OddThinking

You have outlined almost precisely the points I have also arrived at independently here in the U.S. Most marriage regulations here are determined state by state rather than for the whole country, but the principles are essentially the same. A few of the more progressive states have passed laws allowing same-sex marriage; some less progressive and/or politically wary states have passed laws recognizing same-sex “civil unions” which are (to oversimplify) legal marriages without the name “marriage”, which is the sensitive point for many people.

I hadn’t gone so far as to come up with complete deregulation; my idea was to strike the term “marriage” from all governmental marriage laws and effectively separate out the existing legal ramifications of marriage into a thing that everyone calls “civil union” and then allow people to get married (spiritually, socially, etc.) without civil union; to enter into civil union without marriage; and of course to do both.

In principle, your immigration case should be covered by visa regulations. I would think civil union between a foreigner and a citizen should count as a visa for the foreigner. I have practically no idea about existing immigration law, but I imagine visas have terms that, if violated, result in deportation of the foreigner. We could also throw in penalties for the citizen (for committing fraud). I don’t see why these would be insufficient for civil unions. For example, there could be a rule that you have to stay “married” to your citizen spouse until you have completed the process for naturalization (which may require several years of residence before you can even begin); if you “divorce” before you’ve successfully naturalized, then you are subject to deportation and “starting over” should you choose to try again. It may be rough around the edges, but surely there is a way to make it work.

I would also like to mention that as a practical matter, I am convinced it is much easier to introduce patches to marriage laws than to refactor them wholesale. Especially considering the size, scope, and history of the software in question, as well as the number and nature of the developers and users of that software.

(That is, I believe your “shortcut” to be… shorter, but harder. Whether it is faster depends on our ability to even take that route at all. I think it requires some kind of extraordinary vehicle when all we have is a gigantic, beat-up old station wagon. With bald tires and creaky suspension. And loads of “cherished possessions” strapped to the roof rack. And way too many metaphors.)

Hear Hear… ish. I’ve got the same opinion as well as a very similar implementation idea to you, Julian. There’s a minor difference, and it has to do with taxation. See, when you’re married (I think this roughly happens everywhere) you are sort of considered a two-party load balanced individual. So for calculating tax, you take the sum of your salaries, divide by two, and that’s your taxable income, instead of taking your salary (which could have a lot of tax) and then taking your partner’s salary (which could be not very much) and thus taxing you more for it. I’m willing to stand corrected on that.

I actually don’t mind that tax benefit going to the married. However, if you were to completely deregulate marriages, then you could basically have it so that two people (same sex, man and beast, etc.) could *on paper* try and get the x+y/2 advantage. So I came up with a neat hack:

Once in your life, you get to choose a person with whom to share this tax benefit. If that other person (or you) dies, the tax benefit is gone. If you get “divorced” (or something to that effect) the tax benefit is also gone. Once gone, you can’t get that benefit back, ever.

I don’t believe that in today’s society (both sexes working, and mostly making similar amounts of money) the tax benefit is very large, it’s more just token, and probably only really benefits single income earners, so it isn’t preventing divorce. However, it still stops people from taking advantage of the system.

Also you can get hilarious jokes about popping your tax cherry.

Sunny,

I do not believe the Australian tax system works the way you described.

Firstly, from July 2009, same-sex couples get the same tax treatment as heterosexual couples. It’s clear that the Tax laws are more progressive than the marriage act.

There’s not, to my knowledge, a general ability to average out the tax.

There is an ability to get a tax rebate for a dependent spouse, but it is a fairly small amount. (Another area for reform: why do dependents need to be children, spouses or relatives? If I look after a friend who is down on their luck or novelist who has a car accident, why don’t I get a rebate too?)

Given that it requires you to pay someone else’s living expenses, on a single income, it hardly seems like an area that would be rife with sham marriages.

There’s the ability to contribute to a spouse’s super, and some clauses for dealing with break-ups.

It is also used for adjusting your Medicare levy, but I am not sure how.

People may use tax avoidance with techniques like hiring their spouses to perform duties for them, in order to further balance their incomes. This isn’t affected by the legal status of their union.

I’m ignoring the “man and beast” comment, because beasts don’t pay tax in Australia.

John,

Your comments about patching versus refactoring are pragmatic given the existing regime. Counter-revolutionary intellectuals, such as yourself, will need to watch yourselves when I am President of Australia. I am going to have to rewrite a lot of laws to explain how it is perfectly constitutional for me to grab the country by fiat. One more (or rather, less) law should be easy.

I confess that I rather miss the point when distinguishing between civil unions and marriages. If they are equal under the law, shouldn’t they be the same word? I don’t accept (as I have heard argued) that “marriage” is a word/concept owned by “the church”, and therefore we should avoid using it where “they” don’t agree.

Julian, I’m a fan of refactorization and I would support your bid to become president; but I don’t live in Australia, and you’re not eligible to become president of the U.S. (Nor am I, by the way.)

