My Other Self: Spouse as Proxy


Russell Blackford and I have corresponded by blog post briefly on the topic of marriage as a state-sanctioned institution. When he collected his thoughts on the topic for an opinion piece, he let me know it was there. I read along, generally finding a lot to agree with. I didn’t know we were in more or less the same page on most of these topics, but given some of the other details on which we each turn a skeptical eye on marriage, I wasn’t surprised.

I was slightly surprised to see that Russell was in favor of retaining a role for the state in marriage:

Frankly, I have no good, principled answer. However, I do not see it as a practical option for the state to withdraw from the field of marriage entirely – at least not any time soon.

Current liberal democracies do not start with a clean slate. Though marriage and its social meaning have changed dramatically over time, the institution has a long history, very widespread public acceptance, and much emotional significance for the majority of citizens. A move by the state to get out of the marriage business at this stage of history would have a different impact from merely declining to provide a system of state-recognized (and registered) marriages in the first place. It is not a practical policy position.

For the foreseeable future, marriage will continue as an important institution, though its meaning may undergo further changes. In most of the world’s jurisdictions, it also provides a raft of legal benefits, including the many that follow from the parties becoming next of kin. Though marriage is no longer assumed to be permanent, it remains an expression of strong commitment, and the legal formalities provide a way for the state to bless and glorify it. Those are the facts on the ground, and policy must take them into account.

It isn’t incompatible with anything Russell has said previously, but it is a more moderate position than those often taken by skeptics. The notion that states should remove themselves from the marriage business posthaste is hardly unheard of. It’s not the position I’d have taken, but it’s there, which merited my mild surprise.

Then I got to thinking a bit more about the concept of “next of kin”, specifically what rights it entails and what it has meant historically. The more I thought about it, particularly in the context of medical and legal proxies, the less I’m comfortable with these decision-making functions being automatically transferred by a marriage certificate.

Next of kin proxy status has always had potential for abuse by those who don’t have our best interests at heart, whether that be our parents who refuse to see us anything other than extensions of themselves, children with potential conflicts of interest in inheritances, or controlling or estranged spouses. The concept is problematic in itself.

As we think about what marriage has come to mean in modern times, we add another complication. We no longer treat marriage as primarily a merging of financial interests and household or family management. That means we no longer choose spouses (or have them chosen for us) based on those considerations, which in turn means that the person we choose to marry may not be the best person to represent our interests in those matters.

While the person I married because he made me happy is someone I trust to handle those matters, the same may not be true for everyone. So even as we move toward marriage equality and allowing all people to automatically move toward having their chosen next of kin recognized, the modern meaning of marriage suggests that we should also move toward creating strong proxies for our decision-making that have the weight of law behind them.

Even as we open state-sanctioned marriage, we should make it less useful. We should divorce more of the benefits of marriage from the institution itself. That many people would choose to make their spouses their proxies doesn’t subtract from the benefits of divorcing (as it were) the two roles.

There are, of course, additional benefits that may keep marriage a government institution for a while, but this particular one may well serve us best by being made separate.

Comments

  1. Pen says

    Whenever this topic comes up, I try to remind people that marriage is one of the few ways to convince a state that couplles of two nationalities should be allowed to remain together. Since my whole family in our generation consists of people with multi-national relationships, I do have a vested interest. It is true that it is a minority interest, but it is not an extremely rare one. To many of us, formal marriage concerns the relationship between a couple and the state (usually two states), rather than between the couple. I for one, would not have married under other circumstances.

  2. says

    Pen, that’s exactly the benefit I was thinking of as likely to keep marriage a state-sanctioned institution longest, not because nations think it’s important, necessarily, but because they have the biggest interest in restricting that benefit to only two people at a time.

