« My favorite things Honduran | Main | Best of 2007 lists »
Laissez-Faire Marriage
Should the state be involved in marriage? Writing in the NYTimes professor of history Stephanie Coontz notes:
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.
It's no accident that the state began restricting and intervening in the marriage contract at the same time as it was restricting and intervening in economic contracts. It was of course the evil Oliver Wendell Holmes Jr. who dissented in Lochner v. New York and who also upheld forced sterilization laws in Buck v. Bell (writing that "three generations of imbeciles in enough.") Economists don't like to talk about social externalities but the connection between economic and social regulation is very clear in the progressives.
I think it's time to restore freedom of contract to marriage. Why should two men, for example, be denied the same rights to contract as are allowed to a man and a woman? Far from ending civilization the extension of the bourgeoisie concept of contract ever further is the epitome of civilization. Our modern concept of marriage, for example, is simply one instantiation of the idea of contract.
People will claim that this means a chaos of contracts for every form of marriage. This is wrong factually and also conceptually misguided. Factually, we already allow men and women to adjust the marriage contract as they see fit with pre-nuptials. Moreover, different states offer different marriage contracts with some offering more than one type. Partnerships of other kinds have access to all manner of contractual arrangements without insufferable problems.
More importantly, the chaos of contracts argument is fundamentally misguided. The purpose of contract law is to give individual's greater control over their lives. To make contract law a restraint on how people may govern themselves is a perversion of the social contract. To restrict people from accessing the tools of civilization on the basis of their sexual preference is baseless discrimination.
It is time to restore
freedom of contract to marriage, Laissez-faire for all capitalist acts between consenting adults!
Thanks to Daniel Akst for the pointer.
Posted by Alex Tabarrok on November 30, 2007 at 07:45 AM in Economics, History, Law, Philosophy, Religion | Permalink
Comments
Alex, nicely done! You encapsulated the possible objections, as well as the response to them, deftly indeed. Basically i agree, except I do still think the state must have some role for marriage to remain functional if not also meaningful; just as other forms of contracts must meet certain standards to be enforceable, so with marriage too some kind of parameters probably will be required.
Posted by: Dan Akst at Nov 30, 2007 7:53:07 AM
Dan...'the state to make marriage meaningful'? I...umm...howzat?
Posted by: shawn at Nov 30, 2007 8:11:45 AM
...
There is excellent freedom of contract to marry. However, many people (hovering around 50%, in the polls I recall) have stated a desire to withhold benefits from the state, which normally encourage certain couples to marry [similar to how many object to the same sort of benefits being given without caution to immigrants]
You've burned an excellent straw man though.
Posted by: Chi at Nov 30, 2007 8:19:27 AM
Laissez-faire marriage sounds like a wonderful idea, why should we restrict the right to contract. The reason people marry is to procreate, although this option is absolutely available in the free market social relationships, we somehow like to vertically integrate, foreclose that market and create a bilateral monopoly called marriage. We do this simply to secure our interests in trading affection with the other person and also to secure the property rights we have over our children. I believe that if we allow a laissez-faire marriages most of these benefits will be lost. We should keep the supply of marriages restricted to keep the value high enough.
Posted by: tspnevski at Nov 30, 2007 8:27:12 AM
At least on the face of it, freedom of contract alone is an insufficient principle when the existence or terms of the contract strongly affect third parties. The law requires the state, and some private parties, to make special provision for spouses; a possible response is to say for consistency, that all such provisions should be done away with. Thornier though are regulations enforced not by law, but by more. Most find the third party in an adultery morally culpable in a way the third party in the sexual infidelity of an umarried person is not. Finally, and probably thorniest, several parties not party to the marriage contract have an interest in it, the most notable of these being dependents.
Posted by: Cyrus at Nov 30, 2007 8:27:31 AM
A semi-idle query: in Massachusetts, if a woman married to another woman has a child, does a presumption of paternity apply to the mother's partner?
Posted by: Cyrus at Nov 30, 2007 8:32:04 AM
Excellent post.
Posted by: Mark at Nov 30, 2007 8:36:00 AM
Is the state actually restricting your ability to form a contract with another party regarding your domestic arrangements, or is it merely restricting which such contracts it calls marriage contracts? And for that matter, why should others be under any obligation to apply a particular name to a contract they had no part in making?
Posted by: Robert at Nov 30, 2007 8:58:12 AM
Agree on all counts.
Posted by: Stephen W. Stanton at Nov 30, 2007 8:59:24 AM
tspnevski says "The reason people marry is to procreate..."
If you mean "the only reason," this is demonstrably and obviously untrue.
Posted by: Andrew Perraut at Nov 30, 2007 9:10:00 AM
Just curious about such freedoms to contract--should a father be allowed to marry his daughter? What if the daughter is adopted? If not, why should they be denied such freedoms etc etc.
Posted by: marktwain48 at Nov 30, 2007 9:10:48 AM
Allowing this sort of freedom makes a lot of sense to me. Two areas that bear careful scrutiny would be a) informed, uncoerced consent by adults (e.g. some polygamists have preyed on young girls with little true freedom to opt out) and b) requirements (bonding?) to provide for affected children -- a potential externality of such contracts.
