Against Marriage
April 19, 2018 12:27 AM Subscribe
Marriage is what happens when the state gets involved in endorsing and regulating personal relationships. It's a bad idea.
I’m in sympathy with what Chambers says, but it’s a big omission to say nothing about religion. I think it would be more accurate to say that marriage is in origin a religious institution, one whose regulation has been taken over by the state, though there are still differences between the concept and rules as applied by religions and states.
The prime purpose of marriage used to be the regulation of sexual conduct; the prevention of adultery and so on. In the West, at least, we don’t want that kind of regulation any more. Marriage is now legally, in the main, about property rights and care of children.
I think the state should have withdrawn from defining marriage, leaving that to religious authorities and individual choice. Instead it should merely have provided a range of civil partnership options, some covering obligations to children and dependents. These partnerships could have been available to any set of people with a shared life, irrespective of whether or not there were sexual relationships.
A similar effect can be achieved by contractual agreements, but I think the state has a role in defining what the advised fair partnership deals are, especially where care of dependents is a factor.
In the event, that didn’t happen; instead, enthusiasm for gay marriage recruited progressive sentiment to revitalise an outdated institution.
posted by Segundus at 12:41 AM on April 19, 2018 [16 favorites]
The prime purpose of marriage used to be the regulation of sexual conduct; the prevention of adultery and so on. In the West, at least, we don’t want that kind of regulation any more. Marriage is now legally, in the main, about property rights and care of children.
I think the state should have withdrawn from defining marriage, leaving that to religious authorities and individual choice. Instead it should merely have provided a range of civil partnership options, some covering obligations to children and dependents. These partnerships could have been available to any set of people with a shared life, irrespective of whether or not there were sexual relationships.
A similar effect can be achieved by contractual agreements, but I think the state has a role in defining what the advised fair partnership deals are, especially where care of dependents is a factor.
In the event, that didn’t happen; instead, enthusiasm for gay marriage recruited progressive sentiment to revitalise an outdated institution.
posted by Segundus at 12:41 AM on April 19, 2018 [16 favorites]
If we'd replace "marriage" by "contracts" (fine by me, really), then there's a metric ton of things we need to make sure is arranged by those contracts - stuff like "who can visit a 'spouse' in hospital", tax benefits, all kinds of "rights" in regards to children, etc... stuff that gets more or less done "by default" now just by saying "I do".
posted by DreamerFi at 1:03 AM on April 19, 2018 [63 favorites]
posted by DreamerFi at 1:03 AM on April 19, 2018 [63 favorites]
I'm all for an expanded, inclusive definition of marriage, and also for extending the rights given to married couples to other relationships (e.g. de facto couples as is already the case in many countries) but this represents an expansion of the state's involvement in regulating relationships and just moves the goalposts: now the state needs to regulate what qualifies as "de facto". Realistically the state will always have to be involved in people's relationships as long as it is the guarantor of property rights (including the right of both parties in a relationship to a share of common property if the relationship dissolves) and also the right of children to economic support from absent parents.
posted by L.P. Hatecraft at 1:29 AM on April 19, 2018 [26 favorites]
posted by L.P. Hatecraft at 1:29 AM on April 19, 2018 [26 favorites]
It is not set apart by its durability: unmarried partnerships can be more permanent than married ones.
This is in the first paragraph.
posted by hawthorne at 2:21 AM on April 19, 2018 [3 favorites]
This is in the first paragraph.
posted by hawthorne at 2:21 AM on April 19, 2018 [3 favorites]
I feel like I've been seeing this suggestion that government should get out of marriage more and more as gay people increasingly have the right to it. I'm suspicious that it's yet another case of diminishing an institution because marginalized people finally get to participate in it. How do you decompose marriage in a way that doesn't signal to people, well, now that you're here, we don't want it anymore?
posted by ddbeck at 2:35 AM on April 19, 2018 [70 favorites]
posted by ddbeck at 2:35 AM on April 19, 2018 [70 favorites]
Realistically the state will always have to be involved in people's relationships as long as it is the guarantor of property rights (including the right of both parties in a relationship to a share of common property if the relationship dissolves) and also the right of children to economic support from absent parents.
posted by L.P. Hatecraft at 5:29 PM on April 19 [1 favorite +] [!]
That's what always stopped me from ever going full anti-marriage, even as I defend LGBQT marriage (or civil unions, or whatever framework ends legal discrimination). Plus, in the past where the state has been unable or unwilling to be such a guarantor, local communities and religions often stepped into that role...ergo evolving into one of an everyday person's most direct expressions of "culture". If you want to be anti-marriage, the number of things to disentangle from it is like...damn.
But like women's rights, minority rights, sexual rights, and the value of art, a free press, and anti-fascism, it's a type of ongoing conversation that needs to be rehashed every generation...
I feel like I've been seeing this suggestion that government should get out of marriage more and more as gay people increasingly have the right to it. I'm suspicious that it's yet another case of diminishing an institution because marginalized people finally get to participate in it. How do you decompose marriage in a way that doesn't signal to people, well, now that you're here, we don't want it anymore?
posted by ddbeck at 6:35 PM on April 19 [1 favorite +] [!]
The power freedom of speech and the right to organize and assemble is that it allows us to directly challenge authoritarianism and power imbalances, but its fundamental weakness is that it allows authoritarians to use those same tools to move the goalposts, throw up chaff, and waste everyone's time.
Marriage is how LGBQT people gain the right to adopt a child and get on the health insurance of their partners, but it's also how a man could, until fairly recently in most states, gain the legal right to rape a woman, but it's also how, under miscegenation laws, a white man was denied the legal right to do the same thing to a black woman, but culturally he had several extralegal means of doing so (and semi-legal if you go back to slavery), but monogamy laws are also the tool we use to break up polygamist cults and why Donald Trump cheating and paying hush money might be the thing that brings down his presidency.
??? The argument over marriage gets so stupidly granular. Maybe I'll get married, maybe I won't, but I care more about building a fairer world than I do about the words we use for it. I'm always glad to hear that there's a stridently anti-marriage faction out there, because it's just one more tool in the toolbox of fighting oppression, unless it's used to perpetuate it, in which case I'm against it. But I try to keep my eyes on the prize - freedom and justice for all.
posted by saysthis at 3:02 AM on April 19, 2018 [14 favorites]
posted by L.P. Hatecraft at 5:29 PM on April 19 [1 favorite +] [!]
That's what always stopped me from ever going full anti-marriage, even as I defend LGBQT marriage (or civil unions, or whatever framework ends legal discrimination). Plus, in the past where the state has been unable or unwilling to be such a guarantor, local communities and religions often stepped into that role...ergo evolving into one of an everyday person's most direct expressions of "culture". If you want to be anti-marriage, the number of things to disentangle from it is like...damn.
But like women's rights, minority rights, sexual rights, and the value of art, a free press, and anti-fascism, it's a type of ongoing conversation that needs to be rehashed every generation...
I feel like I've been seeing this suggestion that government should get out of marriage more and more as gay people increasingly have the right to it. I'm suspicious that it's yet another case of diminishing an institution because marginalized people finally get to participate in it. How do you decompose marriage in a way that doesn't signal to people, well, now that you're here, we don't want it anymore?
posted by ddbeck at 6:35 PM on April 19 [1 favorite +] [!]
The power freedom of speech and the right to organize and assemble is that it allows us to directly challenge authoritarianism and power imbalances, but its fundamental weakness is that it allows authoritarians to use those same tools to move the goalposts, throw up chaff, and waste everyone's time.
Marriage is how LGBQT people gain the right to adopt a child and get on the health insurance of their partners, but it's also how a man could, until fairly recently in most states, gain the legal right to rape a woman, but it's also how, under miscegenation laws, a white man was denied the legal right to do the same thing to a black woman, but culturally he had several extralegal means of doing so (and semi-legal if you go back to slavery), but monogamy laws are also the tool we use to break up polygamist cults and why Donald Trump cheating and paying hush money might be the thing that brings down his presidency.
??? The argument over marriage gets so stupidly granular. Maybe I'll get married, maybe I won't, but I care more about building a fairer world than I do about the words we use for it. I'm always glad to hear that there's a stridently anti-marriage faction out there, because it's just one more tool in the toolbox of fighting oppression, unless it's used to perpetuate it, in which case I'm against it. But I try to keep my eyes on the prize - freedom and justice for all.
posted by saysthis at 3:02 AM on April 19, 2018 [14 favorites]
Plus, in the past where the state has been unable or unwilling to be such a guarantor, local communities and religions often stepped into that role...
I would much much rather have the state - at least supposedly accountable to its citizens and subject to the rule of law - handling this than I would religious communities or community consensus. Yes, you can argue that the state is not a great fit for this, but then it's on you to find a better alternative.
posted by Dysk at 3:11 AM on April 19, 2018 [38 favorites]
I would much much rather have the state - at least supposedly accountable to its citizens and subject to the rule of law - handling this than I would religious communities or community consensus. Yes, you can argue that the state is not a great fit for this, but then it's on you to find a better alternative.
posted by Dysk at 3:11 AM on April 19, 2018 [38 favorites]
Excellent point about the property rights.
High rates of marriage are comparatively recent. Marriage was, historically, for the rich to ensure that property was passed or accumulated within the family or its allegiances. Alliances were often (hmmm) consummated with a marriage of factional representatives.
In France the Napoleonic Code created a legal process which provided access to the rights and privileges of marriage. It was and is accepted as being completely different to the terms of a marriage under any religious process.
If the state has an interest, it is that a particular bundle of legal rights can be accessed by following the correct protocols, preferably without the intervention of lawyers.
posted by Barbara Spitzer at 3:21 AM on April 19, 2018 [1 favorite]
High rates of marriage are comparatively recent. Marriage was, historically, for the rich to ensure that property was passed or accumulated within the family or its allegiances. Alliances were often (hmmm) consummated with a marriage of factional representatives.
In France the Napoleonic Code created a legal process which provided access to the rights and privileges of marriage. It was and is accepted as being completely different to the terms of a marriage under any religious process.
If the state has an interest, it is that a particular bundle of legal rights can be accessed by following the correct protocols, preferably without the intervention of lawyers.
posted by Barbara Spitzer at 3:21 AM on April 19, 2018 [1 favorite]
Haven't read the article yet, but in response to a couple comments above, LGBTQ legal scholars have been thinking about the varied legal issues (right to make decisions for someone who has fallen ill, children, etc.) for a while and have some robust answers to what alternatives to legal marriage between a pair of sexually/romantically involved people could be. My favorite read on this topic so far is the book Beyond (Gay and Straight) Marriage by Nancy Polikoff (link points to blog associated with the book). I will read the link in this post before further commenting though!
posted by eviemath at 3:56 AM on April 19, 2018 [4 favorites]
posted by eviemath at 3:56 AM on April 19, 2018 [4 favorites]
According to the gay elders in my life the early gay liberation activist movements where very much opposed to the idea of gay people needing to mimic the rights which straight people had and were instead more in favor of being totally liberated from the expectations and norms of being straight.
According to these people, who don’t represent everyone I know but they lived through the early AIDS crisis in the 80’s so I do give their words weight and merit, when the LGBT movement began pushing for acceptance into the “norms of straight people” it marked a huge turning point between the early activists and what became essentially a gay marriage money train.
posted by Annika Cicada at 4:20 AM on April 19, 2018 [11 favorites]
According to these people, who don’t represent everyone I know but they lived through the early AIDS crisis in the 80’s so I do give their words weight and merit, when the LGBT movement began pushing for acceptance into the “norms of straight people” it marked a huge turning point between the early activists and what became essentially a gay marriage money train.
posted by Annika Cicada at 4:20 AM on April 19, 2018 [11 favorites]
It's entirely possible and desirable to get married in a non-state-sanctioned way. Not only do you get to avoid some paperwork, you'll be affirming that marriage is sacred and the government has no proper business meddling in it. For a modest fee I'd be happy to officiate either in my capacity as an ordained minister of the Universal Life Church, or as Grand Magister of the Second Reformed Discordian Church of Nolalu.
posted by sfenders at 4:24 AM on April 19, 2018 [3 favorites]
posted by sfenders at 4:24 AM on April 19, 2018 [3 favorites]
One thing that surprised me about English legal history is, that English marriage law (which eventually became American, Australian, Canadian etc. marriage law) is like the panda's thumb: it's a recreation of something that ought to be there but disappeared, made up out of the available material.
When Henry VIII split from the Catholic Church it greatly weakened the power of Canon Law in England, which had formerly regulated marriage. Because it was still socially necessary to regulate marriage the civil courts started adjudicating common-law crimes that are only defined in relation to marriage, things like bigamy and adultery. So all of a sudden it wasn't the Church deciding whether people were married; it was a civil judge. The English government eventually brought all this into written law with the various Marriage Acts, but the root of modern English marriage has nothing to do with love and sacred institutions and so forth: it's all about punishing people for doing marriage wrong.
posted by Joe in Australia at 4:44 AM on April 19, 2018 [4 favorites]
When Henry VIII split from the Catholic Church it greatly weakened the power of Canon Law in England, which had formerly regulated marriage. Because it was still socially necessary to regulate marriage the civil courts started adjudicating common-law crimes that are only defined in relation to marriage, things like bigamy and adultery. So all of a sudden it wasn't the Church deciding whether people were married; it was a civil judge. The English government eventually brought all this into written law with the various Marriage Acts, but the root of modern English marriage has nothing to do with love and sacred institutions and so forth: it's all about punishing people for doing marriage wrong.
posted by Joe in Australia at 4:44 AM on April 19, 2018 [4 favorites]
Can we maybe just let the gays have this for a while before we decide to tear it all down entirely?
