[The Pack Knight]

I've long thought that marriage should be defined by our culture rather than by the state. However, the main problem with this approach is that marital status has implications in virtually every area of private law. The state's involvement in marriage goes far beyond marriage licenses and taxes. It has implications in contract enforceability, tort privileges, and duties to act under both tort and criminal law. Most importantly, of course, are its implications in child custody and in property.

If the state doesn't define who is married and who is not, then how would these issues be resolved? If a couple that consider themselves married acquire property and then, later, split up, how does one decide who has title to what, particularly in a community property jurisdiction rather than one that follows the common law approach?

I agree that issues concerning private sexual relationships between consenting adults do not belong in our criminal courts. However, I don't see how we'd ever be able to remove marital issues from our civil courts.

I suppose one solution would be to abolish consideration of marital status from all areas of the law. Paternal rights would be adjudicated irrespective of marriage. Community property, common law and statutory dower and curtesy systems, and tenancies by the entirety would be abolished. That, of course, would be a more dire attack on the institution of marriage than gay marriage itself.

[MinnesotaLibertarian]

You raise a good point, and it’s one of the best arguments in favor of civil unions for all couples, and removing the word “marriage” from the government lexicon. I’m not completely decided on this, but lean in favor of it.