Marriage Equality Unbound

By On July 12, 2012 · 30 Comments · In Academic Philosophy, Book/Article Reviews, Current Events, Liberalism, Liberty, Social Justice, Toleration

Minimizing Marriage

Of possible interest to the Bleeding Heart Liberverse: my review at Reason.com of Elizabeth Brake’s Minimizing Marriage: Marriage, Morality, and the Law.

An excerpt:

For Brake, marriage not only should not be restricted to opposite-sex couples, or indeed to couples at all. It constitutes unjust discrimination, she argues, to restrict marriage to romantic or sexual relationships. Instead, the social and legal status of marriage should be available to “caring relationships” of all kinds ….

She takes as her starting-point the idea of liberal neutrality, according to which it is unreasonable to impose controversial conceptions of the good (even correct ones) on dissenting citizens, since respect for the coerced requires that coercion be justified in terms of reasons that they could accept. Liberal neutrality is often invoked on behalf of same-sex marriage, but for Brake, restrictions on multiple-partner marriages are no less problematic. And just as heteronormativity privileges opposite-sex relationships over same-sex ones, so “amatonormativity” (Brake’s coinage) privileges amorous relationships over other caring relationships such as friendships. Thus, the state violates liberal neutrality when it allows controversially amatonormative views about good human relationships to shape marriage law. ….

 

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  • Sean II

    Whether this is a good idea of not, I definitely want to see what the contracts and vows would look like.

    Whereas…Sean, Katie, and Isabella have agreed to enter into “a situation that just kind of works”, but which their parents, jointly and severally, “totally don’t get”. The scope of this agreement shall be a triangular relationship that is “intimate” but not “like creepy intimate”, and in which “the sex thing” is not a presumed feature but merely an option to be exercised by express consent of the parties Sean and Katie. The duration of the agreement shall be “until it gets crazy” or “Isabella gets her book published and moves to New York”. Specific consideration to be given as follows:

    a.) Isabella must convincingly feign interest in the cancelled television series ‘Firefly’, including repeat viewings which may include commentary tracks.

    b.) Sean must be willing to serve as a “fauxmosexual wingman” in cases where this is deemed necessary to help Isabella safely secure sexual partners in a nightclub or bar setting.

    c.) Katie must pretend to believe that any career change suggested by Isabella is a serious and realistic plan for life improvement. In no case may Katie or Sean call attention to the long history and dismal result of such changes.

    d.)…

    • http://www.facebook.com/people/Roderick-Tracy-Long/1037941173 Roderick Tracy Long

      TMI, man. :-)

      • Sean II

        Well, it was MOSTLY hypothetical…except for the Firefly requirement.

        But I do think there is a very strange equivocation going on with a lot of libertarians (and non-libertarians) when they talk about “contracts” for marriage or other inter-personal relationships. It goes like this:

        a) Marriage (traditional or otherwise) is at bottom a contract, and that’s why everyone has a right to it.

        b) Contracts are agreements that require promises, consideration, remedies, etc.

        c) Therefore, marriage requires promises consideration, remedies, etc.

        But who really accepts that last point? People may agree with statement a) and by common usage they agree with statement b), but who seriously accepts statement c) in its plain meaning?

        People once did, of course, when marriage was more an unromantic exchange where sex and reproductive labor bartered for housing and personal protection. The word contract applied well enough there.

        But given the kind of complex fulfillment people want and can now get from interpersonal relationships, it doesn’t seem to make sense.

        After all, if I promise a woman that I will “always be there for” her, and she offers me the consideration of “giving me space when I need to think”, how will anyone – including either of us – know when we have succeeded, and what in Zeus’ name can be the remedy if we fail?

        Yet these are the kind of promises people really talk about, when they talk about, and especially when they choose to end, relationships.

        Isn’t that an argument for moving in a direction opposite from the one Brake recommends, and simply doing away with the notion that marriage is any kind of contract at all?

        • martinbrock

          Marriage at bottom is not a contract. It is a statutory institution. You and I may contract for all sorts of things, but we may not contract for tax breaks for example. We get tax breaks only by accepting the terms of a legal institution enacted by the state also awarding tax breaks. Our agreement to accept the terms of this institution may be contractual, but the terms are not. We are not only contracting with each other. We are contracting with the state.

          If marriage is not a legal institution, if it is exclusively an institution enacted by churches and other free associations, with no statutory rights or obligations attached, then I have no problem with anyone marrying on any terms that any free association constructs; however, the hypothesis of this statement is false.

