The Minimal Marriage
The guys over at Bleeding-Heart Libertarians can always be relied on to post something that agrees with some of my kookier ideas.
I have always viewed conservative slippery slope arguments about marriage equality to be rather unpersuasive. So what if legalising gay marriage today means we end up legalising plural marriages tomorrow. There is no good reason why we don’t legalise plural marriages already. Moreover, the limitation of the marriage franchise to romantic relationships seems arbitrary as well. The valorisation of romantic relationships is valid only under one kind of conception of the good. There might be other conceptions of the good where non-romantic or non-sexual friendships should be valorised. And whether or not those conceptions of the good are defensible (are any actually defensible?) or shared by the majority, the state should be neutral between conceptions of the good.
Roderick Long reviews Elizabeth Brake’s (who is not a libertarian, but a left-liberal) book Minimizing Marriage: Marriage, Morality, and the Law:
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
For that matter, the state violates liberal neutrality when it prevents marriages between first cousins and evens siblings.* I am not sure to what extent Brake is successful at limiting the institution to just caring relationships. It is not clear why marriages of convenience should not be legalised as well.** And of course saying that this paves the way to marriages between adults and children or animals is ridiculous. Children and animals are unable to give informed consent and cannot be party to a contract.
On a funnier note, the commenter Sean takes a humourous jab at what a plural, non-romantic, non exclusive marriage contract 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.)…
*This in no way represents the views of the National University of Singapore or the Philosophy Department.
**That doing so allows us to completely circumvent immigration restrictions is a feature, not a bug
“And of course saying that this paves the way to marriages between adults and children or animals is ridiculous. Children and animals are unable to give informed consent and cannot be party to a contract.”
Different analysis, yes, but then so long as we’re concerned with giving reasons, why is consent good? I think it is, but you seem to be appealing to something more fundamental, something that transcends mere consensus, something like a natural law basis.Report
At that point it is slavery. Doesn’t matter if your father sold you to a man to make your life better (this HAS happened)… if you couldn’t consent to your “marriage” at age six, it’s slavery.Report
It seems to me that he’s treating marriage as a contract, essentially. Isn’t consent an important part of most explicit contracts?Report
I’ll admit that I don’t understand the question, which has come up before, “why is consent good?” I can see asking that question as a philosophical exercise, in trying to better understand the concept of consent, but I honestly don’t get it in these types of discussions.
Consent means, by definition, that everyone in on the agreement is willing, voluntary. By definition, then each expects that the arrangement is to their benefit, so each person in the agreement is better off than they were in the status quo ante, and no person suffers harm. (Assuming their predictions work out well, but the future is always unpredictable.) From a more abstract perspective, no one’s personal autonomy is violated.Report
James, we’ve previously set out our differences on natural law. If I recall, your view, roughly stated, is that there is no such thing, but that its normative nomenclature (e.g., “the good,” “consent,” “autonomy,” “liberty,” etc.) is rhetorically helpful in advancing positions your personally prefer. I obviously disagree, but I’ve always been appreciative of your having laid it out. I don’t think we need to re-litigate it here.
My question is just having a little fun trying to embarrass utilitarians. Why is anything “good”? Keep asking that question, eventually you’re forced to just say that some things are just so, a metaphysically relevant truth.
Here, have some Joe Dirt:
Joe Dirt: Well, I see you got those snakes and sparklers. But where’s the good stuff man?
Kicking Wing: Good stuff? This is the good stuff, snakes and sparklers.
Joe Dirt: Are you nuts dude? You need stuff that’ll explode. Go boom!
Kicking Wing: Why is that good?
Joe Dirt: Well, duh, might as, might as well ask why is a tree good? Why is the sunset good? Why are boobs good? Man, firecrackers, ya stick ‘em in mailboxes, you drop ‘em in toilets, shove ‘em up bullfrogs asses.
Kicking Wing: I would never do that, because one day I’m going to be a veterinarian
Joe Dirt: Well there you go, one day a bullfrog has a M-80 up his ass, he comes to you, you win twice brother.Report
Or Beavis and Butthead?
But seriously, we utilitarians rely a lot less on metaphysical stuff than you natural law guys. A metaphysical minima if you will. We don’t go piling up any more of it than absolutely necessary. It’s troublesome stuff, so saying, “hah, see, you get metaphysical, too” does not provide any kind of foundation for continuing with, “so it’s ok to pile on even more unprovable metaphysical stuff.”Report
I do take your point. Quite seriously, in fact. That’s why I wrote this post, https://ordinary-times.com/blog/2012/05/presuppositional-constitutionalism, in which I try to reduce metaphysical claims to their most basic, irreducible components, and then establish the basis of a legal system from there. In fact, I’ve always been more impressed with the Objectivists’ approach to natural law than with the Catholic natural lawyers. The approach in my post thus follows the former. (The theism disagreement can, surprisingly I think, be somewhat compartmentalized while the other work is done, tabling the Great Debate for another forum.)Report
I’m of 2 minds about Natural law theory. At best, Natural law theory is a form of rule consequentialism where the good consequence in this case is human flourishing. At worst, there seems to be some kind of running together of the apriori and aposteriori parts of the project. (At least given the way the various natural lawyers on this site seem to talk about things)
For myself, at least when wearing my philosopher hat, I am agnostic about whether we can ever actually adequately demonstrate that some putative good is genuinely objectively good and not merely liked by everyone of good standing. Of course, I am a deontologist in the strict sense that I believe that the right is prior to the good.
Whatever else might be the case in deeper moral theory, principles of justice ar roughly speaking principles that govern how we resolve disputes and conflicts. Where there are no disputes or conflicts, the concept of justice doesn’t apply. Of course, even a 3rd party objection to what 2 consenting adults do with each other counts as a conflict and justice also applies in such cases. And of course, I can get a lot of mileage by just examining the terminal point of conflict: What is the most immediate thing that two conflicting parties are fighting over?
We can also go transcendental and ask not what the correct conception of the good is, but what the necessary conditions for the possibility of any meaningful conception of the good are. This latter just involves conceptual analysis about the concept of wat good means and we can then afford to be agnostic on major substantive questions about what is or is not goodReport
Why is anything “good”? Keep asking that question, eventually you’re forced to just say that some things are just so, a metaphysically relevant truth.
Not really, no. If you’re using “good” in a categorical sense, sure. But when I say something is good, I just mean that I like it. Someone else may not think so, and that’s fine. Usually there’s no conflict (A likes chocolate, B likes vanilla). Sometimes there is (A likes low taxes, B likes big welfare checks), in which case that conflict needs to be resolved somehow.
This doesn’t mean that everything is purely subjective, of course. There are facts. For example, if B likes the welfare state because he underestimates its true costs, but would prefer to scale it back if he had a more accurate estimate, then his preference for a big welfare state is wrong because it’s not actually consistent with his fundamental values.Report
I think you’re agreeing with Murali, if you keep asking “what is good,” perhaps the primary philosophical question.
Both vanilla and chocolate are good; it’s not an either/or, it’s not a philosophical conundrum. Other stuff, yeah. The welfare state that takes care of its weak and helpless, good. A system that builds self-esteem at the price of self-worth, not so good.
http://incharacter.org/features/theodore-dalrymple-on-self-esteem-vs-self-respect/Report
“that everyone in on the agreement is willing, voluntary. By definition, then each expects that the arrangement is to their benefit, so each person in the agreement is better off than they were in the status quo ante, and no person suffers harm. ”
I’m tempted to qualify this by saying that “each expects that the arrangement is moreto their benefit than [all?] other alternative arrangements, so each person in the agreement is better off than they were in the status quo ante, and no person suffers moreharm than they’re willing to predict will come from the arrangement.
This might sound like liberal nit-pickiness, or maybe a variant of “zero-sum thinking”–and maybe it is indeed both–but I do think agreements operate imperfectly (as you point out, there are predictions that may or may not be realized) and involve a foregoing of certain alternatives. On the whole, in a voluntary exchange, those alternatives taken together might not amount up to what is gained from the voluntary arrangement (that is, the chooser chooses the arrangement over the others because it’s his/her assessment of the arrangement’s presumed benefits). But they are something given up.
(I also suspect that most or at least some decisions are not entered into wholly voluntarily, there can be–and I suspect often is–an element of coercion lurking behind a putatively voluntary agreement. You of course are talking about the abstract proposition and not about whether an agreement is wholly voluntary. So it might not fair for me to argue that point.)Report
Pierre,
That’s actually the classic Pareto optimality statement, and I have no problem. I would only add that in the real world, where we have search and transaction costs, that “better than all other arrangements” functionally means better than any other arrangements I could make right now given what the search and transaction costs of finding something even better would be. Or to go the Herbert Simon route, we “satisfied” rather than maximize.