  3. anne mariehovgaard says

    I really don’t understand the idea that states should have nothing to do with marriage AT ALL. As far as I’m concerned, the state-related stuff is why you get married. Not just next of kin status & the right to have your foreign-nationality loved one live with you, but also things like official recognition of the fact that you are going to support them financially if they can’t get a job, which you wouldn’t do with a roommate, plus simply not having to write a shit load of contracts – which most people won’t do anyway. Here in Norway it is very common for couples to live together without being married, and there are lots of standardised contracts to cover various situations that might cause problems, but 1. not all problems can be solved that way and 2. most people never get around to writing those contracts. Partly because it’s not mandatory, so they don’t bother, partly because the contract-writing solution costs several times more than getting married. The only way the “get the state out of my marriage” stuff makes sense is if you want to get rid of states. Or if you are an un-/underemployed lawyer.

    And why the f. would anyone get/stay married to someone they don’t trust? If they do that, they are not likely to be able to make a good decision about who should be their proxy anyway. It might be a good idea to have a way to withdraw that right from an estranged spouse, though, if that is not possible where you live.

  4. Ysanne says

    Completely agree to #3 (plus, I have the same vested interests as #1).
    For me, the whole point of marrying is the easy way to say “yep, this is the person with whom I’d like to be recognized as one family, with all the rights and responsibilities that follow from this”.
    And as this kind of commitment is quite popular, I find it extremely important to be able to get it recognized by the authority that is actually responsible for all the other personal data stuff (such as passports, driving licences etc): The state. Getting a blessing from imaginary beings is an optional extra.

  5. Keith says

    I have never considered having the state remove itself from marriage completely, and it does not sound as if Stephanie is really advocating that either.

    Breaking marriage down into groups of rights is an intriguing idea though. As an example, if you separated the suite of responsibilities that surround health care from the rest, one could designate a relative/friend who is a medical professional to make these decisions rather than ones JEhovah Witness spouse.

    Similarly financial issues could be delegated to a financial expert relative/friend rather than the spouse who freezes up whenever simple arithmetic is discussed.

    Interesting groups of rights could be set up for children as well. Custody could go to a blood relative rather than a step-parent.

    Certainly most people, at least initially, would choose to give all ‘marital’ rights to their spouse, but as society becomes more accepting of the concept this would change in future generations.

  6. D. C. Sessions says

    The “writing those contracts” obstacles are not hard to overcome. In many ways that’s what State-sanctioned marriage is: a standardized bundle of contracts.

    Very nearly the same effect (immigration aside, for instance) could be easily accomplished by having those standard court-tested contract terms generated by a web application and printed out for witnessed signature. The State could even have a registry, much as with marriages today, and an office (much as with marriages today) to expedite the process.

    There is one role that the State can’t abdicate, but it’s only incidentally related to marriage: underwriting the welfare of children. Given that it’s been a long time since we could pretend that there was a 1:1 relationship between marriage and kids, it’s silly to keep the association any longer.

  7. says

    On the one hand, any time the state gets involved in people’s personal affairs, there’s an opportunity for corruption. On the other, I can’t see that as negating the benefits. How much does it cost to get someone legally declared next-of-kin? How much does it cost to have a solid power-of-attorney drafted in case of medical emergencies? How much does it cost to create a bulletproof will leaving everything to someone who isn’t the closest relative? Do all those things cost less than $50? because all I had to do was pay a tiny court fee and I got those benefits for free.

  8. eric says

    The more I thought about it, particularly in the context of medical and legal proxies, the less I’m comfortable with these decision-making functions being automatically transferred by a marriage certificate.

    I actually think the problem is the reverse. I’d like to see it made easier for people to designate next-of-kin benefits, not harder.

    To be sure, there is a lot of inequality in how its done now, with regular M-F marriage being relatively smooth and easy compared to other couplings. But I think the solution to that inequality is to make it easy for others too, not make it harder for regular M-F marriages.

    States like stable populations, that keep (the same) jobs, don’t move around, and so on. Couples tend to be less transient than singles (if for no other reason than finding two simultaneous jobs in an area is harder than finding one). So I doubt formal state support of marriage will ever go away, for the same reason I doubt tax breaks for home purchases will ever go away: both are forms of intentional social engineering used by the state for its own benefit.