          If I were strictly an anarchist, I would oppose statutory marriage altogether, and I’m nearly enough an anarchist to prefer no statutory marriage to the statutory marriage we have now, with or without its extension to same-sex couples or polyamorous groups or platonic, domestic partnerships.

          Amorous relationships and domestic partnerships per se don’t warrant any sort of statutory institution. Why does any couple, or larger group of amorous or non-amorous partners, need any sort of statutory institution? Why do people need tax breaks or special insurance arrangements or other compulsory benefits to form domestic partnerships?

          If the benefits of a partnership don’t persuade people to partner, why add any statutory benefits to the mix? In my way of thinking, proponents of these benefits always bear the burden of proving their utility, and not creating an institution with statutory benefits is never properly “illiberal”.

          The coparenting relationship is fundamentally different, seems to me, not because it involves penis-vagina rather than penis-penis or vagina-vagina interaction but because another, dependent human being is also a party to the relationship.

          I don’t care at all how the child is conceived. It could be conceived in vitro by cloning a gay man and gestated in a pig’s womb, but as a practical matter, most children are not conceived this way, and natural parents have proper rights to the coparenting relationship, overridden by adoptive guardians only in extraordinary circumstances. This relationship seems to warrant some statutory involvement or at least to warrant more statutory involvement than strictly amorous relationships.

          So if “marriage” names the institution bonding parents or would be parents of the same children, as it has traditionally, then I see some utility in making it a statutory institution; otherwise, I see no use in this institution. Obviously, marriage has already drifted very far from this tradition, with the liberalization of divorce and other reforms, but the institution that it has become makes little sense to me, and extending a nonsensical institution to more people, in the name of “fairness”, makes no sense to me.

          In the pursuit of gay equality, we should oppose the arbitrary privileges of childless, straight couples accepting terms of a statutory institution, not demand the same statutory privileges for gay couples. The inequality also disappears if childless, straight couples may not marry either. States should then focus benefits of marriage on the interests of parents and their children.

          • TracyW

            “Why do people need tax breaks or special insurance arrangements or other compulsory benefits to form domestic partnerships?”

            They don’t. In NZ, people get married to other NZers without these. (And there’s no direct tax benefits to getting married, people are taxed on their individual incomes).

            “Why does any couple, or larger group of amorous or non-amorous partners, need any sort of statutory institution? ”

            Take these cases:
            A has a long-term partner, B. A contracts some obscure medical problem and winds up in a coma in hospital. A’s parents and B streneously disagree over the medical treatment that should be applied to A. What should the hospital do?

            A and B agree that A will stay home to look after the kids, while B invests in B’s career. B does very well. This involves A transferring a lot of money to B. Should this transfer be taxed as a gift?

            A takes in a flatmate, B. Their relationship eventually falls short of the platonic ideal. After a few years, they quarrel, A kicks B out, B says they were in a relationship and are entitled to half of the flat. Is B?

            A, a woman, dates B, a man, who is one of a pair of identical twins. A child is born. Who is financially responsible for said child (apart from A, obviously)?

            A falls in love with B, who lives in another country. A and B want to live together. However, immigration laws mean that this is difficult. However, the voters of A’s country have allowed an exemption for romantic couples. This case is glaringly obvious.

            ” otherwise, I see no use in this institution”

            In which case you shouldn’t marry. But I married because I like the institution that he’s committed to me, and me to him, above all others (resulting kids are obviously different). I certainly don’t need tax breaks to get married, and I don’t think that most people do.

          • martinbrock

            In NZ, people get married to other NZers without these.

            Right. There are many reasons to partner apart from tax breaks, but in the U.S. at least, marriage is not just any partnership. It is specifically a partnership with tax breaks and other statutory benefits.

            What should the hospital do?

            A should decide, either directly or through an agent (power of attorney) that A designates before the illness. This agent need not be a spouse also entitled to tax, insurance, shared property, inheritance and other benefits. All of these relationships with other people should be a la carte.

            Is B?

            B is entitled to half of the flat if B took reasonable steps to establish property rights during the relationship. Marriage is one method of establishing these rights but is not and should not be the only method, and again, associating tax breaks and the like with this sort of relationship makes no sense to me. The benefits of joint ownership should be enough.

            Who is financially responsible for said child (apart from A, obviously)?