But yes, necessarily something is given up. These are our opportunity costs, and that takes us to the heart of economics, the principle that we can’t have everything, so that choice between alternatives is the inevitable condition of human life.
As to agreements often having some element of coercion, it’s almost certainly true and almost certainly almost always irrelevant. The real world of choice, as opposed to the idealized world of the perfect market model, has all kinds of minor imperfections (like search and transaction costs) that don’t necessarily cause the transaction to be flawed enough to worry about from a policy perspective. I.e., the resulting inefficiencies are small enough or of a type that policy responses are unlikely to improve the efficiency of the transaction.Report
“Satisficed.”Report
Yes, thank you. An unfortunate typo on my part.Report
Thanks for taking the time to respond. I appreciate it.Report
But yes, necessarily something is given up. These are our opportunity costs, and that takes us to the heart of economics, the principle that we can’t have everything, so that choice between alternatives is the inevitable condition of human life.
But… but… I thought we weren’t supposed to engage in “zero-sum” thinking! I want it ALL dammit!
(Just havin’ fun with ya, James)Report
But given that it’s self-evident that saying “no, you guys can’t be married” violates the Good far more than saying “okay, you guys can be married”, why continue the facade that this is an argument about being in line with the transcendent?Report
No thank you. I’m not leaving the safety of generic comments about metaphysics to talk about gay marriage today.Report
Substitute “moral agents” for “guys”, then.Report
A full response along the lines I mentioned would require more time than I can spare today.Report
Fermat’s last theorem is my least favorite of Fermat’s theorems.Report
It’s arguably one of his better pranks, though.Report
Ir’s not unique.
http://en.wikipedia.org/wiki/Pierre_de_Fermat
Although Fermat claimed to have proved all his arithmetic theorems, few records of his proofs have survived. Many mathematicians, including Gauss, doubted several of his claims, especially given the difficulty of some of the problems and the limited mathematical tools available to Fermat.
My guess is that Fermat’s methods were similar to Ramanujan’s, described by his friend G. H. Hardy as “arrived at by a process of mingled argument, intuition, and induction, of which he was entirely unable to give any coherent account.”Report
Murali,
I’m 100% with you on this one.Report
” I am not sure to what extent Brake is successful at limiting the institution to just caring relationships. It is not clear why marriages of convenience should not be legalised as well. “
I’ve been a proponent for a long time of civil unions for friends, siblings, parents and children, etc. I envision a legally-binding agreement where you would commit to be responsible for each other until one or both parties decide to terminate the agreement. It would get a little tricky with health coverage though.Report
I’ve been a proponent for a long time of civil unions
Me, too. I look around and I see far too many uncivil ones.Report
Legalizing marriages of convenience?
Have they ever been illegal?Report
Yes. Immigration officials regularly and intrusively check on americans who have married an immigrant to see if they are “really married”Report
But the are “really married”. They might not be allowed to move into the US, but there is no doubt that if they are to end the marriage of convenience, they will need a real divorceReport
Marriages of convenience are illegal in the US especially when it concerns immigration status. If caught trying to exploit a legal loophole, the person can be fined $250000 and jailed for 5 years.
Wikipedia agrees with meReport
Is it the marriage itself that’s illegal, or marrying for the sake of legal residency? I don’t view these as being the same thing. You can still marry them, you just can’t get residence and you can get in legal trouble if you pretend that it is not a marriage of convenience.Report
Which is, of course, exactly what J_A said. Sorry, should have read back a couple comments.
It seems to me that the illegal part of the marriage is the “exploiting a legal loophole” rather than the marriage itself. I suppose you can say that the marriage isn’t really recognized if it does not confer all of the benefits of marriage (including residence). Maybe. I would argue, though, that’s the cost of allowing spouses of Americans to live here: differentiating between types of marriage.
To pick another example, it’s illegal to marry someone for the sake of putting them on your insurance because you’re their friend and they have cancer and are uninsured. But the marriage itself isn’t the problem, it’s using the marriage to garner benefits that are intended for life partners. If we want to define marriage down to the point that this is acceptable, insurance companies will stop allowing partners onto their insurance.
So, arguably, these policies would actually weaken the institution of marriage in rather tangible ways.Report
If we want to define marriage down to the point that this is acceptable, insurance companies will stop allowing partners onto their insurance.
Not necessarily. Insurance companies will just be more explicit about whether or not spouses can be brought in and how many. So, if I were an insurance company. For each additional spouse and kid who is insured the insurance could increase the premium accordingly.
The point is that government officials snooping around in your private life and asking how close you are to you wife and throwing you in jail if your relationship with your wife doesnt meet some arbitrary standard is amazingly intrusive. It may be too quick for me to say that this is too intrusive to ever be justified, but it certainly is the case that it is so intrusive that it is not remotely possible for the justificatory requirements to be meet by something as trivial as enforcing what are already unjust immigration restrictions.Report
As someone who has experienced this kind of snooping (albeit they managed to make it feel somewhat voluntary a lot of the time, even though it wasn’t), I agree. To give one example, it’s unbelievably creeptastic to be sitting in a room with some dude asking you intimate questions about your spousal relationship, and know that if you mess up, or crack a joke he doesn’t like, you’ll be kicked out of the country and forcibly separated from your spouse for an indeterminate length of time.Report
My sister-in-law has married a couple of foreign nationals, and a friend of mine married a Canadian. I am not unsympathetic to the hassle of snooping. In my perfect world, the second you get married to an American, your citizenship comes with the marriage license.
That depends, however, on a presumption of good faith. That the marriage is there to start a family unit (even if just a two-person one). Allowing marriages specifically for the sake of citizenship undermines that. Allowing plural marriages undermines that even further. To allow marriage-for-money, for instance, means allowing each of us to sell citizenship or residence rights to others, which simply isn’t going to work (and again, plural marriage would exacerbate this exponentially). The fewer parameters we have on marriages that can legitimately be used for residency, the less leniency we can have for spousal residency. This is a problem.
(We can sidestep this with open immigration so it doesn’t matter if you marry someone or not, but we’re not going to do that and I believe that nations have a right to set their own immigration policies – even though I’ll often disagree with them.)
With regard to the insurance companies, they give spousal benefits due to legal requirements and, again, the presumption of good faith. Completely disregarding the nature of marriage, making it such that marrying someone for the sole purpose of insurance benefits, or charging people under the assumption that this is often going to be the case, undermines existing marriages that do fit the norms.
These norms are important because it is the basis on which we confer special status to the married. Whether a marriage is entered to for reasons of romantic love, to start a family, both, or even throw arranged marriages into the equation… I’m cool with that (at least on a policy level). But marriage specifically for the sake of benefits throws the benefits into doubt for those who would marry for the norms we grant privileges for.
A lot of libertarians propose “privatizing marriage.” I disagree with this for a number of reasons, one of which is because it would make it far less likely that my sister-in-law and her husband would be able to live in the US together. Maybe ideally we’d just let every American sponsor any non-American of their choosing, but that’s a much tougher sell than “A woman and her husband should be able to live together in the US.” That’s something most Americans (including some of the most anti-immigration people I know)… as long as marriage isn’t being used solely for that purpose.Report
I should clarify… if someone wants to say that the snooping should not occur because residence-motivated marriages are not occurring, or are occurring with such low frequency that they are not justified, I don’t know that I disagree with that.
Arguing that residence-motivated marriages should be considered legitimate, however, that we shouldn’t judge and so on… that’s a much tougher sell. That makes limiting the residence, working, and particularly the citizenship privileges of married couples less suspect. More justified. As someone that wants as clear a path to citizenship as possible for genuine spouses (together for love or to be/start a family), I don’t want that to be justified.Report
If there were no such thing as children and the need to raise them, the “marriage” issue would look quite different. There would really be no reason for it atall one way or the other, abolishing it or opening it to all possible numerations and combinations: no difference.Report
I imagine that it would be easier to raise children in plural marriages. And with contraception, children are unlikely to be an issue in marriages of convenience. In fact, if marriages of convenience develop into something more, that would be a win for the institution of marriage.Report
It’s easier to do anything when you think that someone who isn’t you can do it.Report
If there were no such thing as children and the need to raise them, the “marriage” issue would look quite different.
