Taking Marriage Private






By STEPHANIE COONTZ
Published: November 26, 2007
Olympia, Wash.
John Korpics




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.
For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.
In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.
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.
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.
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.
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. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.
Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.
As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.
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.


Stephanie Coontz, a professor of history at Evergreen State College, is the author of “Marriage, a History: How Love Conquered Marriage.”

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http://www.nytimes.com/2007/11/26/opinion/26coontz.html?_r=1&oref=slogin

It's funny how people can reach back to all kinds of "marriages" throughout history..
But it's very rare that anyone can come up with a time where there was every widespread recognition of the same sex union as the SAME as the HETEROSEXUAL one. It's NOT the same thing, and should not be considered as such.

If we as a collective human species have agreed that homosexuality was wrong for all of modern history until the last decade or so, it's a shame some of our "leaders" are regressing so quickly.

Well i think the case is strong. There is no reason to legislate the right to call one self "married". The only reason ever provided is the morality of it. Morality is entirely subjective and cannot be used as a justification for any legislation.

On the other hand i have yet to see ANY sort of evidence that allowing gay couples to call their co-habitation "marriage" ( with ensuing legal rights and obligations ) will result in the destruction of the state and or of the institution of marriage.

It is every individual's right to choose what they believe, who they partner with, who they sleep with and who they live out their lives with. It is also their right to call it whatever they wish and it is their inalienable right to wish the same legal safeguards ( and obligations) that heterosexual couples have.

In any case this particular article speaks of how marriage went from being totally unlegislated to being a legislative tool to keep a record of who deserves what. Since the marital status of a person often doesn't reflect the exact relationship he/she has with dependents it may be time to move on from that.

IN ANY CASE there seems to be no reason to exclude gays from this framework other than antipathy to homosexuality.

Or we can rightfully conclude that the homosexual union is a different entity than the heterosexual one and just call it a "civil union" like most other countries that recognize it do.

Very well said..........I have been saying that all along but I guess that I didn't put it in the right words. My partner and I married in Ca. last yr and live in Scotland now as civil partners.We have the same rights here as a married couple and the civil partnership is not just for same-sex couples.Any persons can apply for it. As for me I really don't care what it is called as long as we have the same rights as any couple.Now we can fill secure that if something happens to the other that the one left behind will be taken care of,just like a hetero couple would.
Being from the U.S. I fill that if they would follow the plan of the U.K. all of this would be excepted by americans more so than pushing for "marriage". The problem I see is that most of americans don't even know what the U.K. plan is becouse the U.S. Gov doesn't want them to know.If the Gov keeps the marriage issue in the spot light it makes us look like we are trying to steal
something that they hold sacrite, and suits there agenda to keep gays from the rights they should have.

I disagree, all any politician will have to do is bring up the case in New Jersey or Vermont where they have civil unions and the "homosexual activists"(the ones from the other thread no doubt) are pushing for full marriage. It's stuff like that that makes me proud that my state passed an amendment banning anything, because if civil unions won't solve the issue, then I'll just as well grant nothing to save the aggravation.

Yeah i don't get why it's so damn important to officially assign the WORD "marriage" to this union.

All marriages ARE civil unions. Now if what you propose is that the civil unions of homosexuals affords THE EXACT SAME RIGHTS as "regular" marriages, then there would not be much to complain about.

However i'm guessing that gay rights activists are more concerned with civil rights than with what word will be used to describe the union. Of course their concern is fair, since not all states allow civil unions OR afford equal rights to homosexual relationships.

A homosexual union is only different in terms of the gender of the couple. That should not exclude them from the legal rights and obligations that ANY relationship brings with it.

That's quite a flippant way to belittle the differences between the genders and how they relate to "marriage".

That's like saying, the only difference is the age, number of participants, or species. I think gender and the uniquely procreative potential of the union deserves much more respect than that.

Well you are also assuming that a heterosexual union is follows certain "standards". It doesn;t. Every union is in itself unique, regardless of whether it's a homo-or heterosexual union.

TO say that heterosexual unions are more "special" is purely a value judgement based on your preference for them. Fact is that a sizeable homosexual community find the homosexual union to be more "special". Is it fair that YOUR right to call it special should be codified by LAW whereas homosexuals aren't afforded that right.

It is every man and woman's choice what they consider to be "special". No legislation should infringe uponthat right. It would essentially be like having your constitution say that Islam is OK but Christianity is BETTER.