FWIW, your hypothesis linking marriage restrictions to economic regulation doesn't ring true to me. The people who are most vocal in infringing on personal freedoms are often the same ones who are most eager for laissez-faire treatment of corporations (or at least that's the way the political alliances seem to work out these days).
Posted by: A student of economics at Nov 30, 2007 9:12:40 AM
What is "laissez-faire" about demanding that the state get involved in "same-sex" relationships by treating them the same as marriages? Men are free to make whatever contracts they want to with each other. They just can't bind the state to enforce marriage rights when the state has no interest or legitimate power to do so. Marriage, after all, is not a relationship between a man and a woman. It is a relationship between an individual and the state. The relationship between a man and a woman who get married is (ideally) called "love".
Posted by: Robert Speirs at Nov 30, 2007 9:15:10 AM
What is "laissez-faire" about demanding that the state get involved in "same-sex" relationships by treating them the same as marriages? Men are free to make whatever contracts they want to with each other. They just can't bind the state to enforce marriage rights when the state has no interest or legitimate power to do so. Marriage, after all, is not a relationship between a man and a woman. It is a relationship between an individual and the state. The relationship between a man and a woman who get married is (ideally) called "love".
Posted by: Robert Speirs at Nov 30, 2007 9:15:18 AM
Alex,
Opponents of the freedom of contract to marry will often cart out the critique that allowing things like gay marriage have really negative implications for insurance contracts, traditional rules of heritability of assets, etc. In other words, this is another form of the chaos of contracts argument. Eerily, I have heard this complaint from self-professed classical liberals, not folks I would traditionally define as conservative or religious adherents.
Posted by: wintercow20 at Nov 30, 2007 9:16:34 AM
I think the state has an interest in children, but no interest in the arrangements between consenting adults. I think the state should automatically create a marriage in fact whenever a child is born. Only these marriages would qualify anyone for any type of benefits from the state, and all benefits would be tied to the burden and responsibility of raising the child.
Posted by: Randy at Nov 30, 2007 9:45:57 AM
I have heard the "marriage is a contract" argument applied by an extreme social conservative against no-fault divorce. The idea in that case was that no other contract allows one party to a contract to withdraw unilaterally to their financial benefit and marriage should be no different.
But of course marriage isn't just a contract - it's a social and cultural institution with thousands of years of baggage. People marry for all sorts of terrible reasons, perhaps number one being that they believe society expects them to. Frame marriage as "just a contract" and you will have to deal with that baggage too.
Posted by: Andrew G at Nov 30, 2007 9:46:23 AM
The previous rule was actually non lassaiz-faire. By recognizing cohabitation as marriage the state made it impossible for two people to live together without marriage. And this was a harsh restriction when divorce was incredibly difficult. Similarly a man might prefer to live with his girlfriend without acknowledging their children (and she might be willing to accept that arrangement rather than nothing).
The old system of registered marriages and no cohabitation rights allows the most freedom of contract. With this system the couple can pick whatever they want. However, that's been pretty much eroded by modern law. Now men are forced to support their illegitimate children (regardless of any pre-existing arrangement between the parents). And some states give cohabitors rights to support too.
Posted by: Rachel at Nov 30, 2007 10:00:20 AM
Having economists talk about legal questions is almost as entertaining as having lawyers talk about economic questions.
Marriage is not a contract. Never has been. Marriage is a civil status, and civil status is regulated by the state. Always has been.
The term "marriage contract" is a historical term that relates to contracts between people that *accompanied* marriage -- and those have always been free. The modern "pre-nup" is a good case in point.
Learn first, then talk.
Posted by: Tim of Angle at Nov 30, 2007 10:07:00 AM
I think marriage traditionalists should embrace laissez faire marriage. If traditional (heterosexual, monogamous, procreative, customarily religious) family arrangements are, as claimed, superior to same-sex or other innovations, then they should outperform those innovations in the cultural market.
Posted by: kdwmson at Nov 30, 2007 10:18:32 AM
Would a laissez-faire approach allow two men to marry two other men? Or a 35-year-old woman to marry a 9-year-old boy?
Posted by: Clark at Nov 30, 2007 10:19:24 AM
Great post.
Henry Sumner Maine agrees:
“[T]he movement of the progressive societies has hitherto been a movement from Status to Contract.”
Sir Henry Sumner Maine, Ancient Law (1861), p. 141.
Statists are dragging society backward.
Posted by: Daniel Klein at Nov 30, 2007 10:23:27 AM
Alex Tabarrok makes a good point about prenuptial agreements. Wintercow20 and Tim of Angle are on my wavelength, however.
Since the beginning of the gay marriage debate I have asked without success whether anyone has ever catalogued the rights and responsibilities which come from marriage in the States. Does anyone know what "marriage" means? I hear about things like hospital visitation rights, freedom from having to testify against a spouse, parental rights and obligations, and so on; but I don't know that all these facts have ever been compiled in one place.