  9. eric says

    Errr…slight revision: I doubt state support for some equivalent type of civil union will ever go away. I see no reason why it has to be called marriage or why it has to be connected at all with religious ceremonies that bear that name.

  10. D. C. Sessions says

    BTW, another aspect to Stephanie’s difficulty with automatic designation of rights is the whole business of pre-nuptial agreements. There, you have attorneys and expense involved in nullifying the automatic arrangements the State defaults to.

    And, speaking from experience, it’s extremely unwise to marry without a pre-nup. No matter how much in agreement the two of you may be, shit happens. Ask the Schiavo family.

  11. says

    It’s not so much that I favour retaining the state’s role in recognising and registering marriages. I don’t especially, in an ideal world, but I don’t think we have much choice. I don’t think an abdication of this role is a practical option even in the medium term, let alone the short term (especially in the US, where there has been less push than in other Western nations to give de facto couples just the same legal rights as formally married couples). So, I think we should be making current policy on that basis. I think that policy should reflect the real-world situation.

    Generally, though, I sympathise with the OP. It raises a useful point about next of kin, and I can at least see benefit in making it straightforward for a married person to nominate someone other than her spouse to be next of kin.

  12. psocoptera says

    Am with #9 on that one. I would prefer it be called a civil union for everyone and leave the marriage business to believers. I’ve accepted that it is unlikely to happen in the US. I tend to think humans are primarily serial monogamists, so it would be nice if we could make divorce a little easier.

    I want to address the question in #3, why would you stay married to someone you don’t trust? Some people do it because the benefit of the arrangement outweighs the difficulties created by lack of trust. Then there are abusive situations that are hard to escape, particularly when children are involved. Why people don’t leave abusive situations is hard to explain, but do consider that if your partner wants to hunt you down, no piece of paper will stop him/her.

  13. atheist commenter says

    This “government should stay out of the marriage business” is short of abolishing the government altogether a libertarian trope that unfortunately is too often used to disguise homophobia. There are a number of issues (permanent residency for partners, testimonial privilege, joint adoption, etc.) that can’t be solved by writing contracts where the government can either recognize some de facto marriage or it can abolish the rights that were once granted. But the government cannot stay neutral.

    The people that want to abolish marriage would be far more credible if they would give honest answers to what will happen to the rights marriages nowadays afford.

  14. anne mariehovgaard says

    Marriage is not originally a religious institution, it’s a lot older than Christianity – why should they get the traditional, commonly used word? Let them call it holy matrimony or something.

    I understand that some people have a hard time leaving abusive relationships, it just seems odd that they would be able to, or even think of, changing who was to be their medical proxy etc. in such a situation.

    I think the situation in Norway is pretty OK, you can marry anyone except close relatives (regardless of gender) 18 or older, or just live together (samboerskap) with a lot of the same rights (if you claim them, and have lived together for a certain period or have mutual children).

  15. says

    In The Conservative Case for Gay Marriage The author makes a fairly strong case for state vested interest in marriage offers society as a whole.

    I am in favor of a universal healthcare so insurance is no longer an aspect of state vested interest. I am not sure that I am in favor of removal of automatic marriage based contracts such as “next of kin” rights. I think that perhaps it should be easier to separate yourself from them whilst remaining spouses but I don’t know that I would be rid of them altogether.

    Definitely something I have to think about more.

  16. John Horstman says

    @13: I think we should abolish legal marriage altogether. I’d have to have a list of specific rights about which you’re concerned to tell you what I think should happen to them. Some of them I don’t support in the first place, and some of them should be/are available separate from marriage. With the examples given so far:

    Next of kin – one should be able to make anyone one wishes next of kin, irrespective of relationship, and it should never be assumed. If you want specific people inheriting your stuff or managing your legal affairs, put it in your will (including a living will for cases in which one is incapacitated but still alive). The simplest way is to just establish a primary (and secondary, in case your primary dies with you or within a short span of time of when you die/are incapacitated) legal proxy who will handle all of the details. If you don’t care, than the state will take your possessions into the public trust. Make it as complex or simple as you wish.

