From: tom@flood.com (Tom Chatt)
Subject: Re: Abolish Marriage
Organization: The Flood Group, Inc.  Torrance, Ca.
Date: Mon, 4 Jan 93 06:09:06 GMT

solovay@netcom.com (Andrew Solovay) writes:
| Here's an idea that should do a neat end-run around the whole
| gay-marriage issue. Why not have the government cease to
| recognize marriage of any sort?
| 
| Here's how it would work:
| 
| If two or more people wanted to "get married", they'd sign a
| contract specifying the obligations each had to the other,
| whether financial, sexual, regarding children, whatever. The
| contract would also specify under what conditions the arrangement
| could be dissolved, and what the obligations would be after such
| a dissolution. It would also specify under what circumstances the
| agreement could be altered.

I think this is definitely the way to go. It would operate very
similarly to (or even be an extension of) partnership law. Under
current law, any number of people can form a legal entity called
a partnership. Partnership agreements (unlike articles of
incorporation) are extremely flexible: there are virtually no
legal requirements on the specific contents of a partnership
agreement; each agreement may be the unique creative expression
of its partners.

Marriage, on the other hand, is like a rigid boilerplate
agreement that covers in its fixed way a variety of legal
issues, including property, probate, and child custody.
Think of it as an established abbreviation for a whole
ton of other legal agreements. A giant #define. Most of
what it covers can be covered in other ways, but a lot
more paper is required. (There are a few things which can't
be created in other ways -- those are the heterosexuals'
"special rights". :-)) The downfall is that it is rigid
and cannot be tailored to different needs and aims.
Marriage is a legal package deal, take it or leave it,
no substitutions.

The beauty of a partnership is the flexibility. No rigid
boilerplate for how things are structured. Each partnership
makes it own agreements about its structure and operation
with regard to property, finances, decision-making, and
modification or dissolution. (Note that a partnership is
any number of people, and so not only do you have issues
of dissolution (divorce), but (unlike marriage) you also
have issues of the addition or deletion of partners to the
ongoing concern.)

Even existing partnership law, I believe, could reproduce most
of the financial ramifications of marriage. For instance, you
could buy property, obtain credit, encumber assets all in the
name of the partnership. In fact, just as in marriage, it is
quite possible for one partner to incur a ton of debt without
the other partners' knowledge, and the creditors have full
recourse to *all* partners. Of course, different partnership
agreements can spell out (or not spell out) different rules
about what sort of consent among partners is required to
incur partnership financial obligations.

Probate, too, is a standard issue in existing partnership
law. Agreements will usually cover what happens to a
deceased partner's interest in a partnership.

The only novel extension of partnership law would be the
child custody issues. Since there is a dependent third
party involved (the child), the government arguably should
be somewhat involved in regulating how custody is created,
granted, transferred, alienated, revoked, etc. But I
see no reason why reasonable regulations could not defend
the child's welfare, while still permitting a great deal
of latitude for individuals in structuring their own
child-rearing arrangements.

Taxation could take one of two approaches. The most simple
approach would be to say that every person is an individual
taxable entity and submits one return. Those involved in
a partnership will just do what current business partnerships
do: file a partnership tax return, and corresponding
Schedule K's on their individual returns. Under this
paradigm, there's a little more paperwork burden on
partnerships, but there's also a very clear sense of
what is "yours vs. mine vs. ours". This allows each
partnership to decide where it wants that line to be
drawn, and it also makes modification or dissolutions
easier.

The other approach would be to legally define a special
sort of partnership which subsumed the individuals as
taxable entities, in the way that marriage does. This
would let a partnership get away with one return for
the partnership, without individual returns.

| It could work. The time is right. I just wouldn't want to be the
| congressman who first proposed it...

I think the way to proceed would be to first create the legal
structure for this extended partnership concept. If a real
viable alternative to marriage is created, I think a lot of
straight people will use it too. Once the new institution
becomes established, *plenty* of people will start to
question why married people should get those "special rights".
Then marriage as it exists now could be eliminated, and
it wouldn't even be a particularly gay issue.

-- 
Tom Chatt                        \   Don't take offense, take action.
Internet: tom@flood.com           \    Speak up. When we remain silent,
UUCP: ...!uunet!flood!tom        / \     we oppress ourselves.
Newsgroups: soc.motss