As for the name thing, it’s a sensitive issue, and “caving” to one party is again a purely pragmatic move. It’s not that the church owns “marriage”; it’s that there is a sizable and powerful set of people for whom the term “marriage” simply cannot be applied to a union between people of the same sex.

Clearly, the attempt at making “separate but equal” versions of marriage is analogous to the racial segregation laws enacted in the U.S. several decades ago. As abominable as this concept is for both sides, in some places it is a natural and possibly even necessary step, politically.

The question is: Are homosexual couples better off with the legal benefits of marriage without the same title, or are they better off not even having access to the legal benefits? There are many couples who would rather not be in a civil union unless it is legally referred to as “marriage”; they are free to not enter into them regardless. Meanwhile, I would rather not deny the legal benefits from the more pragmatic couples who don’t want to wait for society and natural language to catch up.

it’s that there is a sizable and powerful set of people for whom the term “marriage” simply cannot be applied to a union between people of the same sex.

In Australia, 36% of over-16s oppose same-sex marriage. [Ref: Galaxy poll, Jun 2009, via Wikipedia]

In Australia, approximately 35% of marriages were solemnized by ministers of religion. [Ref]

A powerful set, maybe, but distinctly in the minority in Australia. I’m all for protecting the civil rights of minorities, but protecting a word?

As for the legal benefits, Australia is getting there with some protection under the law for same-sex de-facto couples.

From 3 February 2010, a person who applies to be registered as a marriage celebrant will need to hold the Certificate IV in Celebrancy or an equivalent university qualification in order to meet the qualification requirement to be registered. [Ref]

Oh my! It’s getting worse!

I’m all for protecting the civil rights of minorities, but protecting a word?

Do you really have that much trouble with pragmatism? It’s not the word that’s being protected.

Well played, John. You’ve got me scrabbling around trying to gracefully back down, go on the defensive, and go on the offensive all at once.

Of course, I don’t have that much trouble with pragmatism. In a comment where I was talking about my personal overthrow of the Australian government, there’s to be expected a certain level of hyperbole in my position.

Yes, I fully appreciate that throwing away the current law isn’t going to be an easy political move, which is why I have to fantasise about revolution.

Yes, I appreciate that it may be a better-than-nothing step to kow-tow to a powerful lobby group in avoiding the word “marriage”. Indeed, the Australian laws are perhaps a little more progressive than some countries by supporting same-sex de facto couples, which I see as a similar sort of “extend some rights, while avoiding having to say it out aloud” compromise.

Your analogy to “separate but equal” is an apt one. It may well be a necessary political stepping stone to treat “civil union” and “marriage” as separate words for the same concept, but not a place to rest. If some people refused to get a civil union until it has the same name for everyone, I can see their point.

It is only a word, a symbol. And humans are creatures that put great importance on symbols.

Great, now my position is exactly the same as yours. Curse rationality and it’s inherent ability to get people to agree…

My point is we already have a big and elaborate legal system for dealing with legal contracts; why can’t that be used for marriage contracts too?

Because people won’t like having their special and eternal love dealt with by a system designed for gym memberships and coal supply arrangements. It’s not a mere contract; it’s a Bond of Eternal Love. At least, that’s what a very big chunk of the population will say.

Also, the government will be getting involved when some of these marriages inevitably break down, and it will not just be enforcing contract terms etc – it will be dealing with children and many deeply personal issues that people just don’t act rationally about. So it’s appropriate that it define marriages carefully, so that everyone knows how it works. Deregulating marriage will create a legal nightmare once the deregulated divorces hit the family law courts.

And finally, it is a worthy goal to allow as many people as possible to live their lives without getting lawyers involved. There is a lot of special-case legislation written to this end which could otherwise be handled by general law. This protects the ignorant and the stupid and the love-struck and allows people to get along well without a law degree and a habit of reading long documents in legalese. The cost of having a marriage act (and consumer protection legislation, and laws about buying houses, etc, etc) is arguably (and IMHO actually) justified by the benefits to the population at large.

None of this stops gay marriage being included. Everything I’ve written above applies just fine if you refactor the legislation to remove the obsolete restriction on the gender of the people involved.

I didn’t mean to disrupt your fantasies. After all, besides marriage equality/deregulation/abolishment, there is important work to be done about doors. (And while you’re at it, I’m sure you can squeeze in some legislation about case-sensitivity in software and the height of broom handles.)

I am not alone!

I am really not alone!

You may not be alone, but among people who are clearly for the “separation of church and state” when it comes to matrimony, you seem to have a very stubborn attachment to (or confusion about) the word “marriage”, especially as it interacts with the word “immigration”.

You do so well, with your talk of legal contracts, and keeping the legal aspects of marriage (which I thought we agreed we would stop calling “marriage” when you come into power) separate from the nonlegal aspects (which we intend to refer to exclusively when we say “marriage”, in Julian’s World). Why is it so hard to just put all the immigration stuff in the legal bucket, leave it completely out of the nonlegal bucket, and call it done?

