The Rights of Marriage

It's the anniversary this week of the legalization of same sex marriages in Massachusetts. There is an interesting op-ed piece in today's New York Times by Dalton Conley that takes a wry look at the rights of married couples and how we might look at them differently.

Spread the Wealth of Spousal Rights

By DALTON CONLEY
Published: May 20, 2007

WHEN the poet Elizabeth Barrett Browning wrote, “How do I love thee? Let me count the ways,” little did she know that a century and a half later the list would extend into the thousands — at least for married couples. As of 2005, the Government Accounting Office had identified more than 1,000 legal rights and responsibilities attendant to marriage. The era of big government is clearly not over when it comes to family policy.

These range from the continuation of water rights upon the death of a spouse to the ability to take funeral leave. And that’s just the federal government. States and localities have their own marriage provisions. New York State, for example, grants a spouse the right to inherit a military veteran’s peddler’s license. Hawaii extends to spouses of residents its lower in-state fees for hunting licenses.

No wonder gay and lesbian activists put such a premium on access to marriage rights. Some gay marriage advocates want all spousal rights immediately and will settle for nothing less. Others take an incremental approach, aiming to secure first the most significant domestic partner rights, like employer benefits.

But rather than argue about whether gay or lesbian couples should be allowed to tie the knot, or be granted any marital rights at all, perhaps it is time to do an end run around the culture wars by unbundling the marriage contract into its constituent parts. Then, applying free-market principles, we could allow each citizen to assign the various rights and responsibilities now connected to marriage as he or she sees fit.

In addition to employer benefits, some of the key marital rights include the ability to pass property and income back and forth tax-free, spousal privilege (that is, the right not to testify against one’s husband or wife), medical decision-making power and the right to confer permanent residency to a foreigner, just to name a few.

The mutual responsibilities of marriage include parenthood — a husband is the legal father of any child born to his wife regardless of biological paternity — and shared tort liability. Why not allow people to parcel out these marital privileges?

Take my own marriage as case in point: My wife is a foreigner who is applying for citizenship, and her marriage to me will make that possible. But as the law stands, I, as a straight American man, theoretically could become a green card machine. As long as I can convince the overstretched Department of Homeland Security that my penchant for falling in love with foreign women is genuine, I can divorce and remarry as many times as I like, obtaining permanent residency for each of my failed loves along the way.

Is that really fair to the gay man who falls in love with a foreigner he can’t sponsor? For that matter, is it fair to the many Americans who can’t sponsor aging grandparents or, in some cases, even parents? Or even to straight Americans who are happy marrying their own kind, but don’t want to see the country fill up with my romantic baggage?

Why not instead give all Americans the right to sponsor one person in their lifetime — a right that they could sell, if they so desire? This would mean that if I wanted to marry a Kenyan after divorcing an Australian, I could, but I would need to purchase — perhaps on e-Bay — the right to confer citizenship from someone else who didn’t need it.

Likewise, why not let all Americans name one person (other than their lawyer, priest or therapist) who can’t be forced to testify against them in court? This zone of privacy could be transferred over the course of a lifetime, perhaps limiting such changes to once in each five-year period.

While we are at it, how about allowing each of us to choose someone with whom our property is shared, with all the tax (and liability) implications that choice would imply? We might even allow parenthood to become contractual, by letting people name the people they want to be stepparents to their biological children.

We could go down the list of rights and responsibilities embedded in the marriage contract. Ideally, most people would choose one person in whom to vest all the rights, but everyone would have the freedom to decide how to configure his domestic, business, legal and intimate relationships in the eyes of the law.

Other people have proposed changing marriage by making it more flexible. A prominent group of gay rights advocates argues that the law should recognize a variety of households — from conjugal couples to groups of elderly people living collectively — as “legal families.” But they have not specified the rights that should go along with such arrangements. Nor have they addressed the problems and paradoxes that might arise if legal rights and responsibilities were extended to groups of more than two. Unbundling marital rights would achieve the same end without creating new inequities based on group size.

It might also take some of the vitriol out of the marriage debate. Marriage itself could stay in church (or in Las Vegas, as the case may be). And each couple could count their own ways to love.

Dalton Conley, the chairman of New York University’s sociology department, is the author of “The Pecking Order: A Bold New Look at How Family and Society Determine Who We Become.”