copyright © 2001, 2004, 2006 Scott Owen

Two Kinds of Marriage

Why all the commotion surrounding extending marriage to include same-sex couples?
Perhaps it’s because we’re not all talking about the same thing.

There are, in fact, two kinds of marriage, namely the civil marriage contract, and the religious rite of marriage. I believe it is the confusion of the two types of marriage, which is as the root of all the commotion surrounding opening marriage to include same-sex couples (especially in countries where the distinction between the two kinds of marriage is unclear).

In a true liberal democracy, there should be a clear division between church and state. The state mustn’t dictate which god to praise, and neither should any church dictate the civil laws. Yet, with the two kinds of marriage being confused, many people feel it necessary to impose their religious views, through civil law, on people with other views: they want to determine who may enter into the civil contract, based on who they believe may take part in a religious rite. Marriage is unique in this way. After all, whoever heard of a civil bar mitzvah or a civil baptism?

Some people need the officiality of marriage to draw a line and remain monogamous, like those who need New Year’s Day for their resolutions.  For some, it’s a status-symbol, an achievement, an accessory. For others, it’s a public statement, a communal declaration of love and dedication. It’s also a tradition, and traditions connect us to a larger whole – a ‘meta-community’ – that of past and future, of ancestors and descendents. But none of these reasons require the state’s involvement: they belong to the realm of the religious (or ‘beliefs-based’) rite of marriage.

The other reasons for marriage are its legal implications, bestowing rights and privileges not just to the partners with respect to each other, but also with respect to the state. Rights and privileges relating to next-of-kin issues, taxation benefits, pension-plans, adoption, inheritance, immigration and so on. These reasons belong to the realm of the civil marriage contract.

Separation of Church and State

Imagine the Possibilities – for both Religious Communities and Civil Law – of decoupling the religious rite of marriage from the civil marriage contract.

Religious communities would (or, rather, should) no longer feel threatened that the state is dictating to them what their religious views and rites should or should not include; and civil law could be adjusted to better fit the realities and acknowledged diversities of modern society.

Indeed, the secular state should not be involved in the religious rite of marriage, and religious leaders should not be involved in the administration of the legal contract of marriage. Having them intertwined only adds to the confusion of the two kinds of marriage, and makes the lines between church and state unclear.

The Netherlands has such a model, whereby: 1) The state is the sole providor of the civil marriage contract/certificate. If you wish to be married before the law, then you enter into the contract with the body which makes that law, namely the state; and 2) If you wish to have the marriage rite performed within a community (religious or otherwise), then you are free to do so. A religious body is under no obligation to recognise the religious validity of the civil marriage, and the civil marriage does not require religious sanc(tifica)tion; the religous body does not have the power to issue civil marriage contracts/certificates, and a religious rite of marriage has no legal significance.

Furthermore, I believe it would be a great deal easier to break the deadlock, if the one word, “marriage”, were not used for both concepts. The term “marriage” in civil law could dropped entirely – even for heterosexual couples – and replaced with the term “civil union”, which would encompass the entire (legal) notion of civil marriage, yet clearly separate it from the rite of marriage. Obviously couples could (and should, if they wish) still say they are married, but for those religious communities for whom the term “marriage” is strictly defined, they would be able to determine among themselves, who they recognise as being (religiously) married.

Majority Rules

One of the solemn duties of parliament is to protect the rights of minorities from the whims and prejudices of the majority. This is the main reason I believe direct democracy to be one of the greatest threats to liberty. Parliament has the duty to “know better”, to be the better informed and more involved than the general public has the time or inclination to do. To have such an institution as parliament, which then only rules on the non-contentious matters, throwing the really controvertial issues back to the public to rule on by majority, is scandalous.

And yet, unfortunately, I have observed over the past several years, how many governments have been shirking this duty with respect to marriage. Instead of clearly defining the issue, and being bold and daring enough to enact laws which are objective and non-discriminatory, many governments push the issue out to a referendum, in order to “let the people decide”. Could you imagine putting slavery to a referendum? Could you imagine putting women’s rights to a referendum among the Taliban?

Civil Union

Society as a whole benefits from stable relationships, which is perhaps the main reason today that the state supports marriage with certain rights, privileges and responsibilities. If one accepts this, then why should the state, in the form of civil law, not want to support various forms of stable, supportive relationships, in the same way? Why should the state – which should be representing and protecting all of us, irrespective of creed – only support those relationships which are sanctioned by some religious leaders, and exclude other forms of stable, supportive relationships?