If you call being deprived of one more intellectually unsustainable argument for discrimination “quite different,” then yes.
But of course it’s easy to recognize that children are regularly raised outside the marriage bonds, and that married gay couples are quite capable of raising children, and are likely to do so whether the state recognizes their marriage or not. It puzzles me that so many intelligent people of the stripe that bemoan attempts at social engineering can’t quite come to grips with the fact that they are in fact arguing for a social engineering policy, and one that has been increasingly ineffective for the past two generations.Report
Agreed Tom, the fact that same sex couples are raising a lot of children and that those children are directly and measurably harmed by denial of same sex marriage is a serious problem for same sex marriage opponents.
Reading the transcripts from the proposition trials and hearing about the crickets that sounded out when poor David Blankenhorn was asked under oath to enumerate and detail the harm same sex marriage would do to opposite sex couples and their children made me almost pity SSM opponents. David never really recovered, I hear he switched sides recently on the subject.Report
But marriage would be different if there were no such thing as children. It might not exist atall as there’s no need for it. Sorry nobody feels like considering that thought, but that’s OK. The observation was more geared to the fact that since Mr. Murali’s reflection on marriage here doesn’t include the raising children part, it doesn’t help much.
As for Vaughn Walker’s show trial, Mr. North, if such an easily-beaten mug as David Blankenhorn didn’t exist, it would have been necessary to find another. As for serious discussions of the issue, Google indicates this is a more worthy opponent:
Girgis, Sherif, George, Robert and Anderson, Ryan T., What is Marriage?. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at SSRN: http://ssrn.com/abstract=1722155
[I haven’t read the paper, so I’m not going to litigate it. My comment was to say that I thought the OP’s framing of the issue was insufficient; it was not a comment on the quality of its arguments as such. Perhaps some unfortunate mug wants to litigate gay marriage here for the nth time, but I ain’t him.]Report
“But marriage would be different if there were no such thing as children. It might not exist atall as there’s no need for it. Sorry nobody feels like considering that thought, but that’s OK. ”
I think everyone agrees with this, just like everyone would agree that marriage would be different if the concept of property had never existed.
I just think, since there is no credible data supporting same sex marriage is any better or worse than different sexed marriages, it’s just not particularly relevant or helpful observation.Report
Thx for properly representing my point, RTod. I can tell it’s going to be one of those days around here. But of course it’s a valid observation, that the OP neglecting the children angle is what’s unhelpful.
I just think, since there is no credible data supporting same sex marriage is any better or worse than different sexed marriages, it’s just not particularly relevant or helpful observation.
That, of course shifts the burden of proof to opponents away from the advocates, which is the shape this mess often takes. This is a winning debate tactic, since the “proof” is lacking either way. Further, by seizing the philosophical ground of determining “what is good,” social science obviates philosophy.
http://www.firstthings.com/article/2012/01/same-sex-science
“The social sciences do not contain within themselves adequate resources to adjudicate among conflicting ways of understanding the good. Individual scientists, stepping beyond their professional bounds, may declare homosexual orientation positive, normal, and legitimate, but such science cannot make this judgment. Such judgments are the domain of religion, theology, and philosophy. The twin claims that science conclusively establishes that sexual orientation grounds human identity and that psychology as a science establishes the legitimacy of such a claim are too far a reach.
So where does this leave us? We know much more now than we did ten and thirty years ago about the emotional well-being of homosexual persons, the complicated interaction of nature and nurture in the causation of sexual orientation, of the complicated and difficult possibilities of sexual-orientation malleability, of the functional and descriptive characteristics manifest in same-sex partnerships, and of the contours of the psychological identities of homosexual persons. The contributions of science to this area, however, remain sketchy, limited, and puzzling. It is remarkable how little scientific humility is in evidence given the primitive nature of our knowledge.”Report
“I just think, since there is no credible data supporting same sex marriage is any better or worse than different sexed marriages,…
That, of course shifts the burden of proof to opponents away from the advocates, which is the shape this mess often takes.
False! The point you obscure is that advocates have taken up the burden of evidence and demonstrated through multiple studies that SSM is no better or worse than heterosexual marriage, and that children of same-sex couples do every bit as well as children of heterosexual couples.
But opponents refuse to accept that they share a burden of proof just as much as advocates do, so while advocates have taken up that burden and provided evidence, opponents insist that they don’t have to bear any burden of proof at all.Report
I’m mobile, so to save time I’ll just quote me:
“SSM proponents bear the complete burden of proof, since they want change. If society is on trial [it is], and the process is to be adverserial [it is], then society can stand mute and the prosecution must make its affirmative case.”
I must ask, what is it exactly you believe needs to be proved?
As best I can tell, the relevant items are:
1. Do gay people want to get married? (At least some, yes.)
2. Do we let other human couples marry, regardless of their motivations for doing so, or their history with marriage? (Again, yes.)
3. There is a history of both homosexual relationships that is observable, and also a body of evidence surrounding both marriages and children raised by gay people. Does that data suggest that society will not be adversely effected by gay marriage? (Yes again.)
4. Will the marriage of gay people effect, in any direct way, the lives of people that do not wish to marry someone of the same sex? (No, other than [perhaps] that something exists that they do not like.)
I’m sorry for being dim, but what other proof is needed? It would help if you would explain, because I’m not getting what smoking gun is still required.Report
This is why I think it’s very important to hammer out what we mean when we say “marriage”.
Far too often, I see people argue as if marriage means “A Sacred Gift Given To Us By God” in one breath and “A Legal Construction” in the next… and that we cannot allow the latter because God Seriously Talked About This when it came to the former.
When we try to hammer out exactly what God was talking about when God Seriously Talked About this, suddenly we find that the topic is too intensely personal to really be able to discuss… so when we want to wander back to the areas where we can discuss, we’re told that we can’t because of the things that we can’t discuss.
Which makes accepting the burden of proof a real pain.Report
JB – That’s a few more steps farher than I am at at this point.
When Tom asks me to accept the burden of proof, I am still not clear: the proof of what, exactly?Report
Tod, you can’t meet the burden of proof because it doesn’t exist. That’s one of my key points here, well before the arguing starts. I’m talking about framing the premises.
Now, it’s clearly your feeling that all sexual relationships are equivalent enough to institute gay marriage. If you get enough people to share that feeling, it’s in. But you’re going to have to get it done through poetry, not prose.
As usual, my objections here are formal. “Prove to me gay marriage will be bad for the children and society.” Well, it can’t be proved to a proponent’s satisfaction. Can’t be proved that it’ll be good [or harmless] to an opponent either. The evidence is inconclusive.
The debating strategy is to stick the other side with the burden of proof, however, and that’s what I’m noting here.Report
If I can show a couple of threads where I accepted the burden of proof and then had trouble even defining what we wanted the terms (the terms we had yet to define!) to do, would that count as a counter-example to what you describe happening here?Report
Jaybird, I’ve read those threads and thought of you when opening this paper:
Girgis, Sherif, George, Robert and Anderson, Ryan T., What is Marriage?. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at SSRN: http://ssrn.com/abstract=1722155Report
So let’s look at it. Oooh! Princeton!
In the article, we argue that as a moral reality, marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally fulfilled by bearing and rearing children together, and renewed by acts that constitute the behavioral part of the process of reproduction.
Given that my marriage to Maribou does not qualify as “naturally fulfilled” under this definition, I’m seeing question begging before I get to the end of the sentence.
So let’s say that I download and read this paper and argue against it.
Will you address my arguments or will you instead say that you didn’t make the arguments and, therefore, do not need to be put on the spot to defend what was said by someone else entirely?
Because if it’s the latter, I’m neither going to download the paper nor read it.Report
Argue against the paper, JB: it’s a worthy opponent, not tomato cans like Blankenhorn. I’ll read what you have to say. Already, you’re taking their definition—and analysis of the essence of what marriage is—and saying, no, it’s not.
So I don’t know if you’re going to engage their arguments or just drive past them.
We’re back to Jaybird sez marriage is the commitment of two loving people, it seems. I got it the first 1000 times I heard it, including several other times today. Gay marriage is a re-definition of marriage. If you want the prevailing definition and understanding, Robbie George has taken a shot.
