Aug 02

To Marry or Not to Marry

In Brief—A discussion of the recent Supreme Court decision on same–sex marriage, the opposition, contract law, the right to remain unmarried and some personal philosophy on the subject. It’s serious but definitely not boring.

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The Inequality of Marriage—

Should people of the same sex have the same right as two heterosexual people to marry? Should those who choose to live together in a committed relationship free of marriage have the same benefits and responsibilities as those who marry? Should marriage/no marriage be governed by contract law alone or should religion be a necessary part of the union? These are a few of the questions that arise out of the issue.

Signing a Contract

Signing a Contract

A contract is generally defined as an agreement having a lawful object entered into voluntarily by two or more parties who have the capacity to enter into an agreement with the intent to create one or more legal obligations between them.

Marriage is considered to be a contract. It can be a simple, basic agreement by two people or it can set forth matters that bind the parties to certain actions including a period of time, whether children are contemplated, disposal and management of money, division of labor and others.

Lara Lillibridge wrote a good article on marriage as a contract in the Huffington Post in late 2013. I recommend you read it. It’s not long. CLICK on the highlighted area to do so.

The parties to the contract determine its content. Its purpose is to get the parties to consider the long-term consequences rather than just acting on raging hormones…although that will often be the case. The definition of a contract puts to rest the opponents’ ridiculous claim that the door is open for people to marry Elsie, the cow, or Rover, their dog. Aw, come on!

Same-Sex Marriage Wins One—

In June, the Supreme Court ruled 5 to 4 that marriage is open to all Americans regardless of sex. That ruling is long overdue and should have been unanimous. The conservative dissenters still cling to outworn tradition.

Science has for years recognized that all humans fall somewhere on a spectrum of sexual identity. Only a few are wholly one sex or the other. The majority of us fall somewhere in the middle of the spectrum. Naturally, there will be opposition based on tradition just as there was (and still is) opposition to humans of different skin colors marrying. That holding was long overdue, too.

It’s past time for us to drop the designation of ”gay” and recognize that all humans fall somewhere on that sexual spectrum. Let’s move on. Sure, there will be opposition by the ignorant, but their opposition doesn’t hold water… except to the conservatives on the Supreme Court.

Supreme Court Justice Kennedy, who wrote the opinion making same-sex marriage a fundamental constitutional right, wrote paeans to marriage. Great! It’s about time that all Americans can love and marry whom they want…but what about those who choose not to marry?

Civil Partnerships Draw the Short Straw—

Justice

Justice

A substantial number of Americans have what is commonly called a Civil Partnership. Put more clearly, they have chosen to live in a close relationship that is not sanctioned by the state. They must pay higher taxes, they usually can’t legally adopt a child, they may not even get to visit their sick partner in the hospital. There are numerous really serious rights that they are denied that are routinely granted to married couples. The partial answer is to have a signed contract or even a will. Get that: a will!

The injustice is obvious. What must now be done is to grant those Americans in a Civil Partnership the same rights—ALL the same rights—that are granted to married couples. Their relationship deserves the same praise and recognition Justice Kennedy lavished on marriage.

Now here’s the catch that needs to be addressed. Since marriage is a contract that is duly registered in a government office, those Americans in Civil Partnerships must also have a valid contract between the parties that is registered in a government office. If it is, then the parties will have precisely the same contractual rights and duties that a married couple has. If they do not have such a contract, then the parties must expect to face discrimination.

Face it, governments are what civilized societies have put in place to regulate human affairs. If some members of that society choose to ignore (or forget) the rules, then there is a cost to be paid. They have a choice: a contract registered with the government or no contract. All legal contracts, like that of marriage, should be registered and have the force of the government behind them.

Of course, contracts are often broken. In the marriage contract, the breach results in divorce. There are money problems, infidelity, boredom, abuse, children and so on, but damages of one sort or another are assessed. That’s why both marriage and Civil Partnerships require a signed contract. At least the parties to the contract may appreciate the realities of ”permanence.” They’ll look before they leap.

