Looks like the California Supreme Court may have teed up exactly an idea I’ve kicked around for years: getting the State out of the “marriage” business altogether. I’d missed this par from the majority opinion on my first scan (well, it’s 200 pages long), as spotted by Chris Crain, via Andrew Sullivan:

Even though marriage becomes open to everyone with this decision, the majority did leave open “whether the name ‘marriage’ is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples.”

That was the wiggle room I had hoped for in my post earlier today, allowing the Legislature to compromise if it wants and call the institution some other name — “civil unions” or “civil partnerships” — if the pushback on “marriage” is too strong.

This is where, it seems increasingly obvious to me, the chain of reasoning leads, as I wrote yesterday:

I still think that the word “marriage” should disappear from the statute books altogether, whether applied to hetero or same-sex couples. Let churches or other private institutions confer the distinction “marriage” and sanctify a relationship. The State simply shouldn’t be in the business of bestowing or withholding dignity rooted in the symbolic and cultural power of a word. Let the relationships be considered equal before the law, in name as well as subtance. But you can’t simply wish away the fact that changing the definition of the m-word is an innovation that society, not the State, is competent to make, much less four justices of the California Supreme Court.

Or back in November.

Governments have only been issuing marriage licenses, per se, since the 1920s or a little before. Marriage ‘banns’ in England and Wales go back to around the time of Magna Carta - to post intent to marry for a couple of weeks in the local church, in case anybody - like your existing spouse - wants to object. The Scots just said you had to exchange vows - even on your own in a field with no witnesses - and your marriage was recognised post facto. Some Brehon scholar might want to leave a comment with how it worked here pre-Cromwell.

Marriage as a legal construct of the industrial state is about survivor benefits, property rights, child custody and some seriously ugly eugenics thinking on control of procreation. As such it’s kind of past its sell-by date.

Of course, the universal “domestic partnerships”/privatisation of marriage route has some other twists in the road:

…it’s not about gays. It’s about everybody. The argument runs like this. The state has no business in what goes on inside a private household and cannot restrict sexual activities between consenting adults.

It follows that domestic arrangements arising primarily to provide a socially constructed way to control sex, i. e. marriage, should also be beyond the state’s control.

In the Dail debate last week, Dr Martin Mansergh, a guy whose IQ is as distant from many of his party colleagues’ as theirs is to a carrot, made the key distinction. As reported in the Irish Times: “In the case of civil partnership, said Dr Mansergh, there should be no necessity for there to be a physical relationship, though of course the public might tend to draw its own conclusions.” So sex is no more needed for civil partnerships than marriage is for sex. That insight means civil partnerships can’t just be about samesex couples. Or about co-habiting heteros. To be just and logically consistent, civil partnerships, with all their attendant privileges in property rights and tax benefits, should be available to whatever domestic arrangements seem appropriate to consenting adults. The public might tend to draw its own conclusions about the presence or absence of a physical relationship, but the state must be blind in such matters. If cohabitees and same-sex couples, why not polyamorous relationships of three, four or five adults of mixed genders?

Why not an elderly mother and divorced son? Why not four women just out of university sharing a house?

Am I crazy, or is that where the logic takes you?