I received a comment on my old article on resolving the gay marriage debate and it raised some interesting ideas, so I figured I would address it in somewhat greater detail. For those who have not read my original essay, basically I suggested eliminating any civil recognition of marriage. Marriage would be a purely religious event, and the rights now conferred by marriage would be handled by contract. This would mean straight, gay, polyandrist, polygynist, everyone could form the groupings they liked with none having any more rights than the others. Each member would be bound by contracts under the law, and that would be it. No legal status of marriage at all.

Now, the first objection was that the state would still have to recognize the contract which would amount to the state recognizing gay marriage. But i think this misses the point. There would not be a "marriage contract" for the state to recognize. There would be a number of innocuous contracts, the power of attorney, an agreement to assume the other's debts, an agreement to share assets, and so on. Each would be a legal contract which could be entered into by anyone, so the fact that two people have granted power of attorney to one another does not mean they are married, it could be father and son, brothers, a gay couple, an attorney and his client, anything. So, the state would not be recognizing gay marriage, they would simply be accepting the right of two people to contract.

Now, there are two issues I need to address related to this.

First, while I did not specifically address this in my original essay, to exactly duplicate marriage, the laws of contract would need to be modified. For example, right now there is not an easy way to agree to grant shared parental rights and custody to another individual over any children one would bear. To emulate marriage, this right would have to open to contractual assignment. There are probably other marital rights which ar enot easily created through contract, but I am sure a combination of small legal changes and creativity with contracts could overcome this.

Second, there would probably arise standard "marriage contracts", which would assign all of these rights at once. It is probably the mention of this in my original essay which caused the objection. However, though these contracts would be packaged together, it would still not constitute a "legal marriage", and observing these contracts would not be "recognizing marriage". The state would have no legal category of "marriage", it would simply be recognizing the right of individuals to enter into a power of attorney agreement or to indemnify one another's debts, and so on. Even if bundled together, still the state would simply be recognizing the right of contract. But, if bundling them into one contract upsets enough people, then I am sure lawyers can continue to have them signed one by one so as to avoid the appearance of embracing gay marriage. It really makes no difference, but if people will object strenuously to "marriage contracts", then I will propose that each right must be granted individually.

Now, the other objections raised were about the way the government handles married couples. To which my response is that, as the legal concept of marriage has been removed, the state will not deal with "married couples" at all. Drastic changes always produce changes in the alw, and this would be no exception. As, after 1865 the law had to change to remove any reference to the concept of slavery or recognition of the right of property in another human, the law would ahve to evolve int his case to remove any reference to marriage.

As far as the specific objections are concerned, I will now deal with each briefly.

First, taxation. I am personally convinced that individual income taxes should not exist, but as long as we have them, I suppose the state will have to figure out how to assess taxes without reference to marriage. I did mention this briefly in my original essay, but will go into a bit more detail here. The easiest solution woud be to assess taxes always against the individual, rather than against couples, families, etc. If that route is followed, either the state will have to eliminate the idea of dependent deductions, force any family group to assign those deductions to one individual, allow anyone having parental rights by contract (as mentioned above) to claim the full deduction, or legally recognize some sort of deduction sharing scheme. All are viable, and all have arguments for or against. I won't go into more detail now, but the point is, eliminating marriage would simply mean the tax code would change, not that the state would somehow recognize gay marriages, as no concept of marriage would exist in the law at all.

Another complaint was about social security. I would hope that the elimination of marriage would act as a catalyst. Without any sort of widow benefits, maybe the federal government would finally move toward some sort of assignable ownership right in social security, rather than the thinly disguised welfare scheme we have now. If not, well then it would be a shame, but spouses would have no claim. It is unfair, in a way, but no more unfair than many features of social security.

Has anyone else noticed the pattern evolving with this list? The problems mostly arise when the government is involved in matters outside its proper scope. Social security, income taxation, targeted deductions, death taxes all of those are areas where the government should not involve itself. If the government did not extend its reach into so many aspects of life, then it would produce few of these conflicts.

On the other hand, the poster also mentioned one area which does not fit his stated objection. While he complains about spending tax money on gay couples, he also object to "inheritance". As I am assuming he does not think some gay couple will inherit his tax money, I think here he is objecting that when a member of a gay couple dies intestate the partner may inherit, and that would constitute a recognition of gay marriage.

Well, there are two approaches to this, and neither represents a legal recognition of gay marriage. One is to adopt a strict set of rules: If someone dies intestate, then only a blood relative can inherit. That would obviously exclude spouses, gay or straight, but would be consistent with not legally recognizing marriage.