I'm a software engineer. Before you rewrite a software application, you need to document the legacy version down to the last word of code, reverse-engineering the current version of the software if need be. If we're going to rewrite the marriage convention, or if we're at least going to replace this incessant and unconverging debate with some tangible action and a plan for the future, we will need to do the same.
Posted by: Hovie at Nov 30, 2007 10:27:46 AM
Andrew, procreation is obviously not the only reason why people marry but probably the most important. If you read the rest, I said that marriage is a bilateral monopoly to secure our investment in specific assets produced by the marriage.
Tim of Angle -- you are confusing the terms here. "Husband" and "Wife" is a social status, and marriage is a contract that sets the conditions for this social status.
Posted by: tsonevski at Nov 30, 2007 10:28:11 AM
One can preclude intergenerational incestuous marriages under this by declaring "One familial contract per pair." I.E, if you have a relationship with another person that could be formed by adoption (a contract relationship), you can't form another. So since no one adopts cousins, cousins could marry; but people adopt children, so no one with a parent/child relationship could marry.
Posted by: jb at Nov 30, 2007 10:28:36 AM
Alex,
Your reference to Lochner is interesting because it was two Lochner-era cases that established both the "right to marry" and the right of parents to direct the upbringing of their children. Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) are normally cited as having provided the precedent for recognizing those rights. As McReynolds wrote in Meyer, which involved a Nebraska law that prohibited the teaching of languages other than English to students under the 8th grade, regardless of the wishes of parents and a private school:
"The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall . . . deprive any person of life, liberty, or property, without due process of law."
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
Later cases like Loving v. Virginia used this language against the sorts of interference in contract that you are talking about.
It's interesting that we see the roots of the very constitutional precedents for overturning such state-level intervention in freedom of marital contract at the same time such interventions are firing up in earnest.
Posted by: Steven Horwitz at Nov 30, 2007 10:49:38 AM
Marriage has a basis in the biological fact that a male and female is needed for procreation. That is why marriage is seen as a different form of association than any other. It is considered different even from the relationship between a parent and a child, or a brother and a sister, even though those are clearly family.
Certainly it is the case that not every married couple is capable of having children, want children, or successfully produce children. That does not invalidate the marriage. Basic biology is sufficient.
If we are to say that marriage can be between two men, or two women, we need to ask ourselves what is this new basis for marriage? This is important because it will have all sorts of implications.
If it s open to any two people who love each other, then why not allow brothers and sisters to marry? There does not even need for sex to be involved - maybe the brother and sister have recently moved out of the house, but want the tax advantages and support of family living together. They could divorce whenever they found the person they really want to start a family with. COuld a divorced or widowed father marry one of his adult children in order so he or she is covered by medical insurance or other benefits?
Why limit the contract to only two people? Why not three, four, or twenty? What is the reason why this is only for two?
Finally, why couldn't best friends or roommates marry each other for the legal protection with a pre-nuptial agreement to preserve separate finances, then divorce when they need to, then marry their next roommate, then divorce and marry someone of another sex they do intend to start a family with.
Once you go down this route, you quickly devalue marriage as an institution because it becomes nothing more than an LLC - a legal trick. Maybe people do need such a legal tool for a variety of reasons, but that is a very, very different thing than what people mean when they say "marriage."
Clearly there has been past abuses by the government in denying certain people the legitimacy of marriage. However, that function is really just a means of recognizing marriages, and it is easy to prevent abuse of that function. However, we need to define what the basis of marriage is for society clearly distinguishes it from all other forms of contract. Clearly there is something special here that makes marriage intrinsically different than other forms of legal partnership.
If people deny that marriage is based on biological facts and the important sociological needs based on that, then it is important to tell us what exactly the basis should be so we can examine their arguments.
Posted by: Chris Durnell at Nov 30, 2007 11:26:04 AM
I think the state should automatically create a marriage in fact whenever a child is born. Only these marriages would qualify anyone for any type of benefits from the state, and all benefits would be tied to the burden and responsibility of raising the child.
So what happens when a guy sperminates a bunch of different women? Does he become a polygynist?
Posted by: Christina at Nov 30, 2007 11:40:32 AM
Economists don't like to talk about social externalities but the connection between economic and social regulation is very clear in the progressives.
You had a nice post that I was prepared to agree with (secularize marriage and make it a contract), but then you had to go and overreach. Why did you have to go and say this? It's statements like this that make some people (not me mind you, but some!) say "crank libertarian ideologue." Where to begin?
1. Are you saying it's not clear among the conservatives?
2. Are you saying that the progressives always have ulterior motives of social control? Where's your anthropological data on this :-)
Posted by: MostlyAPragmatist at Nov 30, 2007 11:54:45 AM
Let me see if we can carry Alex's line a bit further: Why not allow me to marry 6 other people rather than just one?
More freedom is always better, isn't it?
Given the access that my wives would be legally entitled to under various governmental programs, why not allow me to charge people to marry me to gain access to all these governmental goodies?