That may not be the most charitable read of this, but that's what I think after reading articles like this. Also, I don't think that contracts are the answer -- because any unmarried couple could put together a series of contracts that would function like marriage. That's what GBLT people did before our marriages were legal -- we pieced things together like we could, POAs and wills and the like. It's expensive, time-consuming, and not accessible to a lot of folks, like low income or otherwise marginalized people. The alternative, getting married, is pretty close to free and pretty simple, and the unmarried people have chosen not to take that step, so why should they have the same rights collectively as the married couple if they haven't put together any of these documents? That doesn't make sense.
posted by possibilityleft at 4:54 AM on April 19, 2018 [38 favorites]
That may not be the most charitable read of this, but that's what I think after reading articles like this. Also, I don't think that contracts are the answer -- because any unmarried couple could put together a series of contracts that would function like marriage. That's what GBLT people did before our marriages were legal -- we pieced things together like we could, POAs and wills and the like. It's expensive, time-consuming, and not accessible to a lot of folks, like low income or otherwise marginalized people. The alternative, getting married, is pretty close to free and pretty simple, and the unmarried people have chosen not to take that step, so why should they have the same rights collectively as the married couple if they haven't put together any of these documents? That doesn't make sense.
posted by possibilityleft at 4:54 AM on April 19, 2018 [38 favorites]
In the long term, genuine human freedom will require smashing:
I take arguments against marriage most seriously from people who believe that there must be a 100% inheritance tax, since those people clearly recognize that the primary function of the family formation under capitalism is the propagation of unequal wealth distributions across generations, and therefore they understand why, in the long term, we must do away with both marriage and families.
If you're arguing against marriage out of simple nostalgia for the era in which queerness still destabilized the family formation, or out of a vague sense of the bourgeois idea of family as uncool (rather than actively harmful), then I'm less likely to take you seriously.
If you're arguing against marriage because marriage is indelibly patriarchal, then we're probably on the same page, but I'll probably try to convince you of the necessity of a 100% inheritance tax. I'll try to be low-key about it though, to keep from being a bore.
posted by Reclusive Novelist Thomas Pynchon at 4:54 AM on April 19, 2018 [7 favorites]
- The family
- The church
- The state
I take arguments against marriage most seriously from people who believe that there must be a 100% inheritance tax, since those people clearly recognize that the primary function of the family formation under capitalism is the propagation of unequal wealth distributions across generations, and therefore they understand why, in the long term, we must do away with both marriage and families.
If you're arguing against marriage out of simple nostalgia for the era in which queerness still destabilized the family formation, or out of a vague sense of the bourgeois idea of family as uncool (rather than actively harmful), then I'm less likely to take you seriously.
If you're arguing against marriage because marriage is indelibly patriarchal, then we're probably on the same page, but I'll probably try to convince you of the necessity of a 100% inheritance tax. I'll try to be low-key about it though, to keep from being a bore.
posted by Reclusive Novelist Thomas Pynchon at 4:54 AM on April 19, 2018 [7 favorites]
This article is crap. It first sets up a strawman that doesn't reflect what marriage actually is, and then blames any and all societal issues that crop up in relationships on marriage.
A marriage regime includes a state-sanctioned marriage ceremony, with officials and celebrants. Obtaining a state-recognised marriage is not like obtaining a driving licence or completing a tax return: it involves a solemnified and lauded ritual in which the state is intimately involved.
No, it actually is as easy as going down to city hall.
The legal rights and duties of marriage have also been profoundly gender-unequal in many countries. English law recognised the possibility of marital rape only in 1991; before then, husbands coercing their wives into sex had committed no crime.
A LOT of laws have been gender-unequal, and this is just showing that laws have generally in the past failed to protect women, not that marriage was the cause of this inequality.
The article goes on to talk about arranged marriage, child marriage, and other issues that aren't problems with marriage, but abuses appended to marriage. That people might use marriage as a cover for effective slavery still means the problem is slavery, not with marriage!
Fundamentally, marriage is simply the state allowing two people to select a "special someone" who they get to share benefits with. Hospital visitation, joint ownership, and the 1000 other minor benefits. Marriage is good. It provides protections and benefits to people, and at least in America, there's basically no restriction on who your partner is. You can marry your BFF, it doesn't have to be romantic or sexual.
I understand that it sucks to be single insofar as you don't get the benefits granted by marriage, but the key is to fix what's wrong with society. Make single living better, reduce abuses in relationships in general. Don't tear down marriage, and don't blame a simple state contract for problematic relationships.
posted by explosion at 5:00 AM on April 19, 2018 [44 favorites]
A marriage regime includes a state-sanctioned marriage ceremony, with officials and celebrants. Obtaining a state-recognised marriage is not like obtaining a driving licence or completing a tax return: it involves a solemnified and lauded ritual in which the state is intimately involved.
No, it actually is as easy as going down to city hall.
The legal rights and duties of marriage have also been profoundly gender-unequal in many countries. English law recognised the possibility of marital rape only in 1991; before then, husbands coercing their wives into sex had committed no crime.
A LOT of laws have been gender-unequal, and this is just showing that laws have generally in the past failed to protect women, not that marriage was the cause of this inequality.
The article goes on to talk about arranged marriage, child marriage, and other issues that aren't problems with marriage, but abuses appended to marriage. That people might use marriage as a cover for effective slavery still means the problem is slavery, not with marriage!
Fundamentally, marriage is simply the state allowing two people to select a "special someone" who they get to share benefits with. Hospital visitation, joint ownership, and the 1000 other minor benefits. Marriage is good. It provides protections and benefits to people, and at least in America, there's basically no restriction on who your partner is. You can marry your BFF, it doesn't have to be romantic or sexual.
I understand that it sucks to be single insofar as you don't get the benefits granted by marriage, but the key is to fix what's wrong with society. Make single living better, reduce abuses in relationships in general. Don't tear down marriage, and don't blame a simple state contract for problematic relationships.
posted by explosion at 5:00 AM on April 19, 2018 [44 favorites]
Putting together contracts or externally enforced obligations by any other mechanism is just reinventing marriage by a different name, and dramatically complicating the process of both formation and enforcement.
early gay liberation activist movements where very much opposed to the idea of gay people needing to mimic the rights which straight people had and were instead more in favor of being totally liberated from the expectations and norms of being straight.
And you can be entirely against people needing to do so, while still thinking they ought to be able to. Otherwise, you're effectively saying 'I don't want this, and because of that you shouldn't be allowed it'.
derived from a churchly model
A religious model, perhaps. Marriage exists and has existed in non-Christian cultures for a long time.
posted by Dysk at 5:04 AM on April 19, 2018 [14 favorites]
early gay liberation activist movements where very much opposed to the idea of gay people needing to mimic the rights which straight people had and were instead more in favor of being totally liberated from the expectations and norms of being straight.
And you can be entirely against people needing to do so, while still thinking they ought to be able to. Otherwise, you're effectively saying 'I don't want this, and because of that you shouldn't be allowed it'.
derived from a churchly model
A religious model, perhaps. Marriage exists and has existed in non-Christian cultures for a long time.
posted by Dysk at 5:04 AM on April 19, 2018 [14 favorites]
I am a bit worried that a lot of people are shooting from the hip here without considering what is actually being proposed, which is not eliminating the protections of marriage, but rather making them contingent on behaviour rather than contracting in. It's an attempt to extend the protection and regulation of relationships, not roll this back.
I don't know if I actually agree with the point, but maybe we'd do better by engaging with the article itself.
posted by howfar at 5:04 AM on April 19, 2018 [4 favorites]
I don't know if I actually agree with the point, but maybe we'd do better by engaging with the article itself.
posted by howfar at 5:04 AM on April 19, 2018 [4 favorites]
Prior to Obergefel those contacts (such as medical power of attorney and mutually agreed adoption and custody) were open to challenge as "equivalent" or "similar" rights reserved for marriage. "Defense of marriage" was a buzzword like "religious liberty" for legally rationalizing anti-lgbt discrimination in practically any form.
posted by GenderNullPointerException at 5:11 AM on April 19, 2018 [1 favorite]
posted by GenderNullPointerException at 5:11 AM on April 19, 2018 [1 favorite]
but rather making them contingent on behaviour rather than contracting in.
This strikes me as problematic in a similar way - it makes it impossible for a couple to choose not to marry, to choose to avoid the obligations (and rights) thereof. If you want it to be a voluntary contract open to anyone, well, you've basically just reinvented marriage by a different name again.
posted by Dysk at 5:24 AM on April 19, 2018 [16 favorites]
This strikes me as problematic in a similar way - it makes it impossible for a couple to choose not to marry, to choose to avoid the obligations (and rights) thereof. If you want it to be a voluntary contract open to anyone, well, you've basically just reinvented marriage by a different name again.
posted by Dysk at 5:24 AM on April 19, 2018 [16 favorites]
And you can be entirely against people needing to do so, while still thinking they ought to be able to. Otherwise, you're effectively saying 'I don't want this, and because of that you shouldn't be allowed it'.
I totally agree with you. I’m just reporting it as it was told to me and I’m not trying to editorialize on what gay activists did and felt and said in the 1970’s and 1980’s. I wasn’t there it’s not my lane.
I also see a similarity in today’s times in trans discourse with true-trans stuff and trans leftists trying to argue that trans activists should all oppose trans inclusion in the military, etc.
I think it may be one of those things that happens when minority groups move from being historically occulted to visible.
posted by Annika Cicada at 5:28 AM on April 19, 2018 [5 favorites]
I totally agree with you. I’m just reporting it as it was told to me and I’m not trying to editorialize on what gay activists did and felt and said in the 1970’s and 1980’s. I wasn’t there it’s not my lane.
I also see a similarity in today’s times in trans discourse with true-trans stuff and trans leftists trying to argue that trans activists should all oppose trans inclusion in the military, etc.
I think it may be one of those things that happens when minority groups move from being historically occulted to visible.
posted by Annika Cicada at 5:28 AM on April 19, 2018 [5 favorites]
Civil marriage in its current incarnation is the designation of a chosen person as your nearest kin, effectively legally prioritizing your family-of-choice over your family-of-origin. This affects literally hundreds of legal situations where family relationships are key, including but not limited to childrearing, adoption, medical decisions, hospital and prison visitation, banking, housing, inheritance, debts, financial support, the right to live in your own home, insurance, and immigration and emigration.
So unless you wish to either (1) eliminate the concept of family altogether and raise all children without contact with their parents together in a creche etc., (2) replace the simple matter of "I designate this person my nearest kin" with a few hundred separate expensive burdensome contracts for some reason, or (3) put all of these rights in the hands of impossible-to-divorce blood relatives no matter how distant and/or abusive they might be, then I look askance upon your arguments for eliminating marriage. Askance, I say.
The institution could certainly stand to be improved, expanded, or modified in a number of ways. But eliminating it? No, thanks.
posted by kyrademon at 5:33 AM on April 19, 2018 [30 favorites]
So unless you wish to either (1) eliminate the concept of family altogether and raise all children without contact with their parents together in a creche etc., (2) replace the simple matter of "I designate this person my nearest kin" with a few hundred separate expensive burdensome contracts for some reason, or (3) put all of these rights in the hands of impossible-to-divorce blood relatives no matter how distant and/or abusive they might be, then I look askance upon your arguments for eliminating marriage. Askance, I say.
The institution could certainly stand to be improved, expanded, or modified in a number of ways. But eliminating it? No, thanks.
posted by kyrademon at 5:33 AM on April 19, 2018 [30 favorites]
I do find this uncompelling. Contract on behavior instead of choice seems bizarre in a world where if you want to marry someone ... you can go get married. Like it's literally just a form and you don't even have to tell people if you don't want the wedding-y, partying, public commitment part of it. The limit is that it is one person and while I can imagine an argument for extending that, this is not it.
posted by dame at 5:33 AM on April 19, 2018 [10 favorites]
posted by dame at 5:33 AM on April 19, 2018 [10 favorites]
Granted, the author seems to be writing from the perspective of the U.K.. But here in the U.S., the Religious Right preemptively banned nonexistent marriage equality because they didn't want to respect any contractual domestic partner, employment, or housing rights for LGBTQ people. Attempts to finesse the issue with domestic partnerships failed politically, and attempts to fix the problem with private contracts were vulnerable to challenges from genetic family and ex-spouses.
posted by GenderNullPointerException at 5:58 AM on April 19, 2018 [9 favorites]
posted by GenderNullPointerException at 5:58 AM on April 19, 2018 [9 favorites]
In the long term, genuine human freedom will require smashing:
The family
The church
The state
but in the short term, a short term wherein smashing any of those wretched things is impractical or premature, arrangements that allow for as many people as possible to, should they please, form family-style relationships derived from a churchly model and recognized by the state are likely a good thing.
I take arguments against marriage most seriously from people who believe that there must be a 100% inheritance tax, since those people clearly recognize that the primary function of the family formation under capitalism is the propagation of unequal wealth distributions across generations, and therefore they understand why, in the long term, we must do away with both marriage and families.
I'm not entirely sure I agree on families. I mean we gotta form social units somehow), because
unless you wish to either (1) eliminate the concept of family altogether and raise all children without contact with their parents together in a creche etc., (2) replace the simple matter of "I designate this person my nearest kin" with a few hundred separate expensive burdensome contracts for some reason, or (3) put all of these rights in the hands of impossible-to-divorce blood relatives no matter how distant and/or abusive they might be, then I look askance upon your arguments for eliminating marriage. Askance, I say.
but I am definitely for cutting down on inter-generational wealth transfer as a mechanism for perpetuating inequality.
But I like the framing of this issue through family, church, and state. I don't remember where I read it, but, if you go back to, say, ancient Egypt or China even further, the emperor or big man or god-king or whatever early hierarchy emerged post-agriculture is divine/embodiment of/descendant of the gods + the embodiment/leader of state + leader of a clan/family tasked by heaven with being stewards of the holy land/civilized lands, with descending clan/family hierarchies with smaller areas of responsibility. Back in the day, family, church, and state were all the same because they were all the answers to a single question - who controls your fate? Nature? The spirits? The gods? The chief? The king? Your parents? Your wife/husband? Another tribe/clan? At some point that all gets rolled into one and updated over time. The question that follows is, how do they do it? By dishing out blessings and/or punishments. Since, unconsciously and collectively, we've just been teasing out the optimal mix, maximal blessings & minimal punishments.
Separation of church and state is a recent (and immensely powerful) innovation in that process, so is democracy. Breaking up institutional power imbalances while maintaining large-scale social cooperation is, it turns out, incredibly productive if you can pull it off. That's the first takeaway. The second is that incrementalism, mostly half-blind and bumbling, is how we got here, and it's probably how we'll keep going.
Get rid of marriage? Nah. Get rid of the injustices of marriage through tweaks that make it work better? Yes please.
posted by saysthis at 6:01 AM on April 19, 2018 [5 favorites]
The family
The church
The state
but in the short term, a short term wherein smashing any of those wretched things is impractical or premature, arrangements that allow for as many people as possible to, should they please, form family-style relationships derived from a churchly model and recognized by the state are likely a good thing.
