Captain’s Quarters yesterday had an unusual take on the whole issue of Gay Marriage and the New Jersey decision.
True libertarians would argue that government should stop sanctioning marriages altogether and just treat them at the contractual level. It’s not necessary to go that far, however. All that needs be done is to formalize all of the government-recognized incidentals as building blocks of normal contracts. That would allow not just same-gender couples in sexual relationships to gain these incidentals, but also elderly siblings looking to avoid tax implications for estate planning, friends who wish to partner on health benefits, and so on. The government could limit people to one such contract at a time and insist on formal partnership dissolutions to mark their end. We could call them “personal partnerships” and add onto existing contract law to regulate them as necessary.
This way, government can still recognize the importance of heterosexual marriages as a particular kind of contract, while treating other contractual relationships with the same care. The other relationships gain the economic security they seek while not disturbing the traditional understanding of marriage. At the very least, this approach has the virtue of basing itself on long-understood laws and principles of legal partnerships, while various courts stretch preamble material into strange new laws never envisioned by their writers.
It’s an interesting proposal, and one that’s unlikely to make it to Congress where different thinking and solving problems are a foreign concept. But do we really need such recognition of the contracts?
The Constitution calls for separation of church and state. Is marriage a function inherent to church or state? We’ve never really drawn a line on that one, and now that some are trying, it ruffles a lot of feathers.
If you view marriage as a contractual obligation for the sake of health, retirement and insurance benefits, then we should treat marriage as a contract like any other with no special treatment for the people within them. If all are equal under the law, the law is blind, etc., the distinctions are useless. A contract is a contract and any two people can enter into a life partnership.
If marriage is a sacred bond between people and god, then it should be treated as a function purely of faith and religion and ignored by the state. If you choose to recognize your love as a commitment before god, then it should be up to religions on a case by case basis to determine what they choose to honor and what they don’t. If a church hierarchy recognizes homosexuality as a sin, then it prohibits gay weddings within its walls and (ideologically) among its members.
Viewed in that way, your covenant with god is purely a function of your belief in an eternal reward, and should have no legal facet. If I choose to worship at a church that condones love, rather than gender, and recognizes gay marriage, it’s up to the almighty to judge me and those who marry. It’s simply not the prerogative of the state of Virginia.
The problem is an issue of state recognition of religious theology for the purpose of contracts. Honestly, you could argue the courts could invalidate all marriages conducted by a religious official as a violation of the separation clause of the constitution. The state has no business recognizing religions as arbiters of contracts. They could easily toss out any such contract not joined by judge or Justice of the Peace. They could require the states to create life partnership contracts that would bind any two people together.
I disagree with CQ that these would need to be exclusive arrangements. I see no reason, if this is purely a function of law and contracts, that you would be precluded from entering into multiple life partnership agreements.
To say partnerships have to be limited to one at a time is simply codifying the religious view that polygamy is bad. The law is blind, remember? If a man or woman chooses to enter into contracts with multiple partners, that’s not a concern for the law as long as all parties are aware of and agree to those terms. If three people choose to share their lives as a purely economic model, the state should have no reason not to accept that. If this were a business, I could have as many partners as I choose and our business model allows.
If we view these partnerships as a purely contractual matter, the number of parties to the agreement should be solely a function of any exclusivity agreed to by the parties.
It really is an interesting academic discussion when you break it down solely on the reason for marriage. Is marriage between you and the state for economic benefit, or between you and god for eternal salvation. If you say it’s both, the Constitution may have something to say about that. Have we come to a point where our need for clarity in the law has run headlong into our need for the afterlife?