More freedom is always better? Not in the presence of a welfare state. Of course, it is the same difficult we run into with unrestricted immigration that have often been ignored by narrow-minded thinking on that issue.
Posted by: indiana jim at Nov 30, 2007 12:11:49 PM
Pennsylvania abolished common law marriages only a few years ago (2003?), not exactly the Lochner era.
Posted by: Rich B. at Nov 30, 2007 12:41:08 PM
Fascinating. Here we have people who believe that procreation is the primary basis for marriage even though many marriages are childless by choice and even more marriages with (or w/o) children end in divorce. Divorce is expressly permitted, you know. Divorces with children result in, at least for a while, single parents albeit with residual often complex financial and other relationships between the ex partners. Many single parents remarry to different partners but I've never known (fortunately) an example of the remarriage being largely about the children. Economists might have something to say about why. People who understand that life is not simple might have something to say about why remarriage with children happens all the time anyway.
In the face of all this actual, real life complexity, apparent to anyone who actually lives around real life marriages, it's really simple minded to claim that marriage is all about the children and therefore all state regulatory structure should depart from this claim.
But if we put on our anthropologist hat and did some digging, I think we'd find that these people aren't actually being simple minded, and what they're a mind about isn't the children at all. It's the Other.
Posted by: Russell L. Carter at Nov 30, 2007 12:48:32 PM
Great post -- I've been thinking along similar lines for some time. I am all for eliminating state intervention from marriage. The state should neither recognize marriage nor accord it any special benefits. You should be able to marry anything -- 2 other people, your cat, your television, whatever. The only possible restriction I see is that both parties -- if, indeed, it involves people -- is that they be legal adults so that children aren't involved.
Now, the obvious criticism of this approach is that it devalues marriage. But here's the thing: I don't have to recognize that marriage. If someone tells me that they married their sofa I am under no obligation to recognize it. I can say "That's nice, whatever works for you." Individuals that oppose homosexual marriage can simply choose not to recognize same-sex marriages. And really, who cares? If the two people who say they are married view themselves as married isn't that all that really matters?
In fact, taking this one step further, I think that if the state were to be totally removed from marriage that we would see competition emerge in the marriage industry. For example, institutions that perform marriage -- be they religious or otherwise -- could have a set of requirements for people to get married, such as being together for at least 6 months prior to marriage, etc. Others may have none. Then you could judge marriages by the institution that performed it, just as we frequently judge products by their brand.
Frankly, I find it mildly offensive that I am forced to recognize ridiculous sham marriages by the likes of Britney Spears because the state declares her to be married. I think under my proposed system any self-respecting marriage institution would have rejected her (to preserve their brand image). Other couples could brag that they were married by a particular institution known for its high standards as an indication of just how devoted they are to each other. Competition could help improve marriage!
These marriage institutions could also provide actual contracts for the couple to sign, spelling out exactly what privileges were included such as hospital visitation rights etc.
File this under "Markets in Everything."
Posted by: Colin at Nov 30, 2007 12:57:40 PM
I agree with the principal of the limited restrictions on marriage imposed by the state. The church, on the other hand, should be able to restrict marriages based on their beliefs. I would prefer if the word marriage was only used in the church context and the state use some other terminology to describe the union between two people civilly. Maybe this is old fashioned, but I think there is value in preserving traditional marriage as defined by most churches.
Posted by: bastiat at Nov 30, 2007 1:06:29 PM
Marriage, whether or not you want to define it as a contract or civil status, far predates the state as we know it. Marriage is an ancient tradition, and it will not go away if the government blows up tomorrow. It is also not directly related to procreation. Even if we concede that the state has a right to regulate the externalities of procreation, it does not follow that the state should regulate marriage. Regulation of marriage would be a poor substitute to regulate procreation, since much procreation (especially the sort the state would like to stop) happens outside marriage.
So what the hell business does the state have sticking its nose in marriage? Why should it even be able to define marriage? Do we concede the right for the state to define and regulate other traditions in our society? Does it tell us what sort of presents will give others on Christmas?
As long as the state is given power over a thing, people will fight for that power. If the state had no power to define or regulate the tradition of marriage whatsoever, it wouldn't be an issue in debates, and the religious right would be powerless to stop two women from living with each other.
Posted by: G at Nov 30, 2007 1:08:30 PM
I think John T. Kennedy has the best libertarian take on marriage here.
Posted by: TGGP at Nov 30, 2007 1:22:59 PM
I think Bastiat makes a good point.
Posted by: M.D. Fatwa at Nov 30, 2007 1:34:23 PM
Christina,
Re; "Does he become a polygynist?"
Not exactly. The establishment of the legal status would be because of the state's interest in the child or children. Every new child would creates new legal obligations and associated benefits, but no rights whatsoever would be established between the adults.
Posted by: Randy at Nov 30, 2007 2:17:02 PM
"Once you go down this route, you quickly devalue marriage as an institution because it becomes nothing more than an LLC -"
I think this person means, "Once I begin my slippery slope argument and equate homosexuals marrying with people marrying their own children and live stock..."
