After years of saying that marriage was “nothing more than a piece of paper” or “oppressive to women”, the Left’s assault on the family has, as you are certainly aware, temporarily switched to insisting that it is vitally important for two lesbians be able to enter into such oppression by being able to legally “marry” without a groom, and if you don’t agree, it means you want to beat little girls to death for being tomboys.
Some on the Left, many libertarians, and some weary conservatives who mistakenly think it will get the whiny homosexuality advocates to shut up say, “Get government out of marriage!”
Oh, it may sound nice. However, what it really is, in addition to being the Left’s real goal in the matter (after they use neutered “marriage” to beat down anything that depicts heterosexual behavior as qualitatively different from homosexual behavior) is… impossible.
It is impossible to get government out of marriage.
Someone might say that government didn’t get into marriage until only a few hundred years ago, but they are neglecting to mention that before that, churches functioned as government, at least to some extent. With the secularization of government, the government has unavoidably retained involvement in marriage.
From a strictly legal perspective, what exactly is marriage?
1) First and foremost, it is a financial partnership. Unless (and sometimes even if) there is an extensive, thorough, and valid prenuptial agreement that provides otherwise, marriage involves the mingling of assets and sharing of earnings acquired during the marriage. As such, in determining the amount of child support owed to a child of Spouse A, Spouse B’s income can also be taken into account. This financial partnership can also be evidenced in credit scores, judgments, etc. That marriage is a financial partnership is demonstrated severely in the event of a divorce.
2) In most places, marriage provides default paternity. This is supposedly to protect children (and their mothers) from abandonment, but it also reduces the likelihood taxpayers will be on the hook to care for needy children and their mothers, and it also aids men who want access to their offspring and to include their offspring as dependents and beneficiaries.
3) Marriage provides default next-of-kin status. For example, absent a directive that says otherwise, if man gets into a car accident and is rushed to a hospital in critical condition, his next-of-kin makes medical decisions for him. If he has a girlfriend, but not a lawful wife, then his parents, siblings, or children will be making the decision, no matter how long he’s been seeing that girlfriend. However, if he’d married that girlfriend the year before, she is now next-of-kin. Our immigration laws also take kinship into account. As such, that same man can’t import his girlfriend as easily as he can import his wife. I frequently take and make calls on behalf of my wife, something I couldn’t do if she was not my wife.
4) Marriage provides default beneficiary status. This is much like the point above.
5) Marriage is more intimate than a citizen's relation to the state. In certain circumstances, spouses can’t be compelled to testify against each other in court.
Marriage used to be a license to live together and have sex, but that has been almost entirely removed from the legalities of marriage. For the most part, people are now entirely free to associate in these ways without a marriage license.
Given these realities, how is it possible to get government out of marriage?
Yes, the government can stop issuing and keeping marriage licenses, but all that would do is create more private paperwork and increase the involvement of courts, which are part of government.
How would assets be split up in the event of a divorce or breakup? The same way as when there is a dispute between roommates - by courts, which are government. Some people will say spouses should not have joint accounts or community property anyway, but is that really the family culture we want to foster?
Yes, government can leave women entirely in control of their newborns, forcing men to sue if they want to be involved or women to sue if the man does not want involvement, and again, that would involve the courts, which are government.
A lot of people don’t have wills, trusts, advanced directives, and other paperwork they should, and without a state marriage license, courts will have to get involved more. One of the arguments of marriage neutering advocates has been that brideless or groomless couples shouldn’t have to do all of that extra paperwork. Marriage abolitionists want EVERYONE to have to do all of that extra paperwork.
Some on the Left, many libertarians, and some weary conservatives who mistakenly think it will get the whiny homosexuality advocates to shut up say, “Get government out of marriage!”
Oh, it may sound nice. However, what it really is, in addition to being the Left’s real goal in the matter (after they use neutered “marriage” to beat down anything that depicts heterosexual behavior as qualitatively different from homosexual behavior) is… impossible.
It is impossible to get government out of marriage.
Someone might say that government didn’t get into marriage until only a few hundred years ago, but they are neglecting to mention that before that, churches functioned as government, at least to some extent. With the secularization of government, the government has unavoidably retained involvement in marriage.
From a strictly legal perspective, what exactly is marriage?
1) First and foremost, it is a financial partnership. Unless (and sometimes even if) there is an extensive, thorough, and valid prenuptial agreement that provides otherwise, marriage involves the mingling of assets and sharing of earnings acquired during the marriage. As such, in determining the amount of child support owed to a child of Spouse A, Spouse B’s income can also be taken into account. This financial partnership can also be evidenced in credit scores, judgments, etc. That marriage is a financial partnership is demonstrated severely in the event of a divorce.
2) In most places, marriage provides default paternity. This is supposedly to protect children (and their mothers) from abandonment, but it also reduces the likelihood taxpayers will be on the hook to care for needy children and their mothers, and it also aids men who want access to their offspring and to include their offspring as dependents and beneficiaries.
3) Marriage provides default next-of-kin status. For example, absent a directive that says otherwise, if man gets into a car accident and is rushed to a hospital in critical condition, his next-of-kin makes medical decisions for him. If he has a girlfriend, but not a lawful wife, then his parents, siblings, or children will be making the decision, no matter how long he’s been seeing that girlfriend. However, if he’d married that girlfriend the year before, she is now next-of-kin. Our immigration laws also take kinship into account. As such, that same man can’t import his girlfriend as easily as he can import his wife. I frequently take and make calls on behalf of my wife, something I couldn’t do if she was not my wife.