I take arguments against marriage most seriously from people who believe that there must be a 100% inheritance tax, since those people clearly recognize that the primary function of the family formation under capitalism is the propagation of unequal wealth distributions across generations, and therefore they understand why, in the long term, we must do away with both marriage and families.
I'm not entirely sure I agree on families. I mean we gotta form social units somehow), because
unless you wish to either (1) eliminate the concept of family altogether and raise all children without contact with their parents together in a creche etc., (2) replace the simple matter of "I designate this person my nearest kin" with a few hundred separate expensive burdensome contracts for some reason, or (3) put all of these rights in the hands of impossible-to-divorce blood relatives no matter how distant and/or abusive they might be, then I look askance upon your arguments for eliminating marriage. Askance, I say.
but I am definitely for cutting down on inter-generational wealth transfer as a mechanism for perpetuating inequality.
But I like the framing of this issue through family, church, and state. I don't remember where I read it, but, if you go back to, say, ancient Egypt or China even further, the emperor or big man or god-king or whatever early hierarchy emerged post-agriculture is divine/embodiment of/descendant of the gods + the embodiment/leader of state + leader of a clan/family tasked by heaven with being stewards of the holy land/civilized lands, with descending clan/family hierarchies with smaller areas of responsibility. Back in the day, family, church, and state were all the same because they were all the answers to a single question - who controls your fate? Nature? The spirits? The gods? The chief? The king? Your parents? Your wife/husband? Another tribe/clan? At some point that all gets rolled into one and updated over time. The question that follows is, how do they do it? By dishing out blessings and/or punishments. Since, unconsciously and collectively, we've just been teasing out the optimal mix, maximal blessings & minimal punishments.
Separation of church and state is a recent (and immensely powerful) innovation in that process, so is democracy. Breaking up institutional power imbalances while maintaining large-scale social cooperation is, it turns out, incredibly productive if you can pull it off. That's the first takeaway. The second is that incrementalism, mostly half-blind and bumbling, is how we got here, and it's probably how we'll keep going.
Get rid of marriage? Nah. Get rid of the injustices of marriage through tweaks that make it work better? Yes please.
posted by saysthis at 6:01 AM on April 19, 2018 [5 favorites]
It's an attempt to extend the protection and regulation of relationships, not roll this back.
The problem is, it’s really not. She doesn’t posit any solutions to the problem other than “idk guys we can totally figure this out though”. She acknowledges personal contracts enforced by the state would be a fresh hell from which there is no escaping, but doesn’t really state how, other than that, these relationships would be protected.
Also she’s not accounting for unintended consequences. If she’s arguing that cohabiting couples by default will have to split finances, and gain full legal rights from the moment of cohabitation, I guarantee you’ll have a whole less cohabitating couples, which means more single mothers. If she’s arguing for pay for whoever does the housework, then you introduce the state getting to judge the quantity and quality of your housework, which is another nightmare realm.
I’m not saying she’s wrong that marriage is inherently unequal, but tearing down institutions without anything to replace them is exactly how we got into our current hellscape, and I would rather not extend that to every single aspect of my life, thankyouverymuch.
posted by corb at 6:20 AM on April 19, 2018 [8 favorites]
The problem is, it’s really not. She doesn’t posit any solutions to the problem other than “idk guys we can totally figure this out though”. She acknowledges personal contracts enforced by the state would be a fresh hell from which there is no escaping, but doesn’t really state how, other than that, these relationships would be protected.
Also she’s not accounting for unintended consequences. If she’s arguing that cohabiting couples by default will have to split finances, and gain full legal rights from the moment of cohabitation, I guarantee you’ll have a whole less cohabitating couples, which means more single mothers. If she’s arguing for pay for whoever does the housework, then you introduce the state getting to judge the quantity and quality of your housework, which is another nightmare realm.
I’m not saying she’s wrong that marriage is inherently unequal, but tearing down institutions without anything to replace them is exactly how we got into our current hellscape, and I would rather not extend that to every single aspect of my life, thankyouverymuch.
posted by corb at 6:20 AM on April 19, 2018 [8 favorites]
The state has an interest in promoting stability. This is the same rationale by which they privilege homeowners, who make for a statistically safer and better neighborhood even as many renters are fine people.
(Yes, you can get divorced, and obviously many do, but for most people it's a difficult legal and emotional bridge to cross, never mind expensive.)
posted by AFABulous at 6:23 AM on April 19, 2018 [5 favorites]
(Yes, you can get divorced, and obviously many do, but for most people it's a difficult legal and emotional bridge to cross, never mind expensive.)
posted by AFABulous at 6:23 AM on April 19, 2018 [5 favorites]
>>Obtaining a state-recognised marriage is not like obtaining a driving licence or completing a tax return: it involves a solemnified and lauded ritual in which the state is intimately involved.
>No, it actually is as easy as going down to city hall.
We got married at city hall, and I'd rank it as a bit more trouble than getting your drivers license renewed, but easier than taxes. Every location does it differently, but it took us two visits (because there was a mandatory delay between filling out the paperwork and getting married, for cooling-off purposes I assume), calling a list of judges to find one with availability, the marriage itself (which took about 15 minutes all-in), and then back to the city office to file the completed paperwork and pay the small fee.
The judge and staff were happy to assist and it was obviously a nice moment in the day for them, but it was definitely not "solemnified and lauded," nor did I feel intimate with the state.
posted by Dip Flash at 6:24 AM on April 19, 2018 [3 favorites]
>No, it actually is as easy as going down to city hall.
We got married at city hall, and I'd rank it as a bit more trouble than getting your drivers license renewed, but easier than taxes. Every location does it differently, but it took us two visits (because there was a mandatory delay between filling out the paperwork and getting married, for cooling-off purposes I assume), calling a list of judges to find one with availability, the marriage itself (which took about 15 minutes all-in), and then back to the city office to file the completed paperwork and pay the small fee.
The judge and staff were happy to assist and it was obviously a nice moment in the day for them, but it was definitely not "solemnified and lauded," nor did I feel intimate with the state.
posted by Dip Flash at 6:24 AM on April 19, 2018 [3 favorites]
Yeah, non-religious people have been getting married for quite some time. We had a ~wedding~ (the officiant was our Buddhist priest) but that was our choice and in no way imposed by the state. In my state, you can do a self-marriage as well, where you have an officiant-less wedding. Or you can just go to City Hall. The actual getting-of-the-paperwork was less hassle than getting the permit for my chicken coop.
This seems like not only throwing the baby out with the bathwater, but then removing all the plumbing from the building as well. Extend the legal protections afforded by marriage to all forms of consensual domestic partnership, by all means, and call it whatever you want, but there is a good, practical, mundane, reason it exists.
posted by soren_lorensen at 6:29 AM on April 19, 2018 [6 favorites]
This seems like not only throwing the baby out with the bathwater, but then removing all the plumbing from the building as well. Extend the legal protections afforded by marriage to all forms of consensual domestic partnership, by all means, and call it whatever you want, but there is a good, practical, mundane, reason it exists.
posted by soren_lorensen at 6:29 AM on April 19, 2018 [6 favorites]
It’s worth noting that this seems to be written from the UK, so, while the author talks about specifUS issues, it’s possible that more general statements reflect a UK rather than US reality....
posted by GenjiandProust at 6:35 AM on April 19, 2018 [1 favorite]
posted by GenjiandProust at 6:35 AM on April 19, 2018 [1 favorite]
It provides protections and benefits to people, and at least in America, there's basically no restriction on who your partner is. You can marry your BFF, it doesn't have to be romantic or sexual.
Unless one person in the marriage is an immigrant on a marriage visa, in which case you can expect to be asked to provide proof that you're really legitimately married, and can expect to be asked some really intimate questions to prove it.
I'm not sure if this is a reason to rethink marriage or a reason to rethink immigration, but it seems increasingly weird to me that the government gives itself the right to decide whether or not you're in a real marriage (and can deport you if you're not).
posted by Jeanne at 6:35 AM on April 19, 2018 [5 favorites]
Unless one person in the marriage is an immigrant on a marriage visa, in which case you can expect to be asked to provide proof that you're really legitimately married, and can expect to be asked some really intimate questions to prove it.
I'm not sure if this is a reason to rethink marriage or a reason to rethink immigration, but it seems increasingly weird to me that the government gives itself the right to decide whether or not you're in a real marriage (and can deport you if you're not).
posted by Jeanne at 6:35 AM on April 19, 2018 [5 favorites]
You can marry your BFF, it doesn't have to be romantic or sexual.
This is essentially what I've done without the actual marriage certificate. We don't live together but we're each other's medical POA and executor of each other's estates. (He owns a house, I have cats.) We'll probably add to those documents, although we can't get the tax benefits AFAIK. We're both men, so we could get married if we wanted, but we're both leaving our options open for True Love. It's much easier to change a POA or a will than get divorced.
posted by AFABulous at 6:36 AM on April 19, 2018 [6 favorites]
This is essentially what I've done without the actual marriage certificate. We don't live together but we're each other's medical POA and executor of each other's estates. (He owns a house, I have cats.) We'll probably add to those documents, although we can't get the tax benefits AFAIK. We're both men, so we could get married if we wanted, but we're both leaving our options open for True Love. It's much easier to change a POA or a will than get divorced.
posted by AFABulous at 6:36 AM on April 19, 2018 [6 favorites]
If nothing else, her plan to raze the institution of marriage and then rebuild it would be windfall for the legal professions.
posted by octobersurprise at 6:38 AM on April 19, 2018 [3 favorites]
posted by octobersurprise at 6:38 AM on April 19, 2018 [3 favorites]
She cites the criticism that marriage is the continuation of slavery for women, then posits bespoke contracts as a replacement, suggesting:
"Relationship contracts can be drawn up to determine where the parties will live, whose career will take precedence when, who will perform which household tasks."
That seems much closer to actual slavery - a contract that obliges you to work for someone, in exchange for no pay. Taking the view that marriage is problematic because, while marriage can be equalised, culture is sexist and thus so are cultural martial expectations, and replacing it with a system which, were it to exist within that same culture, would risk formalising, codifying, and legalising those same expectations through actual enforceable contract seems... naive.
posted by Dysk at 6:50 AM on April 19, 2018 [18 favorites]
"Relationship contracts can be drawn up to determine where the parties will live, whose career will take precedence when, who will perform which household tasks."
That seems much closer to actual slavery - a contract that obliges you to work for someone, in exchange for no pay. Taking the view that marriage is problematic because, while marriage can be equalised, culture is sexist and thus so are cultural martial expectations, and replacing it with a system which, were it to exist within that same culture, would risk formalising, codifying, and legalising those same expectations through actual enforceable contract seems... naive.
posted by Dysk at 6:50 AM on April 19, 2018 [18 favorites]
It's a bit of a de-rail I know, but the most "genuine" of human freedoms are the freedoms provided by there being a functioning society, i.e., the things of which family, church and state are the provider. The lives of cavemen were nasty, brutish and short.
Also, I truly wish that that contemporary irreligious and libertine people actually understood what separation of church and state were an alternative to: not the control of the state by the church, but the control of the church (and of freedom of conscience generally) by the state. What you might call a sincere theocracy (where bona fide religious hierarchs exercise control of the state in the service of sincere religious convictions, rather than a pretense for their worldly political ambitions) is a very rare thing in political history.
posted by MattD at 6:54 AM on April 19, 2018 [10 favorites]
Also, I truly wish that that contemporary irreligious and libertine people actually understood what separation of church and state were an alternative to: not the control of the state by the church, but the control of the church (and of freedom of conscience generally) by the state. What you might call a sincere theocracy (where bona fide religious hierarchs exercise control of the state in the service of sincere religious convictions, rather than a pretense for their worldly political ambitions) is a very rare thing in political history.
posted by MattD at 6:54 AM on April 19, 2018 [10 favorites]
windfall for the legal professions
We don't want it!
Contracts are a flawed device, especially when dealing with situations of conflict, but attempting to infer rights and obligations from a course of conduct is infinitely worse when it comes to providing the parties involved with reasonable certainty. Unwittingly, Chambers herself highlights the problem when she alludes to the (possibly mythical?) group of British people who live together without marriage but believe they have rights due to "common-law marriage." That is a group of people who think their conduct has given rise to certain rights, but are wrong. She considers them quite vulnerable. Her proposal would radically expand that group. Anyone remember the episode of Big Bang Theory where Sheldon uses the terms of the roommate agreement to prove that Leonard is actually living with Sara Rue, he just doesn't realize it?
Access to marriage has generally been limited to couples consisting of one man and one woman.
This is a really weird thing for a person with a Ph.D. writing a serious book to say. There are other peculiar ahistorical remarks scattered throughout, but, since this one comes in the section where she's explicitly discussing the history of the institution, it stands out.
posted by praemunire at 6:55 AM on April 19, 2018 [10 favorites]
We don't want it!
Contracts are a flawed device, especially when dealing with situations of conflict, but attempting to infer rights and obligations from a course of conduct is infinitely worse when it comes to providing the parties involved with reasonable certainty. Unwittingly, Chambers herself highlights the problem when she alludes to the (possibly mythical?) group of British people who live together without marriage but believe they have rights due to "common-law marriage." That is a group of people who think their conduct has given rise to certain rights, but are wrong. She considers them quite vulnerable. Her proposal would radically expand that group. Anyone remember the episode of Big Bang Theory where Sheldon uses the terms of the roommate agreement to prove that Leonard is actually living with Sara Rue, he just doesn't realize it?
Access to marriage has generally been limited to couples consisting of one man and one woman.
This is a really weird thing for a person with a Ph.D. writing a serious book to say. There are other peculiar ahistorical remarks scattered throughout, but, since this one comes in the section where she's explicitly discussing the history of the institution, it stands out.
posted by praemunire at 6:55 AM on April 19, 2018 [10 favorites]
What you might call a sincere theocracy (where bona fide religious hierarchs exercise control of the state in the service of sincere religious convictions, rather than a pretense for their worldly political ambitions) is a very rare thing in political history.
