The above picture is of a
proxy marriage being conducted in Normandy.
Proxy marriages are illegal in all but five US states. To me the illegality of proxy marriages is symptomatic of a problem in our legal system. Other symptoms of the same problem are the bans on plural and homosexual marriage, the marriage tax penalty (and the former marriage tax advantage), non-recognition by some states of some marriages that were formalized in other states, and inconsistent laws about qualifications that must be met before marriage.
The civil right vs erosion of values debate over gay marriage is a good place to start because it's such a hot issue. My question is, why does it need to be an issue at all? If social conservatives don't want to be forced to recognize gay marriage as being on equal footing with hetero marriage, they shouldn't be! If gays wish to form marriages, they shouldn't be denied the right! Why is there a controversy here at all?
Well, the obvious answer is that there is a controversy because the state is involved. The state regulates marriage, and decides who gets to marry and who doesn't. Because of this, marriages are made official in a way that makes
me accept
your marriage. Hence the controversy over gay marriage.
But it is ridiculous. Few other contracts require state intervention. In most cases, if I wish to make an agreement with you, we need have nothing more than a "meeting of the minds" (that's a legal term that just means we both understood what we were agreeing to in the same way). Why is marriage different? What valid interest does the state possess that justifies regulating marriage at all?
At this point in the conversation people usually start talking about hospital visitation, protecting children, alimony in the case of divorce, and a whole host of related items. My answer to most of these is that having marriage formalized by the state doesn't actually make any difference. Take hospital visitation. Hospitals are free to form whatever visitation policies they like. They can base visitation on marriage, kinship, longstanding relationship, patient preference, or anything else that seems right. It's not actually a legal issue
at all. So why should state regulation of marriage matter?
What about protection of children? The courts handle that as well as they are able with
very little attention paid to the marital status of the couple who produced the children. Of course, this is the result of necessity as so many children are conceived extra-maritally. In any case, state regulation of marriage just isn't important to the issue.
Alimony? Similar to above. An award of alimony is typically dependent upon living circumstances, not matrimony. When the fact of marriage becomes involved it is only relevant as a means of showing that there had been an agreement between the two parties about who should be responsible for what. Such an agreement should certainly be able to be written and signed without the consent of the state, as is so common in business agreements.
So what interest does the state have in regulating marriage? I'm seriously asking, because I can't think of one.
So, what would happen if marriage was deregulated to the point where it was simply another private contract between individuals? What if everyone started treating marriage however seemed right to them? Would our culture unravel? Would more children be left uncared for? Would the county offices have to reduce staff?
I think the answer in all cases is 'no'. I think that what
would happen is that religious marriages would become more religiously-oriented thanks to the omission of the state from the marriage. I think that secular marriages would largely remain a mixture of private and public elements, a mixture of personal commitment and legal contract. I think that it is likely that the legal contract part of marriage will be given more thought by those considering marriage, as they will no longer assume that the state has standardized it for them. The ease with which one leaves a marriage will depend on how the marriage contract was written, instead of depending on the particular social experiment being legally enforced in your state of residence (see '
types of divorce'). Care of children will still be enforced by courts in precisely the same way as now - without regard to marital status. Gays will marry. Social conservatives will refuse to countenance gay marriage. Both parties will be better off.
I've bounced this line of reasoning off of a few people with completely consistent results: No one likes it. But truly, I don't see what's not to like. If I'm overlooking something important I genuinely would appreciate having it pointed out to me.