’s certainly a problem, but it’s also a problem in heterosexual marriages.  We don’t stop people from marrying or force people to divorce if we think there’s excessive jealousy or problematic dynamics in heterosexual marriages.  So what reason do we have to prevent plural marriages if all parties agree to it?  It may be more difficult to work out, but there are plenty of standard marriages that have such difficult problems.

And one could argue that there’s a problem with the various legal benefits — who gets insurance, tax benefits, etc.?  Is there a potential for greater abuse of the system?  The problem is not as insurmountable as it might seem.  Simply don’t make the benefits any greater per person than they are in two-person marriages.  If two people get a 10% tax reduction (for whatever reason) if they’re married, then three people should not get more than a 10% reduction in their overall taxes if they get married.  The default distribution of property and monetary claims will be evenly split among spouses (and/or their offspring, according to applicable law), unless contradicted by some other document.  If we adopt the dependancy-based system I mentioned above, polygamous marriages will get no more monetary benefits than anyone else unless there are more financial dependents.  If all spouses have independent careers, there should be no monetary benefit to getting into a plural marriage.

Conclusion

Some may think that there aren’t enough people to argue for incest or polygamy, compared to the current movement for homosexual marriage.  Again, that’s something that was argued against homosexuals a few decades ago.  The more accepted an idea becomes, the more people in favor of it will come out of the closet.  We may never see as many people in favor of these ideas as traditional monogamous heterosexual relationships or even monogamous homosexual relationships, but this is not a question of numbers — it’s a question of fundamental rights.  Or, as I have framed it, it’s simply a matter of who should be able to engage in a legal contract that has some relationship to a private ceremony.

In the past, there have been plenty of legal challenges against incest or polygamy statutes.  Once the current gay marriage movement succeeds in redefining marriage to make it truly independent of any association with procreation, how long will it be before we see two sisters challenge the incest laws, or three women who all want to get married?  It may be only a decade, or it may be a little longer, but it will happen soon.  Already we’re seeing some challenges to polygamy statutes on the basis of rulings about gay marriage.  They will continue.  We may not like these questions, or we might find them “icky” (as gay marriage questions seemed to many people not that many years ago), but we had better start coming up with answers to them.

For about a decade now, I’ve been in favor of stopping government regulation over “marriage” and turning it into a standard contract.  It’s probably the most efficient long-term solution, and it will solve all the problems of “fundamental rights” of marriage, because any consenting adults could enter into such a contract.

We need to stop holding onto an antiquated legal and regulatory notion that the state needs to record and verify marriage.  Or, we can take the long road, and fight every single novel modification as it comes up over the next few decades.  We may finally draw a line somewhere, but if we ever do, it will probably be just as arbitrary as the “one man/one woman standard,” and its arbitrariness could put all the developments proceeding it into question.  We’ll likely take the long road, but that road is not necessarily the most reasonable or efficient one.  And in the end, we’ll either end up with a system like what I’m proposing, or some sort of cumbersome bureaucracy that makes no sense and will ultimately result in the death of organized marriage anyway in any meaningful sense.