Let's Take the Law out of Marriage

Marcellous and I have been having a discussion about gay marriage. Then as sometimes happens in my immediate blogging world, somebody provides a new insight.

In a comment on Marcellous's blog, the Rabbit wrote:

I find the clarity and insight of your writing startling, Marcel. My own idea is not that gay marriage should be allowed, but rather there should be no legal (as opposed to religious) recognition of marriage whatsoever. — A buyer beware approach.

In response on Neil's blog, David Smith wrote:

I agree with the Rabbit. Take the state out of marriage altogether. 

I know a gay activist from Utah who said that he was beginning to see the possibilities of a political alliance on this issue. Legal polygamy, like legal gay marriage, would “hurt” other people because it dilutes what they see as the definition of the holy sacrament of marriage: the union of one man and one woman. I don’t see any point in trying to downplay the subjective pain that this causes to conservative religious people, nor do I think that it’s the role of the legislature to try and educate them out of their prejudices. 

But that pain would only be felt because the universalising laws of the state would lump the traditional man/woman sacrament, polygamy and gay marriage into the single legal category of “marriage.” If, as The Rabbit suggests, the state doesn’t recognise any marriages, this gets rid of most of the problem. It is much easier to accept the existence of something you see as abhorrent if the state isn’t actively endorsing it. Marriage would then become the domain of churches and private agents who would be free to impose whatever strict standards they wished in order to certify it.

Now all this needs to be teased out a bit. But I can see real advantages. What do you think?

Later

Rereading, this post is far too cryptic without the background. Not so bad at the moment because the earlier posts are still visible, but these will depart from view quite quickly.

The earlier posts are here 1, here 2.

The conversation has been about gay marriage, but not just about gay marriage. A core issue in my argument has been the way the introduction of symbols, in this case "marriage" can distort debate because of the complex of meanings, values, beliefs and attitudes attached to the symbol.

The reason that I found the Rabbit and David's comments interesting is that they provided a new way of looking at the issue. As a simple general statement, if (as in the case of marriage) law and symbol become entwined to the point that the linking creates social and legislative problems, then separate the two.

On the surface, this might be done quite simply by ceasing to use the word marriage in legislation, leaving marriage as a ceremony to the private domain.

I am not sure of the history of state involvement in marriage. I have not checked, but so far as English history is concerned I suspect that we will find that the state first became involved because of property issues. I also suspect that the heavy state involvement in the area really came with the Victorian age.

Wearing my historian hat, I find the history of social constructs interesting.

My eldest is nineteen and still calls herself a teenage. At 19 I would have been mortified to have been called that. So a term created, I think, during the fifties has widened in part because of changes to the law such as the increased school age.

Enough. I am in danger of going off on another tangent.

Postscript

Marcellous has written an interesting post written in part from a lawyer's perspective responding to the Rabbit's comments.

Postscript 2

I see that the coalition has agreed that gay couples should receive the same rights under the Commonwealth Superannuation Scheme as other couples.