Girgis, Sherif, George, Robert and Anderson, Ryan T., What is Marriage?. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at SSRN: http://ssrn.com/abstract=1722155
As for the social science part of the argument, co-author Gergis writes:
“What we need, however, are studies that meet the acknowledged gold standard of social-scientific research, by drawing on large, random, and representative samples observed longitudinally. So far, however, as my coauthors and I elsewhere affirm and nowhere deny, none of the studies comparing children reared by same-sex couples in sexual partnerships to children reared by their married biological parents has these features, for reasons acknowledged in this literature review by a sociologist and Jonathan Rauch, a gay civil-marriage proponent.
Yet Chappell treats the issue as if it had been settled.”
Anything that engages the George paper or the Gergis rebuttals moves this along and has my interest. Otherwise it’s just the same old reruns. The George paper is familiar with every argument I’ve seen you make so far over the past year, Jaybird, and engages them. If you have more than their other critic who minimizes their arguments with words like “fetish” and “silliness,” you will proven yourself a more principled and cogent mind than that of at least one college professor.
Which ain’t hard to do, but it’s a start.
😉Report
“Now, it’s clearly your feeling that all sexual relationships are equivalent enough to institute gay marriage.”
No, I don’t. For example, that girl I met in the bar when I was 21? THe one that inited me back to her place?
Not even in the same solar system as my relationship with my wife.Report
We’re back to Jaybird sez marriage is the commitment of two loving people, it seems.
I’m actually more interested in the argument that my marriage to Maribou isn’t “naturally fulfilled”, myself.
Hell, I’m even willing to *RUN* with that. My marriage to Maribou is not operating at 100% efficiency. Fine. Let’s stipulate that.
What percentage am I at? I mean, legally, my marriage to Maribou is just as recognized as (insert really irritating example here) marriage to (other irritating example) and *THEY* had a kid/kids. And we see what *THEY* are like.
I mean, if we want to take the paper that you’re having us read seriously, shouldn’t we take the things that he’s saying seriously?
“as a moral reality, marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally fulfilled by bearing and rearing children together, and renewed by acts that constitute the behavioral part of the process of reproduction”
I’m willing to run with this. You willing to keep up?Report
Oh, I believe in love at first sight, my dear Mr. Kelly. And you could have knocked her up and got to know her a little better. Life is strange that way.
Absent engaging Robbie George, et al., I don’t think this is going any further. I’ll keep an eye out in case somebody says something interesting. That Mr. Truman at least gets George’s argument is enough progress for one day.
You may have heard the one that goes, it is the mark of an educated mind to be able to entertain a thought without accepting it. That’s plenty enough for a combox.Report
Oh, I’m willing to entertain the argument that marriage should be for the reasons you define, be it either that marriage is all about procreation, or that marriage has always been defined in one way until recently. Are you willing to stick to it if I do?
My experience with both these particular arguments is that they are quickly abandoned with “that’s not what I really meant” pretty quickly.Report
No, your marriage to Maribou is getting too personal. Mine is childless as well but I’m not putting it on the drama table, and we also have a number of gay folks here for whom this is not an abstraction.
Your argument is addressed and engaged in the Robbie George paper. Better you should argue with it: less personal, a top-flight opponent. As they say in chess, play the board, not the player. Beating an inferior opponent is hollow. Play and beat the best if you’re going to spend your time on this.Report
Tod, just say what’s on yr mind. I have no interest in attacking or defending, only clarifying. I understand both sides of the argument, and it’s been a long time since I heard anything new.
I pop in the George paper because I see little evidence that many or most pro- people can fairly state the other side’s argument.
http://www.thepublicdiscourse.com/2011/07/3585Report
Tom, may I suggest that the opposite is true?
It seems to me that in this matter, the reasons why Jay and Maribou’s marriage (or Jason and Scott’s, or Russell and Mr. Saunders) either are invalid or should be invalid should not be shied away from.
If you are going to advocate stripping something as precious and sacred from any of those people, it seems only sporting that you be willing to acknowledge both that you wish to do so, and why you wish to do so.
Saying, ‘let’s pretend it won’t effect real people sitting at this table’ seems somehow disingenuous.Report
I don’t know that anything’s “on my mind,” Tom. I’m just trying to pin you down to a set of concrete reasons that you believe same sex marriage should be verboten.
My experience in having these kinds of discussions is that the goalposts always seem to move. For example, to choose an argument you yourself are not making, freedom of religion is often used – but then abandoned when the Episcopal church’s upcoming approved SSM nuptials are brought up.
So I have now read the paper, which I will say in advance I do not find compelling, because it starts with a series of “givens” that I find incorrect. If you want, we can discuss since my assumption is that this paper represents your position.
But if so, then I’d like to start with a clear acknowledgment of what we’re really arguing. You say you already know my argument, and that’s fine. But I want you to list your reasons for not allowing SSM; otherwise I don’t really see the purpose of going any further with this.Report
Sorry, Tod: Too personal, way out of bounds in my rulebook. I really have nothing to add at this point anyway—there’s plenty I’ve already written that has been left unaddressed and I’m weary of repeating the same links, which surpass what’s possible in a combox.
Were this to be about Mr. Murali’s OP, which I’d hoped, I’d have gone to the possibility of teleology [essential to George’s argument] not requiring a deity.
http://edwardfeser.blogspot.com/2012/07/atheistic-teleology.htmlReport
Fair enough.
Have a good weekend, then.Report
Remember when I asked:
Will you address my arguments or will you instead say that you didn’t make the arguments and, therefore, do not need to be put on the spot to defend what was said by someone else entirely?
Because if it’s the latter, I’m neither going to download the paper nor read it.
Because I do.Report
Yes, Jaybird, and I declined to do the combox dance with you on this one, as I always do. So don’t read the paper, then. I can’t make you.
Girgis, Sherif, George, Robert and Anderson, Ryan T., What is Marriage?. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at SSRN: http://ssrn.com/abstract=1722155Report
Combox dance?
You mean reading arguments, pointing out flaws, and asking other people to respond to the criticisms? That kind of dancing?
I’m merely not in the mood to write 1000 words (not counting quotations) that address the arguments in the paper only to be told that you don’t want to discuss it.Report
renewed by acts that constitute the behavioral part of the process of reproduction
I love it when academics talk dirty. It’s so much classier than just saying %@*&ing.Report
Jaybird, I’ve already invested more than my 1000. You continually press for a definition of marriage; the opponents of gay marriage submit that it’s a “re-definition” of marriage.
With total disagreement on the meaning of the word and the concept, it’s a rainout.
My own interest was per the OP, not a restart of the entire war at the turnip truck level. The George argument doesn’t really work without admitting metaphysics or at least teleology; abolish them, and there is no common language atall except the utilitarian one, and that’s an even more unpleasant mess. perhaps you’re familiar with the latest:
http://thenewcivilrightsmovement.com/a-baylor-university-institute-issues-letter-in-support-of-disreputable-regnerus-study/marriage/2012/06/30
http://www.baylorisr.org/2012/06/a-social-scientific-response-to-the-regnerus-controversy/
Pass.Report
I have stepped back from asking for a definition of marriage, Tom. I’m instead asking for what we’d want our definition of marriage to actually do.
I mean, I could play word games and come up with a definition that was broad to the point of meaninglessness (“I’m also married to my pets!”) or narrow to the point of absurdity (“it’s only a true marriage if it takes place within the Southern Babtist Church!”) but I’d be more interested in hammering out what we’d hope for our definition to actually do.
I’d hope, for example that we’d have a definition that would allow for such things as “marriage being recognizable”.
My own interest was per the OP, not a restart of the entire war at the turnip truck level.
If we’re using words differently and only one of the two sides is willing to present definitions for the words they’re using, a trip to the turnip truck is necessary.
What’s the snappy one-liner? “Words Mean Things”?Report
JB: “What,” ask Pragmatic Men, “is all this talk of essences, definitions, and abstract rights and logical entailments? Like all social reality, marriage is a construct. What we owe people on equal terms is marriage as we understand it now. (The state should get involved in the first place because people would be very unhappy and perhaps generally more antisocial, if the state didn’t.) Now marriage, here and now, in the real world, means a sexually exclusive romance between two adults who more or less put each other first in life and have kids, or a dachshund, if they’re so inclined. That contingent notion includes same-sex romantic couples and excludes Laverne and Shirley. It’s as simple as that.”
And so on:
http://www.thepublicdiscourse.com/2011/07/3585Report
I’m willing to accept that definition if you are.Report
JB, that was Girgis’ attempt to state YOUR case fairly, which I’d hoped y’d find acceptable. But then he replies, and rebuts and moves past the turnip truck level. This isn’t working, man. I understand your position just fine but the reciprocation thing just ain’t happening. It’s all in the links. He’s on your page but you’re not on his.Report
Hell, I was willing to accept “the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally fulfilled by bearing and rearing children together, and renewed by acts that constitute the behavioral part of the process of reproduction” and work from that as well.