            B is responsible as a matter of law, and this law seems completely reasonable to me. The genetic relationship between child and twin might be indistinguishable, but identical twins don’t have special genes signaling this kinship. The natural father identifies his relationship with the child based upon his relationship with the mother, not based upon a DNA test. Instinctive emotions evolved without DNA tests.

            This case is glaringly obvious.

            I oppose all immigration restrictions, but I don’t favor specific immigration rights for romantic partners regardless of sexual orientiation. In the name of gay equality, I would eliminate these rights for childless, straight couple regardless of marital status. Maybe then more people would favor fewer immigration restrictions in general.

            In which case you shouldn’t marry.

            Well, I have the tax breaks and stuff to consider, plus family traditions and such.

            I don’t need a license from the state to be committed to someone. If someone is committed to me only because of a license, I have little faith in the commitment.

          • TracyW

            Martinbrock: You agree with me that people should be able to contract things like who has the right to make medical decisions in the event they are incapacitated, or property matters such as the ownership of a flat. Now lawyers are expensive, and it’s impossible to write a complete contract that covers every contingency, especially over a relationship that lasts decades. If you marry someone, you sign up to a package of rights that have been thrashed out by common law over the centuries. Now perhaps you don’t want that, perhaps you want the ala carte option. But I think that, even leaving aside the expense, I couldn’t do better by trying to write a contract from ground up. I think I’m better off using the wisdom of the ages. I might be wrong, but why do you want to remove my option to choose marriage?

            And even if you think that immigration law should be changed, that doesn’t mean that everyone will agree with you. People who don’t agree with you have a reason to get married.

            I don’t need a license from the state to be committed to someone.

            And you don’t need a marriage licence for that. Marriage licences are for when two people are no longer committed together (eg the state of mind that leads to divorce), or when an outsider needs to know the level of commitment and at least one person is incapable of expressing it (eg in a coma, dead).

          • martinbrock

            I don’t want to remove your option to choose a package of contractual rights and obligations. I want to remove the state’s involvement in drafting the package.

            Customary marriage, over the ages, is not a package of benefits for two people of the same gender, because the custom presumes that partners will be (are willing to be) parents of the same children. If the custom applied to amorous/domestic partnerships generally, exclusive of children, we wouldn’t be having this discussion.

            All sorts of domestic partnerships have never been eligible for marriage. Two of my great-aunts were domestic partners for their entire lives and were never eligible for marriage. In fact, civil union statutes enacted in various states in recent decades explicitly exclude my aunts, because the statutes are based upon the dubious assumption that customary marriage discriminates based upon sexual orientation rather than a presumption of coparenthood.

            Even if you think that marriage law should change, that doesn’t mean that everyone will agree with you. People who don’t agree with you have a reason to immigrate.

            I agree that a marriage license is basically a pretext for divorce. Trial lawyers are all for gay marriage, no doubt. If you’re concerned about your partner’s fate when you’re dead, or falling out of love with him, you should take steps now to protect him. You don’t need a legislature for this purpose, but you can follow customs emerging from your own community.

            I suppose MCC ministers can advise you and even provide an appropriate package of legal commitments at a reasonable cost to you and your partner. We don’t need a one-size-fits all approach to committed relationships. Gay relationships are not just like straight relationships. No two gay relationships are just alike for that matter.

          • TracyW

            Martinbrock: I’m rather confused. You say you don’t want to remove my option to choose a package of contractual rights and oligations, but then you say that you want to remove the state’s involvement in drafting the package. But that’s what I signed up to, willingly. Why do you want to remove my option to choose that? State involvement in marriage is a custom that has emerged from my own community (well, some of my ancestors’).

            You also say “We don’t need a one-size-fits-all approach to committed relationships”. I perfectly agree with you, and we have various legal options (such as powers of attorney, trusts, common tenancy, etc), for those who want to tailor their own approach. Some of these can even be combined with marriage, and sometimes should be (eg if someone’s spouse gets dementia then they probably are not the best choice for making important medical decisions as next-of-kin).

            I don’t know who MCC ministers are, and I don’t see why some unknown group would be more competent at coming up with an appropriate package of legal commitments than the common law tradition plus my own legislature of my own country. Perhaps I am wrong about this, but again, why do you want to take away my option to pick marriage? I can understand you choosing not to marry, but I don’t know why you have your heart set on stopping anyone else from doing so.