Lots of male cranks on this post....
Posted by: Slipperyslopes at Nov 30, 2007 2:53:49 PM
On the progressives issue:
I'm fairly certain, and it seems clear in the post, that Alex was referring to the original progressive movement in this country, not the current so-called progressives. Richard Epstein has some good writings on this.
Separately, it is odd that some people object to freedom of marriage on the grounds that the state treats married individuals differently from unmarried individuals (tax policy, etc...). Why not just argue for equal treatment under the law?
Posted by: bil. at Nov 30, 2007 3:02:29 PM
What Tim of Angle said. But for the non-lawyers who haven't thought this through, let me note that there will be no divorce in Alex's world. My wife and I promised to love each other "till death do us part." A bargain's a bargain, a deal's a deal, and utility is maximized by enforcing consensual bargains. It's the same as if my employer had promised me my job for life; they may have been unwise, but they are stuck with it.
Maybe some people will object that certain, uh, very personal, contracts shouldn't be so strictly enforced. Let's call the class of contracts that aren't so strictly enforced "schmarriage." Now clearly "schmarriage" is not a class of contract chosen by the contracting parties; the courts will need to decide which contracts fall into this category. And we are back where we started.
Posted by: y81 at Nov 30, 2007 3:43:38 PM
Chris Durnell
"If we are to say that marriage can be between two men, or two women, we need to ask ourselves what is this new basis for marriage? This is important because it will have all sorts of implications."
Surely the basis would be the fact that the people love each other, in a romantic sense.
"If it s open to any two people who love each other, then why not allow brothers and sisters to marry?"
Right, because obviously gay couples love each other in the same way that a brother and sister love each other. Some would say the love is a tad closer to the love between a straight couple, but that's just crazy.
Posted by: WillJ at Nov 30, 2007 3:58:27 PM
The biggest problem would probably be transfers of wealth - marriage, as I understand it, allows two people to transfer unlimited amounts of money between them without taxation. Cleverly tailored marriage contracts might allow this to be done to avoid inheritance tax, wage taxes, gift taxes, etc.
I suppose the government could set a specific limit on the number of tax-free "marriage" contracts you could have, and make it illegal to use such exemptions to pay wages or some such. It seems like a regulatory nightmare, but it might not be that bad.
As far as the benefits thing goes, it seems like that can all be worked out contractually. If I have four wives, my employer gives me a three-wife insurance plan and takes the difference between that and the one-wife one out of my wages. Or, better yet, he gives me money and I buy the plan I need.
If we could figure out exactly what society's goal is in regulating transfers of wealth, and then treat this contract system in accordance with that, this idea would work out very well.
Posted by: Psychohistorian at Nov 30, 2007 4:27:29 PM
So, WillJ, you are saying the state will decide which people love each other enough, and in the right way, to be allowed to marry? Isn't that exactly what Alex thought he could avoid with a "laissez-faire" system? You want state regulation, it seems; you just want the content of the regulations to be different.
Posted by: y81 at Nov 30, 2007 4:37:10 PM
Colin, thank you for that post. Very innovative ideas.
A lot of lawyers around here nitpicking, reminds me why common sense ideas will never make it through the courts :)
Posted by: Mark at Nov 30, 2007 4:54:15 PM
The biggest problem would probably be transfers of wealth - marriage, as I understand it, allows two people to transfer unlimited amounts of money between them without taxation. Cleverly tailored marriage contracts might allow this to be done to avoid inheritance tax, wage taxes, gift taxes, etc.That would certainly be a damn shame, wouldn't it? Although it wouldn't be such a "problem" with a different way of collecting taxes.
If we could figure out exactly what society's goal is in regulating transfers of wealth, and then treat this contract system in accordance with that, this idea would work out very well.If we could do that, then there would be no socialist calculation problem, and economics (and the world) as we know it would be completely different. As it stands, every individual wants to transfer wealth towards his own interests. I'm not sure thats something you'd want to empower via government any more than it already is.
Posted by: G at Nov 30, 2007 6:25:03 PM
The whole hidden agenda of advocates of state sponsored marriage has to do with getting society to validate relationships. The state has no business validating relationships.
Marriage is at its core an institution societally grounded in religion. If the state insists on getting involved it should issue something like a cohabitation license which gives the power of the state to enforce a contract between two consenting adults. If people want to call it marriage that should be between them and anyone who wishes to claim they have authority to marry, be it a religion or otherwise.
The state, other than for tax purposes, shouldn't even be in the business of regulating religious institutions as long as that religion does not impose its will on non-believers of said religion.
Posted by: Mike at Nov 30, 2007 6:59:19 PM
The whole unhidden agenda of state sponsored marriage in an expansive government is the promotion of the creation of taxpayers. These taxpayers are particularly suited for warfare. Otherwise the state is disinterested (the state being a selfish entity hopefully bent on survival itself).
