Legal Writing for Legal Reading!

A New Marriage Proposal

Anyone who has paid even minimal attention to the news must be aware of the efforts made across the country to redefine marriage as something other than exclusively a heterosexual union.  Although I have been very hesitant at supporting the idea that perhaps the government ought not be involved in marriage at all, I have, in recent months, been more and more persuaded that that is possibly the direction we, as a nation, must go.  Before you read this, please note that I am still trying to work these issues out for myself, but the below is where I am now and likely the direction I will continue to go for the foreseeable future.  I also concede that I may not have all of the issues at play completely ironed out, but I did at least want to put pen-to-paper, as they say, to at least start the discussion.  Although it should be clear, let me say it plainly here: nothing I suggest in this blog post would prevent people from doing what they want in their Church or other house of worship regarding “getting married.”  This post deals exclusively with civil marriage.


Many view the gay marriage movement as ushering in some sort of new and heretofore unheard of attempt to change the very nature of marriage or, indeed more generally, societally accepted sexual relationships.  Indeed, many view the gay marriage movement as the start of a so-called “slippery slope” to other redefinitions of marriage, such as the legalization of polygamy.  Unfortunately, the gay movement has not ushered in some sort of new movement to redefine marriage or sexual relationships, nor did it start any sort of slippery slope.  The reality is that the gay movement is, itself, on the slippery slope of a pre-existing, and ongoing, sexual revolution already in progress in redefining marriage and accepted sexual relationships.


The greater sexual revolution, of which the gay marriage movement is merely a part, really has its origins in the free love American Counterculture of the 1960s.  Prior to the rise of the Counterculture in the 1960s, gender identity and roles, as well as marriage, were clear, long standing, and unchangeable.  Suddenly, as a result of the sexual revolution, which was ushered in by the aforesaid Counterculture, these heretofore accepted norms became subject to change, and what was once taboo suddenly becoming accepted.  The concept of sex outside of marriage has become increasing accepted and is now considered normal or standard; with this change, all kinds of sexual relationships developed from the “one-night-stand” to short-term cohabitation, to long-term cohabitation, all the way to marriage as it is commonly understood.  As an aside, considering the above, does not the premise of the old television program Three’s Company seem rather anachronistic now?


One of the results (casualties?), of the slippery slope caused by the above-described sexual revolution, is that no fault divorce entered the scene in Pennsylvania in 1980.  No fault divorce allows married couples to divorce without any justification or reason; they can simply dissolve their marriage practically at will and with no penalty for what most would consider egregious behavior (e.g.: abuse, abandonment, adultery).  The marriage vows to remain together until death separates are undermined by signing a couple of papers (or going to a hearing) to dissolve what was vowed to be an indissoluble union, with nothing to enforce the vows or penalize their breaking; a marriage has become a virtually unenforceable contract (or a contract in name only).  Considering this, I cannot believe why people wonder why marriage is at such a low ebb and why no one takes it seriously anymore.  Indeed, nowadays, the idea of being with someone “till death parts” him/her seems almost passé and quaint, as multiple sexual partners in one’s life have become an established norm.


In the context of this already slippery slope, homosexual marriage finds itself not at the top of the mountain but already far down the steep slope made possible by the failure of heterosexuals to maintain the dignity of their own marriage relationships.  Is it any wonder that gay marriage would enter the picture?  If heterosexuals can legally diminish their sexual relationships to the degree described above, what logical legal justification is there to disallow homosexuals from trying raising the dignity of their relationships to at least the level to which heterosexuals have lowered theirs?  Had heterosexuals not allowed their own marriages and sexual relationships to decline as described above since the 1960s, gay marriage would not even be on the radar today.


So, in the face of all of the above, I suppose one can take one of two (2) angles.  The first is to try to restore the dignity of marriage and sexual relationships by trying to reverse the influence of the Counterculture described above.  I hate to sound like a defeatist, but I simply do not see this strategy as successful any time soon and, besides, the second option described below does not really foreclose the first from happening anyway.  As a result, a second option seems more viable, which is to change marriage laws to conform to, and account for, the new reality in American culture regarding marriage, divorce, and sex, instead of trying to rely on old, and now rather anachronistic, laws regarding divorce.


If you consider that something like fifty (50) percent of marriages end in divorce, and studies suggest twenty (20) percent of marriages suffer from adultery, as well as the fact that more and more people are simply electing not to marry, it would seem logical to suggest that our current law, shaped by pre-Counterculture understandings of marriage and divorce, are increasingly inappropriate, irrelevant, and unable to account for our new cultural realities.