          • martinbrock

            I don’t want you signing up to entitlement to tax breaks and similar benefits. If you want to subject yourself to some authority, that’s entirely up to you, but I don’t want this authority attracting you to the bargain with benefits provided by people who not a party to your contract.

            Again, if marriage is not a statutory institution with these benefits, I’m happy for anyone to marry anyone else or any group of other people on any terms they choose, but marriage is a statutory institution. It’s not just a customary package of contractual relationships. Customary packages of contractual relationships are precisely what I advocate instead. I don’t want to deny you precisely what I advocate.

            I assumed, perhaps mistakenly, that you’re a gay man. The Metropolitan Community Church is a free association composed of gays and lesbians primarily. If you investigate this association and choose to join it, then it’s not an unknown group, but politicians are always an unknown group. They seek their offices deceptively, often act secretly, express their will cryptically and then impose it by force.

            If you aren’t a gay man, then I want to take away from you statutory privileges available to you only because you are straight rather than gay. Giving the same benefits to gay people instead does not address the inequity, because many other people still do not have the benefits.

            It just isn’t true that statutory benefits of marriage discriminate against gays and lesbians exclusively. These benefits also discriminate against siblings, adult children living with their parents, monks and nuns, romantic triples, platonic roommates and many other domestic partners not eligible for marriage.

            For that matter, benefits of marriage that I oppose in general, not only for gays and lesbians but for childless straight couples as well, discriminate against single people. Why are people who don’t have romantic partners and domestic partners subsidizing people who do? These subsidies seem incredibly perverse to me.

            We could remedy this problem by converting marriage into an a package of contractual relationships for any group of people without any statutory benefits attached, but this approach is the final nail in the coffin of the only customary, cooperative bond between coparents. Then the only legal institution addressing the coparenting relationship specifically is adversarial child custody.

            I just think that’s a horrible endpoint for this legal evolution we’re experiencing. If we finally, completely divorce children from marriage (if we haven’t already), then we need a new, cooperative bond between coparents to replace the already moribund marriage custom.

          • TracyW

            Thank you for explaining your distinction.

            I’ll mention that I’m a straight woman. I’m still not convinced that the MCC, even if I got to know them, or any other given group is likely to do a better job at coming up with a marriage-type contract than my choice. They might of course, I just doubt my ability to predict which group would ahead of time, even if I knew the individual members.

          • martinbrock

            Your choice is exactly what I advocate. The terms of a statutory marriage institution are not your choice. You may choose the statutory package, or you may choose another package crafted by the MCC or some other free association, or you may craft your own package a la carte.

            As a minarchist, given the other options, I see no point in the state crafting a package at all, and I oppose the state favoring its own package over others by attaching tax breaks and other benefits to it. That’s how statutory monopolies are made.

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  • http://twitter.com/TCrackCrack TheCrackshotCrackpot

    Warren Gibson has a blog post up on this topic, too. I found his argument about “brand name” marriages to be very interesting. [ http://notesonliberty.com/2012/05/10/gay-marriage-no-but/ ]

    • good_in_theory

      ”
      I’m surprised opponents of gay marriage haven’t framed the debate as a slippery slope. ”

      That claim is bizarre.

      • http://twitter.com/TCrackCrack TheCrackshotCrackpot

        Apparently some economists are able to keep their sense of humor after grad school…

  • SimpleMachine88

    Limiting it to two people makes some basic sense. Just like it’s hard for physicists to compute 3-body problems, just like comparative advantage always works for 2 countries, just like arrow’s impossibility theorem kicks in with more than two individuals, divorce and marriage for polygamous marriages presents some practical problems.

