Spouses with benefits

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I raised a point in yet another thread on gay marriage that, upon further reflection, seems worthy of its own thread.

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The debate over homosexual marriages would be entirely inconsequential if it were not for the government benefits that are conferred on married couples. If marriage were solely a religious rite, akin to communion or baptism, there would be no controversy, or else the controversy would be confined entirely to the church community, as is presently the case with the ordination of gays in the Catholic church. It would, for instance, be simply inconceivable that legislators would propose a constitutional amendment outlawing the baptism of homosexuals. It would likewise be inconceivable that anyone would propose an amendment to outlaw gay marriage if the entire institution of marriage were strictly a religious matter rather than one that affected civil relations as well.

The real question, then, is not whether gays should be allowed to marry, but whether the state should be conferring benefits on married couples at all. If the answer to that question is "yes," then one must question why persons who enter into one kind of affective relationship are allowed to participate in those benefits, whereas those who enter into another kind are excluded entirely.

The question, then, is: should the state give any kind of benefits or preferences to citizens, based solely upon their marital status?

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There are rights conferred to spouses as well. Decisions about medical care, for example, can only be made about one's partner if one is married.

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DD makes a good point. I think for people who are pro-marriage (for everyone) the rights are the most important thing -- the right to inherit the family home, the right to an adopted or other non-biological child, the right to make medical decisions, the right to be recognized as next of kin. For people who are marriage-discriminatory, it's the benefits they care about.

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FreeDuck wrote:

DD makes a good point. I think for people who are pro-marriage (for everyone) the rights are the most important thing -- the right to inherit the family home, the right to an adopted or other non-biological child, the right to make medical decisions, the right to be recognized as next of kin. For people who are marriage-discriminatory, it's the benefits they care about.

All right, why should the state grant rights to citizens based on their marital status?

The examples that you cite, FreeDuck, are mostly "just in case" rules. A spouse, for instance, gets a certain portion of a deceased spouse's estate just in case the deceased has not made a will (and sometimes even then, under laws mandating a minimum spousal share of the estate). People, however, can freely bequeath their property to their spouses without the state getting involved, just as they can bequeath their property to non-family members. What the state does, then, can easily be done by individuals -- even unmarried individuals. There's no need, it seems, for the state to grant special status to the marital unit.

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Why do they need to? I don't know, but they always have. Wills can be disputed and challenged in court. In the event that a will is challenged, what criteria does the state use to determine how the will should be executed? I suppose it is akin to enforcing contracts, which is what a marriage is, IMO. The state protects spouses who were low-earners in a marriage, or who denied themselves a career in order to raise children. The state recognizes unofficial marriages between couples of the opposite sex and protects their rights. What's the problem with extending that?

It seems to me that the state already has its hand in it and can't decide now that they don't have a reason to be involved. If what you're suggesting is that the state ought not to have a hand in any of it, well, I'd have to consider that long and hard before I could argue for or against it.

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FreeDuck wrote:

Why do they need to? I don't know, but they always have. Wills can be disputed and challenged in court. In the event that a will is challenged, what criteria does the state use to determine how the will should be executed? I suppose it is akin to enforcing contracts, which is what a marriage is, IMO. The state protects spouses who were low-earners in a marriage, or who denied themselves a career in order to raise children.

Why not let the individuals take whatever steps they deem appropriate to protect themselves?

FreeDuck wrote:

The state recognizes unofficial marriages between couples of the opposite sex and protects their rights. What's the problem with extending that?

By and large, the state does not recognize unofficial marriages. To the extent that a state recognizes a common-law union (and most do not), it simply raises it to the status of a regular marriage.

FreeDuck wrote:

It seems to me that the state already has its hand in it and can't decide now that they don't have a reason to be involved. If what you're suggesting is that the state ought not to have a hand in any of it, well, I'd have to consider that long and hard before I could argue for or against it.

Think of it this way: suppose being a husband or wife had the same status as being a godfather or a godmother -- recognized by the church and the community, but having no legal significance whatsoever.

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joefromchicago wrote:

FreeDuck wrote:
Why do they need to? I don't know, but they always have. Wills can be disputed and challenged in court. In the event that a will is challenged, what criteria does the state use to determine how the will should be executed? I suppose it is akin to enforcing contracts, which is what a marriage is, IMO. The state protects spouses who were low-earners in a marriage, or who denied themselves a career in order to raise children.

Why not let the individuals take whatever steps they deem appropriate to protect themselves?

Like what?

joefromchicago wrote:

FreeDuck wrote:
It seems to me that the state already has its hand in it and can't decide now that they don't have a reason to be involved. If what you're suggesting is that the state ought not to have a hand in any of it, well, I'd have to consider that long and hard before I could argue for or against it.

Think of it this way: suppose being a husband or wife had the same status as being a godfather or a godmother -- recognized by the church and the community, but having no legal significance whatsoever.

How would that affect divorce law?

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Why not let the individuals take whatever steps they deem appropriate to protect themselves?

Many people are feckless fools and The State has an interest in seeing that dependents are financially supported by their parents/children/spouses rather than by the taxpayers.