    Trans-national marriage – shouldn’t exist. Immigration law is seriously screwed up anyway, but I see no good reason that random person X should be granted citizenship over random person Y simply because current-citizen Z likes to have sex with or hang out with person X but not person Y. One is using marriage as a bad loophole to dodge problems with immigration law generally. If you want to marry someone from another country, that person should be able to establish residency on hir own credentials; if that person CAN’T establish residency (and eventually citizenship) on hir own credentials, I see no reason one’s personal affinity for another person should override the state interest on which the residency/citizenship requirements are based (again, I know that’s not often the case in practice, but I see this as an issue with IMMIGRATION/CITIZENSHIP LAW, not marriage law).

    Shared insurance – shouldn’t exist; or, it should exist irrespective of sexual/familial/romantic/etc. relationship. I’m all for universal health care (NOT universal insurance – I favor tax-funded hospitals, not subsidizing private hospitals/clinics with public monies from public insurance programs), but even in a system that doesn’t provide it, I see no reason you should be able to cover your ‘spouse’ more cheaply than I can cover my dear friend, or brother, or nephew. Additionally, I don’t think that something like wishing to extend insurance coverage to another should necessitate all of the other social and especially legal entanglements of marriage as it stands.

    My position on some of these may change if the global population dips below 700,000,000 or so, but as it currently stands, the human population faces no threat from dying off due to a lack of support for reproduction or child-rearing units (families, the purpose of legal/social kinship regulations in the first place), so the state has no vested interest in enabling families and particularly reproduction (other than the fact that people like to form pair-bonded families and reproduce, and the state represents the communal interests of its citizens). Basically, I don’t think there’s a particularly good reason to privilege one form of familial organization (marriage) over others, especially when the exclusive hetero pair bond (‘traditional’ marriage) is more a function of an economic system that’s in its death throes right now than any intrinsic social benefit (multi-generational households housing the families of several siblings engaged in communal household maintenance and child-rearing were the norm until the advent of Modern market capitalism, especially corporate capitalism with its reliance on externalizing the maintenance, training, and production of workers to unpaid wives/mothers).

    I’m yet to hear a reason for KEEPING marriage that doesn’t go alone the lines of, “As a person in a pair-bonded sexual/romantic/familial relationship, I enjoy the privilege I am accorded as a result of being in such a relationship, and I don’t want to see it taken away.” And that’s LEGALLY-ENACTED privilege; at the very least, you should stop arguing against my White, male SOCIAL privilege (well, it’s legally-enacted in a few implicit cases still, though explicit cases have been generally banned) to maintain consistency if you adopt such a position (I’ll continue arguing against both).

  17. John Horstman says

    @13: Oops, I missed not being compelled to testify against a spouse and adoption as two more issues you raised.

    Legal testimony – assuming the point of the legal system is to arrive at the truth with respect to crimes committed, because the laws governing what is and is not a crime are the best possible laws established to govern our behavior (i.e. assuming you agree that the criminal justice system should function as intended), spousal privilege makes no sense. If your spouse is committing a crime and you know about it, the interests of justice are served by compelling you to testify about it, same as any other person. I don’t think spousal privilege is a good idea at all, irrespective of how we govern marriage. If my spouse shouldn’t be compelled to testify against me, than neither should my mother, nor my best friend, nor my neighbor, nor anyone for that matter.

    Adoption – I would very much like to see joint adoption/legal guardianship available to anyone and everyone. This would allow for the most flexibility in family arrangements. If my wife leaves me and leaves me with the primary custody of (and responsibility for) my two kids, and I move in with my half-brother to help cover expenses and household and child-care work, my half-brother ought to be able to be a legal guardian/parent of my children, as he’s functioning as one (this is actually the case for two people I know, except for the guardianship, which is not presently legal). Again, there’s no particular reason to restrict this to “marriage”, nor any reason to include it by default (for all of the married people who never adopt or have any kids at all).

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