From my irreligious point of view, whether or not a theocracy is sincere is kind of academic.
posted by Kriesa at 7:06 AM on April 19, 2018 [10 favorites]
From my irreligious point of view, whether or not a theocracy is sincere is kind of academic.
posted by Kriesa at 7:06 AM on April 19, 2018 [10 favorites]
I feel like I've been seeing this suggestion that government should get out of marriage more and more as gay people increasingly have the right to it. I'm suspicious that it's yet another case of diminishing an institution because marginalized people finally get to participate in it. How do you decompose marriage in a way that doesn't signal to people, well, now that you're here, we don't want it anymore?
THIS. This is the same pitch that the Alabama Senate made when they said they were getting out of the marriage business.
posted by leotrotsky at 7:30 AM on April 19, 2018 [5 favorites]
THIS. This is the same pitch that the Alabama Senate made when they said they were getting out of the marriage business.
posted by leotrotsky at 7:30 AM on April 19, 2018 [5 favorites]
(possibly mythical?) group of British people who live together without marriage but believe they have rights due to "common-law marriage."
Not at all mythical. My wife, a solicitor, regularly deals with clients who are surprised that their long-term partner has no obligations to them because they never actually got married.
posted by vincebowdren at 7:35 AM on April 19, 2018 [3 favorites]
Not at all mythical. My wife, a solicitor, regularly deals with clients who are surprised that their long-term partner has no obligations to them because they never actually got married.
posted by vincebowdren at 7:35 AM on April 19, 2018 [3 favorites]
I came in expecting to be pretty sympathetic to that article, as a queer woman in a nearly-twenty-year-long relationship with a queer man in which we are both quite explicitly not interested in marriage for ourselves, albeit for different reasons. But....nah.
I'm not about getting the state out of regulating/applying rights and responsibilities to families. I'm about expanding how we define families to make many of the rights/responsibilities currently available in a convenient bundle via marriage available to other types of chosen family structures beyond the romantic dyad. That feels like a more worthwhile use of my energy than railing against marriage as it currently exists, which is - a thing that has a history that makes me not want to claim it for my own, but that I have no problem with others wanting for themselves.
posted by Stacey at 7:51 AM on April 19, 2018 [10 favorites]
I'm not about getting the state out of regulating/applying rights and responsibilities to families. I'm about expanding how we define families to make many of the rights/responsibilities currently available in a convenient bundle via marriage available to other types of chosen family structures beyond the romantic dyad. That feels like a more worthwhile use of my energy than railing against marriage as it currently exists, which is - a thing that has a history that makes me not want to claim it for my own, but that I have no problem with others wanting for themselves.
posted by Stacey at 7:51 AM on April 19, 2018 [10 favorites]
I heard about (but did not read) this article a few days ago and thought it was going to be about the way the tax structure in the US penalizes families where the wife works.
posted by quaking fajita at 7:55 AM on April 19, 2018
posted by quaking fajita at 7:55 AM on April 19, 2018
Dysk, did you stop reading at that sentence you quoted? In the very next few paragraphs she explains why relationship contracts are a flawed idea for many of the same reasons you give.
Contracts are a flawed device, especially when dealing with situations of conflict, but attempting to infer rights and obligations from a course of conduct is infinitely worse when it comes to providing the parties involved with reasonable certainty. Unwittingly, Chambers herself highlights the problem when she alludes to the (possibly mythical?) group of British people who live together without marriage but believe they have rights due to "common-law marriage." That is a group of people who think their conduct has given rise to certain rights, but are wrong. She considers them quite vulnerable.
praemunire
I went to law school in Texas, and while I don't practice there (or deal with family law at all), Texas does have common law marriage and so we learned about it. In addition to the issue you highlight of people mistakenly believing that their circumstances creates rights and obligations when they don't, there is the opposite problem of people fighting tooth and nail to avoid having their circumstances create any rights and obligations. It's already a mess, and as you say extending this concept to create "relationship practices"-contingent legal rights would be a chaotic nightmare that would almost certainly make things worse for the vulnerable, not better.
There are legitimate criticisms of marriage, but they can't ignore the practical issues (some of which kyrademon notes above) tied to relationships involving children, mingled finances, and the like. These are important problems that would need actual, immediate solutions in any alternate regime and can't just be handwaved away.
posted by Sangermaine at 7:56 AM on April 19, 2018 [3 favorites]
Contracts are a flawed device, especially when dealing with situations of conflict, but attempting to infer rights and obligations from a course of conduct is infinitely worse when it comes to providing the parties involved with reasonable certainty. Unwittingly, Chambers herself highlights the problem when she alludes to the (possibly mythical?) group of British people who live together without marriage but believe they have rights due to "common-law marriage." That is a group of people who think their conduct has given rise to certain rights, but are wrong. She considers them quite vulnerable.
praemunire
I went to law school in Texas, and while I don't practice there (or deal with family law at all), Texas does have common law marriage and so we learned about it. In addition to the issue you highlight of people mistakenly believing that their circumstances creates rights and obligations when they don't, there is the opposite problem of people fighting tooth and nail to avoid having their circumstances create any rights and obligations. It's already a mess, and as you say extending this concept to create "relationship practices"-contingent legal rights would be a chaotic nightmare that would almost certainly make things worse for the vulnerable, not better.
There are legitimate criticisms of marriage, but they can't ignore the practical issues (some of which kyrademon notes above) tied to relationships involving children, mingled finances, and the like. These are important problems that would need actual, immediate solutions in any alternate regime and can't just be handwaved away.
posted by Sangermaine at 7:56 AM on April 19, 2018 [3 favorites]
This is a really weird thing for a person with a Ph.D. writing a serious book to say. There are other peculiar ahistorical remarks scattered throughout, but, since this one comes in the section where she's explicitly discussing the history of the institution, it stands out.
For an Oxbridge philosopher she sure makes a lot of bad arguments. And you'd think she'd have spent at least a little time vetting the assumptions upon which she builds her case.
posted by leotrotsky at 8:03 AM on April 19, 2018 [2 favorites]
For an Oxbridge philosopher she sure makes a lot of bad arguments. And you'd think she'd have spent at least a little time vetting the assumptions upon which she builds her case.
posted by leotrotsky at 8:03 AM on April 19, 2018 [2 favorites]
Essentially what the author is arguing for is the construction of marriage on the basis of equitable (as in the branch of law historically dealt with by the Court of Chancery), rather than contractual, princples. I don't think that this is necessarily entirely wrong-headed, but it would certainly give rise to uncertainty, and uncertainty always leads to increased litigation (read Dickens for something of a caricatured account of the protracted litigation that can evolve from disputes in equity, or cases like Stack v Dowden for a more modern examination of some of the issues in the context of romantic relationships). I'm unconvinced that the claimed benefits are worth the extra cost and (more importantly) stress and suffering that this kind of change would impose on families during relationship breakdown.
Certainty is very valuable in law. There are times when sacrificing certainty to promote another end is worth it, but the benefits need to be very clear in order to undertake that sort of justification exercise successfully.
posted by howfar at 8:13 AM on April 19, 2018 [3 favorites]
Certainty is very valuable in law. There are times when sacrificing certainty to promote another end is worth it, but the benefits need to be very clear in order to undertake that sort of justification exercise successfully.
posted by howfar at 8:13 AM on April 19, 2018 [3 favorites]
The idea of common-law marriage precludes couples choosing explicitly not to have the rights and obligations with respect to each other, though. I don't think signing a form at the registrar's office is a particularly onerous requirement to ensure that the people you're applying these rights and obligations to actually want them.
And I say this as someone living in the UK, unmarried, in a long term relationship.
Dysk, did you stop reading at that sentence you quoted? In the very next few paragraphs she explains why relationship contracts are a flawed idea for many of the same reasons you give.
No, I was commenting on the order in which the arguments were presented. She'd already made most all the points that undermine the contractual idea before introducing it. Entertaining the idea at that point seems off, even if she does get around to pointing out that she'd removed its foundations before building it.
posted by Dysk at 8:13 AM on April 19, 2018 [1 favorite]
And I say this as someone living in the UK, unmarried, in a long term relationship.
Dysk, did you stop reading at that sentence you quoted? In the very next few paragraphs she explains why relationship contracts are a flawed idea for many of the same reasons you give.
No, I was commenting on the order in which the arguments were presented. She'd already made most all the points that undermine the contractual idea before introducing it. Entertaining the idea at that point seems off, even if she does get around to pointing out that she'd removed its foundations before building it.
posted by Dysk at 8:13 AM on April 19, 2018 [1 favorite]
People who decry state intervention in anything are always suspect, in my book. How do they plan to guarantee things like alimony and equitable distribution of couples' assets if not for the state being involved? Like, there are a metric f*ton of issues with the way marriage laws are, of course, but the fundamental idea that the state needs to step in to protect the powerless from the powerful even within the domestic sphere is absolutely correct and essential.
posted by MiraK at 8:14 AM on April 19, 2018 [6 favorites]
posted by MiraK at 8:14 AM on April 19, 2018 [6 favorites]
replacing it with a system which, were it to exist within that same culture, would risk formalising, codifying, and legalising those same expectations through actual enforceable contract seems... naive.
...the Libertarians!
posted by tclark at 8:14 AM on April 19, 2018 [3 favorites]
...the Libertarians!
posted by tclark at 8:14 AM on April 19, 2018 [3 favorites]
The city of Berkeley passed an ordinance in the last council meeting of 2017
The ordinance is introduced by a short letter from Councilmember Maio—
Prohibiting Discrimination on the Basis of Relationship Structure[PDF] (Council agenda item 27) [PDF].
The ordinance is introduced by a short letter from Councilmember Maio—
A group of citizens of Berkeley drafted the proposed additional language to Chapter 13.31 of Berkeley’s Municipal Code with a great deal of care and thoroughness. The existing laws within the City of Berkeley presently protect people against discrimination on the basis of a large number of characteristics. Local laws currently prohibit discrimination not only the basis of ethnicity, religion, and age, but also on the basis of sexual orientation. However, the current local laws do not specifically provide protection from discrimination for polyamorous people or others involved in consensually non-monogamous relationships. This proposed addition to the existing legal code seeks to remedy this situation by extending all the protections currently provided against discrimination on the basis of sexual orientation to polyamorous people. It is proposed that this be accomplished by adding a new chapter to the existing City of Berkeley law code.posted by books for weapons at 8:16 AM on April 19, 2018 [3 favorites]
The addition to Chapter 13.31 would prohibit discrimination in employment, housing, business practices, city facilities and services, or education on the basis of relationship structure. This would apply to the City of Berkeley as well as private entities. The prohibitions on discrimination in business practices and education would not apply to religious institutions.
Local laws currently prohibit discrimination not only the basis of ethnicity, religion, and age, but also on the basis of sexual orientation.
Is there a reason gender is conspicuously absent from that list?
posted by Dysk at 8:18 AM on April 19, 2018 [1 favorite]
Is there a reason gender is conspicuously absent from that list?
posted by Dysk at 8:18 AM on April 19, 2018 [1 favorite]
The biggest problem with the article is that it establishes arguments to support the conclusion that any form of state recognition of marriage, no matter how equitable or just, is discriminatory against the unmarried. But none of the proposed alternatives, either a regime based on contracts or on "relationship practices", solve this. It just creates a new class of people, either those in relationships without contracts or those in relationships that don't meet whatever definitions of "relationship practices" are established, to which the rights and obligations these regimes confer don't apply. It just reconstructs the same problems in different ways.
It seems to come down to a language game, where the term "marriage" is simply being replaced by another term.
posted by Sangermaine at 8:28 AM on April 19, 2018 [3 favorites]
It seems to come down to a language game, where the term "marriage" is simply being replaced by another term.
posted by Sangermaine at 8:28 AM on April 19, 2018 [3 favorites]
It seems to come down to a language game, where the term "marriage" is simply being replaced by another term.
The author does indeed seem fond of language games that are fundamentally meaningless in practice:
"Civil partnership is a significant improvement on marriage, because it signifies a decisive symbolic break from the sexist and heterosexist history of marriage."
Call it something else! That makes it better somehow!
posted by Dysk at 8:30 AM on April 19, 2018 [5 favorites]
The author does indeed seem fond of language games that are fundamentally meaningless in practice:
"Civil partnership is a significant improvement on marriage, because it signifies a decisive symbolic break from the sexist and heterosexist history of marriage."
Call it something else! That makes it better somehow!
posted by Dysk at 8:30 AM on April 19, 2018 [5 favorites]
The idea of common-law marriage precludes couples choosing explicitly not to have the rights and obligations with respect to each other, though.
There's good reason for this, and it gets to the uncomfortable heart of relationship issues: it's not only about individual liberty and choice. Especially when children are involved, the ability of the people in the relationship to disclaim responsibility must necessarily be limited because there are contingent third party concerns involved.
posted by Sangermaine at 8:31 AM on April 19, 2018 [3 favorites]
There's good reason for this, and it gets to the uncomfortable heart of relationship issues: it's not only about individual liberty and choice. Especially when children are involved, the ability of the people in the relationship to disclaim responsibility must necessarily be limited because there are contingent third party concerns involved.
posted by Sangermaine at 8:31 AM on April 19, 2018 [3 favorites]
Especially when children are involved, the ability of the people in the relationship to disclaim responsibility must necessarily be limited because there are contingent third party concerns involved.
That is a matter of parenthood though, more than relationship status. You can be utterly unmarried in every sense, and you'll still have a legal responsibility to any children to whom you are a parent. It's a slightly separate issue.
posted by Dysk at 8:33 AM on April 19, 2018 [5 favorites]
That is a matter of parenthood though, more than relationship status. You can be utterly unmarried in every sense, and you'll still have a legal responsibility to any children to whom you are a parent. It's a slightly separate issue.
posted by Dysk at 8:33 AM on April 19, 2018 [5 favorites]
There are many areas of third-party concerns beyond children: joint housing, powers of attorney, health insurance, medical and bereavement decisions, and taxes come immediately to mind. A key failure point of the many attempts by LGBTQ people to develop alternative documentation is that you never knew if or how that documentation would be respected in an emergency, or if challenged by one's parents or ex-spouses.
posted by GenderNullPointerException at 8:44 AM on April 19, 2018 [10 favorites]
posted by GenderNullPointerException at 8:44 AM on April 19, 2018 [10 favorites]
Joint housing is handled by systems for joint ownership or contract already. You do not need to be married to hold joint property. Health insurance is provided to everyone by the state here in the UK. And in places where it isn't, being covered by your partner's health insurance is one of the rights afforded by marriage (or civil partnership or whatever you want to call it) and I don't see why it should be mandatory. Not wanting your partner to have power of attorney or be able to make medical decisions for you is exactly one of the reasons you might choose to remain unmarried. Why is it essential for you to foist this on people?
posted by Dysk at 8:49 AM on April 19, 2018 [1 favorite]
posted by Dysk at 8:49 AM on April 19, 2018 [1 favorite]
Also she’s not accounting for unintended consequences.