The problem came up when it was realized that this definition had direct references to some of the so-called “marriages” held by some on this very board (indeed, some in this very comment thread!) and, suddenly, this definition became something about which we could not speak because it directly speaks about some of the so-called “marriages” held by some on this very board.
It seems to me that this is why definitions and hammering them out (and even agreeing upon them!) is very important.
If we have a definition we can agree upon, we can go from there and talk about the things that fit, the things that don’t, and why.
“Those two people are married according to this definition.”
“Those two people are not married according to this definition despite having had a ceremony in the Mormon Temple for the following reasons…”
“Those two people are not married according to this definition because there is no marriage in heaven.”
This is why the turnip truck is important. Sometimes we want to go to town and it’s all we have.Report
I understand, JB. As you may have seen elsewhere in the thread, I think a certain circumspectness is called for here: there are real people involved and it’s not all grist for the mill—certainly they are not grist for the mill.
As one good thinker put it, let us beware of the danger of pursuing a Socratic goal with the means, and the temper, of Thrasymachus.Report
It does seem to me that if we want to say “there are no black swans”, pointing at a black swan should be allowable.
Even if we know the black swan in question personally.
If someone says “A marriage between a blogger and a Canadian isn’t a real marriage”, we should be able to point to a real marriage between a blogger and a Canadian and say “these people *ARE* married and it’s real.”
And if we want to disagree on that, we get to hammer out what we mean by “real” or “marriage”.
Which brings us back to this sentence:
In the article, we argue that as a moral reality, marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally fulfilled by bearing and rearing children together, and renewed by acts that constitute the behavioral part of the process of reproduction.
There’s a lot of stuff we would have to hammer out in there. The turnip truck seems as good a place as any.Report
Or that the two are indistinguishable, i.e., what they get from their church and what the piece of paper the state gives are synonymous, or, at least, should be considered synonymous.Report
Jaybird, I’m unaware of any same sex marriage advocacy group that is trying to get their hands on the former definition that you’ve provided. If you could cite ones who’re trying to lay claim to “the sacred gift given to us by God” by use of government force.
To my knowledge the only “marriage” that SSM proponents have ever asserted a right to is the legal construction one. I’m honestly curious, do we have any examples of SSM proponents trying to get their hands on formal religious marriage by lawyer, judge or legislator? Examples please??Report
I don’t understand the question, North. There are already many religious SSMs, and no governmental pressure or force was required to achieve them.Report
Agreed Mike, I’m asking if Jaybird has any examples of SSM proponents trying to force religions to grant ones where they otherwise wouldn’t.Report
Oh, I don’t have any.
I am fairly sure that we’ll see a case like that before I’m in the cold, cold ground, however.
That said, the church cannot provide a marriage in the eyes of God either. All they can do is provide a ceremony that goes on to be recognized (or not) by The State.Report
Tod, the best you can manage is that the data “suggests” gay marriage won’t be harmful. To you. Which is sufficient to inform one’s vote. The data is not conclusive, however.
As for the rest, I can’t accept your framing of the issue as adequate, for the same reason I don’t find Mr. Murali’s adequate. But at least you mention children in your #3, although again, the data isn’t sufficient.
http://www.firstthings.com/article/2012/01/same-sex-scienceReport
What if there is no “the good”?Report
Exactly, Mr. Psycho.Report
Or, God forbid, in many cases, we allow the individual to decide his or her own “good”.Report
That’s what I was getting at. Well, actually I’d go even further: the idea that there is a single objective “good” way of living that should generally be encouraged inevitably becomes excuse to control others.
If someone is acting in a way that offends my personal aesthetics, I may not like it, but provided they are not actually harming ME there is no further justified recourse. Freedom is more important than my being annoyed.Report
But this is where you get the very squishy arguments about the well-being of children raised in homes other than wedded, opposite sex homes. Given that, to this point, the data is relatively thin for wedded, same-sex couples raising children, the argument is made that it is too risky to roll the dice by allowing same sex marriage because we know too little about its effects.
Sort of a “you need a job to gain experience, but you don’t have any experience so we can’t give you the job.”Report
Ah, now it’s same-sex married couples, which floats the possibility that the children will be better off if the state institutes gay marriage.
Perhaps, but if the evidence is scant for all SS couples, that instituting marriage would be an improvement is even more a shot in the dark.
Given that, to this point, the data is relatively thin for wedded, same-sex couples raising children, the argument is made that it is too risky to roll the dice by allowing same sex marriage because we know too little about its effects.
Why yes, that is one of the arguments, and a well-made one.
http://www.firstthings.com/article/2012/01/same-sex-science
We know so little. There will be more data from states that already have it, however, so it’s not quite the Catch-22 that you paint here.
Further, if you convince enough people that this Rubicon must be crossed–or cliff jumped off—then that’s how it will be in this democratic republic. However, the argument from prudence is a valid one and cannot be simply shrugged off.Report
Well, there have been all sorts of things that were prohibited and then allowed that we did not know the ramifications of when we set about allowing them. I think it’s weak sauce to say that because we can’t see into the future, no new allowances or expansion of freedoms can be allowed.
And aren’t the conservatives the ones positing the stabilizing nature of marriage? So, yes, one could reasonably assert that allowing gays to enter into that stabilizing contract will benefit any children to be raised in that environment.Report
You can assert anything you want, Mark. You might even be right.Report
But marriage would be different if there were no such thing as children. It might not exist atall as there’s no need for it.
There are two ways to approach this. One is, “if humans were biologically different than they are, so that they did not reproduce via having children, there might be nothing like marriage at all.” That’s quite true, but it assumes an animal that’s no recognizably human, so it’s not particularly relevant.
The other way is to look at whether childless people, whether by choice or because they are unable to reproduce, still choose marriage. In large numbers they do, so the claim simply becomes an inaccuracy as it applies to the real human world.
if such an easily-beaten mug as David Blankenhorn didn’t exist, it would have been necessary to find another
This ignores that this easily-beaten mug seems to have been the best they could find. You are eliding the fact that Prop 8 supporters seriously wanted to win this case and made their best effort. They did not set out looking for an easily-beaten mug, whether Blankenhorn or some other, as your comment suggests. This is all just excuse making to explain away the loss so you can pretend the decision never actually addressed the merits. It’s nice consolation, perhaps, but that doesn’t change that it’s reality-avoidance.Report
It might not exist atall as there’s no need for it. Sorry nobody feels like considering that thought, but that’s OK.
I think people have considered that thought, actually. And they reject it. (Why think that the disagreement people express on this (and other) issues is best explained by ignorance on their part?) There are other reasons to get married that don’t rely on the necessity of raising children, or procreating children. If marriage is a sacred bond between two consenting individuals, then surely its sacredness doesn’t rely on something external to that bond.
That seems pretty obvious. To me, anyway.Report
“If marriage is a sacred bond between two consenting individuals…”
Well, we’re back to the definition game. Since opponents call instituting SSM a “re-definition” of marriage, the wheels have already come off the cart here.
I’ve seen this movie before.Report
Tom, I used that definition because conservatives are infatuated with it. It’s ya’lls definition. So I’m saying that even on your own terms, sacredness is a property internal to marriage, not imbued by external properties (like having or bearing children).Report
No, it’s not the conservative definition in the least. It’s just the type of sophistic formulation that conservatives strenuously object to, “two loving persons making a commitment to each other,” that sort of thing.
If you’re dabbling in the Christian religion here, that two people “become one flesh” requires one from each gender, and is impossible otherwise. But bringing in the Christian religion just muddies the waters some more.Report
Well, I think the fact that you’re skipping around to alternate accounts of what the term means is evidence that there really isn’t a justification for the belief other than people hold it. If the definition doesn’t derive from religion (or some other antecedent beliefs) then it’s defined and justified by consequentialist or pragmatic properties. That puts it in the realm of evidence and science and all the stuff conservatives reject. Plus, sacredness isn’t an observable property.
