Opinionjournal has an interesting article. Some highlights:
"Society's stake in marriage as an institution is nothing less than the perpetuation of the society itself, a matter of much greater than merely private concern. Yet society cannot compel men and women to bring forth their replacements. Marriage as conventionally defined is still the ordinary practice in Europe, yet the birthrate in most of Europe is now less than the replacement rate, which will have all sorts of dire consequences for its future. "
This fundamental problem--that most developed countries aren't reproducing at the replacement rate--is at the heart of a radical idea I've been toying with, namely that we should reemphasize that the state's interest in marriage is in encouraging procreation and a healthy environment in which to raise children. Adopting such a public policy full-on would, of course, lead to many complications and probably be wildly unpopular. But it's hard to see how the welfare state can survive without some solution to the problem of declining birthrates and increasing lifespans.
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"Nationwide, the marriage rate has plunged 43% since 1960. Instead of getting married, men and women are just living together, cohabitation having increased tenfold in the same period. According to a University of Chicago study, cohabitation has become the norm. More than half the men and women who do get married have already lived together.
The widespread social acceptance of these changes is impelling the move toward homosexual marriage. Men and women living together and having sexual relations "without benefit of clergy," as the old phrasing goes, became not merely an accepted lifestyle, but the dominant lifestyle in the under-30 demographic within the past few years. Because they are able to control their reproductive abilities--that is, have sex without sex's results--the arguments against homosexual consanguinity began to wilt.
When society decided--and we have decided, this fight is over--that society would no longer decide the legitimacy of sexual relations between particular men and women, weddings became basically symbolic rather than substantive, and have come for most couples the shortcut way to make the legal compact regarding property rights, inheritance and certain other regulatory benefits. But what weddings do not do any longer is give to a man and a woman society's permission to have sex and procreate."
I think the solution might be to reevaluate the way we handle the legal compact aspects, and decide that the state has no compelling interest in regulating consensual sexual conduct between adults (at least in situations free of STDs or children). This would require redefining marriage in terms of procreation, as mentioned above.
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"Men and women today who have successful, enduring marriages till death do them part do so in spite of society, not because of it."
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"...same-sex marriage, if it comes about, will not cause the degeneration of the institution of marriage; it is the result of it."
So my rough ideas for how to radically reform family law:
*Free up most of the 'legal incidents' of marriage so that individuals can easily enter (and exit) legal arrangements with whomever they please regarding inheritance, health care, etc. Allow private organizations (company benefits, insurance policies, etc) to do whatever they want.
*Reserve the legal institution of marriage for couples who expressly state their desire to have children. Require some sort of premarital counseling (to help couples know what they're getting into, nip potential problems in the bud, etc), a brief (month or two) waiting period for marriage licenses (to prevent hasty decisionmaking), stricter requirements for divorce (end no-fault, etc), and generally make marriage a much more formidable legal institution. Couple this with major tax breaks/incentives for each dependent child living at home (thus providing a strong incentive for couples with children to be married, while leaving couples who don't have children indifferent to the prospect of marriage). The legal benefits and costs would be justified by the state's major interest in encouraging births (to provide future Social Security taxpayers, if nothing else).
*Structure state adoption agencies to give priority to married couples. If a surplus of children needing adoption exists beyond what married couples can handle, allow nonmarried individuals adoption rights. In all cases, children's welfare agencies would hold unmarried parents/guardians (of both adopted and natural children) to stricter levels of scrutiny, given the social science data indicating that children living with their married biological parents are less at risk from a variety of factors, including abuse.
**Such a system would seem to address some of the major problems facing us now--the gap between the state's interest in marriage and the legal incentives which it seems unjust to deny unmarried people, the declining birthrate, the rising divorce rate, etc. However, it obviously faces several problems:
*For starters, it offends my libertarian sympathies by relying considerably on state action. I'll have to consider that angle further.
*At the state level, it might face problems given both the overbearance of the federal government (which controls most of the taxing and a great deal of the spending) and the ability of individuals to pack up and leave (which will increase short term costs as the proportion of married individuals rises in the state compared to elsewhere--even if that results in the long term in a state healthier than its depopulated neighbors, the short term costs could be high).
*Transition costs could be high, as existing marriages may or may not fit the new criteria. In general, tinkering with the accepted societal definition of marriage will ruffle feathers all around, regardless of who's doing it (and, given that marriage has evolved to the point where it can mean practically anything one wants it to, perhaps any attempt to restore a coherent definition is doomed in our current society).
*Certain groups--childless by choice couples, same-sex marriage activists, cohabitators generally--would probably vehemenently oppose any such change.
**However, a major advantage such a plan would have, it seems, is that the problem looming behind all of the current sound and fury is the approach society takes towards childrearing. The normalization camp will not be satisfied until same-sex couples can adopt and be seen as perfectly normal parents. The traditional camp, already horrified at the rise of single-parenting, is deeply suspicious of the supposed virtues of same-sex couple parenting. Since not enough hard data exists to get both sides to agree on much of anything, we can expect some nasty battles unless one side or the other manages to preempt the legal field. The difficult questions society will have to answer include:
*Does every individual have a right to have children, or does society have a role in regulating the circumstances in which children are created/live?
*What is the proper role of the state in determining the fitness of prospective individuals, couples, or groups to adopt children who are wards of the state?
*Should reproductive technology be regulated, or is using it a fundamental right? Should women (including same-sex couples) be allowed to use sperm donors to give birth to children who will be raised without fathers? Should men (including same-sex couples) be allowed to make other arrangements (such as hiring host-mothers) to arrive at an symmetric motherless result?
I think you can make a powerful argument that opposite-sex couples do the best job of raising children, particularly when said children are the biological offspring of the parents. I also think that many people, if a not a majority, will reject such an argument, and argue in favor of its converse. Further, decent people of every belief will likely have serious qualms about both involving the state heavily in regulating parents' rights, and in failing to regulate in some circumstances (given the shocking prevalence of abuse, neglect, etc). Which approach is best is still largely unclear to me, though I do predict that we will not arrive at any good solution until we address the above questions.
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