Obviously the origins of (the legal aspects of) marriage are to be found in families and communities safeguarding their lineage, property and trade. But this legal ‘marriage-model’ no longer corresponds well to the forms relationships take or the modern scale and structure of society, nor do the rights and privileges selectively granted by the state have much of a sense of equality and fairness associated with them any more. Nowadays, marriage (between a man and a woman, mind you) and families are referred to as “the cornerstones of society,” and in an ironic, cynical twist have been manipulated by the right-wing into a model of exclusion and moral judgement, rather than inclusion and safety.

It’s understandable that one should be able to designate another as being of such a significance in their life that they choose to be together, to care for each other, that what each has belongs to both, and that they trust each other with their lives. This should be the essence of the legal aspects of civil union, and it shouldn’t be limited to a ‘morality-laden’, rather antiquated sense of permissible relationships, namely one man and one woman, or even one man and one man for that matter. Civil marriage, as it now stands, is too limited for how many people actually live nowadays; it doesn’t adequately address the realities and changed dependencies of modern-day society.

I believe that society should encourage and support stable, constructive relationships, in whatever form consenting people choose. In other words, consenting people in a liberal democracy are at liberty to choose. A civil union is certainly no guarantee for a stable, constructive relationship, and people who can stay together and support each other without requiring a piece of paper probably have a stronger relationship. After all, the freedom to leave is the freedom to stay. Obviously, determining which relationships are “constructive” is a moral judgement in itself, but the key is the word “consenting,” taking into account the ‘power-balance’ in a relationship.

Yes, I intentionally wrote “consenting people” as opposed to “two consenting adults.” What about brothers, a single mother and her child, or parents caring for a handicapped child? What about a relationship involving more than two people? What about a loving, caring relationship between a group of friends, or a community? What about other forms of loving relationships?

Remember, too, that some people choose to be single, and their stable relationship can be with a larger community (for example, volunteer work or a monastery). Society has just as much a vested interest in supporting these kinds of relationship as well.

The law pertaining to (the rights bestowed upon) relationships shouldn’t even be concerned with what, if anything, happens in the bedroom. (Just as civil law pertaining to marriage shouldn’t concern itself with whether or not the couple is fertile.) I believe morality can not be legislated, nor is the durability or constructiveness of a relationship determined by legal status. As the late Pierre Elliot Trudeau, former Prime Minister of Canada, once said: “The state has no place in the nation’s bedroom.” The law should not be used as an instrument to dictate the morality du jour. Instead of moralising, I believe the law should concentrate on protecting people’s rights and determining their civil responsibilities.

Legal Matters

Let’s examine a few of those legal reasons for the civil marriage contract, and the possibilities for ‘civil union’ law encompassing a wider range of relationships.

Pensions

The Ingorencia argue that extending pension-plans to include same-sex couples would cost (them) too much. What they don’t realise, is that it’s actually currently costing people who are not married, who are funding the pension-plans for those who are. Without us, their premiums would be higher. In financial terms which even the Ignorencia should understand: Why should two employees who pay exactly the same amount into exactly the same fund at exactly the same times, expect different returns on investment?

Of course, pension-plans used to be built on the idea that working people pay into pensions not for themselves, but for those who are retired, and then it is somewhat more reasonable that the people who pay have a say in determining to whom it is paid. But that has not been the case for years now: Virtually all pension-plans now are based on personal investment for one’s own old-age. But even still, should a right be denied simply because it costs money if it is recognised, or should you be intitled to more human-rights, if you pay more taxes?

Another aspect is that pensions were paid to widows, because women traditionally didn’t have paid employment, and they outlived their husbands.

So a simple solution would be to give a basic state pension to all citizens, and allow anyone who has a private pension-plan to specify the recipient(s) of their plan in the event the holder dies. I cover other issues in the section on inheritance.

Immigration and Nationality

My father is British, and that entitled me to British citizenship. The terms of that right were that my father be British – my mother’s nationality was irrelevant – and that my parents were married when I was born. The background to the law is British discrimination at its finest: to ensure that all those bastard children of British fathers in foreign countries didn’t have access to British citizenship.

Simply put, immigration and nationality should never form a barrier to loving relationships, be that a sexual relationship, a parent-child relationship, a relationship between siblings etc.

It should be sufficient for someone to ‘sponsor’ someone they love, allowing them to immigrate, and if they can be shown to have a relationship for more than a specified amount of time, nationality is granted. The idea that only  state-approved lovers be granted the right to be together is a bit odd.