The other alternative would be to approach probate court as a means of distributing assets as the deceased would were he to have drawn up a will. In this case gay or straight spouses may end up inheriting, but so might gay or straight partners to whom one was not married. It would also not represent a recognition of gay marriage, only a recognition that an individual would have wanted their assets to go to this or that individual.

Of course, all this assumes that, while signing all the contract establishing the marriage agreement, they fail to establish even a minimal will. Since couples will already be signing so many contracts, that seems unlikely.

Then again, I am not as concerned as the commenter about the government recognizing that an individual would have wanted their assets to go to their gay partner, and would have said so had they drawn up a will. It does not mean the state is recognizing gay marriage, only that it is recognizing that the wishes of a single individual. It costs no one anything, and, as the purpose of probate is to assign the decedent's goods as he would have wanted, I see no problem with the outcome.

In short, I just don't see where this violates any conservative principles. Unless one adopts the most extreme social conservative position, that the law must expressly forbid anything immoral, I do not see why it would be objectionable. It would require changes in seemingly unrelated areas of law, all drastic alterations do. But there would be no legal recognition of gay marriage, as there would be no recognition of marriage at all. Yes, that would require us to rethink some other rules, but I think, in the long run, marriage should be a private matter, not under the control of the state. As so much else in which government meddles, I think it would be much better managed through the private law of contract than through the public law.

POSTSCRIPT

Obviously, due to all the changes required, I don't expect to see my proposal enacted any time soon. If we can't trust an individual to even save for their own retirement, forcing them into the Social Security system, how cna we trust them to manage their own marital affairs? If can't decide what size car to drive without the regulators telling us and fining those that are too big or too inefficient, how can we be trusted to decide what rights we wish to assign to our spouse? It is the way of our present age, all matters are subject first to state review, and only afterward to private decision. We live in an over regulated age.
 
In fact, even the objection raised shows a hint of this mindset. The writer was more concerned with whether or not the government would be recognizing something bad than whether the state should be recognizing anything at all. I don't know about the commenter, but it troubles me far more that the state is involved where it should not be than that the state might recognize something I find objectionable.

But even if it is unlikely in the foreseeable future, it may still be worthwhile to continue making my case, if only to cause another person to question whether areas traditionally thought of as government matters might not be better handled as private affairs.

UPDATED 05/02/2008

I have thought about this more, and I think perhaps I dismissed the original complaint more quickly than I should have.

I suppose in some matters, the state will have to take notice of the arrangements individuals make between them. Not just people who die intestate, but in issues of child custody, there may be times when the courts would have to take notice of the fact that X and Y presented themselves as married.

Now, I could point out that this is not the state "recognizing" that marriage, as marriage would have no legal status, but would instead by the court recognizing that X and Y had presented themselves that way. However, I have a feeling that even that minimal recognition would be offensive to some who rankle at any state recognition of gay marriage at all.

So, I guess I have to come clean and say, I just don't worry that much about it. If the state is no longer defining marriage, and each religion is free to marry or not marry as it sees fit, the fact that the state would take legal recognition during inheritance proceedings that X was involve din a gay marriage with Y does not trouble me. The state is not forcing anyone to recognize the marriage, it is simply saying "In the mind of X he was married to Y, so if he were to direct his own inheritance, it would go to Y". The same for child custody.

I am sure I now have worked up a number of people by not only suggesting that the state could take notice of someone's declaration of being in a gay marriage, but I just can't see how that will in any way harm society. The only cases in which it would matter are cases directing assets belonging to an individual, or deciding who they would want to have custody of their child. Even under today's laws, such factors can be given notice, so nothing would change.

As I said elsewhere, sometimes I think that those professing to be conservatives are actually more akin tot he left wing's authoritarians than real conservatives. They may be pushing Christian social engineering rather than socialist social engineering, but they seem to have as little understanding of liberty. If X is gay, and he dies intestate, and his good go to his lover Y, it does no one harm. And even if goes there because he professes to be married to Y, it doe snot harm the fabric of society.

Now, I will admit that the methods adopted by the gay rights movement, the confrontational style and the attempts to legislate through the courts do not make me happy, and I know some of the rancor is a reaction to these tactics, but I still just can't see how removing marriage from the state, but allowing it to be recognized as a factor in decisions in courts of equity, would be a moral wrong. But I am sure some will claim that it makes me less of a conservative that I find no problem there.