In the face of this new cultural milieu described above, I think it is worth asking those – myself included – fighting so hard to protect our marriage laws from admitting homosexuals, what it is, exactly, they are fighting to protect at this point?  In the face of the advancement of the gay marriage movement, traditional American marriage supporters are fighting to preserve and protect the current marriage laws from that movement, but why?  Why fight so hard to protect marriage laws which are already so gutted, so diminished, and so poorly reflect what marriage is supposed to be?  Why fight so hard to protect civil marriages which can be dissolved at will at the stroke of a pen, or are increasingly not even being entered into from the start anyway?  This is not a fight to protect traditional American marriage; it is a fight to preserve the appearance of traditional American marriage, and, I ask, is that worth the fight?  I am increasingly convinced that it is not.


It would seem that, as a result, state recognized marriage may be a thing of the past.  Perhaps the concept of civil marriage ought to go the way of the dodo?  Certainly doing so would cut the knees out of the gay marriage movement as they would have nothing to strive to achieve any longer, and the news and popular culture, which is currently littered with gay marriage propaganda, may finally dissipate into the ether.


Ironically, in my view, one of the big negatives in doing away with civil marriage is that it would also do away with the protections of divorce.  While I am generally opposed to divorce, I do acknowledge that, legally speaking, a divorce process serves to protect the more financially vulnerable spouse.  For example, if a man and woman are married for twenty (20) years and, for the last fifteen (15) years, the woman has been a homemaker with no independent assets of her own, she will be left absolutely destitute if her husband elected to suddenly pick up and leave her.  The protections of divorce law allow the wife to secure her equitable share of marital property, and make things like spousal support and alimony (among other things) available to her to help her maintain some sort of financial viability and independence.


So, the big question for me is, how can we achieve the following multiple purposes without having established civil marriage?: (1) dodge the gay marriage movement’s goals (especially that of having an officially government sanctioned and approved “marriage”); (2) protect the vulnerable spouse; (3) improve the dignity and quality of existing non-marital domestic relationships; (4) protect the vulnerable party in non-marital domestic relationships; and (5) conform “marriage laws” to existing societal norms?  To this end, and to achieve the above goals, I believe civil marriage may be done away with in conjunction with introducing palimony into Pennsylvania law and creating a new and more modern form of what was once called “common law marriage” (as of 2005 Pennsylvania no longer recognizes common law marriage).


How would my suggestion above achieve the goals laid out?


First, the gay marriage movement wants state recognition of their relationship through civil marriage.  Without civil marriage, there is no state recognition of their relationship as “married” in the same way a heterosexual couple would marry.  As the gay marriage movement is based upon this state recognition, doing away with civil marriage, by definition, will short circuit the gay movement’s efforts in this area and, as a corollary, will proportionately reduce the publicity of the gay movement in popular media.


Second, spousal support (and alimony pendente lite) and alimony, as currently defined, are for persons in a civil marriage and after a civil divorce, respectively.  If marriage is no longer civilly recognized, spousal support, alimony pendente lite, and alimony will all be eliminated as well.  Obviously, this is not a positive change, which is why I would suggest introducing palimony into Pennsylvania law.  Palimony, which is already the law in a number of states, allows for support to be paid from one partner to another in a domestic relationship, regardless of marital status.  Of course, the person seeking palimony has the burden to prove that the parties were involved in a domestic relationship but, once proven, a similar analysis is done as currently done for support and/or alimony.  Palimony serves to protect the vulnerable spouse and/or domestic partner in cases when the parties dissolve their domestic relationship.  Further, it acknowledges that more and more people are simply not getting married but are still beset by the same vulnerabilities and dangers and negatives as married people when their relationship dissolves.  I also believe that palimony will raise the dignity of cohabitating relationships.  If people know that palimony may be ordered if the relationship dissolves, they may think twice before entering into such a relationship and/or exiting one.  Cohabitation relationships are inherently unstable which adversely affects the vulnerable partner and/or the children they produce and palimony serves to help provide some much needed stability.


Third, I propose introducing a modern interpretation of common law marriage.  Instead of “common law marriage” one could call it “common law domestic relationship” (“CLDR”).  I am sure a better term for it could be developed.  As a side note, establishing a CLDR would entitle the vulnerable party to palimony.  A CLDR, I think, reflects both the mores of those supportive of traditional American marriage, as well as the modern countercultural revisions to sexual relationships, and helps to raise the dignity of those new revised sorts of sexual relationships.