As usual in these types of discussion, I don’t know what you’re arguing, only what you’re asserting.Report
I’m not skipping around atall. I’m clarifying. I’m interested in your thoughts on the best of your opponents, like this
Girgis, Sherif, George, Robert and Anderson, Ryan T., What is Marriage?. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at SSRN: http://ssrn.com/abstract=1722155
otherwise, it’s the usual, you know.Report
Fair enough. But I think that beings things back a bit, basically to what JB said:
https://ordinary-times.com/blog/2012/07/the-minimal-marriage/#comment-303460Report
http://www.philosophyetc.net/2011/05/whats-wrong-with-what-is-marriage.html
This guy seems to have a pretty good rebuttal to their piece.Report
The linked essay addresses “What is marriage,” per Jaybird’s request. Rather than try to stuff it into a combox or an elevator pitch,
http://en.wikipedia.org/wiki/Elevator_pitch
perhaps a more thorough approach is in order.Report
Wish y’d read their essay for yourself, Mr. Boggs, but some props for googling up a rebuttal.
However, skimming to the end
Update: Sherif Girgis responds by arguing that since we care about (i) having biological children, and (ii) rights to bodily integrity, it (somehow) follows that concern for biological functions / neo-Aristotelian teleology isn’t fetishistic? I leave the refutation of this silliness as an exercise for the reader.
makes me unwilling to give this gentleman the time of day. “Fetish?” “Silliness?” This is poo-poo fling. Not interested. Hell, let’s just cut to the chase right now and save a lot of time & trouble.
[Girgis’ reply to Chapman is here,
http://www.thepublicdiscourse.com/2011/07/3585
if anyone’s actually reading these things.]Report
But they still want to seem to make the sex act the very crux of marriage. And a very specific sex act with one penis and one vagina done in order to procreate. I think that definition is a bit narrow. And, to be honest, for SSM opponents, a bit self-serving.Report
Stipulated, Mr. Boggs, that you want to change/expand the traditional definition of marriage. That’s what this discussion’s about, framing the issue—in this case “definition of terms.”
In a debate, if you win the definition of terms, the rest is filling in the blanks. “A commitment between two loving people.”Report
“A commitment between two loving people.”
Which is what, regardless of what you or Mr. Girgis might think, many marriages actually are, above and beyond any desire or necessity for procreation.Report
And such marriages are unnecessary, Mr. North, my point. “It’s just a piece of paper,” is how it goes, if I recall.Report
Such marriages are unnecessary? And who makes that determination? At the moment it looks like it’s being made en masse and that the verdict isn’t going the way you think it should.Report
Mark: “Which is what, regardless of what you or Mr. Girgis might think, many marriages actually are, above and beyond any desire or necessity for procreation.”
Tom: “And such marriages are unnecessary, Mr. North, my point.”
That’s an interesting comment coming from you, considering. Is this really your opinion?Report
Isn’t “it’s just a piece of paper,” RTod? Feel free to disagree. You have to absorb the argument of this essay
Girgis, Sherif, George, Robert and Anderson, Ryan T., What is Marriage?. Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010. Available at SSRN: http://ssrn.com/abstract=1722155
for the same conclusion from the other side. Now we do make exceptions for infertility—on the whole on behalf of the woman—but the argument is that the exception should not be abstracted into a rule, covering all combinations of persons.
Again, formal.Report
Tom, I reject the argument that are only two choices, that marriage must either be a procreation strategy or nothing more than a piece of paper. I have read the first 1/3 of the paper that you provided, but since it opens with this assumption I do not find its argument compelling – at all.
Further, while I take you at your word that this is the real issue for you, I do not believe that this is the real objection for gay marriage by the vast preponderance of its detractors. Instead, I believe it to be an argument that has been backed into to support an existing and strongly held belief.Report
You’re catching me at odd ends, Tod: my reply to Mr. Murali—society’s [and man’s] interest in marriage—and easily-kicked crap like Blankenhorn’s—the type of which you take a passing shot at, “I do not believe that this is the real objection for gay marriage by the vast preponderance of its detractors…”
I’m not interested in defending such arguments, and there are equally brainless sentiments on the pro- side. People have feelings, it’s so; most are guided by them.
In reply to Mr. Murali’s philosophical consideration, I think Robbie George, et al. do a sounder job of addressing “What is marriage,” for reasons given. I don’t believe marriage would exist without procreation, and George argues that it exists precisely because of procreation.
Hence its relevance to the OP at hand.
As for the rest of the mess, Judge Walker basically rules that objections to gay marriage are invalid. I think that’s wrong for many reasons. The problem is that most of us argue what are clearly matters of opinion as valid [me] vs. invalid [thee].
I’m with [I believe it was] Bertrand Russell—the only sex society or government has a compelling interest in is the kind that makes babies. The rest here is culture vs. kultursmog. Convince people to vote your way, or harass them and face the backlash.
The wisest of the pro-SSM side have already figured this out.Report
I think it’s more complicated than both of these things. At least some of the folks I know do consider intentionally childless marriages as something less than real.
The exemption is that I have never heard of this as the case for a marriage wherein procreation was not possible. That being said, I think they get a pass because the impossibility of procreation is “God’s will” (if they did everything else right). So I guess it could be considered that for gays, it’s simply a matter of not getting that exemption (because it’s not God’s will that they be together in the first place).Report
And such marriages are unnecessary, Mr. North, my point. “It’s just a piece of paper,” is how it goes, if I recall.
They would have taken many years to let Maribou into the country without that just a piece of paper, for the record (as opposed to the mere months with it).
But moving into hypothetical land, I’m not a huge fan of saying “if you don’t need it, I’m allowed to insert myself into the situation and prevent you from having it”.Report
“if you don’t need it, I’m allowed to insert myself into the situation and prevent you from having it”.
I think that’s spelled “If I don’t think you don’t need it, it’s my duty to insert myself into the situation and prevent you from having it”.Report
It’s not even redistributing. (And I’m not the world’s biggest fan of *THAT*.)
I can theoretically understand, however, running into someone’s house, saying “you have more than you need!”, killing them, and taking their stuff and giving it to a bunch of people. (After taking out a percentage for overhead, pension obligations, etc.)
If, however, you take away a marriage from a couple of moral agents, I don’t see how anyone could even *THEORETICALLY* be made better (or not made worse) thereby.Report
Blimey, this redistribution of wealth is trickier than I thought.Report
One could also argue that marriage wouldn’t exist without property.Report
Tom this seems like one of your characteristic (elegant) evasions. The trial was very much one SSM opponents wished to win but when asked to produce witnesses and testimony to detail the asserted harm SSM would cause all that SSM opponents could produce was poor David. He fumbled on the stand and then reversed himself later. No other expert was willing to testify under the oath and factual requirements that all court cases have for witnesses and testimony.
On the other side, however, witness after witness took to the stand to testify under oath about the harm that withholding SSM does; to adults; to children; to families. So under the standards of legal trial proceedings that everyone, conservative and liberal, agrees are fact based and fair the proponents of SSM made a huge case to which their opponents could produce… … nothing.
Now you can do what all the SSM opponents have done, elude that there was something unfair about the trial, imply that something horrible will happen but the fact remains that under the glare of oath based expert testimony SSM opponents have produced… nothing. This has repeated itself over and over in every court appearance that’s happened on the subject. Why do all these experts who are happy to wax eloquent against SSM in the media and the internet refuse to lend their voices and expertise where they’re most urgently needed Tom?
Agreed marriage would be different if there were no such thing as children but so what? There’re same sex couples and huge numbers of them have children either adopted or brought in from previous relationships? So what Tom? Why are these children being caused measurable material harm to prevent asserted harm to phantom families and made up children?Report
Mr. North, you know me by now. I’m not “evading,” I’m being circumspect out of courtesy to those LoOGpersons with skin in the game, who have already crossed this Rubicon.
Please, sir, give me some credit. Those who are interested in more than pie-throwing have some links to consider, the best of the other side, not chumps like Blankenhorn.
As for those opponents who skipped the Prop 8 charade, it’s because it was a waste of time. Robert George, a co-author of the paper I linked multiple times, along with natural law scholar, gave much time to Romer v. Evans; they needn’t have bothered.
http://linguafranca.mirror.theinfo.org/9609/stand.html
[The author of the piece seems to favor gay marriage. However, he did an praiseworthy job of reporting here.]
