On California Proposition 8, Marriage, and Government

Many have been following the battle over so-called gay marriage as exemplified by initiatives like California's proposition 8 that seeks to amend the state constitution to define marriage specifically as the union of precisely one man and one woman. Each side presents its arguments similarly to the abortion controversy, not 180 degrees out of phase but at odd angles to each other in such a way as to obscure the central issue and make the debate unwinnable by either party. This is at best a disingenuous tactic; at worst something far more sinister, but in any case it can lead only to more of the same. No side of either issue will be satisfied by any supposed resolution of the argument, whether judicial or by referendum.

Moving beyond the argument in its present form, examining the question of marriage in modern society, several things quickly become apparent:

• Marriage, though related to the institution from which it descends, has drifted in its ceremonial and legal implications into territory that can be very difficult to navigate, particularly when dealing with marital difficulties and divorce.
• Government and court involvement in the administration and dissolution of marriages is mostly detrimental to all parties concerned.
• Religious implications make this a hot-button issue making it much more difficult to address the parties' needs more pragmatically.

These and other observations suggest the following seemingly radical proposition: separation of church and state should extend to the primarily ceremonial institution of marriage - that is, get the government out of the marriage business entirely, and eliminate the legal significance of marriage, replacing it with a newer structure designed specifically to address the needs of people today.

Marriage would revert to the domain of religious and secular social institutions. Ceremonies could be performed by whatever figure the parties respect for this purpose, and would carry only ceremonial significance.

Legal implications of today's concept of marriage would be supplanted by a new structure: a family corporation, separate and distinct from the ceremonial notion of marriage. This special class of corporation would have to be designed specifically for its purpose. It would be required to set forth bylaws for the operation of the family corporation, procedures for how a party would terminate his or her relationship to the family corporation, procedures for total dissolution of the corporation, financial and other responsibilities of the parties, and rules for amendment of these bylaws. In effect, the law would require the equivalent of today's notion of a prenuptial agreement, though it would not take precisely that form.

It would be beyond the reach of law to specify the structure of a family corporation, the gender of its parties, or even the number of its parties. Financial and tax ramifications would have to be worked out, as would the tax status of this class of corporation. Boiler-plate articles of incorporation would become available that could be used as-is, fine-tuned, or modified wholesale, to reflect the needs and desires of the parties, but could in any case serve as a guide to the structure for such arrangements.

This would do nothing to inhibit government from exercising some regulatory function to ensure against abuses and neglect, of children or adult parties to the family corporation. Legal statute would continue to specify the age of majority when children become independent entities.

Such a system has many implications, including:

• Issues like gay marriage, polygamy, adoption, etc., are taken completely out of public debate and away from those who would seek to impose their ideologies on the public at large. They become, as they properly should be, a private matter between the parties involved.
• Government is once and for all removed from the bedroom.
• Church and State separation is strengthened and enhanced.
• The existing legal baggage and prejudice surrounding the current notion of divorce would be supplanted by clearly-stated procedures for what happens if it doesn't work out.
• No longer would the wage-earning spouse be inherently at tremendous disadvantage because of the current imbalance in this area.
• Tyranny of a non-responsible, non-wage-earning party over a responsible wage-earning party through blackmail threats to disrupt the marriage with ruinous consequences to the other would finally be ended.
• Legal responsibility would be contained between the parties and explicitly framed in the articles of incorporation.
• Matters of custody would be specified in advance in the articles of incorporation and bylaws.

Managing the transition from existing traditions and procedures presents a challenge but not a terrible one. A standard family corporation could be considered to come into effect to embody existing marriages. At any time the parties could amend this corporation as necessary by mutual agreement, subject to procedures as specified in the corporate articles and bylaws.

Marriages originating in other countries where this is not (yet?) the tradition would have to be respected in some legal structure as well, but if the parties moved to the US, the transition process would apply to them for US purposes.

Finally, this would work best if implemented on the federal level, superseding all relevant state laws and regulations, however it could be pioneered by one or more states until wider acceptance could come about.

Though somewhat radical in nature, this kind of approach is much more in line with the values of life, liberty, and the pursuit of happiness to which we are supposedly entitled.

Such an approach has the advantage of enabling existing traditions to continue, supporting freedom of and from religion, while at the same time preventing the imposition of any marital ideology over those who do not share it. This is inherently fair and decent, but because of its explicit protections, it will likely meet with opposition from precisely those who would impose their beliefs on others - the very reason why it is so critical to implement protections of this kind.

It will not be easy to bring about this sort of social change, but it would solve a great many problems, while creating relatively few. It is not reasonable to expect quick change to something so radical, but it is reasonable to have the discussion and raise the issues this proposal attempts to address and discuss this proposal as a possible way of addressing them.

[In the interest of full disclosure here, it should be noted that the author does not support either side of this argument and is not a California voter, but would have voted against Proposition 8 on other principles]