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LQD - Privatizing Marriage

by the stormy present Mon Nov 26th, 2007 at 04:28:48 AM EST

NY Times op-ed: Taking Marriage Private

WHY do people -- gay or straight -- need the state's permission to marry? For most of Western history, they didn't, because marriage was a private contract between two families. The parents' agreement to the match, not the approval of church or state, was what confirmed its validity.

Hmmm.  Good question.  

Let's think about it -- the right wing marketistas want privatization of everything, right?   Well, not really. Turns out less regulation of business is good, but more regulation of personal lives.

I have some personal issues with this whole idea that we have to be married anyway. What difference does a piece of paper make?

But that's been the way it's done. Come on, you know the old song by Mr. Fourth-Time's-the-Charm, right?

Love and Marriage
Love and marriage
Go together like a horse and carriage
This I'll tell you, brother
You can't have one without the other....

Truth is, for most of history even in the so-called "West," marriage was a contract, a matter of convenience and utility, not a matter of love anyway.  This was true even for my own grandparents.  It's still true for many people in most of the world, including where I now live.

Back to the NYT:

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.

Well, why on Earth would they do that?

Oh yeah...

By the 1920s, 38 states prohibited whites from marrying blacks, "mulattos," Japanese, Chinese, Indians, "Mongolians," "Malays" or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a "mental defect." Eighteen states set barriers to remarriage after divorce.

In the mid-20th century, governments began to get out of the business of deciding which couples were "fit" to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners.

Of course!  To keep all those brown people from contaminating their oh-so-pure "white" bloodlines.  Nothing inspires the Right into legislation better than naked racism.

At the same time, the state started using marriage "as a way of distributing resources to dependents," to prove who has a "right" to what.

In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare.

Today, however, possession of a marriage license tells us little about people's interpersonal responsibilities.

Even in the conservative USA, many private companies already realize this, and provide health insurance to "domestic partners."

Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep -- who gets hospital visitation rights, family leave, health care and survivor's benefits. This may serve the purpose of some moralists. But it doesn't serve the public interest of helping individuals meet their care-giving commitments.

Perhaps it's time to revert to a much older marital tradition. Let churches decide which marriages they deem "licit." But let couples -- gay or straight -- decide if they want the legal protections and obligations of a committed relationship.

A fine idea, as far as I'm concerned, but somehow I don't envision the moralizing right-wingers -- for all their rhetoric about individual responsibility and reducing the "burden" of the State -- buying into the idea that who we choose to share our lives (and benefits) with is just nobody's business but our own.

And you thought we only did criticism of privatization here....
by the stormy present (stormypresent aaaaaaat gmail etc) on Mon Nov 26th, 2007 at 04:33:12 AM EST
Good diary.
by Metatone (metatone [a|t] gmail (dot) com) on Mon Nov 26th, 2007 at 05:00:54 AM EST
[ Parent ]
Exellent diary stormy!

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Mon Nov 26th, 2007 at 05:44:08 AM EST
[ Parent ]
Truth is no one is forced to be married (in "Western" sociities anyway).  So why complain?  I have friends who were married for years, divorced, lived separately, moved back in together for years and finally remarried again, all with the same person.

I also have know of quite a few women (and men for that matter) in their 20s and 30s who lived with men for years and then got dumped, once twice, three times (total basket cases after each instance - you know what I mean).  One lady I know lived with the same bum for 10 years, had his children and then separated.  He sued her for "his" share of the house she bought and won.  Yes, mistakes were made, but it goes on and on.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Tue Nov 27th, 2007 at 03:31:03 PM EST
[ Parent ]
I think that what this gets down to is the existence of "civil partnerships" as economic units, and the extension of that unit to provide some form of protection to the little subsidiaries very often created by the parent - to use the corporate analogy prompted by the use of the word "privatize".

Again (boring isn't it?) this is a subject addressable by what I call an "Open" Corporate entity, such as the new UK LLP.

It is quite possible for a couple, when they agree to "shack up" together - and whether they get formally married or not - to form an LLP (rather than a "pre-nup" or similar) for the purpose and to agree between each other what each of them will put into it, and what happens if it all goes "pear-shaped".

Moreover, it is quite possible to extend such an LLP to include children (requires a "trustee" arrangement) and essentially both to make the greater part of "Wills" redundant, and to do so in a pretty tax efficient way.

I know a guy who heard me outline this possibility who went out and formed an LLP with his wife the next day (cost him £20.00).

The point is not the "limitation of liability" aspect (which is problematic IMHO since it is a privilege given by society with nothing in return), but the fact that it is an "Open Corporate" entity which essentially allows the partnership as an "economic unit" to be encapsulated consensually, simply and elegantly.

I see this as a non-toxic "privatisation" of marriage.

"The future is already here -- it's just not very evenly distributed" William Gibson

by ChrisCook (cojockathotmaildotcom) on Mon Nov 26th, 2007 at 05:48:15 AM EST
An Islamic marriage contract is essentially what you describe.  Although most couples keep them very simple, they can if desired be quite detailed regarding the responsibilities of both parties and the circumstances surrounding divorce.
by the stormy present (stormypresent aaaaaaat gmail etc) on Mon Nov 26th, 2007 at 07:00:00 AM EST
[ Parent ]
Hmmm.  This is interesting.  And sad:  DM Shiite seeks VGL SF for love.
by the stormy present (stormypresent aaaaaaat gmail etc) on Mon Nov 26th, 2007 at 08:08:10 AM EST
Here in the Netherlands (and probably in many other with other countries), there is the 'registered partnership' regulation. If you live together with someone, and you register your partnership, for almost any legal purpose you are married. Isn't that exactly the 'privatised marriage' the NY Times seems to want?
Of course, the symbolism of marriage is still important for people, especially religious and gay people, but for the rest marriage seems to be losing its importance.
by GreatZamfir on Mon Nov 26th, 2007 at 09:34:54 AM EST
It could be.  Are there rules about who may register such a partnership?
by the stormy present (stormypresent aaaaaaat gmail etc) on Mon Nov 26th, 2007 at 09:48:37 AM EST
[ Parent ]

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