The case against marriage: The state should stay out of it.

An Anti-Gay Alabama Justice Wants to End Civil Marriage. Bring It!

An Anti-Gay Alabama Justice Wants to End Civil Marriage. Bring It!

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Outward
Expanding the LGBTQ Conversation
March 2 2015 4:35 PM

The Case Against Marriage

138959123-brides-hold-their-roses-during-a-group-valentines-day
Brides hold their roses during a group Valentine's Day wedding in West Palm Beach, Florida.

Photo by Joe Raedle/Getty Images

When my grandmother died, her downstairs tenant was forced to leave the home she’d lived in for decades. This was despite her having run countless errands, shared meals and leftovers, and provided company as well as a gentle, informal monitoring of my aging grandmother’s physical and mental condition for much of the time she’d lived there. Although special arrangements could have been made for this tenant in her will, my grandmother neglected to do so—her only bequests were to family members, such as her children and grandchildren. But, couldn’t this woman have been considered at least as much a part of my grandmother’s family as I was, a granddaughter who saw her two or three times a year, on holidays and her birthday?

Lindsey and Sarah are a celibate LGBT couple whose blog I follow. They live together and depend on each other in times of sickness and crisis, and they see their commitment to one another as lifelong, not temporary. However, their relationship is not a romantic one, and they do not consider marriage to be applicable to their partnership. But, even if they’re not married, couldn’t they still be thought of as a kind of family?

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In the three-ring circus that ensued as the same-sex marriage caravan rolled into Alabama, one of the more bizarre side shows has been the counties that have suspended marriage licenses for all couples in order to avoid issuing licenses to same-sex partners. One Alabama Supreme Court justice has suggested that all civil marriage should be abolished if the U.S. Supreme Court finds that the Constitution bars states from banning same-sex marriage. These fits of anti-marriage sentiment among conservatives have a whiff of the tantrum about them, a procedural taking-our-ball-and-going-home-ism more suited to fourth-graders on the playground than grown-up civil servants. But, what if we were to take these conservatives’ suggestion of doing away with civil marriage seriously?

In our culture, marriage is first and foremost about romantic love, not benefits, property, or tax law. We know this because we actively look down on people who marry for any reason other than love, calling these lesser unions “marriages of convenience” or even “sham marriages.” The law, on the other hand, sees marriage as basically a contract between two individuals. But unlike other contracts, marriage comes with a lot of special goodies from the state. These range from the incredibly minor perk of getting to fill out a joint customs form when returning to the country, to life-changing benefits like being able to obtain a green card or Social Security survivor benefits.* In this way, our laws place romantic love above all other connections to an absurd degree, privileging those of us who have been lucky enough to find a partner while punishing those without one. This makes no sense. Either a benefit should exist for everyone (like health care or financial security in old age), or it should be tied to practical concerns such as mutual dependency, merged finances, or providing stability for minor children. Love should be a private matter, and the state ought to stay out of it.

With the acceptance of same-sex marriages, our understanding of what legally constitutes a family was altered only slightly. Same-sex partnerships are an easy fit within a traditional framework of lifelong monogamous unions with the potential for child rearing—by making same-sex marriage legal, we are changing marriage just enough that the gender of the two participants ceases to matter. These marriages don’t challenge the centrality of romantic love to building a family, the requirement for monogamy in couples who have made a lifelong commitment, or the placement of a dyad at the heart of a nuclear family. Relationships that fall outside these parameters are neither sacralized nor celebrated in our culture, but is there any logical reason that should be the case? Why shouldn’t people in all sorts of nontraditional familial relationships have the sorts of recognition and legal protections marriage-centered families have, at least in cases where the participants wish to have them?

The range of relationships that could reasonably be called familial is very broad. It encompasses relationships that could be called conservative, such as the celibate LGBT bloggers, and ones on the far edge of liberalism, like polyamorous triads or quads. And then there are the people in the middle, like my grandmother and her middle-aged tenant, who might or might not wish to see themselves as family if the legal framework existed to allow it.

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The concept of marriage might be stretched to include some of these people, but inevitably there must come a point at which it is no longer applicable. In order to support the full spectrum of family-like arrangements that people create for themselves, we’d need a lot more flexibility in our definitions of family and in our mechanisms for protecting and encouraging lifelong bonds of commitment and mutual caring. If we did so, then it would no longer make sense to pick out one sort of relationship and privilege it above all others, and there would be no clear state interest in doing so.

If civil marriage were to be abolished, we could replace that moribund institution with a more personalized, a la carte menu of contractual rights and responsibilities. (Religious marriage would be left intact, of course. Houses of worship will always retain the freedom to perform traditional rites and to be as inclusive or exclusive about them as they choose—the free exercise of religion is enshrined in the First Amendment of the Constitution.) Something like a standard civil union arrangement would still be available for traditional couples, but two roommates could share property in common and serve as health care proxies for one another without taking on any additional rights or responsibilities if they didn’t wish to. A tenant could have the right to continue living in the space she had long rented without being responsible for funeral rites or having any claim to her landlord’s property. A polyamorous triad could share legal rights and responsibility for any children that came of their relationship without our having to go through a protracted political fight over whether marriage should be allowed for more than two people.

Of course, in many cases it is already possible to draw up such contracts, but doing so is complicated, time consuming, and is not generally included in our idea of building a family. While a system that traded the simplicity of civil marriage for an array of individualized family contracts might have been unworkably complex in the past, when everything had to be written down and filed somewhere, the vast resources of the Internet make creating and tracking a variety of customizable familial contracts far more feasible. And any legitimate state interest (such as encouraging parental cohabitation), could fit within such a framework at least as gracefully as it does in the current system, which grants options to romantic partnerships that are completely different from the ones available to people in lifelong cohabitational friendships, for no good reason.

In the current social and legal climate, the abolition of civil marriage in favor of mix-and-match civil contracts between individuals is likely to remain more a wild libertarian dream than a realistic possibility. But that doesn’t mean that it’s a bad idea, or even an impractical one. Marriage is an ancient institution. Perhaps one day we’ll leave it to religious organizations and make room for the state to recognize and protect all of the diverse arrangements that could be considered “family.”

*Correction, March 3, 2015: This piece originally misstated that marriage allowed spouses to inherit their deceased partner's Social Security benefits. 

Evan Urquhart is working to improve comments on Slate and is a regular contributor to Outward.