Good piece in the Times today regarding marriage, and why exactly it became the business of the state to decide who was and wasn’t married. The author, Stephanie Coontz, makes a good case for taking marriage back into the private sphere, and cutting the state out of the loop entirely. Doing so, presumably, would solve all debates regarding the state’s role in granting recognition to gay marriages. But would taking marriage private really end the debate?
Coontz’s version of private marriage seems to constitute what some gay couples have been doing independently (and expensively!) for years now. In place of the single, blanket marriage license that serves as short hand for a whole range of civil rights and responsibilities, couples would create specific, legally binding arrangements or contracts with their partner to cover specific rights or obligations. Want to give your SO power of attorney in the event of a medical emergency? Sign a directive. Want your partner to receive your pension or social security survivorship? Sign another directive. Want to be considered as a single household? Another form.
Two problems seem to represent themselves. First of all, there is a very wide range of eventualities that marriage currently covers. Anticipating all of the possible situations where marital status comes into play would require significant research, and a significant investment of time and, potentially, expensive expertise. The virtue of the current system- and the prospect of extending that system to gays and lesbians- is that it provides a pre-packaged set of exactly such arrangements. No single source anywhere in any particular state or municipality has to know all of what is entailed- indeed, it’s doubtful of anyone, possibly including divorce attorneys really has that sort of info at their fingertips. Thus the first problem is working out all of what marriage currently entails, and crafting agreements to cover all of them. Certainly not an unconquerable task, but one that could be much simplified by simply extending the current institution of marriage to anyone who wants it.
The second problem is one of recognition. The issue with gay marriage is that the state will not recognize that two people of the same sex are legally able to participate in an agreement between them and the state that is perfectly straightforward for two members of the opposite sex. What reason do we have to believe that the states- which ultimately will be the place where these agreements will be challenged and enforced through the court system- will be more amenable to recognizing these independent agreements? In areas of family law and responsibility, will state recognize these contracts and arrangements as binding, given that were they gathered together under the heading of ‘marriage’ they presumably would not be enforced or recognized in states not recognizing gay marriage.
Ultimately, proposals to replace marriage with a network of private arrangements suffers from the same weakness as civil unions; they are, ultimately, semantic attempt to circumvent opposition to gay marriage that should be met head on. Proponents of “traditional marriage” will be no more eager to countenance the removal of marriage from the public sphere than they will be to admit gay marriage. Marriage for gay Americans shouldn’t be snuck in as a legal technicality; as the example of Massachusetts and other states shows, it can be introduced openly and the consequences (or rather, the lack thereof) will speak for themselves.