This is what elevates "marriage" between certain entities desired, protected, and enforced as contractual (i.e. remedies imposed by the state for failing to abide by the [ mostly unstated ] terms of the contract). This nature is also the (obvious) reason for institution to predate modern states and reside primarily in common law.
Where is Hammurabi when needed?
In order to reduce the problem caused by the radical redefinition of marriage, why not instead reduce the problem of state sponsored marriage by prohibiting new marriage law: instead laws concerning marriage may only be repealed. Does this not lead to laissez-faire marriage in the long run?
As for marriage vis-a-vis economic contracts -- certainly statism was on the rise at the time.
Thanks for the post and all the comments. Reading this has reinvigorated me about the exchange of ideas.
Posted by: rluser at Nov 30, 2007 8:33:16 PM
Alex's post illustrates the intellectual failure of the over extension of utopian libertarian economics as the sole instrument with which to view every social interaction. Life is complicated and the unfortunate confusion between liberty and unlimited personal autonomy is operative in his post.
The state ROUTINELY restricts individual contract rights. Your pension or profit sharing plan must operate according to the provisions of a written instrument which contains certain mandatory features and benefits with limits on the sponsors ability to amend it.
You cannot purchase insurance on the life of a person where you do not have a "insurable interest" (a relationship with a presumption of natural affection or a direct financial interest), even if you provide your consent. You cannot purchase a "pure endowment" (a contract which provides that you are paid a specified sum of money only upon the attainment of a specified age) because it would provide an insurer with an adverse interest in your life.
Even as private a transaction as purchasing a car is regulated, with the seller required to abide by lemon laws and minimum age, operator licensing, vehicle registration and licensing, etc.
A marriage is not a private arrangement-it is a very public franchise. Indeed, another poster points out "common law" marriages are in fact state interference of a relationship. It protects foolish hearts from deception. Marriage conveys social status, property rights, expectations of exclusivity, intimacy and durability.
The common canard that you should have unlimited personal autonomy
Posted by: Superheater at Nov 30, 2007 10:07:02 PM
With thanks to TGGP's link to John T. Kennedy above (and the demise of TimesSelect), I've now read David Brooks's excellent 2004 column supporting gay marriage.
Our postmodern world seems to have left some people believing that love of man-for-man or woman-for-woman cannot be distinguished from love of person-for-sofa. Love is more known, understood and defined than such slippery slopes. Adoption would be a more apt comparison: parent-and-child is the relationship regardless of where the egg and sperm's provenance. Cats and dogs, regardless of the words used by well-intentioned animal shelters, are not adopted (though you can use contract to bequeath an awful lot of money to them). Just as a rational line can be drawn that includes children-by-adoption as one's children, so too can a rational line include spouse-of-my-own-gender without including the rest of the pantheon.
Some conservatives may have latched onto biological determinism (men are savages who need women to tame them) as a convenient way to oppose gay marriage.* But in fact we are not animals whose lives are bounded by our flesh and by our gender. We're moral creatures with souls, endowed with the ability to make covenants, such as the one Ruth made with Naomi: ''Where you go I will go, and where you stay I will stay. Your people will be my people and your God my God. Where you die I will die, and there I will be buried.''
... We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.
* When I think of biological determinist arguments in favor of heterosexual marriage ought be the only form of marriage, I tend to think "marriage is about reproduction" rather than "marriage is about getting the man's socks off the floor." I think the reproduction-based argument is more serious and ultimately, for reasons including those argued by Brooks, unpersuasive.
Posted by: ALB at Dec 1, 2007 12:14:17 AM
Apologies; I mistyped the code for a blockquote. The following is a quote from David Brooks:
"Some conservatives may have latched onto biological determinism (men are savages who need women to tame them) as a convenient way to oppose gay marriage.* But in fact we are not animals whose lives are bounded by our flesh and by our gender. We're moral creatures with souls, endowed with the ability to make covenants, such as the one Ruth made with Naomi: ''Where you go I will go, and where you stay I will stay. Your people will be my people and your God my God. Where you die I will die, and there I will be buried.''
... We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity."
Posted by: ALB at Dec 1, 2007 12:16:13 AM
A marriage isn't a private contract between two people; it's an agreement between two people and their community that their relationship will be publicly recognized. A marriage that the community doesn't recognize hardly deserves the name.
Perhaps the state shouldn't be involved, but in that case, the traditional requirement for two witnesses should be greatly increased, to show that there is a community that recognizes the marriage.
Posted by: Brian Slesinsky at Dec 1, 2007 2:03:45 AM
To the commenters who are pointing out how marriage is not like a contract: yes, we understand. Alex is making a policy proposal to change the way the government deals with marriage. The fact his proposed isn't or hasn't been the status quo is not a good argument against it. A good argument against would be a plausible prediction of negative consequences.
So let's try it: suppose the government simply stopped recognizing marriages tomorrow. Churches, businesses, friends, etc. could continue to hold ceremonies and treat people accoding to whatever policies they wished, but the government would treat all people as single. What bad things would happen?