Further, Judge Vaughn Walker’s Prop 8 ruling will likely be mostly ignored when it gets kicked to the Supreme Court.
http://blogs.sfweekly.com/thesnitch/2010/08/prop_8_ruling_judge_vaughn_wal.php
“Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions. … His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered. … Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions…”
Yeah, on this I agree with Judge Walker, see above. What a joke.Report
But when it gets to the supreme court Tom the anti SSM side is going to have to produce some witnesses to testify. If they wouldn’t do it before will they do it then? You seem to be suggesting that people felt that Walkers trial was somehow unworthy of people being putting in the time and effort to testify. Okay I guess but that’s gonna become an increasingly thin argument when the supreme court puts out a call for testimony. It’ll be interesting to see what they can come up with then. Time will tell.
I’m certainly respectful of your desire not to offend our peers with “skin in the game” but have you really examined your motivations here? If you’re making concrete reasonable arguments should it offend them? Most of the thin position you’ve staked against SSM boils down to “families are meant for children” but of course we both know that several of our gay peers here are raising multiple children. I can understand why asserting that and delving into that argument somewhere where they can see makes you uncomfortable. It’d make me uncomfortable because the bald fact of the matter is that we know that many same sex couples have children. Moreover we know that harm is caused their children by SSM not being available to their parents (happily our peers have the financial wherewithal to at least partially ameliorate those harms but we both know that costs the time and resources they otherwise wouldn’t have to expend). What’s probably even more uncomfortable is that you’re missing their counterparts; there’s no one on this site or that either of us know that you could point to and say him, her, they, they would be harmed by SSM being enacted and these are the ways it’d occur. All you have are vague allusions of dark potential for future harm to the great masses of the people, always broad and ambiguous, never specific.
I’m sorry that it makes you uncomfortable to have to face the real world consequences of your position in such a personal way but it is illustrative. You’re not the only person who feels that, I suspect that most people feel it, and I think it’s illustrative of why the anti-SSM position is collapsing and being routed (both in debate and at the polls) at such a historic pace.Report
But when it gets to the supreme court Tom the anti SSM side is going to have to produce some witnesses to testify.
I’m afraid that’s wrong, North. There were witnesses testifying before Judge Vaughn because U.S. District Courts are triers of fact. The Circuit Courts and Supreme Court do not retry facts, they only examine whether there was a legal error at the lower level. So the pro-Prop 8 side not only does not have to produce witnesses, but could not do so if they wanted.
I predict that Tom is right about what the Supreme Court will do. I further predict that conservatives who blast the Supreme Court for playing politics will deny that this time it played politics, but ruled only on the law. And liberals who are so pleased that the Court recently avoided playing politics and stuck to the law will accuse it of being entirely politically motivated. The scripts are already written.Report
To add just a bit more clarification. The Supreme Court will take the facts as given, but they are able to interpret the legal meaning and relevance of those facts. So liberal justices are likely to glom on to Prop 8 supporters utter failure to show any harm and interpret that as meaning there is no government justification for discriminating against SSM. Conservative justices are likely to admit there’s little evidence of harm, but point out that gays have never been treated as a protected class and SSM never been defined by the Court as a fundamental right, so all the state needs is a “legitimate” interest in banning it, and note that the Court is traditionally quite deferential to state governments’ determination of why their regulatory interests are “legitimate.” (Whereas if they treated SSM as a “fundamental” right or gays as a “protected class,” the state would need a “compelling” interest in restricting it.)Report
I appreciate the correction James. Law in general and constitutional law is one of my (many) areas of relative ignorance.Report
And one of my few areas of any degree of knowledge. Just on’t ask me anything about torts or civil procedure!Report
I think you misread me, Mr. North: If SSM is a matter of rights, the social science is moot. But it all gets conflated, as in Vaughn Walker’s show trial, so a sorting-out is in order, hence this discussion.
The rights question wasn’t really taken up here—we never got to George, et al’s one point, that if SSM is instituted as a matter of rights, it’s going to be difficult not to let polygamy in through the same door. As Girgis writes:
As it happens the more consistent, or candid, revisionists have publicly reached conclusions that harmonize with mine. Five years ago, hundreds of scholars and activists—including Princeton’s Cornel West, Chicago’s Martha Nussbaum, and NYU’s Judith Stacey and Kenji Yoshino—argued that the state should equally recognize polyamorous and multiple-household sexual relationships, as well as a variety of non-sexual ones. These activists and I may well agree that abolishing the criterion of sexual complementarity would indeed ‘weaken’ marriage as the conjugal view’s supporters mean this: that it would leave no basis in principle for privileging (and so may well further erode in practice—cf. Andrew Cherlin’s The Marriage-Go-Round) its distinguishing norms. We only disagree on whether that would be bad, or in fact very good.
Indeed, here we have folks like Murali who freely admit this as well. To brush aside the possibility of polygamy is brutish and dishonest.
To the other question, then, whether “re-defined” marriage norms are bad or very good, Murali asserts they’d be a positive. Perhaps, but now we’re into policy, not constitutional rights, moving to the legislature instead of the courts.
Is it a good idea to institute gay marriage? [The non-rights view is that while the Constitution doesn’t demand creating SSM, it certainly doesn’t forbid it. I’ll add here that if SSM is legislated in, polygamy might not necessarily follow, as it would if it were decreed a constitutional right.]
As a policy question, then, Murali seems confident that polygamy might even be a plus for the children; advocates of gay marriage seem confident that that would be no real negative for them.
Perhaps, but it’s also clear that many folks assert science is on their side, but are unaware that the social science is not nearly settled–the state of research on SS-couple [or polygamous] parenting is sparse and often based on only a select handful of subjects.
We know much more now than we did ten and thirty years ago about the emotional well-being of homosexual persons, the complicated interaction of nature and nurture in the causation of sexual orientation, of the complicated and difficult possibilities of sexual-orientation malleability, of the functional and descriptive characteristics manifest in same-sex partnerships, and of the contours of the psychological identities of homosexual persons. The contributions of science to this area, however, remain sketchy, limited, and puzzling. It is remarkable how little scientific humility is in evidence given the primitive nature of our knowledge.
http://www.firstthings.com/article/2012/01/same-sex-science
The issue is usually “discussed” in a blaze of emotion [marriage is committed love; opponents are ignorant Christianist poo-poo heads] and intellectual fog [science has “proven” SSM is a good or at least harmless innovation].
SSM might be a desirable policy despite any reservations expressed in the links in this thread. However, the links provide a necessary clarity and caution: As a question of rights, polygamy slides in down the same slope; as good policy, the social science is far from conclusive.
The wiser proponents of SSM are aware of these facts, and as they work to convince [not coerce via the courts], acknowledge them rather than brutishly brush them aside. And that was the name of this tune—clarity, not debate.Report
Vaughn Walker’s show trial
I do wish you’d stop saying this. All it does is make you look like a sore loser. You have not come close to demonstrating there was anything less than normal about the hearing (not trial) in the District Court. Although it is critiquable (although not in the way you’re doing it), it’s not that uncommon for social science and rights to both be brought into such a case, because to some extent whether there is a legal right or not depends on the facts, and the facts are to some degree revealed by social science.
This is because governments, in our political/legal system can override rights, if they can justify doing so. Non-fundamental rights of non-suspect classes can be overridden if there is a “legitimate” reason for doing so; fundamental rights and the equality rights of suspect classes can be overridden if there is a “compelling” reason to do so.
Showing harm from the exercise of those rights helps demonstrate whether there is a legitimate or compelling interest of the state. Social science is not the only source of information for establishing the facts of harm or lack of it, but it is one of the sources.
Ask your blogging colleague; I don’t ask you to just take my word for it. But the fact is that everytime you say “Judge Walker’s Circus” or “show trial,” you make yourself look not sophisticated and knowledgeable, but ideologically reactionary and un-knowledgeable.
You not only do the discussion a disservice; you do yourself a disservice as well.Report
I’ve never found the polygamy argument particularly persuasive.
Possibly because I think that the difference between 2 and 3+ and more distinct than between male and female; possibly because I don’t typically see anyone but conservatives who hate polygamy pushing it. As a practical matter it might also be that polygamy fits into the existing legal structures of legal marriage about as well as wrench fits into a screw hole or that polygamists generally can’t seem to keep their polygamist relationships together (absent some primitive oppressive cultural environment) long enough to make it to the court house to press their cases.
I’ll meet you half way and say that it’s definitely better to persuade than coerce (and it’s important to note that the SSM movement has moved bigtime into persuasion in recent history). That said, however, the litigation you decry is as much a part of the persuasion process as political campaigning it. People see the arguments put through their paces public in court and that sways their opinion. I can assure you the parade of evidence pro-SSM sides present in court and the empty bag with a dead moth in it the anti-SSM sides present in court both have produced significant public shifts in favor of SSM.
