Stephen Coontz asks that question in this piece at the New York Times today. His conclusions, however, are both simplistic and naive.
Coontz characterizes the origins of legal marriage accurately. Nearly anything was considered a "licit" marriage by the early church, including the simple act of living in the same house. It was only as the state started recognizing various obligations and benefits that the idea of "legal marriage" came into being. And by the 1950s and 1960s, the state was using marriage as the vehicle to determine a variety of benefits.
The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.
Coontz points out (quite correctly) that marriage was easy shorthand for legitimacy since very few people cohabited. But, he argues, marriage shouldn't be that marker any longer because so many people do cohabit these days.
The problem with this argument was that people used all sorts of shorthand to signify marriage because there was no standard available to them. And let's face it; if you were 50 miles from the nearest clergy, jumping the broomstick would seem to satisfy the bill.
But that's not true of today's cohabiting couples. They can marry any time of the day or night (if you go to Vegas) and there are nearly no restrictions on who can marry whom. There aren't even blood tests required in most jurisdictions anymore. So, why not get married?
As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.
Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.
Coontz doesn't address the real reason the state uses marriage as a determiner for benefits: the marital designation signifies a permanency (however fictional this may be in modern times) of the relationship. In other words, shacking up with someone may be nice for a few months or so, but nothing tells the state you plan to stick together like marriage. This is, after all, one of the arguments gay marriage supporters use: that they desire the government to recognize the permanency of their choices.
But above all, the state has the right to determine which relationships it will encourage and which it will simply remain neutral about. That's essentially the difference between cohabiting (or gay relationships) and marriage. The main reason the state sanctions marriage is because of its beneficial effects for children (and also adults). Because parents caring for their own children tend to be less of a burden for the state, it is logical for the state to encourage this relationship.
But cohabiting couples don't necessarily have the same beneficial effect on society as married couples do. And contrary to popular belief, cohabiting couples are less likely to get married than couples who don't live together.
It's sad that we live in a time where people genuinely don't seem to understand why marriage is an important marker, both for governmental purposes and more private ones. But then again, maybe that reinforces the argument used against altering marriage laws: marriage is supposed to mean something, not be just another "licit" act.
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