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Friday, May 16, 2008

PART 1: Overturning Marriage

By Christopher Wilde

Yesterday the California Supreme Court overturned the State’s ban on homosexual marriage. I spent the night reading through the Court’s decision, a 179 page novella of background, legal theory, concurring, and dissenting opinions. One of the most important aspects of the decision is the discussion of the California’s Domestic Registry.

The Court points out that in recent history California has continued to afford homosexuals generally the same rights as married couples through the Domestic Partner Act, but that this establishes homosexuals as a second class of citizens. The Court writes:

“Thus, in sum, the current California statutory provisions generally afford same-sex couples the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples.”

They say virtually because domestic partnership does not allow registered couples to be “married.” In California it comes down to a terminology that sets up an unnecessary segregation between homosexuals and non-homosexuals. This equal but separate doctrine is obviously something that a lot of people in California believe in as they spurred the citizen’s initiative Proposition 22, approved in March of 2000, which establishes that marriage can only be between a man and a woman. Thus by overturning the citizens initiative it is likely there is going to be greater legal challenges to the subject of gay marriage, and questions as to the validity of all citizen initiatives.

What should most be highlighted by this decision is that the foundation of the institution of marriage is fundamentally flawed and that the entire structure has for years been slipping into the sea taking all couples, straight or gay, to a watery grave.

I do not say this because homosexuals don’t deserve the right to be married, they do, but because it would be better to completely strike down the very notion of being married.  Granted striking down the notion of marriage wasn’t before the court and it was not in their power to do, but it is something we should all consider for the future of our families and our nation. A better outcome for all couples is to be squeezed under the heading of “Domestic Partnership” and eliminate the very notion of marriage.

Please understand that I’m not seeking to undermine the magnanimity of the Court’s decision or the tremendous beneficial impact it will have on the lives of so many loving couples who have waited for the chance to be married. I’m not trying to undermine or to minimize the fear and trepidation that is being felt by social conservatives all around the world. This is an issue in which emotions run hot and shoulders run cold when attempting to have a substantive discussion about the issues.

It is very possible that the Court may grant a stay on their decision in order to allow further legal challenge, or to simply give the state an opportunity to legislate the Court’s decision. Thus it seems more than appropriate to point out the folly of marriage and hope that the current attention and focus on the issue will open the eyes of all American’s to the destructiveness of this antiquated institution.

Since the inception of this country our cultural contexts for marriage have constantly been under change. The majority of that change has been good in that it has freed women from being chattel to their husbands, and has expanded the protection and substantive rights of the children who are the products of our unions.

We often talk about the sanctity of marriage as if God had anything to do with the nature and quality of marriage. Years of legal decisions have affected and altered marriage in every form imaginable. Marriage use to be three equal parts, 1) the couple being married, 2) the children, extended family, and assets of the couple, and 3) a legal system that acknowledged but seldom interfered in the union.

Marriage use to be a patriarchal system unto itself where the will of the man was absolute and generally the courts supported this proposition. It had to change in order that life, liberty, the pursuit of happiness and a measure of equality could be achieved. In order for equality and an opportunity to pursue happiness to exist marriage had to become an upright body upon which sits a Court of law as the controlling head.

It really can’t be any other way; we need our courts to resolve the issues between married couples, to protect the children who become the next generation, and to ensure that all parties obtain some measure of justice from the love that brought them together.

The Body of Marriage

Love or the notion of love is the heart and cause of marriage today. This wasn’t always the case. Marriage was often by arrangement and subjugated the lives of individuals to the wills of their families. We will never go back or yield the ability to decide for ourselves to whom we will be united. Because marriage is a matter of choice love supplants all previous contexts, religious dictates, or moral foundations.

The arms of marriage can be found in the day to day decisions the couple makes, and the legs of the institution are defined by the children, the extended family, and the assets of the couple. The legs hold power to alter the context of day to day marriage prior to the intervention of the larger society. The context of your marriage, or any marriage, is as much defined by and controlled by children, extended family, and money in almost equal proportion to the will and dictates of the two married individuals. That is not to say that all of those factors don’t compete, they do, but I have never seen a successful enduring marriage that did not maintain a healthy balances of all of those factors. When any factor gets out of balance inevitably outside intervention of the larger society is imminent. If the children are being neglected social services may be brought in and that can easily lead to society changing the nature, scope, and function of your marriage.

The head of marriage, to which many couples are completely blind, is the court system. The legislature may determine that those intending to be married should require blood tests or not be closely related marriage has for centuries been defined by the courts. Their decisions have overwhelmingly been unanimous: marriage is a corporation.

When you get married you enter into a contract as the California Supreme Court points out by quoting the 1872 civil code of the state of California,

“…marriage is ‘a personal relation arising out of a civil contract, to which the consent of the parties capable of making it is necessary...’”

The obviousness of this statement might seem redundant, but when you watch the couples waiting outside the courthouse to hear that their love can now be solemnized by the state you are hearing the same raw emotion of any couple in anticipation of marriage. What you don’t hear with every, “Yes I will marry you,” is the translation of that statement, “Yes let’s meet with the lawyers for a contract negotiation.”

We don’t hear the bit about lawyers and contract negotiation because we let the State draw up the contract, determine its function, we and don’t meet with the lawyers until one party wants to dissolve it. And that is the very real problem with marriage. While the act of getting married establishes your love as a corporation you are never really confronted with your corporate status until you get divorced.

Despite the current California Supreme Court decision and all of the changes over the years what most young couples don’t know is that a marriage certificate in any state in the Union indicates they have just formed a corporation. The legal partnership formed supersedes any cultural, religious, or emotional sanctity presumed to have existed. While your love may have led you to get married may dedicate you to a life of self-sacrifice and devotion that love will mean nothing to the head of the body.

I have been speaking publicly about this issue for years. My great hope for domestic partnership has always been that it might hold the promise of providing a legal status that ultimately would be more beneficial and desirable than marriage.

Love is a foolish thing; it is seldom a rational motivation to do anything. While gay couples must now wait in anticipation for the right to be married, and social conservatives will desperately seek a means to stop them let me be the first to point out exactly what has been won here.

By gaining the right to be married you have now gained the right to be divorced. You have gained the right to be confronted with your true legal status as a married couple. Most importantly you have been led down a primrose path by your love into a morass of thorny legal bramble that makes wearing a crown of thorns sound like a birthday hat.

Congratulations. You have won the big prize. Now you can get divorced.

Part 2: Divorce: The Legal Reality of Dissolving Your Corporation

Part 3: A Proposal for Ending Marriage in Favor of Domestic Partnership

Keywords: Gay Marriage, Domestic Partnership, Supreme Court, California, Homosexual, Divorce, In re Marriage Cases, (S147999)

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