Inspired by a conversation on Peter David‘s weblog, I’ve done some thinking on the whole marriage thing.

A discussion on any topic requires that all involved know what’s being discussed, so I’m going to start with a definition of terms that I’ll be using. These aren’t legal, technical or dictionary definitions. They’re operational definitions of the completely separate aspects (physical, emotional, and legal) of what we currently call a marriage , and if you choose to comment, I’d like to hear your opinions about the definitions, but I’d prefer that not be the entire focus of your comment.

Marriage*

An emotional (and/or spiritual) joining between individuals, members of which are assumed to love one another equally and above all others. It is also assumed to be a lifetime commitment.

Union

A legal joining between individuals. This joining provides “next-of-kin” status to its members, which confers a number of rights and privileges. To avoid gender confusion in the following post, members of a union will be referred to simply as “Spouse,” not as “Husband” or “Wife.”

Coupling

A exclusive sexual relationship between individuals.

Legal Marriage

The combination of a Marriage and a Union, this is what we typically consider a marriage. Coupling is typically assumed to be implied by this.

It seems like using the same word to encompass all of these concepts (as we do now) is confusing and unnecessary. One could even argue that the merging of the concepts is tantamount to the government dictating that a religion can and can’t do. I’ll discuss each term separately first, then get back to the idea of a legal marriage.

I. Coupling

What I’m calling coupling is actually very closely related to the emotional marriage. I’m separating it because I can imagine scenarios in which a couple might marry but never have sex. Suppose there is a car accident on their way to their honeymoon. One spouse is comatose, and the other stays by hir side for years afterward. Would we argue that they were never married? I can imagine various other perfectly plausible reasons why a couple would be in love, devoted, and married in the typical use of the word, and never have sex. None of them are reasons I suspect are wide spread, but they could happen, so the concepts are separated.

I’m not much going to discuss the ethics of sex. I believe that God considers premarital sex a sin, but I also believe that God’s definition of ‘premarital’ doesn’t necessarily mean that two people must have stood in front of a preacher, a congregation, or even a single witness in order for sex to be acceptable between them.

Also, while I’m on the subject, I believe homosexual sex might be a sin. The passages I’ve seen used as evidence for its sin-hood seem to be condemning any sexual activity that is permitted to interfere with one’s relationship with God, homosexual or heterosexual. Whether homosexual acts are sins outside of that circumstance isn’t a topic I’ve explored much. As I tend to view the male body as something between ludicrous and disgusting, I’ve long since decided that it was more worthwhile to me to know if things that actually tempt me are sins than it was to spend a lot of time exploring the righteousness of something that makes me cringe.

Even assuming homosexual acts are a sin, though, those acts (and the desires which precede them) don’t make the homosexuals worse than anyone else. There is no one who hasn’t sinned. God doesn’t discriminate against us based on the nature of the sins we may have committed, so why should we?

It is our business, and it is God’s business, but it is (mostly) none of the government’s business what we do in our bedrooms with other consenting adults (I’ll address exceptions to this in the final section). There is an assumption that legal marriage includes coupling, but strictly speaking, the government shouldn’t even be involved in this part of it.

II. Marriage (emotional/spiritual)

Using these definitions, it seems clear (to me) that the government has no business regulating marriage. Marriage is a cultural thing that the government has no place in — they cannot regulate who is in love, and given that, it seems pretty stupid to regulate who can make public declarations of love and long-term commitment.

As I stated in the first section, I have no deep conviction that a marriage of this type requires a piece of paper with a government stamp of approval, nor do I feel that it necessarily must be initiated with a ceremony containing the words “I do.”

If John and Jane have lived together for 15 years, and have expressed to one another the desire to be lifelong partners, then as far as I’m concerned, they have every right to celebrate that and consider themselves married, regardless of whether they’ve got a formal document to prove it.

There are those who are fighting for the right of homosexuals to have a legal marriage who will tell you that their reasoning is that they have the right for their relationships to be seen as legitimate. I understand this desire, and even agree that it would be nice if everyone tolerated the beliefs of everyone else (except where those beliefs include the harming of other individuals). However, I see this point as the more minor part of the argument, because those who’re going to see the relationship as legitimate already do, and those who aren’t won’t change their minds just because it is legal.

III. Union

This is the crux of the current controversy, I think. Those wanting to forbid homosexuals to marry feel that it changes the emotional/spiritual components of marriage. Those wanting to allow homosexuals to marry feel that they’re being denied certain legal rights and privileges. In addition to tax breaks and insurance benefits, there are fifth amendment rights that I’m sure that they’d like to have. That’s not to mention the fact that they’re treated like their informal next-of-kin relationship doesn’t matter in hospitals, for example.

Union is the part of marriage that governments have not only the right but the duty to uphold equally for all people. It is completely separate from the emotional joining represented in the “marriage” part of a legal marriage.