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Re: Spouses with benefits

joefromchicago wrote:

The question, then, is: should the state give any kind of benefits or preferences to citizens, based solely upon their marital status?

Careful there, Joe -- you are beginning to think like a libertarian.

Or to answer your question -- no, the state shouldn't. Anyone who has a problem when the state discriminates in favor of hetero couples over homosexual couples, should also have a problem with it discriminating in favor of married couples over unmarried couples. If the state left the definition of marriage to non-government institutions, and if it stopped conferring privileges to married people, that would be my favorite solution to the gay marriage problem.

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Noddy24 wrote:

Quote:
Why not let the individuals take whatever steps they deem appropriate to protect themselves?

Many people are feckless fools and The State has an interest in seeing that dependents are financially supported by their parents/children/spouses rather than by the taxpayers.

Blackstone's Commentaries on the Laws of England (1765) contain a whole chapter on the legal relationship Of Master and Servant. I can easily see a late-18th-century Joe suggest that the state end its recognition of that relation. I can just as easily imagine a late-18th century Noddy make the same counterargument. Yet the master-servant relationship has been abandoned as a legal concept, and few would doubt that the legal tradition of England and its former colonies is better off because of it.

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Thomas--

There is nothing new under the sun. Vanity, vanity, all is vanity.

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FreeDuck wrote:

joefromchicago wrote:
Why not let the individuals take whatever steps they deem appropriate to protect themselves?

Like what?

Writing their own wills, for instance.

FreeDuck wrote:

How would that affect divorce law?

Divorce laws would be a purely religious affair, in much the same way that annulments are now handled by the Catholic church.

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Re: Spouses with benefits

Thomas wrote:

Careful there, Joe -- you are beginning to think like a libertarian.

I recognize that danger. Let me reassure you, however, that my main interest here is to test assumptions rather than state my personal position.

Thomas wrote:

Or to answer your question -- no, the state shouldn't. Anyone who has a problem when the state discriminates in favor of hetero couples over homosexual couples, should also have a problem with it discriminating in favor of married couples over unmarried couples. If the state left the definition of marriage to non-government institutions, and if it stopped conferring privileges to married people, that would be my favorite solution to the gay marriage problem.

As I mentioned before, if marriage were solely a religious matter, there would be no debate over homosexual marriage.

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Noddy24 wrote:

Many people are feckless fools and The State has an interest in seeing that dependents are financially supported by their parents/children/spouses rather than by the taxpayers.

You confuse marriage with parenthood. Through long experience, it is now beyond cavil that people can be parents without first being married. We can, and do, have laws on the books dealing with the obligations of all parents, regardless of their marital status. State sanction of marriage, then, is largely irrelevant to the issue of state-imposed parental obligations for the benefit of children.

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Re: Spouses with benefits

joefromchicago wrote:

As I mentioned before, if marriage were solely a religious matter, there would be no debate over homosexual marriage.

Building on this remark, I think we can eventually reach a mutually satisfactory disagreement. Unlike you, I strongly suspect that homosexual couples tend to care very much about marriage licenses as the token of community recognition that they are, and what they ultimately want is society's recognition. I don't believe in this "it's just business" line of argument as anything more than a tactical position to swing the courts.

Accordingly, if marriage were to become a purely religious affair, I'd predict that today's gay rights organization would adapt their tactics to target whoever is in charge of administering marriage. Specifically, in your example, they would seek to change theological doctrine and religious folklore in a direction more conducive to gay marriage.

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joefromchicago wrote:

Writing their own wills, for instance.

Yeah, but wills can and are contested. What of the situation where there is an agreement that one spouse will not work? Should they draw up a contract so that the non-earning spouse has a right to half of the other's income?

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Divorce laws would be a purely religious affair, in much the same way that annulments are now handled by the Catholic church.

And division of assets and the like? Would the church handle that or would the courts address it?

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FreeDuck wrote:

Yeah, but wills can and are contested.

So can the decisions of spouses. Consider the Schiavo case.

FreeDuck wrote:

And division of assets and the like? Would the church handle that or would the courts address it?

I think that could work under plain vanilla contract law without reference to marriage. Then of course, there is canon law and religious courts, and they could all be extended to do contract law.

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FreeDuck wrote:

Yeah, but wills can and are contested. What of the situation where there is an agreement that one spouse will not work? Should they draw up a contract so that the non-earning spouse has a right to half of the other's income?

That would certainly be one option.

FreeDuck wrote:

And division of assets and the like? Would the church handle that or would the courts address it?

That assumes that spouses would automatically share equally in all marital assets. If we're rethinking marriage, then we should also rethink the notion of community property, at least in the form it takes now.

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I'm listening, but do not yet have any great insights.

I would consider whether it is in the state's interest to promote marriage. I have mixed thoughts on the matter.

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In very early New England (1630,s) marriage was purely a civil contract and the clergy were not allowed to marry couples. The clergy (protestant/congregational) complained and the law was altered. I suggest we return to that and keep religion out of it all together.

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Spouses with benefits

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