Children should be automatically entitled to their parents’ nationality/nationalities. Believe it or not, this is not the case in all countries, as Britain is an example.

Someday, perhaps, borders and nationalities, which are all relatively modern inventions, will (again) not be necessary – but that’s a long way off.

Inheritance

In The Netherlands, your parents have an irrevocable right to a significant percentage of your estate, unless you are married. In other words, you can not disinherit them, unless you marry. (Children can never be completely disinherited.)

While I find the gist of this law to be very civilised indeed, it nevertheless discriminates against those people who have relationships which don’t fall into the ‘marriage’ category, and puts your co-dependents at the mercy of your parents, who may not value your relationship(s) as do you.

I would prefer a system whereby a person can determine by whom their estate will be inherited, and that parents, children, partners and any other (co-)dependents who are unable to care for themselves are irrevocably entitled to a portion of the estate.

Taxation

Why does the state provide tax benefits to married couples? In my opinion, it should provide benefits based on dependents – those whom, for whatever reason – are reliant upon the income of another, regardless of the relationship.

Children, parents, a friend, a partner or partners – you name it. If I am supporting more than myself with my income, then I should be able to have tax-relief in order to do so. This should appeal even to the most conservative of religious communities.

Hospital (Visitation) Rights

This is insane: I can have lived and loved together with someone for eons, but unless we’re married, it counts for naught in many countries. I could be in the hospital, and in many states in the US for example, Hans would have no right to visit me, let alone make clear the wishes I have expressed to him in the event I am unable to do speak for myself. This, despite the fact that I trust him, above all others, to speak for me in such an event.

Everyone should have the right to determine who may visit, and who may or may not make decisions for him in the event he is unable to do so for himself. Period.

Adoption

Adoption should be determined primarily by whether or not the parent(s), and the (emotional) environment in which the child will be placed, will be loving, positive and constructive to the child’s development. Civil union between the parents can augment the legal and financial stability, and in fact a civil union between parent and child may even be appropriate.

.oOo.

Of course I can’t cover all the legal aspects, but hopefully I’ve given food for thought.

Conclusion

One should always be in love. That is the reason why one should never marry.
- Oscar Wilde

Someone commented that, “marriage is a sign of our love.” But civil marriage is no such sign for me. If anything, our having been together with so long despite their being no law supporting us, is a more signigicant sign.

Civil marriage is a piece of paper which entitles us to some very basic rights which are unfortunately not otherwise available. A piece of paper which precious few countries (The Netherlands, Belgium, Spain and Canada) have the courage and vision to grant to same-sex couples. Civil marriage is purely a legal matter for me, and other than that, not of the slightest importance for our relationship. I’d rather the administration didn’t have to clutter up the beauty.

Furthermore, I believe these very basic rights which we gain through marriage should not be limited to the relationship we have, but should be available to a much broader sense of the terms ‘relationship’ and ‘(co-)dependents’. I object to the moral judgement inherent to the current form of civil marriage.

I’m all in favour of celebrating the commitment in a relationship in a ceremony with friends, in one’s church, with one’s family, community or wherever one chooses. But there is no reason in a secular state – a liberal democracy –, for the rite to be dependent upon the contract, or vice versa.

What I’m calling for is the separation of church and state with regard to relationships:

1. In the short term, extend the civil marriage contract so as to include couples of the same-sex. Make it clear that it is the state marriage which is being extended, and not the church’s marriage.
2. Leave the rite of marriage to the churches, synagogues, and other communities, and protect their freedom to decide for whom they wish – and do not wish – to perform the marriage rite. The state has no business meddling in religion, provided the religion in its business adheres to the law (e.g. if a church employs a gay man, the church would be bound to adhere to any benefits laws relating to the man’s partner). Religious communities which enjoy state funding - including tax-exemption and tax-deductions for members - should be required to adhere fully, even in their rites, to civil law.
3. The state should be the only body which can issue a civil union contract. Any person who, in the name of the state, issues such contracts, should be strictly bound by the civil law regarding which relationships must be recognised (just like any other civil contract, a civil servant may not make an exception due to personal ‘conscience’ or ‘moral objection’).

Finally, I would like to see the term “marriage” in civil law replaced with the term “civil union”; then extended, whereby the rights, privileges and responsibilities of civil union could be afforded to various forms of stable, constructive relationships –  including parent-child and sibling relationships – so they can be together and support one another, to the benefit of society.