Yeah, it’s almost like one of those extreme anarco-libertarian fantasies about replacing all those boring government legislators and burocrats with... hmm, lawyers?
What could possibly not go wrong with having "bespoke contracts" rather than a single consistent government-controlled legal framework with universal rights and obligations of the spouses to each other and their children? At best, it’d be a legal and burocratic nightmare all-round. And much more expensive than a marriage license. And then of course the extra complication of deciding who qualifies for all those benefits and rights granted to "spouses" under the current legal definition of spouse, if there is no such thing as a single legal concept of "spouse" anymore. And let’s not even get into what a mess this would be for people from different countries who want to get married, if there were no such single universal legal institution, only a myriad of different private arragements with no unifying framework.
You’d be creating an incredibly more complicated mix of arrangements that would still need to rely on the judiciary system to actually be enforced, litigated, rescinded. It’s a stupid idea. Might as well keep the legal framework for marriage we’ve got?
posted by bitteschoen at 8:55 AM on April 19, 2018 [8 favorites]
Yeah, it’s almost like one of those extreme anarco-libertarian fantasies about replacing all those boring government legislators and burocrats with... hmm, lawyers?
What could possibly not go wrong with having "bespoke contracts" rather than a single consistent government-controlled legal framework with universal rights and obligations of the spouses to each other and their children? At best, it’d be a legal and burocratic nightmare all-round. And much more expensive than a marriage license. And then of course the extra complication of deciding who qualifies for all those benefits and rights granted to "spouses" under the current legal definition of spouse, if there is no such thing as a single legal concept of "spouse" anymore. And let’s not even get into what a mess this would be for people from different countries who want to get married, if there were no such single universal legal institution, only a myriad of different private arragements with no unifying framework.
You’d be creating an incredibly more complicated mix of arrangements that would still need to rely on the judiciary system to actually be enforced, litigated, rescinded. It’s a stupid idea. Might as well keep the legal framework for marriage we’ve got?
posted by bitteschoen at 8:55 AM on April 19, 2018 [8 favorites]
A key failure point of the many attempts by LGBTQ people to develop alternative documentation is that you never knew if or how that documentation would be respected in an emergency, or if challenged by one's parents or ex-spouses.
And this is precisely why equal marriage is important. So that you can access this, if you want to, by signing a form at the registrar's office.
posted by Dysk at 9:07 AM on April 19, 2018 [3 favorites]
And this is precisely why equal marriage is important. So that you can access this, if you want to, by signing a form at the registrar's office.
posted by Dysk at 9:07 AM on April 19, 2018 [3 favorites]
In the long term, genuine human freedom will require smashing:
The family
To me as a parent, this evokes terrifying images. Would it be too much of a derail for you to talk about what that means in specific to you?
posted by a snickering nuthatch at 9:08 AM on April 19, 2018 [4 favorites]
The family
To me as a parent, this evokes terrifying images. Would it be too much of a derail for you to talk about what that means in specific to you?
posted by a snickering nuthatch at 9:08 AM on April 19, 2018 [4 favorites]
Visas, people... We never would have been able to move back to the US without the spouse pass.
posted by kaibutsu at 9:28 AM on April 19, 2018 [3 favorites]
posted by kaibutsu at 9:28 AM on April 19, 2018 [3 favorites]
Sangermaine: "The biggest problem with the article is that it establishes arguments to support the conclusion that any form of state recognition of marriage, no matter how equitable or just, is discriminatory against the unmarried. But none of the proposed alternatives, either a regime based on contracts or on "relationship practices", solve this. It just creates a new class of people, either those in relationships without contracts or those in relationships that don't meet whatever definitions of "relationship practices" are established, to which the rights and obligations these regimes confer don't apply. It just reconstructs the same problems in different ways.
It seems to come down to a language game, where the term "marriage" is simply being replaced by another term."
You seem to have misunderstood her, since you're scare-quoting "relationship practices" as if those aren't cromulent English words.
I understood her to deconstruct the legal guarantees of marriage into their constituent parts, and assign those rights and responsibilities to the partners as they crossed milestones of one sort or another. The "bio-parent package" of rights would trigger upon the birth (or conception in a worse world) of the first child. It might increase an existing alimony penalty for separation, give an obvious suite of rights to both bio parents, or whatever else.
I'm not precisely sure what these laws might look like, but I'm more than willing to believe that there's a way to construct a set of laws to improve the system this way.
posted by TypographicalError at 9:31 AM on April 19, 2018 [1 favorite]
It seems to come down to a language game, where the term "marriage" is simply being replaced by another term."
You seem to have misunderstood her, since you're scare-quoting "relationship practices" as if those aren't cromulent English words.
I understood her to deconstruct the legal guarantees of marriage into their constituent parts, and assign those rights and responsibilities to the partners as they crossed milestones of one sort or another. The "bio-parent package" of rights would trigger upon the birth (or conception in a worse world) of the first child. It might increase an existing alimony penalty for separation, give an obvious suite of rights to both bio parents, or whatever else.
I'm not precisely sure what these laws might look like, but I'm more than willing to believe that there's a way to construct a set of laws to improve the system this way.
posted by TypographicalError at 9:31 AM on April 19, 2018 [1 favorite]
There are many areas of third-party concerns beyond children: joint housing, powers of attorney, health insurance, medical and bereavement decisions, and taxes come immediately to mind.
Not to mention immigration rights and family unification rights more generally, particularly as these apply to chosen rather than genetic family. Which, uh, tend to be a particular culturally relevant issue to queer people, and I suspect will only increasingly become so as the Internet leads more people to form significant relationships across nationalistic and citizenship lines. There are places where secular or otherwise non-marriage attempts to form civil partnerships among unrelated adults cannot access all the rights and protections accorded to marriage, in large part because marriage is the only legal and cultural institution that I am aware of which exists to legally acknowledge familial ties between unrelated adults.
Which is why you used to get same-sex couples legally adopting each other, adoption being the only other way I am aware of to legally formalize family between unrelated individuals in modern Western culture.
I'm naturally and generally sympathetic to the historical, anti-assimilation perspectives Annika Cicada has mentioned (which are also positions I am familiar with), and in many ways I am much more emotionally comfortable with them than I am with the reality of the marriage that I'm in. I got married for legal and civil reasons, so that my spouse and I could commit to each other in a very tangible way and keep a household. I'm torn between my affection for legal same-sex marriage for allowing me to do that at the same time as I'm constantly weirded out and put off by the way that my relationship is contextualized differently by the people around me based off of my legal status.
It bothers me. It bothers me that I don't have a way to, for example, legally name a couple of specific people sisters to me. It bothers me that families of origin are privileged so highly and that they retain that privilege even after a person has been effectively cast out. It bothers me that we don't have a way to legally account for many types of families.
And while I can see how those things would have the potential for abuse in terms of, well, everything.... it bothers me that chosen family is so second-class in our legal and formal social systems, particularly as extended families spin out far from each other, dry, and shatter at the least provocation. Particularly for people whose biological families may not be worth having meaningful adult relationships, it can be hard not being able to treat families of choice in the same way.
posted by sciatrix at 9:32 AM on April 19, 2018 [14 favorites]
Not to mention immigration rights and family unification rights more generally, particularly as these apply to chosen rather than genetic family. Which, uh, tend to be a particular culturally relevant issue to queer people, and I suspect will only increasingly become so as the Internet leads more people to form significant relationships across nationalistic and citizenship lines. There are places where secular or otherwise non-marriage attempts to form civil partnerships among unrelated adults cannot access all the rights and protections accorded to marriage, in large part because marriage is the only legal and cultural institution that I am aware of which exists to legally acknowledge familial ties between unrelated adults.
Which is why you used to get same-sex couples legally adopting each other, adoption being the only other way I am aware of to legally formalize family between unrelated individuals in modern Western culture.
I'm naturally and generally sympathetic to the historical, anti-assimilation perspectives Annika Cicada has mentioned (which are also positions I am familiar with), and in many ways I am much more emotionally comfortable with them than I am with the reality of the marriage that I'm in. I got married for legal and civil reasons, so that my spouse and I could commit to each other in a very tangible way and keep a household. I'm torn between my affection for legal same-sex marriage for allowing me to do that at the same time as I'm constantly weirded out and put off by the way that my relationship is contextualized differently by the people around me based off of my legal status.
It bothers me. It bothers me that I don't have a way to, for example, legally name a couple of specific people sisters to me. It bothers me that families of origin are privileged so highly and that they retain that privilege even after a person has been effectively cast out. It bothers me that we don't have a way to legally account for many types of families.
And while I can see how those things would have the potential for abuse in terms of, well, everything.... it bothers me that chosen family is so second-class in our legal and formal social systems, particularly as extended families spin out far from each other, dry, and shatter at the least provocation. Particularly for people whose biological families may not be worth having meaningful adult relationships, it can be hard not being able to treat families of choice in the same way.
posted by sciatrix at 9:32 AM on April 19, 2018 [14 favorites]
Also, I truly wish that that contemporary irreligious and libertine people actually understood what separation of church and state were an alternative to: not the control of the state by the church, but the control of the church (and of freedom of conscience generally) by the state.
Arguably true of the Free Exercise Clause; less so about the Establishment Clause. It depends on what you mean by "control." The Founders appear to have been concerned that the pernicious effects of a state religion would run both ways. But that's a historical derail beyond the scope of this thread.
posted by The Bellman at 9:34 AM on April 19, 2018 [2 favorites]
Arguably true of the Free Exercise Clause; less so about the Establishment Clause. It depends on what you mean by "control." The Founders appear to have been concerned that the pernicious effects of a state religion would run both ways. But that's a historical derail beyond the scope of this thread.
posted by The Bellman at 9:34 AM on April 19, 2018 [2 favorites]
Not to mention immigration rights and family unification rights more generally, particularly as these apply to chosen rather than genetic family.
Again though, why do these issues make treating all couples as if they were married necessary? It makes equal access and perhaps an expansion of the ability to designate family of choice, but why should it make choosing specifically not to have the status of married (or an equivalent legal status) impossible?
posted by Dysk at 9:37 AM on April 19, 2018
Again though, why do these issues make treating all couples as if they were married necessary? It makes equal access and perhaps an expansion of the ability to designate family of choice, but why should it make choosing specifically not to have the status of married (or an equivalent legal status) impossible?
posted by Dysk at 9:37 AM on April 19, 2018
Dysk: Approximately 1 out of 3 people in the United States rent, and marriage as a prerequisite for cohabitation has been a traditional way to gatekeep housing in favor of heterosexual persons. Also, homeowner covenants are an avenue for discrimination.
Also, I'm not certain where "foist this on people" is coming from. My objection to private partnership and contract law as an alternative to marriage is that those agreements are not always respected or legally enforceable where third parties are concerned. If we're going to have private partnership agreements as an alternative to marriage in this or that area, they need to have equivalent weight to marriage.
Again, I'll point out that in the United States, "defense of marriage" law was used much more often in cases like Langbehn to justify discriminatory actions than they were to abolish noneixstent marriage equality.
posted by GenderNullPointerException at 9:38 AM on April 19, 2018 [3 favorites]
Also, I'm not certain where "foist this on people" is coming from. My objection to private partnership and contract law as an alternative to marriage is that those agreements are not always respected or legally enforceable where third parties are concerned. If we're going to have private partnership agreements as an alternative to marriage in this or that area, they need to have equivalent weight to marriage.
Again, I'll point out that in the United States, "defense of marriage" law was used much more often in cases like Langbehn to justify discriminatory actions than they were to abolish noneixstent marriage equality.
posted by GenderNullPointerException at 9:38 AM on April 19, 2018 [3 favorites]
> "To me as a parent, this evokes terrifying images."
Hey, if you didn't want to live in the kind of dystopian hellscape envisioned in the dark fever dreams of sci-fi writers of the 60's and 70's, you needed to say something before we put those policies in place. We're not mind readers, you know.
OK, some of us are.
(And by the way, who left John Brunner in charge of U.S. politics again? I swear, every time I turn around.)
posted by kyrademon at 9:38 AM on April 19, 2018 [7 favorites]
Hey, if you didn't want to live in the kind of dystopian hellscape envisioned in the dark fever dreams of sci-fi writers of the 60's and 70's, you needed to say something before we put those policies in place. We're not mind readers, you know.
OK, some of us are.
(And by the way, who left John Brunner in charge of U.S. politics again? I swear, every time I turn around.)
posted by kyrademon at 9:38 AM on April 19, 2018 [7 favorites]
I think we're speaking at cross purposes. I am in favour of marriage being extended to everyone who wants it. I am against the concept of common-law marriage - ie treating people who have not married as if they were - because it specifically precludes the option of a couple choosing not to marry. I don't see anything in what you're saying that gives a reason why people shouldn't be able to choose not to be married, or treated legally as such.
posted by Dysk at 9:41 AM on April 19, 2018 [3 favorites]
posted by Dysk at 9:41 AM on April 19, 2018 [3 favorites]
Also, I don't know what proportion of the UK population rent, but I do know that my boyfriend and I have not had any trouble signing joint tenancies despite not being married, and common law marriage not being a thing that actually exists in the UK. Similarly, I've not had trouble signing joint tenancies with larger groups of people either.
posted by Dysk at 9:44 AM on April 19, 2018
posted by Dysk at 9:44 AM on April 19, 2018
Common-law marriage works differently in different US states (and I have no idea how it works in the UK or elsewhere), but I can say with some confidence that in my state, common-law marriage doesn't happen unless the parties choose to act as married in ways other than simply living together. Holding yourself out publicly as married, referring to your partner as a spouse, using your partner's surname, that sort of thing. All you have to do to avoid being considered married in this common-law marriage jurisdiction is to make sure nobody has good reason to assume you're married.