Answers like "no one could get spousal insurance benefits or visit their partner in the hospital" don't cut it. Employers and hospitals have the benefits and visitation policies they do because the labor and patient markets demand it. Goverment-recognized marriage provides a convenient crutch for defining those policies, but in the absense of that crutch they are entirely capable of defining new policies to meet the demands of the market. (For example, cafeteria benefit plans and medical power-of-attorney forms.) As far as the status of children, our courts have a mature and robust body of law governing the treatment of children of unmarried parents, so that is hardly a problem. You need to point out some important positive aspect of marriage that only works if the government defines it. Can you do that?
(Most of Coontz's article is a good historical argument that there is no such aspect. But in the last paragraph of her article, she doges the logical consequence of her own argument: instead of proposing that the government get entirely out of the partnership-recognition business, she basically proposes that the government continue to recognize relationships, inclding gay relationships, but not call that recognition marriage. This is a sophist misuse of a libertarian argument for a progressive end, and conservatives will see right though it. The real libertarian compromise between progressives and conservatives on this issue is to have the government stop recognizing relationsips entirely, regardless of what it calls them.)
Posted by: David Wright at Dec 1, 2007 3:37:06 AM
Read Heinlein's "The Moon is a harsh mistress"
The very idea that government has the right to regulate marriage is anathema.
Posted by: flix at Dec 1, 2007 7:23:37 AM
Is a marriage anything more than a "next of kin agreement"? Should we replace marriage with kinship agreements and have done with? What else is there?
Posted by: Hovie at Dec 1, 2007 12:32:59 PM
A marriage isn't a private contract between two people; it's an agreement between two people and their community that their relationship will be publicly recognized. A marriage that the community doesn't recognize hardly deserves the name.Correction: Thats your definition of it. It may be others' definitions of it to, but they have no right (or need, really) to impose it on people who disagree.
Posted by: G at Dec 1, 2007 2:08:10 PM
Superheater,
Alex's post illustrates the intellectual failure of the over extension of utopian libertarian economics as the sole instrument with which to view every social interaction. Life is complicated and the unfortunate confusion between liberty and unlimited personal autonomy is operative in his post.The state ROUTINELY restricts individual contract rights. Your pension or profit sharing plan must operate according to the provisions of a written instrument which contains certain mandatory features and benefits with limits on the sponsors ability to amend it.
So? Because the state does these things, they are somehow a good idea? Alex is arguing over what the state should do, not what it does. Clearly it does those things and more. To argue "these things are right and good for the state to do because the state does them" has no place in an serious argument. It also has absolutely nothing to do with marriage.
A marriage is not a private arrangement-it is a very public franchise. Indeed, another poster points out "common law" marriages are in fact state interference of a relationship. It protects foolish hearts from deception. Marriage conveys social status, property rights, expectations of exclusivity, intimacy and durability.Thats your view of marriage. Thats nice. Now explain to me why others should be forced to share that view, instead of voluntarily choosing (or not choosing) to share it?
Posted by: G at Dec 1, 2007 2:14:44 PM
@Hovie
To answer your question regarding what is the number and is there a list of laws that apply to married couples only - there is - at least in the state of minnesota. A project has been started to address those. For a listing you can hit the website at http://project515.advocateoffice.com/
Posted by: tim at Dec 1, 2007 2:56:19 PM
Chris Durell's comment is a beautiful illustration of conservatism:
1. Dislike something because it has not always been so.
2. Come up with some cranky rationalizations (marriage has a biological basis in procreation, although there is procreation without marriage and marriage without procreation).
It should be in textbooks. Ninth grade, maybe.
Posted by: LemmusLemmus at Dec 1, 2007 7:35:27 PM
"Marriage is not a contract. Never has been. Marriage is a civil status,". that could be true in Common Law countries.But in civil, roman law based,countries , marriages are refered as contracts. Still today.
Why the State has to cretified it? Because , like Mises said , a proper function of goverment is to provide certainity .Like propetry registers.The liability of married people is different from single people´s.In most civil law countries real state transaction are only valid with both partners consent
Posted by: jean at Dec 2, 2007 5:33:10 PM
I see three types of entitlement traditionally associated with marriage:
a) Support for raising children.
b) Rights in each other (visitation etc.).
c) Rights in the wealth created together.
For the reasons mentioned by others (procreation without marriage and marriage without procreation) in a modern state a) is, or at least should be derived solely and completely from the fact that the partners have children, whether married or not. This includes the rights of the children to be supported by both their parents. Therefore, the children aspect should be taken out of the marriage question.
As for b), it's hard to see why partners should be denied non-financial rights like visitation and it seems to make sense to me that they should be guaranteed by law.
The financial rights of c) are based on the promise to be there for each other in times of need as well as on the common situation that one partner compromises their career in favor of the other's. Seems to make sense /if/ this situation is the case. But this part differs significantly from case to case, making it impossible to regulate with a one-size-fits-all kind of marriage agreement. So here is definitely space for individual contracts in lieu of inflexible regulation.
I don't see why the state should pay subsidies for b) or c). That leaves only a) to be subsidized, independent of marriage, and only b) to be regulated by the state in the context of a "marriage" (or whatever the name). It's hard to see a reason why b) should be restricted to heterosexual couples.
