Sunday, July 14, 2013

Maybe its time that government exits the marriage business

I recently finished reading Joseph Ellis' Founding Brothers.  It is an excellent read and includes a large portion dedicated to the friendship and rivalry of Thomas Jefferson and John Adams including the growing debate in regards to Nationalism versus States rights.  This division of powers is well punctuated within the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I was not surprised by the recent Supreme Court decision striking down the Defense of Marriage Act (DOMA).  I know of no provision granting a marriage power to Federal authority nor can I think of a stretch whereby such powers could be reached by regulating commerce or some other indirect means.  If you reach back in time, the root and intent of marriage was largely targeted toward procreation and ensuring the continuing population of the human species in protective units that we have regarded as families.  A lot has changed.  It is clear that marriage is not necessary to procreate and "protective units" need not be married couples to successfully raise children.

The recent court decision champions rights for all to marry.  The drive for these rights presumes a benefit to marriage.  Some of these benefits are not entirely clear.  For example, for many years there had been obvious inequities in income taxation whereby the deduction for married individuals who filed individual returns was lower than that of an unmarried individual who filed a return.  You still find remnants of tax penalties for married individuals in threshold limits for certain credits or deductions.  Other frequently cited marriage benefits include health insurance (but, of course, Obamacare is going to take care of this problem for everyone...) or disposition of property of a deceased individual or visitation rights of a loved one who is hospitalized.

I appreciate that marriage has been the traditional gatekeeper for many of these "benefits" and that the States have traditionally regulated the institution of marriage, but does that need to be the case? At one time blood tests were required to marry.  As previously reflected, the presumption of marriage was procreation (having children) and the state's role was to insure that the parties were safe for this purpose.  However, blood tests are no longer required in most places.  This supports my supposition that it may be time for the States to step back and for that often forgotten "or the People" clause of the 10th Amendment to step forward.  Why can't we leave it to the people involved to decide if they are married or not?  If you want to be married maybe it should be as easy as completing a Health Care Proxy.  (If you do not have a health care proxy, now may be a good time to consider one and the link provided takes you to the New York State version.  Health Care Proxies are commonly honored between states).  Likewise choosing to end a marriage should be simple as well.  (Let's face it, the expense and complexities of our current divorce process hasn't done much to preserve marriage).

If we are going to concede that there are reasons for marriage beyond procreation, maybe we need to re-think what a family unit is and how to allocate the needed supports.  Instead of income tax laws that rely on marriage as a criteria perhaps these laws should be adjusted so that households of 2 adults of any relationship may file joint returns.  This might be a good way to support non-traditional families such as when Grandma is providing a lot of support to her adult daughter and her daughter's daughter.  Similarly, why can't health insurance policies be such that you are permitted to place yourself and one other adult (any other adult) on your family health insurance policy.  This sounds much more family friendly to me.  Similarly, a simple "marriage" document exercised by the people (see the health care proxy example) may serve to establish marriage for disposition of property in the absence of a will or for hospital visitation.  While this discussion is not all inclusive, it is meant to demonstrate that we can easily simplify the concept of marriage and support of family units by returning the marriage power back to the people and reframing familiar supports and benefits.

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