Let’s consider two roommates, Tom and Harry, who are both straight. Tom has no living relatives, unless you count his ex-wife. Harry has a sister that he hasn’t spoken to in years, and while he dates some, he’s not in a serious relationship. Tom and Harry have been roommates for a long time, and know each other better than anyone. It seems to me that it should be perfectly appropriate for Tom to be considered his next-of-kin, even if there’s nothing romantic or prurient about their relationship, if Harry should decide that’s how it should be.

Similarly, if the two can prove they’re sharing the costs of the household and are essentially sharing resources, why shouldn’t they have the same tax benefits as the hard working newlyweds (who don’t want to be parents, incidentally) across the hall?

I know that, rationally, it can’t work this way, but I tend to envision the government as a massive computer. The rules it follows aren’t quite as logical, but they’re followed fairly strictly (which is why lawyers get so much money — they’re glorified bug testers). If the government is to consider all people equally, it cannot even consider genders, and it shouldn’t be concerned with whether a relationship between two people is romantic, sexual, friendship, or pure business.

This is where I think I’m going to start getting a lot of flak. As far as I’m concerned, the government should consider a relationship as existing iff there exists documentation of said relationship. In my opinion, as far as the government is concerned, any two (adult) people should be allowed to get married, because it is not the government’s job to legislate morality.

“Just because you have the right to do something doesn’t mean you should.” It seems to me that it’s also true that just because you shouldn’t do something doesn’t mean you shouldn’t have the right.

Again, just because some people don’t seem to get this: It is not the government’s job to legislate morality. Justice SHOULD BE blind to moral dilemmas. (Note: I’m not saying that the human element shouldn’t be considered on a case-by-case basis, but on a policy wide basis, it should be ignored)

IV. Legal Marriage

(Note: “Marriage” has now reverted to it’s typical legal definition from this point on.)

Regardless of what those wishing to forbid homosexual marriages might say, the current legal construct of marriage is really unsatisfactory as it stands now. We can talk about Defense of Marriage and protecting its sanctity all we want. Talk is all we can do, though, because the sanctity of marriage as a legal institution no longer exists. For homosexuals and those supporting their marriages, it doesn’t permit them to participate, which obviously doesn’t satisfy them, and it’s discrimination to boot. For those who’re opposed on the basis that homosexual marriage somehow detracts from marriage, it should be plain to see that legal marriage has already become something of a joke. While most of Hollywood could be used to illustrate this point, Britney Spears seems to have done the best job recently.

Marriage is in a strange place right now. We still act like we think it’s this big, important, wonderful thing when we talk about it, but in practice, it’s useless. People get married so they can stay in the country. They get married so they can get famous by making fools of themselves on television. Obviously, all of those crying out about the sanctity of marriage haven’t noticed, but marriage doesn’t have any sanctity anymore.

I say we should change the law. Marriage isn’t always “’til death do us part” anymore, so why do we bother acting like it is?

I propose two different forms of union — the civil union and the legal marriage. The civil union is for any set of individuals who would like to bestow some formal rights on another person (or persons — the tax laws involved would get more complicated, but I don’t see why a civil union couldn’t involve a commune or polygamist “union”) that would essentially make them next-of-kin. With the civil union, there’s no presumption that there’s a relationship beyond the legal one, it’s just a formal way of saying that, as far as the law is concerned, this person should be considered family.

The main differences between the civil union I propose and the marriage is that the civil union would be more flexible, and it wouldn’t carry quite the same rights. A civil union could be indefinite, with specific criteria defining what can cause it to end, or it could carry a pre-determined period of time — you might be in a union for, say, 90 days, or a year, or five, or whatever. Any current marriages with prenups would be the equivalent of an indefinite civil union, and specific clauses could be added to the union that would determine what a member was eligible for under certain circumstances. There would also be some additional flexibilities that would also be available in a legal marriage.

Ending a civil union before its time (without a clause that specified an easier ‘out’ process — communal civil unions would likely have one of those) would probably be much like a divorce today.

A marriage, on the other hand, would always be “‘Til Death Do Us Part.” Marriage Licenses would be much harder to come by than civil union licenses would be, and would always be dependant on having a meeting with a lawyer who specializes in this sort of thing, and most likely, a marriage counselor as well. The purpose of this meeting would be twofold. First, to impress upon the would-be spouses that this is a formal contract. It isn’t a contract between two individuals, like the Civil Union is, it’s a contract between two individuals and society (via society’s representative, the government).

Secondly, the meeting would be to establish that these people have some idea what they’re getting into. I’m 25 right now. Looking back, I can see stark differences between my attitude and outlook now and at 20. I can almost see the conversation going something like this.

