It does not really matter too much as made clear in this item but it does open the topic for an enlightened discussion. After saying that though is that the institution of marriage evolved to protect the interests of the biological family for the component individuals so much. The courts have found themselves forced to enforce this sometimes.
The change that must take place however is that in modernism the father needs to be formally identified as a matter of policy. From there financial responsibility can be assigned and also reassigned back to the best interests of the biological family. This means mandatory DNA recording on birth.
As usual someones ox will be gored. However, reckless behavior leading to unwanted pregnancies and run away dads merely tosses a statuary yoke on the runaway dad. That is just a starter. as the consequences become understood we will soon see alterations in social behavior.
Right now our system allows a third of the male population to vacate most of their obligations and to throw them onto the backs of the rest of the taxpaying public. Government needs to do this in order to insist on responsibility.
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On Privatizing Marriage
No, Matrimony Is Not Irreducibly Public
Tuesday, August 25 2015
Marriage is society’s primary institutional arrangement that defines parenthood.
–Jennifer Roback Morse
–Jennifer Roback Morse
The idea of marriage privatization is picking up steam. And it makes strange bedfellows.
There are old-school gay activists suspicious that state marriage is a
way for politicians to socially engineer the family through the tax
code. There are religious conservatives who are upset that a state
institution seems to violate their sacred values. Don’t forget the
libertarians for whom “privatize it” is more a reflex than a product of
reflection.
But they all agree: it would be a good idea to get the government out
of the marriage business. Principle, it turns out, is pragmatic.
First, let’s disentangle two meanings for one word that easily get confused. When we say “marriage,” we might be referring to:
A. a commitment a couple enters into as a rite or acknowledgment within a religious institution or community group (private); or
B. a legal relationship that two people enter into, which the state currently licenses (public).
Now, the questions that follow are: Does the government need to be involved in A? The near-universal answer in the United States is no. But does the government need to be as involved as it is in B? Here’s where the debate gets going.
I think the government can and should get out of B, and everyone will be better for it. This is what I mean by marriage privatization.
Some argue that marriage is “irreducibly public.” For Jennifer Roback Morse, it has to do with the fate of children and families. For Shikha Dalmia,
it has to do with the specter of increased government involvement, a
reinflamed culture war, and a curious concern about religious
institutions creating their own marriage laws.
First, let’s consider the issue of children. According to Unmarried.org:
- 39.7 percent of all births are to unmarried women (Centers for Disease Control, 2007).
- Nearly 40 percent of heterosexual, unmarried American households include children (Child Protective Services, 2007).
- 41 percent of first births by unmarried women are to cohabiting partners (Larry Bumpass and Hsien-Hen Lu, 2000).
Does the law leave provisions for the children of the unmarried? Of
course. So while state marriage might add some special sauce to your tax
bill or to your benefits package, family court and family codes aren’t
likely to go anywhere, whatever we do with marriage. This is not a
sociological argument about whether children have statistically better
life prospects when they are brought up by two married parents. Nor is
it a question about gender, sexuality, and parental roles. It’s simply a
response to the idea that marriage is “irreducibly public” due to
having children. It is not. (I’ll pass over the problem for this
argument that some married couples never have children.)
Dalmia is also concerned that “true privatization would require more
than just getting the government out of the marriage licensing and
registration business. It would mean giving communities the authority to
write their own marriage rules and enforce them on couples.”
It’s true. Couples, as a part of free religious association, might
have to accept some definition of marriage as a condition of membership
in a religious community. But, writes Dalmia, “This would mean letting
Mormon marriages be governed by the Church of the Latter Day Saints
codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and
gays by their own church or non-religious equivalent.” And all of this
is could be true up to a point.
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But Dalmia overstates the case. Presumably, no religious organization
would be able to set up codes that run counter to the civil and
criminal laws in some jurisdiction. So if it were part of the Koranic
sharia code to beat your wife for failure to wear the hijab at Costco,
that rule would run afoul of laws against spousal abuse. Mormon codes
might sanction polygamy, but the state might have other ideas. So again,
it’s not clear what sort of magical protection state marriage conjures.
What about Dalmia’s concern that in the absence of state marriage,
“every aspect of a couple’s relationship would have to be contractually
worked out from scratch in advance”? Never mind that some people would
see being able to work out the details of a contract governing their
lives as a good thing (for one, it might prevent ugly divorce
proceedings). There is no reason to think that all the functions normal,
unmarried couples with children and property have in terms of recourse
to “default” law would not still be available. Not only would simple
legal templates for private marriage emerge, but states could establish default civil unions in the absence of couples pursuing private alternatives.
There is no reason to think that all the
functions normal, unmarried couples with children and property have in
terms of recourse to “default” law would not still be available.
Indeed, if people did not like some default option — as they might
not now — there would be better incentives for couples to anticipate the
eventualities of marital life. People would have to settle questions
involving cohabitation, property, and children just as they do for
retirement and for death. Millions of gay couples had to do this prior
to the Supreme Court’s ruling on marriage equality. Millions of
unmarried couples do it today. The difference is that there would be a
set of private marriage choices in a layer atop the default, just as people may opt for private arbitration in lieu of government courts.
In the debates leading up to marriage equality, an eminently sensible
proposal had been that even if you don’t like the idea of hammering out
a detailed contract with your spouse-to-be, simply changing the name of
the entire statutory regime to “civil unions” would have gone a long
way toward putting the whole gay-marriage debate to bed. The
conservatives would have been able to say that, in terms of their sacred
traditions and cultural community (as in A), “marriage” is
between one man and one woman. Gay couples would have to find a church
or institution that would marry them under A. But everybody would have some equal legal provision under the law to get all the benefits that accrue to people under B. You’d just have to call it a “civil union.”
And that’s fine as far as it goes.
But I like full privatization because “marriage” is currently a crazy
quilt of special privileges and goodies that everybody wants access to —
unmarried people be damned. But marriage should confer neither special
favors nor goodies from the state. We can quibble about who is to be at
the bedside of a dying loved one. Beyond that, marriage (under
definition B) is mostly about equal access to government-granted privileges.
Not only does the idea that marriage is irreducibly public represent a
failure of imagination with respect to robust common law, it also
resembles arguments made against privatization in other areas, such as
currency, education, and health care. Just because we can’t always
envision it doesn’t make it impossible
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