Opinionated @ CFE

Finding True Common Ground

Nov
16

I’ve maintained pretty staunchly that many of the right that same-sex couples are seeking can be easily obtained via existing contract law. This includes rights such as inheritance, hospital visitation, and power of attorney. It wasn’t until recently, though, that I read a very thoughtful comment on the subject (on the Salt Lake Tribune’s comments board no less) that obtaining these rights often requires the services of a very expensive lawyer. A marriage license, on the other hand, is a scant $50, an amount that wouldn’t even cover exchanging pleasantries with your typical legalista. This isn’t to say that I am changing my mind one bit on who we extend marriage to, but this pricing differential must be addressed.

Civil unions seem like the obvious vehicle. They have a fee structure similar to (if not identical to) marriage licenses and confer many of the same rights being sought. The problem, however, is that there are some who have acted in bad faith when presented with this middle ground. In both Connecticut and California, legal challenges ended in full marriage rights for same-sex couples, a slap in the face to those who tried to meet them half-way. These kinds of actions breed severe mistrust that affording any legal rights to same-sex couples will result in legal action to take much, much more. (This, coincidentally, is the official stance of The Sutherland Institute.) I not consider civil unions or their various permutations (“domestic partner registries”, “mutual commitment registries”, etc.) to be a tenable solution for these reasons.

Instead, I think we still need to focus on contract rights, but maybe in a different framework. The problem as it exists is two-fold: lawyers charge a lot of money for creating what are essentially boilerplate documents and many civic institutions are ignorant of the ability of individuals to contract these rights. What is needed is a solution that both dis-intermediates lawyers from the creation of those contracts and raises public awareness that such contracts can and do exist. For this, I look at object-oriented programming (OOP) for a solution.

In OOP, you can define what is called a class, a particular well-defined function that you can later call on. This saves you the trouble of reinventing the wheel for basic tasks. Think of calling a function as grabbing a can of peeled, seeded, and diced tomatoes instead of doing all of that prep work yourself. Not only is it convenient, it works pretty well about 95% of the time.

We could do the same thing for legal language. For specific rights that can be delegating via a contract to another party, why not define what a specific right means and, via a notarized document, delegate that right to another party? This basically takes the boilerplate away from the $200/hr lawyer and places it in state statute. You could then end up with a document as simple as “I, Bob Jones, do delegate the rights of hospital visitation and medical decisions to Jim Johnson.” There’s no ambiguity because the terms “hospital visitation” and “medical decisions” are already defined. As an added bonus, this language is entirely gender neutral and benefits all adults who can make contracts, not just specific classes.

Any lawyers want to weigh in on this idea? I think this holds a lot of promise.

8 Responses to Finding True Common Ground

  1. This is such a perfect solution, it’s really unbelievable it hasn’t been implemented yet.

  2. “These kinds of actions breed severe mistrust that affording any legal rights to same-sex couples will result in legal action to take much, much more.” Like what? Sutherland Inst. and others bemoan “redefining the meaning of marriage” and do not elaborate on how this is a bad thing. How can redefining a legal term to legalize same-sex marriage possibly adversely affect straight couples or religions? They appear afraid their rights and privileges are going to be diminished somehow. How? I just don’t see it. It’s not like to give one group rights, they have to be taken away from another. What are the many, many more things that could be taken (by gay people? liberals?) by legal action if same sex marriage is legal?

    Love,
    Your Liberal Aunt in Alabama

  3. Carla: Because I’m just too darn lazy to re-write what I’ve already said, go to my FB profile, Boxes tab, then See All under Links. Scroll down to the one on the vote in Maine and you’ll find a pretty good discussion and my rationale for where I stand.

  4. Jesse, this contractual opportunity exists already. You can go the Human Rights Campaign web site and download all of these legal documents. Unfortunately, the “benefits” of marriage is not all the gay community wants. They want marriage. Ultimately, they want the world to see “them” (i.e. their behavior) with the unconditional acceptance afforded traditional relationships.

  5. Paul: I agree that even creating or easing avenues for private contracts will not stop the charge towards claiming the title of marriage and that it is primarily to push social acceptance through force of law. That said, I don’t think that creating a very wide firewall around marriage is going to do much good. People still need to be able to exercise private contract rights with as much ease as possible.

    Also, can you provide links to those documents? I went poking around for half an hour and couldn’t find them anywhere.

  6. I read all 31 comments to that post and I still don’t see what “many other things” gay people will “take by legal action” if they are legally allowed to marry. I keep hearing, give them an inch, they’ll take a mile, but still no one says what constitutes the mile. Adopting/having kids?

  7. Paul: Those templates would most certainly be helpful, but they also present a few problems including the need to be tailored to specific state laws and requiring review by an attorney. You’re still back to the issue of how much it costs to exercise those contract rights.

    Carla: I think maybe you misunderstand my argument. I’m saying that granting civil unions has, in at least two states, lead directly to lawsuits to grab a hold of marriage. In other words, trying to use civil unions as the compromise would only work IF both sides agree to hold to those terms. When one side reneges on that agreement and uses the compromise to get their way fully, there’s a problem.

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