It’s official: same-sex couples cannot get “married” in Maine. I realize this is upsetting for many. However, this column might cheer you up, in an odd way, because I cannot help but wonder whether any state-sanctioned marriages are valid under the United States Constitution. Shortly after the Civil War, the 13th, 14th, and 15th Amendments to the Constitution were adopted. The 14th Amendment, with its Equal Protection Clause, receives the most attention these days, but the 13th is the one that abolishes slavery. As such, one could argue that the 13th Amendment makes “having and holding” a human being, or “the union of” two human beings, illegal.If people cannot own people, then how can a father “give” his daughter to a groom? The opportunity wedding attendees are given to “object to the union of this man to this woman” is potentially problematic if it is intended to allow a man to acquire clean title to his bride-to-be.You may counter that men and women are equal and that things are different today. Are they? And even if men and women are equal, do two wrongs make a right? Is it OK for me to own you if you also own me? Does one sale cancel out the other?
Two wrongs have never made a right, and the sales do not cancel each other out. Consider the basic, traditional wedding vow, which states, “I, [name], take you, [name], to be my [wife/husband], to have and to hold from this day forward … till death do us part.”
The phrase “to have and to hold” sounds a lot like the language of property law. A person with the exclusive rights to “have and hold” something has taken a major step toward the right of control, or ownership, of the object. The “union” of man and woman also smacks of ownership rights, similar to the way a merger or acquisition creates a union of two companies.
Traditional marriage may unwittingly subject men and women to a property-based contract that reduces their status to that of chattel. If two people mistakenly grant illegal ownership interests in each other to each other, then is their contract valid? It can be reasonably argued that their contract fails due to illegality or mutual mistake.
You may counter that a marriage is a partnership. Is it? Or should it be? If you think it is, I would agree with you, but I’ll add that if a marriage should be a partnership between two consenting adults, then why not form a “marriage limited liability company” (or MLLC) jointly held by the two principals? People partner-up every day to form businesses. Why not partner-up to form a family? Small-business owners most often form limited liability companies because LLCs provide tax benefits and a corporate shield for their members. Why shouldn’t families receive the same tax benefits and corporate protections afforded businesses?
The heavy turnout and strong sentiment that accompanied Question 1 prove the public needs further discussion of how best to legally structure family relationships. I am arguing that the current system is outdated and not working for a sizeable percentage of the population. Forming an MLLC might not sound
romantic at first, but it sure would be practical in practice. And you can still buy a ring and get down on one knee before you look into your would-be-betrothed’s eyes and say, “Darling, will you form a limited liability marriage corporation with me that will last as long as we both can stand it?”
Granted, forming an MLLC will not solve such perennial marital problems as dirty socks on the floor, dirty dishes in the sink, or dirty deeds done dirt cheap. But if those issues eventually compel you to dissolve your tiny, two-person company, it likely won’t feel as bad as getting divorced.
Counselor At Large is a new monthly column in The Bollard that tackles local legal issues, written by Portland attorney Buzzy Trusiani of Trusiani Law, PC. Send legal questions and suggestions to firstname.lastname@example.org. Please note: answers are not admissible in a court of law.