A person wishing to enter into a traditional American marriage is more than free to do so without civil marriage; so, introducing a CLDR has no effect on this.  It also reflects more modern relationship norms.  Nothing forces cohabitants to enter into a CLDR.  People can couple, and separate, without a CLDR, at their option.  However, if the cohabitation relationship does dissolve, one of the parties could file with the Court to secure recognition of the CLDR, just as people have filed for recognition of a common law marriage.  How is this a good thing?  Well, it protects the vulnerable party from the enormously negative financial impact dissolving the cohabitation can and does so often have, as well as makes the more financially independent party more responsible for the relationship s/he is attempting to leave.  A CLDR would allow for the Court to review and equitably divide the property between the parties and, of course, review the possibility for palimony.


This will provide stability and dignity to non-traditional (i.e.: “unmarried”) cohabitation relationships.  As it stands now, the vulnerable party in a cohabitation-relationship has very few legal options to preserve financial stability after the relationship dissolves.  As the law currently stands, and unlike a recognized civil marriage, if a cohabitation relationship breaks up, the person who legally owns the property accumulated during their relationship can often simply exit the relationship with his/her property intact, leaving the financially vulnerable partner in financial distress (and potentially the children of this relationship who stay with this partner as well).  Under a CLDR, the property division and palimony protections serve to provide some viable legal options for the vulnerable party.  I believe that these legal options would serve to make such cohabitation relationships less whimsical, as they often are now, and a much more serious decision.  If people know that “moving in” with one another could result in a CLDR, they may be much less likely to make the decision to move in together based on a whim or their warm emotional state of the moment – as is so often nowadays – and, instead, put more thought into it these relationships, as the cost will be much higher if they dissolve.  I think this, by definition, would raise the dignity, stability, and significance of these relationships.  Indeed, a CLDR would create legal connective tissue in relationships which would otherwise, under current law, disappear into the ether when one party elected to move out (or force the other one out).


I think the criteria to establish a CLDR could be rather similar to that of common law marriage and/or the establishment of palimony: Do the parties live together?  Do they share finances?  Do they co-own property?  Are they co-parties to contracts or leases?  Have they made financial decisions based on their relationship (e.g.: the woman quits her job to be a homemaker due to her relationship with the father of the children)?  Did he/she/they change his/her/their names?  Do they hold themselves out as a couple to friends, family, and others?  Do they have a child together?  I am sure other logical criteria could be developed.


It goes without saying that issues regarding taxation, insurance, and real estate (among other similar issues) need to be worked out to account for the above; however, as this blog post is already long enough, I will not get into these issues now, but I am sure these details can get hammered out easily enough.


In some ways, I think ideas like the above reflect my throwing-in-the-towel when it comes to the state of marriage in this country.  I certainly think traditional American marriage is worth fighting for but, the fact is, what the law currently reflects is not traditional American  marriage, and fighting to protect that, which is, in essence, what the gay-marriage-opponents are doing, does not seem like it accomplishes the goals of restoring marriage to its former dignity.


The fact is, reforming sexual mores, which will, in turn, restore marriage to its former dignity, is a job left to the Church, other religions, and traditional ethicists.  Using the law to achieve the goals of improving ethics and morals does not seem to be an effective strategy.  The Church needs to spend its time winning the hearts and minds of its neighbors, friends, and family, instead of focusing on politicians.  The fact is, we could have the best marriage laws in American history, but if people are simply electing to live together, or engage in other permutations of sexual relationships (including gay relationships), how effective and purposeful are those laws on the realities found among the people?  The fact is, it is becoming increasingly clear that marriage law, as it is currently constituted, simply does not serve what is an increasingly sexually progressive society and, therefore, is becoming increasingly irrelevant and anachronistic, and, therefore, does not protect the parties it was originally designed to protect.


The concepts I laid out above are just ideas I currently have; I am still developing my thoughts on these issues.  I am certain they could be improved upon.  Considering the reality of sexual relationships in this country, a serious discussion, hopefully absent political rhetoric, needs to happen so that our law can be adequately and effectively changed to reflect and deal with our new cultural norms.  If you have ways to improve on the ideas in this post, or have your own different ideas, feel free to post your comments below!

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3 thoughts on “A New Marriage Proposal

  1. Pingback: Legal Bigamy | judicialsupport

  2. Pingback: Poly-parenting: on the Horizon | judicialsupport

  3. Pingback: A Collection of Family Law Writings by James W. Cushing, Esquire | judicialsupport

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