Please bear in mind that if you have an actual reason it is difficult to separate immigration from the religious concept of marriage, I would be all too happy for you to present it. It is entirely possible I have missed something, especially as it pertains to Australian law.

John,

First, to be clear, I believe immigration law should be kept complete separate from the religious concept of marriage.

The difference between our positions is subtle, I think.

We both propose separating the non-legal (i.e. religious, cultural and personal) aspects from the legal aspects.

You are proposing a pragmatic solution that I would vote for immediately, given the choice between it and the status quo; I hope that day isn’t too far off.

I am proposing a more extreme position which will never happen in my lifetime, under a democracy.

You are proposing that the *religious* aspects be called “marriage”, as a pragmatic compromise.

I am ignoring pragmatics, and I am proposing the religious, cultural and personal aspects be called “marriage” (and, in particular, that the word doesn’t have any protected status under the law – any couple can personally declare that they are “married”, even if no particular church approves.)

You are proposing the legal aspects be called “civil union”.

I am proposing the legal aspects (civil unions) be completely abolished and replaced by normal contract law.

Where I am getting trapped is that I want to grant special immigration rights to those with civil unions, but I want to abolish civil unions!

Your plan is clearly superior in this regard (and the fact that it might actually happen in my lifetime!)

My plan is superior in the following respects: it removes unnecessary law, it abolishes the corruption of the appointment of marriage celebrants inherent in that law, it doesn’t grant special license to the word “married” to a limited set of cultures, allowing same-sex couples to call themselves married, and it provides additional incentives to support me in the coup.

(I hope I have characterised your position accurately. If I am arguing against a strawman, please correct me.)

Julian, I think you understand my position well enough. And I think your explanation has helped me understand yours a little better. You don’t want any “standard” contract, but rather a potentially unique contract for every relationship.

I still think the immigration issues could be dealt with; though perhaps more onerously. First, each contract involving a noncitizen would have to have its own provisions for immigration status. And since immigration is a national issue, I guess there would have to be some national authority that approves each contract involving immigration clauses. Which smells like abolishing celebrants and celebrant authorization in exchange for some other, conceivably more intrusive authorization process. But insofar as all contracts need some kind of authority to declare them valid anyway, I suppose the immigration stuff could still just be folded in.

There could still be a national standard of immigration status; it just would have to be longer and more specific. It would have to spell out contractual features which partnership contracts must satisfy in order to achieve special status for a foreign partner. In some cases, a partnership contract which is mostly tantamount to a marriage or civil union could nevertheless fail to meet the immigration standard on some provision or another. The partners could then go to court to try to convince the authorities that their contract indeed meets the standard, or they can modify their contract, perhaps subject to some nationally mandated waiting period or other flaming hoops to jump through.

It might be messier than today, but I think it’s still manageable. But I suspect that what would end up happening is that some small number of common contract templates get developed, to streamline the legal process of drawing up these contracts; and most people, to save time, money, and hassle, would opt for one of these templates; with the net effect that we’ve just… wait for it… taken the word “marriage” off the books and replaced it with something that looks, smells, and tastes like legal marriage but is called something else.

Lest you think I inexorably lean toward pragmatism, let me mention that we can solve your immigration problem more cleanly and elegantly by abolishing national boundaries, thus obviating the whole concept of immigration. (At least until interstellar travel becomes practical.) Of course, there are valid reasons to keep the political lines we have now, but what are currently countries would become mere provinces in the larger, planetary regime.

John,

I am not a fan of the current immigration laws where bureaucrats are tasked with determining whether a civil union is a sham. The idea that they would be given the task of determining whether a contract is sufficiently “marriage-ish” sounds almost as bad. It would give those who want to prescribe how relationships must work the opportunity to sneak in their own rules. You speak of judges, which is one step better than bureaucrats, but much more expensive.

What makes it worse: we are now dealing with other countries and international treaties (no doubt.) Australia needs to decide which foreign country’s marriage certificates they accept, and vice versa.

Accepting other countries’ marriage certificates is simple enough in the short-term, until they start following our lead. (At that point, ummm….)

The short-term issue here is that foreign countries won’t accept the Australian definition of (free-for-all) contracts. I am no expert in this area, and I have no idea how they handle de facto relationships now.

This reminds me a little of United Nation’s solution of International Driver’s Licences. Could a minimal contract be drawn up, which only need be signed at the point someone wishes to emigrate? We only need have the minimum clauses in that contract to be accepted by the destination country as a legitimate (foreign) marriage. That may mean that same-sex couples or polyamorous groups cannot have such a contract when moving to Elbonia, but that’s an issue of Elbonian law, not Australian law.

Your grander New World Order solution is a much better approach, and it should be “easy, if we try”. But, I think it is important to maintain existing political lines, because otherwise we won’t know which sports teams to support.