I've been sharing leases (and now a deed and mortgage!) with my partner for, uh, 15 years now. But we're not married. It would double my student loan payments.
posted by asperity at 10:09 AM on April 19, 2018 [3 favorites]
I've been sharing leases (and now a deed and mortgage!) with my partner for, uh, 15 years now. But we're not married. It would double my student loan payments.
posted by asperity at 10:09 AM on April 19, 2018 [3 favorites]
Yes you can make contracts that establish legally equivalent kinship relationships and have private institutions recognize those different kinship relationships so that those legal rights will be recognized.
And there can be all sorts of these contracts. But not all contracts are legal! Some contracts (eg, slavery, working for less than the minimum wage) are not recognized by the government and are unenforceable.
So in addition to establishing which contracts the legal system is willing to recognize and which it won’t, and could even provide some contractual shortcuts thy provide these kinship rights and obligations. They can be called “marriage” and “adoption”.
posted by deanc at 10:10 AM on April 19, 2018
And there can be all sorts of these contracts. But not all contracts are legal! Some contracts (eg, slavery, working for less than the minimum wage) are not recognized by the government and are unenforceable.
So in addition to establishing which contracts the legal system is willing to recognize and which it won’t, and could even provide some contractual shortcuts thy provide these kinship rights and obligations. They can be called “marriage” and “adoption”.
posted by deanc at 10:10 AM on April 19, 2018
Common law marriage doesn't work in the UK. We don't have it. That is a good thing, because it does not create ambiguous situations where what constitutes "a good reason for thinking you're married" might need settling in court, in order to determine whether you should be treated as married or not. Given that - in the UK - all that you need to do to marry is sign a form at the registrar's office, I think the absence of common law marriage is a good thing. Someone upthread suggested that you shouldn't be able to opt out of the rights and obligations of marriage if you were living as a married couple. I vehemently disagree, and pointed out how the rights and obligations provided by parenthood mean that concern for children is not a good reason for treating unmarried couples as married, ever. This was the thread of conversation to which you responded, so you'll forgive me for thinking you were arguing for disallowing couples from living in a serious long-term partnership without being treated legally as if they were married.
posted by Dysk at 10:16 AM on April 19, 2018 [2 favorites]
posted by Dysk at 10:16 AM on April 19, 2018 [2 favorites]
it bothers me that chosen family is so second-class in our legal and formal social systems
I...man do I have feels about this.
I had a really close and beloved friend that I would have considered as a sister - having had difficulties with my family of origin this felt really good. She promised me she would always be there for me and my daughter and I believed her and told my daughter the same. This was...true until it wasn’t. When her husband did something shitty and violating she cut off all contact with me and the kidlet, and it became super obvious just how easy it can be for chosen family to nope the fuck out of that family on essentially a whim. Meanwhile, when the chips were really down, my admittedly often terrible family did everything they could.
I don’t think this is inherent to some sort of biological imperative, but I do think that currently, the way we order our society means that people face much more social stigma if they abandon blood relatives than they do if they abandon chosen family. See, for example, how many Asks talk about how you’re not obligated to be friends with someone if you’ve grown apart or whatever.
I don’t think that we should re-order our entire legal system to affect a new system that hasn’t culturally taken effect yet. It may someday, but it hasn’t now - and so there is no reason to create additional structures to support it until we exist in that society - at which time it will be trivially easy.
The other thing of course is that creating legal chosen family would affect /other/ people’s inheritance in complex ways - if you could create legal siblings, would that mean your parents would be obligated to split their inheritance with them, for example? We don’t have these answers, because to my knowledge it hasn’t been done before.
posted by corb at 10:29 AM on April 19, 2018 [6 favorites]
I...man do I have feels about this.
I had a really close and beloved friend that I would have considered as a sister - having had difficulties with my family of origin this felt really good. She promised me she would always be there for me and my daughter and I believed her and told my daughter the same. This was...true until it wasn’t. When her husband did something shitty and violating she cut off all contact with me and the kidlet, and it became super obvious just how easy it can be for chosen family to nope the fuck out of that family on essentially a whim. Meanwhile, when the chips were really down, my admittedly often terrible family did everything they could.
I don’t think this is inherent to some sort of biological imperative, but I do think that currently, the way we order our society means that people face much more social stigma if they abandon blood relatives than they do if they abandon chosen family. See, for example, how many Asks talk about how you’re not obligated to be friends with someone if you’ve grown apart or whatever.
I don’t think that we should re-order our entire legal system to affect a new system that hasn’t culturally taken effect yet. It may someday, but it hasn’t now - and so there is no reason to create additional structures to support it until we exist in that society - at which time it will be trivially easy.
The other thing of course is that creating legal chosen family would affect /other/ people’s inheritance in complex ways - if you could create legal siblings, would that mean your parents would be obligated to split their inheritance with them, for example? We don’t have these answers, because to my knowledge it hasn’t been done before.
posted by corb at 10:29 AM on April 19, 2018 [6 favorites]
Again though, why do these issues make treating all couples as if they were married necessary? It makes equal access and perhaps an expansion of the ability to designate family of choice, but why should it make choosing specifically not to have the status of married (or an equivalent legal status) impossible?
....because I'm not talking about that in any way whatsoever, I'm talking about potential reasons that legal recognition of familial relationships matters. Which is germane to the general subject of marriage access and whether we should be using the institution of marriage as it exists specifically in a modern legal context, or whether we should broaden or contract that institution (depending on the position) in order to either apply to more types of relationships or lose special legal status.
I do get why you're concerned about common law marriage, but historically and legally they have more usually been used to apply to people who don't have the funds, time, or resources to acquire a legally binding marriage. The common-law concept--which even in the US exists in only eleven states at this point--also literally requires you to present yourself as married and/or to establish an intent to be married in every state that permits it.
You cannot wind up in a common-law marriage by accident. You're fixating on a strawman argument surrounding the common-law, and it's making you respond to things in this conversation that aren't directed at you.
posted by sciatrix at 10:34 AM on April 19, 2018 [2 favorites]
....because I'm not talking about that in any way whatsoever, I'm talking about potential reasons that legal recognition of familial relationships matters. Which is germane to the general subject of marriage access and whether we should be using the institution of marriage as it exists specifically in a modern legal context, or whether we should broaden or contract that institution (depending on the position) in order to either apply to more types of relationships or lose special legal status.
I do get why you're concerned about common law marriage, but historically and legally they have more usually been used to apply to people who don't have the funds, time, or resources to acquire a legally binding marriage. The common-law concept--which even in the US exists in only eleven states at this point--also literally requires you to present yourself as married and/or to establish an intent to be married in every state that permits it.
You cannot wind up in a common-law marriage by accident. You're fixating on a strawman argument surrounding the common-law, and it's making you respond to things in this conversation that aren't directed at you.
posted by sciatrix at 10:34 AM on April 19, 2018 [2 favorites]
You cannot wind up in a common-law marriage by accident.
Maybe not in the US, no. Sure looks like you can in Ontario though, for example.
You're fixating on a strawman argument surrounding the common-law, and it's making you respond to things in this conversation that aren't directed at you
Strawman? Someone was literally arguing exactly that, in this thread, and it was a direct response to this comment that kicked off the third-party concerns thread of the conversation. It absolutely started with someone explicitly saying you shouldn't be able to opt out of the responsibilities of marriage, if you live as if you are married.
posted by Dysk at 10:44 AM on April 19, 2018 [1 favorite]
Maybe not in the US, no. Sure looks like you can in Ontario though, for example.
You're fixating on a strawman argument surrounding the common-law, and it's making you respond to things in this conversation that aren't directed at you
Strawman? Someone was literally arguing exactly that, in this thread, and it was a direct response to this comment that kicked off the third-party concerns thread of the conversation. It absolutely started with someone explicitly saying you shouldn't be able to opt out of the responsibilities of marriage, if you live as if you are married.
posted by Dysk at 10:44 AM on April 19, 2018 [1 favorite]
When marriage equality became a thing in Canada fifteen-twenty years ago, one of our provinces, Alberta (also known as Texas of the north) legalized Adult Interdependent Realtionships. Basically any two people, related by blood or not, can enter a "marriage-like" contract by either having a formal contract (legally necessary if you are blood relatives) or by "emotionally committing to each other, sharing each others lives, and functioning as an economic and domestic unit". Sex is NOT necessary for the relationship to be valid. The rest of the provinces have common-law marriage or de facto partnerships as legal alternatives to marriage (according to CRA, if you are living together for one year you are common-law married and have almost the same legal rights and responsibilities as being legally married would give you).
I always thought it was super interesting that such a forward-thinking piece of legislation came out of the fear of gay people getting married.
posted by saucysault at 10:47 AM on April 19, 2018 [2 favorites]
I always thought it was super interesting that such a forward-thinking piece of legislation came out of the fear of gay people getting married.
posted by saucysault at 10:47 AM on April 19, 2018 [2 favorites]
I feel like I've been seeing this suggestion that government should get out of marriage more and more as gay people increasingly have the right to it. I'm suspicious that it's yet another case of diminishing an institution because marginalized people finally get to participate in it. How do you decompose marriage in a way that doesn't signal to people, well, now that you're here, we don't want it anymore?
The move towards marginalizing marriage isn’t due to this dynamic, though. There has always been a faction of both straight and queer people who wanted to eliminate marriage as an outdated bourgeois institution. There was a some controversy over many gay-rights groups’ Advocacy for gay marriage because it was seen as “giving in” to middle class straight culture.
So one alternative we have seen is basically to making all relationships categorized as generic. When gay people were shut out of marriage, or some other couple was hindered from getting married (or simply chose not to be), they’d refer to their significant other as a “partner” in part because having a husband/wife wasn’t legally possible. Well now everyone is a “partner”. Well now we have people who used to be married and others in some personally-defined relationship of their own making. And that’s fine, but now there’s the idea that *everyone* should be in personally-defined contractual relationships of their own making. And, honestly, I am not sure it is helpful to say, “well not all relationships between two adults who form a family are marriage, so none of them should be marriage.”
posted by deanc at 10:49 AM on April 19, 2018 [3 favorites]
The move towards marginalizing marriage isn’t due to this dynamic, though. There has always been a faction of both straight and queer people who wanted to eliminate marriage as an outdated bourgeois institution. There was a some controversy over many gay-rights groups’ Advocacy for gay marriage because it was seen as “giving in” to middle class straight culture.
So one alternative we have seen is basically to making all relationships categorized as generic. When gay people were shut out of marriage, or some other couple was hindered from getting married (or simply chose not to be), they’d refer to their significant other as a “partner” in part because having a husband/wife wasn’t legally possible. Well now everyone is a “partner”. Well now we have people who used to be married and others in some personally-defined relationship of their own making. And that’s fine, but now there’s the idea that *everyone* should be in personally-defined contractual relationships of their own making. And, honestly, I am not sure it is helpful to say, “well not all relationships between two adults who form a family are marriage, so none of them should be marriage.”
posted by deanc at 10:49 AM on April 19, 2018 [3 favorites]
I have someone I would name my legal sister in a heartbeat if I could (hi, if you’re in this thread, boo, let’s get on planning that yarn shop trip soon). I see no earthly reason that should automatically make her my parents’ legal daughter, any more than my existing blood half-sibs on each side are legally related to the parents on my other side. That’s imagining a problem that doesn’t exist. Choosing family for myself doesn’t mean I’m choosing them for the rest of my blood family, in fact that’s the entire *point* of chosen family.
I’m sure there are other, more real problems that will arise with legalizing other forms of chosen family. But I see no reason not to try to solve them.
(I’m sure a lot of this is how your personal chips fall, though. In my experience, blood family is in fact less likely than chosen family to help in a bad spot. YMMV, but I wish everyone had that experience of chosen family, and I’d love for societal support to make that more likely.)
posted by Stacey at 10:49 AM on April 19, 2018 [2 favorites]
I’m sure there are other, more real problems that will arise with legalizing other forms of chosen family. But I see no reason not to try to solve them.
(I’m sure a lot of this is how your personal chips fall, though. In my experience, blood family is in fact less likely than chosen family to help in a bad spot. YMMV, but I wish everyone had that experience of chosen family, and I’d love for societal support to make that more likely.)
posted by Stacey at 10:49 AM on April 19, 2018 [2 favorites]
sciatrix: "You're fixating on a strawman argument surrounding the common-law, and it's making you respond to things in this conversation that aren't directed at you."
But this is a central point in the article: that people who live in a certain way and exhibit certain behaviors should be treated as tantamount to married: "people engaging in relationship practices would not opt in to a special relationship status giving them rights and duties; they would have those rights and duties automatically, by virtue of their practices."
In general people in the thread don't seem to have to read the article carefully (or frankly at all). I disagree with it, but I think it's worth reading and taking seriously.
posted by crazy with stars at 11:01 AM on April 19, 2018 [3 favorites]
But this is a central point in the article: that people who live in a certain way and exhibit certain behaviors should be treated as tantamount to married: "people engaging in relationship practices would not opt in to a special relationship status giving them rights and duties; they would have those rights and duties automatically, by virtue of their practices."
In general people in the thread don't seem to have to read the article carefully (or frankly at all). I disagree with it, but I think it's worth reading and taking seriously.
posted by crazy with stars at 11:01 AM on April 19, 2018 [3 favorites]
I should note, that a couple of years after the Alberta Interdependent Relationship Act, marriage itself also became legal between same-sex couples. The Premier had relied on bad legal advice that the Interdependent Act would satisfy the Supreme Court's Charter ruling that marriage can not be limited to opposite sex couples.
posted by saucysault at 11:02 AM on April 19, 2018 [1 favorite]
posted by saucysault at 11:02 AM on April 19, 2018 [1 favorite]
What distinguishes marriage from other relationships?
Marriage creates legal family from people who weren't previously related. Adoption also does this, but makes an imbalanced relationship, which does not have the legal protections of marriage. (There is no parent-child confidentiality privilege.) In the past, marriage was used extensively for this, not just to attach two people, but to attach their entire families. When you got married, you didn't just acquire a spouse; you acquired extra parents, grandparents, uncles, aunts, cousins, grand-nieces, and so on.
What makes the marriage contract bonkers is not how much religion is tangled into it, nor who does or doesn't get access to it, nor what protections it does or doesn't offer - but the fact that you cannot know the terms unless and until you dissolve it.