Take Action—

I implore those who are unmarried but feel they’re in a permanent relationship to at least have a will that expresses how they want their property to be distributed. Age does’t matter.

Assuming that all sane Americans expect to be treated equally, it’s time to treat Civil Partnerships in the same way as marriage is treated. Justice Kennedy’s words must apply to Civil Partnerships as well as marriage. Contact your representative today and tell your young friends to make this happen!

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  1. Marilyn and I had been in marriages lasting 28 and 27 years respectively. A few years after those marriages ended, fate brought us together, and for the last 10 years we have been exclusively DATING. We have made a conscious decision NOT to cohabitate, not to marry, but rather to be faithful, exclusive, and committed, yet live separately.
    Marriage didn’t seem like an appealing course of action to us. We have each had and raised our children, acquired our homes, built our wealth, and found a certain level of comfort in our “singleness”.
    So, why marry? Why take a chance on ruining what has proven to be an exciting and rewarding relationship. Perpetually dating seems to work for us, and aren’t you on your best behavior when you’re dating?
    Since we live apart and value our alone time, there seems to be more meaning when we do get together to travel, hike, go to the theater, dine, or socialize with friends. We also never bicker about how we squeeze the toothpaste, leave socks laying around, let the dishes stack up, or flick through the TV channels.
    When people assume that we are married…and they often do, we don’t generally correct them. We don’t feel the need to define our relationship to others.
    However, it is very important to define marriages and cohabiting partnerships legally as you suggest, Don. The recent Supreme Court ruling finally does that in the details that now allow same sex marriages and I’m in full agreement that legal recognition of civil unions is overdue. Civil partners need to be protected as well. Let’s face it, there is no more a guarantee that married people will remain so any more than those who choose to mingle their assets and lives by living together without a marriage certificate. But they may be no less invested in that union…both monetarily and emotionally. They deserve to be protected.

      • Don Bay on August 3, 2015 at 10:02
        Author

      You have described the reason America needs to apply rationality and equality to the law. As it is now, only matrimony confers full benefits to the partners, leaving unmarried committed partners out in the cold.

      In his comment, Jim describes the rational way British Columbia has resolved the issue. America should adopt the same approach, but I’m not confident that America will become rational enough to give all committed relationships an equal right to all the benefits now enjoyed by married couples.

      In the meantime, I recommend that committed partners write wills that make clear how the various properties are to be distributed. Write agreements that compel others to honor your wishes. A qualified lawyer familiar with wills and trusts is recommended. The sooner, the better.

      And good luck with the happy relationship you and Marilyn enjoy. May it last a lifetime.

  2. A new legal definition of “spouse” came into effect in British Columbia in 2012 meaning that common-law couples that have lived together for two years have the same rights and responsibilities as married couples.

    Under the act, a spousal relationship begins either the day a couple is married, or on the day they move in together — whichever comes first. And once an unmarried couple spends two years living together, it’s a done deal.

    While I recognize that this law doesn’t apply in the US and applies differently across Canada, it seems to me to be the obvious solution. And common law couples can be same-sex, same -sex being legal marriages (or in this case common law relationship) across Canada.

    Why does everything have to be so difficult in the US?

      • Don Bay on August 3, 2015 at 09:36
        Author

      Sounds like British Columbia has answered the problem that still exists in the U.S. Whether the British Columbia solution applies to the other Canadian provinces remains uncertain, but your sense is that some sort of analogy applies. I hope so.

      America is ruled in large part by the irrational Christian view that only matrimony confers full rights to all benefits. Fingers crossed that this situation will soon be a remnant of the past, but I recommend that we not hold our breaths waiting for rationality to arrive in the U.S.

    • Don Bay on June 6, 2016 at 10:21
      Author

    This is a good summation of the law and my view.

  1. […] As I have stated before, marriage is simply a contract. This being the case and as long as the marriage contract is registered with the government entity, the signers of the contract must be free to solemnize it religiously. Should a serious rupture occur, the contract can be dissolved using simple contract procedures. […]

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