I’m not sure of the criteria that would be used to refuse a marriage license — if someone seemed incapable of understanding the terms, that’s one thing, but if they simply chose to refuse to believe the fact that marriage isn’t just a matter of meeting someone, falling in love, and living happily ever after? As long as it is clear that they understand the consequences, then let them be. Just like the government can’t regulate emotions or morality, it can’t regulate stupidity, either. Even when we wish it could.

The main flexibilities on the marriage contract would be to determine what constitutes a violation. Two people might choose to have an “open” marriage, and if that’s the case, a clause would need to be added to make it clear that having sex with a third person didn’t necessarily constitute infidelity. (I don’t necessarily approve of this myself, but some people like the idea, and it’s not my place to judge what’s okay for their marriage.)

Beyond the differences in flexibility with time-spans, the conceptual difference between marriage and a civil union is that, legally, two married people are considered one in everything except taxes and certain legal matters. A married couple would get certain tax deductions, and if one member committed a crime punishable by jail time, only that spouse would go to jail. On the other hand, any debts incurred by one spouse are shared by the other, and Fifth Amendment rights would (still) cover not testifying to incriminate your spouse (who is now, legally, “yourself”).

Dissolving a marriage would be much more difficult than it is now. In certain extreme cases (such as abuse or infidelity — the latter being the only case I can think of in which the government should care what goes on in private bedrooms, and that only because it’s the violation of a contract), the offending spouse would be forced to make amends, probably in the form of a very large monetary settlement. In addition, for breaking the agreement with society, the offending spouse would be unable to enter into a new marriage contract (though indefinite-term civil union contracts would still be acceptable).

Religious marriages and legal marriages are completely separate. One could be perfectly honest in saying “I’m married” whether s/he had signed a legal contract or had a ceremony in a church, or whatever, but only the legal contract would stand up in court.

The idea here is to establish a real separation of church and state, not to mention a society where people have to take some responsibility for their actions. (*gasp*) I realize I haven’t considered all the legal issues, or even all the ethical ones. I think this scenario provides some interesting possibilities, though. Green card marriages would be legal, because the government doesn’t care why you got married. It does, however, care if you break your trust with the government, and remember, marriages wouldn’t be quite the throwaway unions that they are today.

Finally, while my theoretical system to replace the current marriage construct probably wouldn’t work (I guarantee there are flaws I’ve not considered), I think it’s an interesting thought exercise. Especially since the current construct doesn’t work as it was originally intended and needs an overhaul. Conservative extremists can claim that they’re protecting the sanctity of marriage, but really, I think their attempts to do so are misguided. It’s almost like they’re trying to use a fire extinguisher to put out an imaginary trash fire while the whole house is going up in smoke behind them.

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Recommended Reading: (or, How pompous can I be, anyway?)

• The original discussion that prompted this post can be found on Peter David‘s weblog, as linked above (and again, here). It’s not all civil and well-reasoned, but a lot of it is.
  
• Incest Repellant? and Incest Repellant?, Continued raise the question of exactly how much our right to privacy can protect. As the subtitle to the first installment states, “If gay sex is private, why isn’t incest?”


• Stanley Kurtz, of NRO, explores The Libertarian Question. This article is what led me to consider ways to reinforce the idea that ‘legal marriage’ is truly binding.


• If you have any concerns about God’s view on homosexuality, marriage, sin, or anything else, check the Bible. Two good (as far as I can tell) sources are Bible.com and Bible.org home of the NET Bible. If you have any desire to discuss Christian beliefs, I will happily discuss my beliefs with you. I don’t claim to know it all, and I will make mistakes, but I’ll do my best to properly represent God’s Word and His plan for Salvation (through His Son, Jesus Christ).


• I’d also really recommend reading Stranger in a Strange Land by Robert Heinlein. In addition to being a wonderful, thought-inspiring novel, it, along with other works by Heinlein, contains part of the inspiration for the civil union I suggested.


• It’s unrelated, so this is listed last, but I recently read Harlan B. Miller’s On Abortion, and thought it was interesting. I don’t entirely agree with his conclusions, but I don’t entirely disagree, either. I’d write about it in a separate post, but, let’s face it — no one cares about my opinion on abortion. No one cares about my opinion on gay marriage, for that matter. But, I digress (with apologies to Peter David)…


• Want to add to this list? Do you know of a well-written article or even-tempered discussion on this topic that I’ve missed? E-mail me (Remove the “_DONOTSPAM_” mask, obviously) and let me know.

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*A final note about definitions:

I really struggled to find a word to use for the spiritual component of marriage — since I’m defining one aspect of marriage, using the term seemed inappropriate, but it’s assumed by our society that a marriage must include this aspect, so I finally decided to keep the term and separate the legal concept into the term ‘union.’

I seriously considered using the term “Water-Brotherhood” instead of marriage, but I decided that would a.) be too much work to type, b.) give an immediate connotation of polygamy that would cause most of my points to be considered invalid before I even got to that point.
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