  • TracyW

    There seem to be two things going on here, 1) what should be the legal rights attached to marriage, and 2) what should marriage be defined as?
    Brake appears to be trying to redefine marriage not merely in a legal sense but also in a social sense, if your description of her as ‘the social and legal status of marriage should be available to “caring relationships” of all kinds’ is accurate (and I have no reason to doubt it). But we already have plenty of other words for caring relationships of all kinds – eg friends, family (sometimes of course people hate family, but sometimes people hate their spouse). A marriage is, in ordinary language, a special type of caring relationship, and it’s often recognised socially even if there isn’t a government around to recognise it (for example, Schindler’s Ark reports that in a labour camp a Jewish couple marry, which means him sneaking into the women’s barracks for the ceremony, would Elizabeth Brake claim that that wasn’t a marriage socially because the government didn’t recognise it?)
    I also think that a polygamous marriage is different to a normal marriage (in contemporary English) in a way that a same-sex marriage isn’t. When a guy asks you to marry him (or vice-versa, as happened to me in the end), he is generally socially understood in my circles to be implying a commitment to you exclusively. And if either party goes on to have more relationships, they’re understood to be cheating, unless they spelt out the changed term to the deal explicitly. Again, this isn’t precise, people do have differing definitions, but it is important to me that my husband is committed to me in a way that he isn’t to any other women (or men).
    The definition of marriage in ordinary English is admittedly quite loose, there are non-sexual marriages, non-romantic and non-sexual marriages, open marriages, etc. But then many English words can’t be precisely defined (when does blue become green, for example?)
    On the legal side, can’t one confer authority for end-of-life decisions on a close friend already? I think the term is “power of attorney”. As for spousal benefits, I think the person paying for the benefits might have some objection to being expected to not only cover immediate family but also any other person non-married employees list, but if the person paying is ammenable, what’s stopping them from doing so now?

    • TracyW

      I also await with interest her plans for decoupling childrearing and marriage when the father is one of a set of identical twins (or triplets or more). DNA testing can’t tell you who is the father in that case.

      • martinbrock

        The mother can tell you. Identical twins are never that identical.

        • TracyW

          How about situations where all 3 (or more) have an incentive to lie?

          • martinbrock

            What if my twin brother forges my signature on a marriage license? What if he pretends to be me in a wedding ceremony? What if the bride later sues me for the support of my brother’s children?

            The argument you’re constructing here is not unique to parental rights based upon kinship rather than contract. You’re indicting any conceivable system of responsibility for anything.

            What happens when many people say they witnessed me committing a crime that I didn’t commit? What if these witnesses are the most compelling evidence in my case? I’m wrongly convicted. That’s what happens. So we shouldn’t have criminal penalties at all?

          • TracyW

            That’s why weddings typically legally require two witnesses and some reasonably well-known person, such as a minister or a judge to conduct it. As you yourself pointed out, identical twins aren’t identical to those who know them reasonably well.

            Yes, your brother may manage to suborn two witnesses, just as he may manage to frame you for murder. No system is perfect, what we can do is reduce the odds of errors, never eliminate them.

          • martinbrock

            Finding a couple of witnesses in Vegas that can’t distinguish twins years later, when a marriage has produced children, seems easier than finding a woman who can’t distinguish the twins after conceiving a child with one of them.

          • TracyW

            When one brother of an identical twin set marries, both him and his bride would be wise to choose witnesses who know the family well enough to distinguish between the twins, rather than strangers in Vegas.

            And it’s not whether the woman can distinguish between twins, it’s whether she has an incentive to lie about it. Take a situation where one twin was considerably richer than the other, if the rich twin is really the father he has an incentive to persuade his poor twin to falsely claim to be the father and thus save on maintenance (repaying his poor twin under the counter for what obligations land on the poor twin’s shoulders). If the poor twin is really the father, the woman has an incentive to lie to claim maintenance from the rich twin.

          • martinbrock

            The rich twin typically as no such incentive because supporting his children is his highest priority. His natural incentive is more nearly the opposite of what you describe. If the poor twin suggests this arrangement, the rich twin typically is insulted.

            The woman and the poor twin have this incentive, but the rich uncle typically contributes to the child’s support anyway. Customarily (in ancient Hebrew custom for example), the uncle adopts both the child and the wife on the brother’s death.

            Regardless, the issue here is a bond between parents of the same children. Even if establishing this bond when the father is a twin is as difficult as you say (not), cases in which a woman and a twin will conspire this way are a tiny fraction of all cases.

            If I were a woman or a twin looking to enrich myself fraudulently, this strategy would be no where near the top of my list.

      • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

        Simply recognize childrearing as a maternal right. Having sex with a woman is not contracting to raise children with her.

        • TracyW

          IANAL, but from what I understand you are right, at least as applies to law in most of the West. Having sex with a woman does commit a man to providing financial support for any resulting children, but there’s no force on the planet that can force people into joint child-rearing if they don’t want to.

          Though it’s a lot easier on the child, and a lot cheaper for the parents, the more that the two parents can do joint child-rearing.

        • martinbrock

          Most women don’t want an exclusive, maternal obligation to raise children, and most men don’t want an exclusive, maternal right to raise children, so you won’t find many people willing to be governed by your simple recognition. You’ll need to force them not to join forces to enforce a different standard.