Posted by: oreg at Dec 2, 2007 11:55:31 PM
Jean: The state provides certainty regarding the status of joint property without bringing marriage into the picture. I for example, hold joint title to a house with another person to whom I am not married, and the law already ensures that both of us must consent to a sale. (If we wanted to negotiate a different arrangement, e.g. that I am a silent partner in the house, so that my partner can dispose of the house without my permission, the law could also enforce a contract to that effect.)
Oreg: One doesn't need marriage or anything marriage-like to acomplish (b). It is already possible for couples or non-couples, straight or gay, to create enforcable visitation and decision-making rights using a medical power of attorney. (In fact, they can be used to greate much more complex arrangements than what marriage provides: visitation without decision-making, limited decision-making, arrangements involving more than one person, etc.)
(To be clear: I am not arguing that this makes in fine for us to continue offering civil marriage to straight couples and not to gay couples. I am arguing that this makes it fine for us to stop offering civil marriage to any couples.)
Posted by: David Wright at Dec 3, 2007 3:06:56 AM
Goverment-recognized marriage provides a convenient crutch for defining those policies, but in the absense of that crutch they are entirely capable of defining new policies to meet the demands of the market. (For example, cafeteria benefit plans and medical power-of-attorney forms.)
David - what happens when someone comes into hospital incapacitated, without having signed those forms?
Say person A arrives in a coma. Person B claims they are A's partner. Person A's parents claim B is a psycho who A has always despised. Person B says parents A say that because they have never been able to accept that A is homosexual. Might it not help the courts if there's a contract sitting around signed by person A and person B?
Then there's the right not to be forced to testify against your spouse. How do the courts decide when B is A's partner?
Or let's take a case that happened in NZ. A wealthy elderly man hired a woman as a housekeeper. Eight years later he died, leaving the bulk of his money to his children. The housekeeper claimed they had been in a secret partnership for years and she was entitled to half his money, the children said that no such thing had happened. How is a court meant to know if the two have been sleeping together?
Then there's the case when A wants to marry someone he met overseas, and bring them into the country. How does the market supply citizenship rights?
Why are people so dead-against the thought of the government providing a standard contract? Yes, medical power-of-attorney forms can be signed, and wills signed and so forth, but what's so terrible about the government providing one set of forms instead of a hundred?
Why are people so eager to introduce a change of which the major result will be more money to lawyers?
Posted by: Tracy W at Dec 3, 2007 9:45:41 AM
Hi
Best wishes。Allow me to offer my heartiest wishes.
北京数据恢复中心引进先进设备-常年提供数据恢复|RAID数据恢复|服务器数据恢复等服务
并提供高、中、低压锅炉无缝管、流体无缝管、结构无缝管、化肥专用钢管
石油裂化无缝钢管、
地质钢管、液压支柱钢管
合金钢管|无缝管|无缝钢管
等论文发表资讯刊物信息，协助客户制定论文发表方案.
xicao
loves
loves xicao
Posted by: RAID数据恢复 at Dec 5, 2007 3:12:47 AM
Marriage in one form or another is a pretty near universal human custom. In societies which have neither church nor state, it is regulated by custom. In the Jewish - Christian - Muslim tradition it was regulated by the religious authorities (in some countries e.g. Israel and Iran, it still is). The state got involved when religious diversity got in the way, and the more so when religions ceased to be legally established.
If this custom to which we are so attached seems to have required regulation by society almost everywhere in almost all times, should we not think very carefully before suddenly de-regulating it totally? And don't we need a lot more documented evidence on the forms marriage actually takes in different societies and states before pontificating on how the regulation of what we have long called the "marriage market" ought to be reformed? The role of the modern state in markets is to hold the ring so market disciplines can work. Before the state can do that properly in any market (e.g., see current debates on if and how to regulate hedge funds) government needs some understanding of what ring it may be trying to hold round what market, and why.
Posted by: Diversity at Dec 5, 2007 12:39:05 PM
这一家翻译公司|深圳翻译|深圳翻译公司|guagnj广州同声传译 |
Posted by: 翻译公司 at Feb 25, 2008 5:41:45 AM
hi,I University majoring in the legal profession.After graduation,I 徵信 the work of the strong interest.Has worked in several徵信社.Has a wealth of experience. Now I immigrants France,Hope to continue to engage in the work of徵信 credit.
now,is to wake up every day to drink 咖啡, shopping. I hope that early awareness of Boles.
thanks,thank very much.
Posted by: Jack at Mar 17, 2008 9:42:26 PM
i coming from Singapore,To a person 搬家here.
I hope that the formal徵信社I appreciated the boss.I hope to continue to work in the credit徵信.
I work seriously,Peaceful coexistence with colleagues.The company has no particular request, 徵信社I can only hope that the wisdom I play.
Posted by: Bill at Mar 29, 2008 12:56:04 AM
Posted by: Alii at Apr 3, 2008 8:26:53 PM
