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The debate about same-sex marriage has caused many Americans to rethink marriage. The far left insists that traditional marriage discriminates against homosexuals and other nontraditional families, which are denied the legal benefits bestowed upon married couples. The far right insists that traditional marriage should be preserved in order to protect children, who seem to fare best when raised in stable households headed by a mother and a father. They’re both right: Government should not discriminate based on sexual orientation, but the government’s interest is-and should remain-to protect the best interests of children. This leads me to some admittedly unorthodox conclusions: Civil marriage should be abolished, and the government’s role should be shifted from encouraging and rewarding intimate relationships to encouraging and rewarding families. All people, regardless of sexual orientation, deserve to experience the love and security of a long-term commitment. But this does not necessarily mean that the government should subsidize all intimate relationships by conferring upon them the shibboleth of civil marriage. The government has no interest in preserving intimate relationships per se. Its interest in marriage stems from the fact that marriage is generally a precursor to childrearing. Let’s face it: If a childless marriage ends in divorce there is no great societal loss from a civil perspective (the religious perspective is another matter). The government really has no interest in preserving intimate relationships without children. But once a child has entered the picture, society’s interest in keeping a couple together for the benefit of the child rises substantially. The benefits bestowed upon married couples are justified not because the government has some interest in encouraging or rewarding romantic love, but because it has an interest in maintaining the family unit. Although it may sound strange to the modern ear, extricating the government from the business of marriage would not be unprecedented. Until relatively recently, marriage was an exclusively religious institution. The impetus for transferring jurisdiction over marriage from religious institutions to civil law was a dispute in the 16th century between King Henry VIII and Pope Clement VII, who balked at granting a dispensation to Henry to leave his first wife, Catherine of Aragon, and marry his mistress, Anne Boleyn. Henry got his divorce by breaking with the Roman Catholic Church and vesting marriage jurisdiction in the state. If states were to abolish civil marriage altogether, marriage would not disappear; it could continue to be regulated by religious or other private organizations. Instead of civil marriage, the government could devise an alternative, the primary aim of which would be to protect the interests of children. These legally recognized relationships, called “families,” could be given preferential legal treatment. Families could consist of one or more adults who are raising children. An adult entering into a family relationship with another adult (whether of the opposite sex or not) would assume joint legal responsibility (parenthood) for the care and upbringing of the children, until such time as the child reached majority, unless parental rights were terminated by court order. Everyone wins, especially kids Under this alternative, both political extremes win. The far left wins because the law no longer sanctions discriminatory treatment. All families would enjoy government largess, regardless of the gender of the parents. The far right wins because the law would focus on protecting children, the heart of any benevolent set of family values. Those of us in the middle win because the government gets out of the discrimination business, focuses on protecting children and disentangles itself from an essentially religious debate about recognizing same-sex marriage. Who potentially loses? Couples (straight or gay) without minor children would lose their preferred legal status, though most of these benefits, such as inheritance and other property rights, could be ensured instead through wills and other contractual arrangements. Although this may seem unfair, it actually is not from the perspective of governmental policy. Childless couples could still marry and reap the psychological, physical and financial benefits of marriage, though their marriage “license” would come from their church, temple or some private organization, not the government. Marriages-even childless ones-may indeed become more stable because their dissolution would depend upon religious terms. The regime I suggest would encourage and reward relationships that are centered on ensuring the welfare of children. It is a shift in focus that is long overdue. The time has come to reform the legal system to reward not romantic love, but adults who assume responsibility for minor children. Let’s get out of the marriage business and into the family business. Elizabeth Price Foley is a professor of law at Florida International University College of Law.

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