There are lists of "the rights of marriage;" there are no lists of "the obligations of marriage," other than a remaining handful of states that allow contested divorces - and even in those, the "obligations" are "do this or you may become not-married." AFAIK, the only penalty for failing to uphold the obligations of a marriage is a divorce.
The real reason the right wing lost the battle for gay marriage isn't that they couldn't support their claims without religious bias; it's that they were fighting hard not to define marriage other than to say, "it doesn't include those people." Several courts gave them the opportunity: Okay, you say marriage is not for "those people" - who is it for? What's its purpose; what is the nature of a marriage-relationship that two people with matching genitalia cannot have? But they didn't want to say "marriage requires [the potential of] children" nor "marriage requires [the potential of] PIV sex" nor "marriage requires..." any number of other activities that plenty of het marriages don't do.
They floundered, because we don't actually have a definition of marriage. We have a legacy habit of marriage that predates the English language, and has had different rights and responsibilities in every culture.
posted by ErisLordFreedom at 11:14 AM on April 19, 2018 [8 favorites]
Marriage creates legal family from people who weren't previously related. Adoption also does this, but makes an imbalanced relationship, which does not have the legal protections of marriage. (There is no parent-child confidentiality privilege.) In the past, marriage was used extensively for this, not just to attach two people, but to attach their entire families. When you got married, you didn't just acquire a spouse; you acquired extra parents, grandparents, uncles, aunts, cousins, grand-nieces, and so on.
What makes the marriage contract bonkers is not how much religion is tangled into it, nor who does or doesn't get access to it, nor what protections it does or doesn't offer - but the fact that you cannot know the terms unless and until you dissolve it.
There are lists of "the rights of marriage;" there are no lists of "the obligations of marriage," other than a remaining handful of states that allow contested divorces - and even in those, the "obligations" are "do this or you may become not-married." AFAIK, the only penalty for failing to uphold the obligations of a marriage is a divorce.
The real reason the right wing lost the battle for gay marriage isn't that they couldn't support their claims without religious bias; it's that they were fighting hard not to define marriage other than to say, "it doesn't include those people." Several courts gave them the opportunity: Okay, you say marriage is not for "those people" - who is it for? What's its purpose; what is the nature of a marriage-relationship that two people with matching genitalia cannot have? But they didn't want to say "marriage requires [the potential of] children" nor "marriage requires [the potential of] PIV sex" nor "marriage requires..." any number of other activities that plenty of het marriages don't do.
They floundered, because we don't actually have a definition of marriage. We have a legacy habit of marriage that predates the English language, and has had different rights and responsibilities in every culture.
posted by ErisLordFreedom at 11:14 AM on April 19, 2018 [8 favorites]
There are lists of "the rights of marriage;" there are no lists of "the obligations of marriage," other than a remaining handful of states that allow contested divorces - and even in those, the "obligations" are "do this or you may become not-married." AFAIK, the only penalty for failing to uphold the obligations of a marriage is a divorce.
At least here in the UK, that isn't strictly true. There are certainly obligations that are only settled in divorce proceedings, but there are also some fairly hard-and-fast financial obligations. For example, an unemployed married person can only claim limited unemployment benefits if their spouse is earning above a certain threshold. Other means-tested benefits, like Housing Benefit, are entirely unavailable to people with a spouse earning above a certain threshold. This at least explicitly implies a financial obligation to your spouse. There doesn't seem to be much of an enforcement mechanism other than divorce, though.
Occurs to me that I have no idea how this is affected by the Universal Credit rollout.
posted by Dysk at 11:25 AM on April 19, 2018 [1 favorite]
At least here in the UK, that isn't strictly true. There are certainly obligations that are only settled in divorce proceedings, but there are also some fairly hard-and-fast financial obligations. For example, an unemployed married person can only claim limited unemployment benefits if their spouse is earning above a certain threshold. Other means-tested benefits, like Housing Benefit, are entirely unavailable to people with a spouse earning above a certain threshold. This at least explicitly implies a financial obligation to your spouse. There doesn't seem to be much of an enforcement mechanism other than divorce, though.
Occurs to me that I have no idea how this is affected by the Universal Credit rollout.
posted by Dysk at 11:25 AM on April 19, 2018 [1 favorite]
My comment about third parties was primarily spinning off of what I see as the big barrier to looking at alternatives to marriage. To what degree are those alternatives privileged or discriminated against by third parties? We have a significant plurality in American culture that advocates and defends that kind of discrimination.
Heterosexism results in some double-standards. I seriously doubt that a hospital or school is going to interrogate a straight-passing couple all that deeply to determine legal status. I knew a pair of religious abstainers (Quaker) from legal marriage who said that for all intents and purposes, it doesn't matter for them. But Langbehn demonstrates to me how conditional that really is. Langbehn and Pond apparently did everything right. They created all of the legal documentation that health care providers say that you should create to clarify decision-making authority. There was absolutely no legal question that Pond gave Langbehn that authority, and yet, it was ignored in favor of an anti-gay state law.
The huge problem I see with contractual or conditional status is exactly who decides which status is legitimate, and how is that certified when I designate next of kin, powers of attorney, or who get to share my employment benefits. If the situation of living together creates a legal relationship, does situationally living apart change that relationship? Can entities object to those legal relationships based on religious conscience? (Not a hypothetical question. LGBTQ people still can get fired by some organizations for having a same-sex relationship at any point in their history.)
posted by GenderNullPointerException at 11:33 AM on April 19, 2018 [2 favorites]
Heterosexism results in some double-standards. I seriously doubt that a hospital or school is going to interrogate a straight-passing couple all that deeply to determine legal status. I knew a pair of religious abstainers (Quaker) from legal marriage who said that for all intents and purposes, it doesn't matter for them. But Langbehn demonstrates to me how conditional that really is. Langbehn and Pond apparently did everything right. They created all of the legal documentation that health care providers say that you should create to clarify decision-making authority. There was absolutely no legal question that Pond gave Langbehn that authority, and yet, it was ignored in favor of an anti-gay state law.
The huge problem I see with contractual or conditional status is exactly who decides which status is legitimate, and how is that certified when I designate next of kin, powers of attorney, or who get to share my employment benefits. If the situation of living together creates a legal relationship, does situationally living apart change that relationship? Can entities object to those legal relationships based on religious conscience? (Not a hypothetical question. LGBTQ people still can get fired by some organizations for having a same-sex relationship at any point in their history.)
posted by GenderNullPointerException at 11:33 AM on April 19, 2018 [2 favorites]
You also have a more direct and somewhat enforceable obligation to house your spouse, and it turns out the financial obligation to support you can indeed be enforced through the courts without divorce, though it is also possible for couples to opt out of this particular obligation: https://www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/
posted by Dysk at 11:34 AM on April 19, 2018 [1 favorite]
posted by Dysk at 11:34 AM on April 19, 2018 [1 favorite]
For example, an unemployed married person can only claim limited unemployment benefits if their spouse is earning above a certain threshold.
There are rights and obligations of third parties to married couples, and government restrictions on what is and isn't available based on marriage stauts; AFAIK there are no laws spelling out the obligations that married persons have to each other. (At least in the US, where each state has its own laws about how marriage works. UK has older marriage laws; they may have more details.) There is no list of "this is what a marriage relationship IS."
You also have a more direct and somewhat enforceable obligation to house your spouse...
I expect the US has something similar - it may be that "cannot kick your spouse out of the house" is the only legal obligation of spouses to each other. No idea how that works for families that normally live apart (e.g. one moved to another city for a job; the other moved into a small apartment) - I don't know if either spouse can demand to move in with the other, or if there would be a ruling on which address was "the matrimonial home."
So we're at: Obligations Of A Marriage, #1: You must allow your spouse to live in your home. Doesn't come up often in legal proceedings these days; usually, if a couple disagrees on whether they're willing to live together, at least one of them doesn't want to be married anymore.
posted by ErisLordFreedom at 11:53 AM on April 19, 2018
There are rights and obligations of third parties to married couples, and government restrictions on what is and isn't available based on marriage stauts; AFAIK there are no laws spelling out the obligations that married persons have to each other. (At least in the US, where each state has its own laws about how marriage works. UK has older marriage laws; they may have more details.) There is no list of "this is what a marriage relationship IS."
You also have a more direct and somewhat enforceable obligation to house your spouse...
I expect the US has something similar - it may be that "cannot kick your spouse out of the house" is the only legal obligation of spouses to each other. No idea how that works for families that normally live apart (e.g. one moved to another city for a job; the other moved into a small apartment) - I don't know if either spouse can demand to move in with the other, or if there would be a ruling on which address was "the matrimonial home."
So we're at: Obligations Of A Marriage, #1: You must allow your spouse to live in your home. Doesn't come up often in legal proceedings these days; usually, if a couple disagrees on whether they're willing to live together, at least one of them doesn't want to be married anymore.
posted by ErisLordFreedom at 11:53 AM on April 19, 2018
Another wrinkle, if we make marital status conditional on acting like a married relationship, whatever that means, do we empower corporations and governments with a vested interest in limiting benefits to challenge those relationship claims?
posted by GenderNullPointerException at 11:58 AM on April 19, 2018 [1 favorite]
posted by GenderNullPointerException at 11:58 AM on April 19, 2018 [1 favorite]
So we're at: Obligations Of A Marriage, #1: You must allow your spouse to live in your home. Doesn't come up often in legal proceedings these days; usually, if a couple disagrees on whether they're willing to live together, at least one of them doesn't want to be married anymore.
It usually only comes up during divorce proceedings, but fairly often while couples are still married. Same with the #2 you left off, to financially support your spouse.
But yes, most of the obligations are implied, and only enforced through divorce.
posted by Dysk at 12:02 PM on April 19, 2018 [1 favorite]
It usually only comes up during divorce proceedings, but fairly often while couples are still married. Same with the #2 you left off, to financially support your spouse.
But yes, most of the obligations are implied, and only enforced through divorce.
posted by Dysk at 12:02 PM on April 19, 2018 [1 favorite]
I take arguments against marriage most seriously from people who believe that there must be a 100% inheritance tax, since those people clearly recognize that the primary function of the family formation under capitalism is the propagation of unequal wealth distributions across generations, and therefore they understand why, in the long term, we must do away with both marriage and families.
This is the first time I've seen anyone publicly support the idea of 100% inheritance tax, and I can't tell you how happy it makes me to finally encounter it.
I wonder if folks who are concerned about people who scrupulously avoid marriage being forced into having legal obligations to people they've shared their lives with for a significant period of time are aware that, at least since Lee Marvin was successfully sued for palimony more than 40 years ago, this is already an established principle in American law.
Chambers doesn't sound to me like she's insisting people get married whether they like it or not; she's recognizing that human relationships create enduring obligations whether you like it or not.
posted by layceepee at 12:46 PM on April 19, 2018 [1 favorite]
This is the first time I've seen anyone publicly support the idea of 100% inheritance tax, and I can't tell you how happy it makes me to finally encounter it.
I wonder if folks who are concerned about people who scrupulously avoid marriage being forced into having legal obligations to people they've shared their lives with for a significant period of time are aware that, at least since Lee Marvin was successfully sued for palimony more than 40 years ago, this is already an established principle in American law.
Chambers doesn't sound to me like she's insisting people get married whether they like it or not; she's recognizing that human relationships create enduring obligations whether you like it or not.
posted by layceepee at 12:46 PM on April 19, 2018 [1 favorite]
My argument, as someone who works in family law, against Chambers is that jettisoning the existing corpus of law would be a great loss of children's rights and spousal rights towards community property.
Essentially, it would steer us more towards the world of pre-nuptial contracts, expanding the rights of the well-lawyered and reducing the rights of those unable to secure legal representation.
Also, codified marriage law, at least ideally, is meant to be a mercy to divorcing relationship- a transparent system with clear terms, processes and mechanisms which give rights to pro se petitioners as well as those with lawyers. Family law is dispassionate precisely because divorce is so passionate; the realm of family law is where people are ground between the gears of their passion and the dispassion of the bureaucracy.
To replace that with mere be-spoke contracts is to remove a great deal of clarity and equity from the developed corpus of law.
While Marvin v. Marvin does uphold the terms of non-marital contract, state laws are extremely specious towards quasi-community property in non-marital relationships. Essentially, without marriage, you're going to need your name on the receipt of everything to have a claim towards the property.
I think what this article disregards is that a lot of the progress of 19th century feminism lay in terms of using marriage as a raft to secure an array of legal rights for spouses and children. Even if you separate children's rights out, removing the legal construct of marriage would disposses and disempower some of the poorest and most oppressed women in our society- the poor and those who have emigrated from more patriarchal society.
I'd say that this article is a very 'first world problems' complaint. Without alimony and child support, spouses suffer heightened dependence upon their abusers. Family law has been reformed in many ways to make it financially safer to pull the ejection lever on a toxic or dysfunctional relationship.
posted by LeRoienJaune at 1:25 PM on April 19, 2018 [10 favorites]
Essentially, it would steer us more towards the world of pre-nuptial contracts, expanding the rights of the well-lawyered and reducing the rights of those unable to secure legal representation.
Also, codified marriage law, at least ideally, is meant to be a mercy to divorcing relationship- a transparent system with clear terms, processes and mechanisms which give rights to pro se petitioners as well as those with lawyers. Family law is dispassionate precisely because divorce is so passionate; the realm of family law is where people are ground between the gears of their passion and the dispassion of the bureaucracy.
To replace that with mere be-spoke contracts is to remove a great deal of clarity and equity from the developed corpus of law.
While Marvin v. Marvin does uphold the terms of non-marital contract, state laws are extremely specious towards quasi-community property in non-marital relationships. Essentially, without marriage, you're going to need your name on the receipt of everything to have a claim towards the property.
I think what this article disregards is that a lot of the progress of 19th century feminism lay in terms of using marriage as a raft to secure an array of legal rights for spouses and children. Even if you separate children's rights out, removing the legal construct of marriage would disposses and disempower some of the poorest and most oppressed women in our society- the poor and those who have emigrated from more patriarchal society.
I'd say that this article is a very 'first world problems' complaint. Without alimony and child support, spouses suffer heightened dependence upon their abusers. Family law has been reformed in many ways to make it financially safer to pull the ejection lever on a toxic or dysfunctional relationship.
posted by LeRoienJaune at 1:25 PM on April 19, 2018 [10 favorites]
This is the first time I've seen anyone publicly support the idea of 100% inheritance tax, and I can't tell you how happy it makes me to finally encounter it.
