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. continue reading…