I’m having fun playing with Mike Kinsley’s argument of a few weeks ago about abolishing marriage altogether. Suppose the state no longer used marriage as a basis for anything. People could designate anyone they wanted as their partners for purposes of obtaining Social Security benefits, tax benefits, etc.–spouses, gay partners, maiden aunts, whatever. Marriage would revert to what it was before the state started tying benefits to it: a covenant between two people that has gravitas because it is morally (better if religiously) grounded, but with contractual aspects enforceable under civil law.
One thing that would happen, for sure, is a flurry of other civil contracts to pin down those non-marital commitments. A gay lover who is designated as the beneficiary today is going to want some way to make sure that he can’t be dumped unilaterally tomorrow. Similarly for maiden aunts–and similarly for cohabiting heterosexuals. I think this would be healthy. Right now, the meaning of marriage is constantly diluted by treating other arrangements as legally equivalent. The cohabiting heterosexuals sue on grounds that their relationships are de facto marriages. I’d much rather put the cohabiters out in the cold. You want the benefits of the contractual obligations of marriage? Go out and write a contract.
What about the state interest in promoting this absolutely crucial institution called marriage? That’s real, but like so many state interests, it is not necessarily promoted by getting the state involved. The religious analogy comes to mind. In Europe, the state “helped” the Christian religion big time–and pretty much killed European Christianity in the process. The same thing may be happening from the state’s involvement in–read, perversion of–marriage.
It’s not a position I’m willing to go to the wall for quite yet, and there’s lots more to be said on all sorts of its implications. But the idea itself is worth thinking about.