Always been somewhere between "you can inherit everything" and "you can't inherit anything," myself, but I concede that "expropriate the expropriaters!" does sound much more dramatic. At the same time it seems incoherent to assert that human relationships create enduring obligations—no argument there—while denying that there is any obligation between generations worth enforcing.
posted by octobersurprise at 1:29 PM on April 19, 2018
Always been somewhere between "you can inherit everything" and "you can't inherit anything," myself, but I concede that "expropriate the expropriaters!" does sound much more dramatic. At the same time it seems incoherent to assert that human relationships create enduring obligations—no argument there—while denying that there is any obligation between generations worth enforcing.
posted by octobersurprise at 1:29 PM on April 19, 2018
AFAIK there are no laws spelling out the obligations that married persons have to each other
This simply isn't true. A number of states recognize some form of requirement of financial "spousal support." Where do you think the obligation to pay alimony comes from? If you weren't required to support a spouse prior to divorce, why would you be required to support them afterwards?
posted by praemunire at 1:44 PM on April 19, 2018 [2 favorites]
This simply isn't true. A number of states recognize some form of requirement of financial "spousal support." Where do you think the obligation to pay alimony comes from? If you weren't required to support a spouse prior to divorce, why would you be required to support them afterwards?
posted by praemunire at 1:44 PM on April 19, 2018 [2 favorites]
I thought this was an interesting and well-argued article. I don't agree with most of it, but I enjoyed the opportunity to interrogate my priors on this topic. Thanks!
posted by Kwine at 1:58 PM on April 19, 2018
posted by Kwine at 1:58 PM on April 19, 2018
I wonder if folks who are concerned about people who scrupulously avoid marriage being forced into having legal obligations to people they've shared their lives with for a significant period of time are aware that, at least since Lee Marvin was successfully sued for palimony more than 40 years ago, this is already an established principle in American law.
It's more about the rights it affords the other partner (power of attorney, ability to make medical decisions on behalf of someone when incapacitated) and I'm concerned with UK law.
posted by Dysk at 2:03 PM on April 19, 2018
It's more about the rights it affords the other partner (power of attorney, ability to make medical decisions on behalf of someone when incapacitated) and I'm concerned with UK law.
posted by Dysk at 2:03 PM on April 19, 2018
A number of states recognize some form of requirement of financial "spousal support." Where do you think the obligation to pay alimony comes from?
How much money is that? If one spouse makes $50,000 a year, and the other makes nothing, how much is the first spouse required to allocate specifically to support the second spouse?
Any normal contract that said, "Party A agrees to provide financial support for Party B," with no additional information, would be laughed out of court. In a marriage, you don't know the terms of the requirements unless you get a divorce. There are some abstract concepts, like "support spouse (if you happen to be the one who has more money)" and "be willing to have sex with spouse" and "allow spouse to live with you" (failure on those two is grounds for a contested divorce in some places), but there is absolutely no law that spells out the details.
There is no law that establishes, "if you make $X per year more than your spouse, Y% of that is required to be spent on your spouse." There is no line of "must agree to sex this often, or it's considered abandonment." (And I'm not saying there should be, just noting the lack of detail, which would invalidate any other contract.)
Marriage law covers a number of topics of obligation, but none of the specifics. This isn't a bad thing - marriage was a social construct long before a formal legal one, and the terms are going to vary - but we'll need to get a much more solid picture of the legal structure before we can make real progress on changing it, as opposed to just changing who gets access to it.
posted by ErisLordFreedom at 2:13 PM on April 19, 2018
How much money is that? If one spouse makes $50,000 a year, and the other makes nothing, how much is the first spouse required to allocate specifically to support the second spouse?
Any normal contract that said, "Party A agrees to provide financial support for Party B," with no additional information, would be laughed out of court. In a marriage, you don't know the terms of the requirements unless you get a divorce. There are some abstract concepts, like "support spouse (if you happen to be the one who has more money)" and "be willing to have sex with spouse" and "allow spouse to live with you" (failure on those two is grounds for a contested divorce in some places), but there is absolutely no law that spells out the details.
There is no law that establishes, "if you make $X per year more than your spouse, Y% of that is required to be spent on your spouse." There is no line of "must agree to sex this often, or it's considered abandonment." (And I'm not saying there should be, just noting the lack of detail, which would invalidate any other contract.)
Marriage law covers a number of topics of obligation, but none of the specifics. This isn't a bad thing - marriage was a social construct long before a formal legal one, and the terms are going to vary - but we'll need to get a much more solid picture of the legal structure before we can make real progress on changing it, as opposed to just changing who gets access to it.
posted by ErisLordFreedom at 2:13 PM on April 19, 2018
yeah, this was so clearly an article by a theorist, not someone who's ever practiced in any of these areas of law (or social work, for that matter). Like, have you ever been in a hospital where someone has a contractually-determined medical decision-maker that is under dispute? Or where the hospital lawyer is called in because someone wants to argue that they are in practice married to the sick person, or that their spouse is in practice not married to them any longer (they've moved out and are pursuing separation and living with another romantic partner, let's say)? It's a fucking nightmare. You end up with not just "the government" involved in defining your relationship (by saying, "Here, you're married, here's the bundle of rights that most people prefer, you can alter some of them by contract if you really want, we don't really care how you order your home lives or decision making.") to hospital bureaucrats, lawyers, government bureaucrats, and courts making decisions about your relationship and defining it and inquiring into the most intimate details of your life to make a decision. It suuuuuuuuuucks, and it triple-sucks when you're doing it at high-speed in four days because someone's in a coma and you're all under a lot of stress. It's a terrible way to run a relationship regime.
But yeah, this basically just moves where the government gets involved in your relationship, and does so in such a way that it makes the whole thing much more intrusive and bureaucratic and difficult. And, even if we're constructing a regime from scratch, I'm not sure how you'd create a regime based on PRACTICES -- rather than legal status (marriage) or contract -- that wasn't much more intrusive.
Many states (that don't have common-law marriage) do allow the lesser-earning partner in unmarried couples who live together as partners where one supports the other financially and then they break up, to sue for alimony-like support. (Sometimes it's called palimony in a painful portmanteau.) It's fairly unusual, you don't see a lot of it, but the court does go in and inquire as to the specific circumstances of the relationship -- was the lesser-earning partner supporting the higher-earning partner's career, was there an understanding about how money and property was split -- and everyone presents evidence and bickers and spends a lot on lawyers and, in the end, the lesser-earning partner may or may not end up with maintenance from their former partner. And its good that people can resort to courts in situations where they never married and one partner ended up raising the children so the other could make boatloads of money and then decides to jettison the family later on! But it's so, so, so much more government intrusion into one's intimate life than a typical divorce. And I'm not sure how you could do a case-by-case decision according to actual practices of the relationship, without making it much, much more intrusive.
"Which is why you used to get same-sex couples legally adopting each other, adoption being the only other way I am aware of to legally formalize family between unrelated individuals in modern Western culture."
To be clear, this was not a legal use of adoption in the United States and historically courts were extremely hostile to litigants who attempted to formalize their relationships in this manner, typically striking down their inheritances (what was usually litigated). As same-sex relationships became more common and accepted, courts got much more shruggo about it as long as the family didn't dispute it, but it was never a very GOOD way to secure legal rights for same-sex couples.
"Marriage law covers a number of topics of obligation, but none of the specifics. "
This comment is so off the wall it is not even wrong, and appears, at a minimum not to understand we live in a common law, not civil law, system. The specific rights and duties of marriage are enumerated lots of places! Just, you know, mostly in the case law. Which is where common law goes to work out its specifics, because of the gloriously infinite variety of humanity.
posted by Eyebrows McGee at 2:39 PM on April 19, 2018 [8 favorites]
But yeah, this basically just moves where the government gets involved in your relationship, and does so in such a way that it makes the whole thing much more intrusive and bureaucratic and difficult. And, even if we're constructing a regime from scratch, I'm not sure how you'd create a regime based on PRACTICES -- rather than legal status (marriage) or contract -- that wasn't much more intrusive.
Many states (that don't have common-law marriage) do allow the lesser-earning partner in unmarried couples who live together as partners where one supports the other financially and then they break up, to sue for alimony-like support. (Sometimes it's called palimony in a painful portmanteau.) It's fairly unusual, you don't see a lot of it, but the court does go in and inquire as to the specific circumstances of the relationship -- was the lesser-earning partner supporting the higher-earning partner's career, was there an understanding about how money and property was split -- and everyone presents evidence and bickers and spends a lot on lawyers and, in the end, the lesser-earning partner may or may not end up with maintenance from their former partner. And its good that people can resort to courts in situations where they never married and one partner ended up raising the children so the other could make boatloads of money and then decides to jettison the family later on! But it's so, so, so much more government intrusion into one's intimate life than a typical divorce. And I'm not sure how you could do a case-by-case decision according to actual practices of the relationship, without making it much, much more intrusive.
"Which is why you used to get same-sex couples legally adopting each other, adoption being the only other way I am aware of to legally formalize family between unrelated individuals in modern Western culture."
To be clear, this was not a legal use of adoption in the United States and historically courts were extremely hostile to litigants who attempted to formalize their relationships in this manner, typically striking down their inheritances (what was usually litigated). As same-sex relationships became more common and accepted, courts got much more shruggo about it as long as the family didn't dispute it, but it was never a very GOOD way to secure legal rights for same-sex couples.
"Marriage law covers a number of topics of obligation, but none of the specifics. "
This comment is so off the wall it is not even wrong, and appears, at a minimum not to understand we live in a common law, not civil law, system. The specific rights and duties of marriage are enumerated lots of places! Just, you know, mostly in the case law. Which is where common law goes to work out its specifics, because of the gloriously infinite variety of humanity.
posted by Eyebrows McGee at 2:39 PM on April 19, 2018 [8 favorites]
At the same time it seems incoherent to assert that human relationships create enduring obligations—no argument there—while denying that there is any obligation between generations worth enforcing.
Excellent point. That's why I prefer that parents start generously sharing wealth with their children well before they die. And in return, children accept their responsibility to provide care for aging parents.
posted by layceepee at 2:57 PM on April 19, 2018 [1 favorite]
Excellent point. That's why I prefer that parents start generously sharing wealth with their children well before they die. And in return, children accept their responsibility to provide care for aging parents.
posted by layceepee at 2:57 PM on April 19, 2018 [1 favorite]
Essentially, it would steer us more towards the world of pre-nuptial contracts, expanding the rights of the well-lawyered and reducing the rights of those unable to secure legal representation.
I don't know about that. In Canada pre-nuptial agreements are pretty useless because the rules around family law are so codified; stepping outside them is remarkable. So one partner cannot take all the money out of a joint account for example, or sell property, or enter into loan agreements without the other partner's written consent. Enforcement however, can really only happen in family law court (mediation is pushed of course, free and with free legal counsel in Ontario at least, but if one person is unreasonable then it is off to court). A lot of family law here is self-represented because there are tables, formulas, and guidelines that have to be followed and deviating from them is exceptional. But that really only covers financial/property obligations when marriage is so much more than that. The is no framework, legal or otherwise, that will compel someone to be a kind and thoughtful partner.
posted by saucysault at 2:59 PM on April 19, 2018
I don't know about that. In Canada pre-nuptial agreements are pretty useless because the rules around family law are so codified; stepping outside them is remarkable. So one partner cannot take all the money out of a joint account for example, or sell property, or enter into loan agreements without the other partner's written consent. Enforcement however, can really only happen in family law court (mediation is pushed of course, free and with free legal counsel in Ontario at least, but if one person is unreasonable then it is off to court). A lot of family law here is self-represented because there are tables, formulas, and guidelines that have to be followed and deviating from them is exceptional. But that really only covers financial/property obligations when marriage is so much more than that. The is no framework, legal or otherwise, that will compel someone to be a kind and thoughtful partner.
posted by saucysault at 2:59 PM on April 19, 2018
LeRoienJaune: "To replace that with mere be-spoke contracts is to remove a great deal of clarity and equity from the developed corpus of law."
Please, for the love of God, can you and everyone else read the entirety of the article? This is not at all what the author proposes and she provides a lot of arguments against it herself.
posted by TypographicalError at 4:01 PM on April 19, 2018 [2 favorites]
Please, for the love of God, can you and everyone else read the entirety of the article? This is not at all what the author proposes and she provides a lot of arguments against it herself.
posted by TypographicalError at 4:01 PM on April 19, 2018 [2 favorites]
CCQ BOOK TWO, TITLE ONE seems to be a rather reasonable definition of marriage.
Anyone knows how it goes in Germany?
posted by Monday, stony Monday at 4:36 PM on April 19, 2018
Anyone knows how it goes in Germany?
posted by Monday, stony Monday at 4:36 PM on April 19, 2018
kyrademon: "(And by the way, who left John Brunner in charge of U.S. politics again? I swear, every time I turn around.)"
Hey now, Brunner was active in the Campaign for Nuclear Disarmament and a lefty all around, I believe.
posted by Chrysostom at 8:36 PM on April 19, 2018 [1 favorite]
Hey now, Brunner was active in the Campaign for Nuclear Disarmament and a lefty all around, I believe.
posted by Chrysostom at 8:36 PM on April 19, 2018 [1 favorite]
> "Hey now, Brunner was active in the Campaign for Nuclear Disarmament and a lefty all around, I believe."
(Oh, absolutely. I was referring to the eerie accuracy of his fictional predictions regarding exactly how the world was going to go to hell, not any desire to see it do so on his part.)
posted by kyrademon at 1:48 AM on April 20, 2018 [1 favorite]
(Oh, absolutely. I was referring to the eerie accuracy of his fictional predictions regarding exactly how the world was going to go to hell, not any desire to see it do so on his part.)
posted by kyrademon at 1:48 AM on April 20, 2018 [1 favorite]
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I fought for marriage equality on principle. But all I really want is for the government to ignore marriage. If people want private ceremonies that mean whatever the hell they want, great. But the government should have no interest in who anyone loves, especially financial interest. More articles like this, please.
posted by greermahoney at 12:41 AM on April 19, 2018 [14 favorites]