4) Marriage provides default beneficiary status. This is much like the point above.
5) Marriage is more intimate than a citizen's relation to the state. In certain circumstances, spouses can’t be compelled to testify against each other in court.
Marriage used to be a license to live together and have sex, but that has been almost entirely removed from the legalities of marriage. For the most part, people are now entirely free to associate in these ways without a marriage license.
Given these realities, how is it possible to get government out of marriage?
Yes, the government can stop issuing and keeping marriage licenses, but all that would do is create more private paperwork and increase the involvement of courts, which are part of government.
How would assets be split up in the event of a divorce or breakup? The same way as when there is a dispute between roommates - by courts, which are government. Some people will say spouses should not have joint accounts or community property anyway, but is that really the family culture we want to foster?
Yes, government can leave women entirely in control of their newborns, forcing men to sue if they want to be involved or women to sue if the man does not want involvement, and again, that would involve the courts, which are government.
A lot of people don’t have wills, trusts, advanced directives, and other paperwork they should, and without a state marriage license, courts will have to get involved more. One of the arguments of marriage neutering advocates has been that brideless or groomless couples shouldn’t have to do all of that extra paperwork. Marriage abolitionists want EVERYONE to have to do all of that extra paperwork.
So spouses would no longer be exempt from testifying against each other? Do you want someone to have to walk on eggshells in front of their spouse for fear that the government could compel their spouse to rat them out for even thinking about the most minor offenses, or blowing off steam with figures of speech?
Why should the government “get out of marriage” but not “get out of birth”? Or, why are there government birth certificates? If you say birth certificates help protect a child’s rights, I maintain that a marriage license also does this. The natural process of birth is almost always preceded by a natural joining of a man and a woman, no matter how temporary. The paperwork deals with these realities.
No state in the union created marriage. States have simply recognized and recorded something that already existed, because such unions bring together both sexes, create a new unit that is the basic building block of families and society, usually join two families, and usually create the next generation of citizens. Abandoning state marriage licensing would only “get the government out of” an extremely tiny percentage of marriages - ones that never involve children, last until both spouses die simultaneously, never involve one spouse being unable to make their own medical decisions, etc. In reality, getting rid of state marriage licenses would bring more government into our lives, because marriage licenses are a paperwork shortcut.
Leftists who say “get the the government out of marriage” are like abortion advocates who want to implement King Solomon’s “solution” of cutting the baby in half. Are we, as a society, to say that people who do not want to be married by clergy or are unable to find willing clergy (perhaps Atheists or noncongregants of whatever sort) should not be able to get married? No more marriages by judges, justices of the peace, or other secular officials?
As written by DarwinCatholic:
As James Joyner put it:
The state gets involved in marriage because it unites a man and a woman in the kind of a relationship that naturally creates new citizens, even if not every single relationship does. The state is involved because of biological realities, not because of claimed attractions or love. The state and society simply do not have the same interest when there is no bride or there is no groom, and that is why brideless or groomless pairings were not considered or recognized as marriage in any culture in history, even ones where homosexual behavior was openly accepted and celebrated.
Why should the government “get out of marriage” but not “get out of birth”? Or, why are there government birth certificates? If you say birth certificates help protect a child’s rights, I maintain that a marriage license also does this. The natural process of birth is almost always preceded by a natural joining of a man and a woman, no matter how temporary. The paperwork deals with these realities.
No state in the union created marriage. States have simply recognized and recorded something that already existed, because such unions bring together both sexes, create a new unit that is the basic building block of families and society, usually join two families, and usually create the next generation of citizens. Abandoning state marriage licensing would only “get the government out of” an extremely tiny percentage of marriages - ones that never involve children, last until both spouses die simultaneously, never involve one spouse being unable to make their own medical decisions, etc. In reality, getting rid of state marriage licenses would bring more government into our lives, because marriage licenses are a paperwork shortcut.
Leftists who say “get the the government out of marriage” are like abortion advocates who want to implement King Solomon’s “solution” of cutting the baby in half. Are we, as a society, to say that people who do not want to be married by clergy or are unable to find willing clergy (perhaps Atheists or noncongregants of whatever sort) should not be able to get married? No more marriages by judges, justices of the peace, or other secular officials?
As written by DarwinCatholic:
The state cannot duck the situation, because arbitrating property disputes is one of its most basic purposes, and determining who constitutes a household is one of the basic elements of resolving property disputes.
As James Joyner put it:
Now, I suppose we could replace it with a set of complicated contracts: wills, powers of attorney, adoptions, and so forth. But that would be much more burdensome than a single legal act that solves the issues. And there’s always the chance of sudden death that puts things into legal limbo before the parties would have an opportunity to execute a particular contract. Say, one parent dies during childbirth or just before. Now, custody is a non-issue if the couple is married. If the parents were in a mere business relationship consecrated by a series of contracts, it would be murkier and require legal wrangling at a particularly emotional time.
Presumably, all of that’s solvable. But, essentially, you’d be re-creating civil marriage under another name. Which seems rather pointless, since we already have it.
The state gets involved in marriage because it unites a man and a woman in the kind of a relationship that naturally creates new citizens, even if not every single relationship does. The state is involved because of biological realities, not because of claimed attractions or love. The state and society simply do not have the same interest when there is no bride or there is no groom, and that is why brideless or groomless pairings were not considered or recognized as marriage in any culture in history, even ones where homosexual behavior was openly accepted and celebrated.
Yeah right. That's statist thinking.
ReplyDeletePlease explain how. Getting married is completely voluntary. The marriage license reduces the amount of state paperwork or legal actions one must file.
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