I suppose it's no surprise that marriage keeps cropping up in various ways in the study of law. The importance of this institution is hard to overstate, even while I chafe at its current use by the government, and the meaning attached to it. Not a subject for cocktail hour, to be sure.
I am home from vacation and back to the books right away, because classes start in two days, and I have foolishly signed up for 3 classes this summer. I fear I am biting off more than I can chew but it's hard to say what class I would drop if I were looking to lighten the load. At least both the Federal Indian Law and the Advanced Legal Writing classes are pass/fail and won't affect my GPA. Community Property is a required class taught only in the summer, so there is no option about taking it. This is my last summer of law school, so I can't put it off.
So I have begun my Community Property reading, and of course marriage-or the judicial dissolution of it, is a necessary element of this discussion. The book begins with a very cursory overview of the meaning of marriage. I recognize that it is outside the scope of the text book and this class to consider the validity of marriage itself, at least as it is used to legitimate familial relationships and as a means to deliver benefits and privileges to caregiving units by the government. But the topic reminded me of why I have become so 'anti-marriage' as it exists today.
The government, and case law, have posited that some of the primary purposes of marriage are for societal stability and to provide for responsible child-rearing. (see Maynard v. Hill 125 U.S. 190; Adams v. Palmer 51 Me.481; In re Marriage 43 Cal. 4th 757; Reynolds v. U.S. 98 U.S. 145)
Given that the number of households that are not based on a legal marriage are now outnumbered by other types of structures in the US, societal stability may be a challenging correlation to draw.
The need for caregiving is, however, a valid concern that reaches far beyond childrearing. All of us will at some point in our lives have need for care from others. Babies, the aged, the disabled are all obvious examples, but not nearly a complete picture. The mother giving birth, the child being subjected to abuse, the unemployed worker, the victim of crime, the temporarily ill, accident victims-all have need of care given by others even if for only a short time. The state has a legitimate interest in supporting familial or other units that provide this care both for the benefit of its citizens and to reduce the burden on the state to finance this care. But the majority of this caregiving is done outside of a married family group, and when the government provides certain benefits only to married couples, it misses the mark badly.
The Federal Government Accountability Office has listed 1,138 rights or benefits in which marital status is a determining factor. Some major areas include the impact of income tax laws, inheritance laws, property tax exemptions, childrens' access to social security benefits, standing to bring tort action, health insurance coverage, parentage rights, marital privilege as to testifying in court, operation of a joint business, veterans' discounts on medical care, education and home loans, FMLA leave and wrongful death actions.
In looking at these areas generally, I find it hard to see how being married is a key component at all. Certainly there are more tailored and meaningful ways to establish inheritance, parentage and other such qualifiers.
There are equal protection problems with the current approach at the very least, and I would argue that aside from any legal concerns, we as a society should reconsider our approach to support for caregiving. I know there are strong religious and traditional societal drivers behind the support of marriage as it is today. But regardless of what a particular political or religious group may wish for, the reality is that many of those who function in caregiving units are not protected by a marital union. Our delivery of benefits and privileges needs to be broader based in order to provide more even distribution. There is benefit to society in educating our youth, rehabilitating prisoners, providing humane and respectful care for the elderly and disabled.
We can do better than this.
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