But while we’re talking about coercion I assume you’d be opposed then to the constitutional amendments that anti SSM groups have been rushing onto the books since they represent at their base level the act of elderly shriveling majorities to coerce more liberal and permissive future generations into continuing to ban SSM? Or the legal action to destroy non-marriage alternatives that have been rolled out in places like Wisconsin or Virginia? Or is coercion righteous when it’s used by conservatives?Report
Mr. North: 1) I think you’re waving away the polygamy angle, blaming “conservatives” while many [of the more honest] pro-SSM folks admit that it comes in through the same door.
2) Constitutional amendments are fine—pro- or con. In fact, they’re the most legitimate method in a democratic republic. Again, you bag on “conservatives” unjustly.
As for persuasion over coercion, I’m happy we agree. However, with no desire to bash gays, the free use of the charge of bigotry if not overt harassment* toward opponents and the complete waste of time that was Romer v. Evans and other court proceedings, many have decided that the quiet and private use of the ballot box is—or at least should be—sufficient in a democratic republic to decide the matter.
And again, the wiser proponents of SSM appreciate that. In NY state it quietly and licitly worked in their favor, where the duly elected legislature instituted gay marriage with barely a peep from the other side after the smoke had cleared. For what could they say? All the propieties were observed.
___________________________
*NYT:
“FOR the backers of Proposition 8, the state ballot measure to stop single-sex couples from marrying in California, victory has been soured by the ugly specter of intimidation.
Some donors to groups supporting the measure have received death threats and envelopes containing a powdery white substance, and their businesses have been boycotted.
The targets of this harassment blame a controversial and provocative Web site, eightmaps.com.
…The site pits…cherished values against each other: political transparency and untarnished democracy versus privacy and freedom of speech.
“When I see those maps, it does leave me with a bit of a sick feeling in my stomach,” said Kim Alexander, president of the California Voter Foundation, which has advocated for open democracy.”
http://www.nytimes.com/2009/02/08/business/08stream.html?_r=3Report
Death threats and the white powder are disgusting acts that should not be supported or tolerated by anyone. Boycotts I have less of an issue with, but California’s disclosure laws and how they contribute to boycotts for folks whom might otherwise wish to remain anonymous in their donations/support are a concern.Report
“the complete waste of time that was Romer v. Evans”
Doubling down on the offensiveness and the effort to portray himself badly.Report
Tom, yes yes if you force SSM through the courts entirely then anyone else can theoretically ask or demand a similar hearing. I do think that conservatives inflate the actual probability of polygamy advancing in that manner in a desperate attempt to win points in the debate.
If you wish to identify the respective sides by the behavior of their most reprehensible members that’s a game I’d advise you to avoid because it doesn’t reflect well either. Yes pro-gays rights activists have sometimes behaved reprehensibly with intimidation, accusations of bigotry and bad faith and much other disruptive and unacceptable tactics (which I condemn). On the other side, mind, the opponents of gay rights have blood on their hands. Is that really a game you wish to play?
And I’ll also add that James is pretty much on point regarding your scorn at the question of the courts. Unsupported denunciations are not uncommon from you but things aren’t reprehensible just because you decree them to be so.Report
Mr. North, the anti-Prop 8 terrorists weren’t my point except to explain why some folks would rather not expose their lives, careers, homes and families to them.Report
You think they’re afraid to come out of the closet…Report
Update.Report
Public campaigning is, by it’s nature, public. They have my sympathy but only a very small amount. The amount of actual “anti-prop 8 terror” versus the number of people who publicly supported prop 8 puts your probability of being “terrorized” for your support around the level of being struck by lightning.* That’s no justification for draping some special veil of secrecy over public advocacy.
*Note- boycotts are not terror. If your company wants to take those stances people are within their rights to decline to support your business; suck it up.Report
I can’t picture you saying that were the shoe on the other foot.Report
When defending gay marriage, I’ve often had people bring up the idea of polygamy being next. My response of, “So?” didn’t really work.
The *ONLY* complication I see with the basic structure here is when multiple contracts are entered into without the consent of all. Multiple marriages/polygamy can be problematic if there are multiple and competing contracts. If the contracts themselves aren’t filed and cross-referenced, the existence of them might not be known until it comes time to act upon them. So if some guy has multiple marriages, to which he pledges all his assets upon death, we suddenly have a mess when he does indeed die. This is not necessarily an argument against polygamy… just an acknowledgement of some of the practical issues to consider.Report
I consider polygamy to be in a different category altogether than two-party marriages of virtually any sort. A wife being able to marry someone else does have a rather significant impact on my own marriage. Even if she can’t do so without my consent, that this is a recognized legal possibility could materially effect my marriage. And unlike gay marriage, multiple-marriages would require a rewriting of a host of other laws. The repercussions go out farther.
(There are also other things to consider, like I was mentioning with Murali above. Being able to marry multiple people means bringing as many people as you want onto your insurance. It means being able to marry countless people and allowing them to live in the US. We reserve special rights and privileges for spouses, so I think we have a vested interest in limiting the number you can have.)Report
Those are good points. So there are multiple practical problems that arise with polygamy. Some of those are the results of structures elsewhere (e.g., single payer healthcare avoids the insurance issue), but some are inherent to polygamy itself. I don’t think it is the evil that so many people think it is and that the slippery slope from gay marriage to polygamy to beastiality remains stupid.
Perhaps we should strip away all or most of those rights and privileges for married folks…?Report
See, I like the privileges and rights of marriage. I like that Jaybird and Maribou can get married and therefore she can move to the US to be with him. I like that I can be on my wife’s insurance. I like that we can tell each other things in confidence and not have to testify against one another. And so on, and so on. I think these are benefits worth preserving (and expanding to gays). Part of that preservation is, in my mind, limiting utilization of marriage to one spouse and not for the sole purpose of any particular benefit.
Beyond the practical implications, my main concern with polygamy is – in the context of the US – it tends to be utilized in ways that are problematic. There’s nothing inherently wrong with it, mind you, it just typically comes out wrong in practice.
(There’s also the social instability it can bring. Yes, we would be allowing one wife and two husbands, but as a practical matter it would more often occur the other way and create an undesirable gender gap. There are certain circumstances in which this is actually a solution to a problem – societies where there is a lack of men due to war or danger of some sort – but otherwise I fear it would be unnecessarily, potentially introducing instability.)Report
Yeah, this. I was hanging around the BHL site that Murali got this from a few months back when the original SSM debate was held there. What I found strange and distressing was how many libertarians there were opposed to extending marriage rights to gays on the basis that we weren’t also talking about extending them to multiple partners or incestuous relationships or whatever. One guy even wanted to be able to marry himself!
What those objections missed entirely were that the reasons for prohibiting those other marriage structures were different from the objections to SSM. So while we can certainly discuss those other sorts of potential marriage relationships, the arguments pro and con are going to be different than the arguments for and against SSM. It may be a valid discussion but it won’t be the same discussion and there’s no reason to try to throw all that into the mix. Especially when the politically live, active, and attainable modification to the existing structure is SSM and it really, really, matters to a lot of good people.
The natural-law guys are right in maintaining that there is a telos to the institution of marriage. And a big part of that is children, but there are other things as well. For instance, if I were in a an accident and laying in a hospital clinically brain dead, I think it’s advantageous to society for there to exist a person who can be presumed to know me very well and have my best interests at heart to make tough decisions. There’s no one I would trust more than my wife of 27 years for that. This presumption relieves the greater society of either making that decision or figuring out who should do so. All you have to do is just look at what happens when that sort of authority is cast into doubt.
SSM fulfills that telos just as well as hetero marriage and I can’t see any relevant moral downsides. I don’t believe the case has been made for other sorts of arrangements, at least not yet, but that may be mostly because the debate hasn’t been fully engaged.Report
Will-
Some of the rights and privileges of marriage are no doubt acceptable if not laudable. Others… not so much.Report
Regarding SSM, Tom quotes a paper by someone or another that states: “In the article, we argue that as a moral reality, marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally fulfilled by bearing and rearing children together, and renewed by acts that constitute the behavioral part of the process of reproduction.”
The practical reality is that barely half (if that) of hetero marriages fulfill the “permanent and exclusive ” clause. The practical reality is that many marriages fail to fulfill the “bearing and rearing children” clause either together or apart, whether by choice or by biological fact, and we don’t attempt to force the issue. And the practical reality is that many perfectly legally valid marriages no longer fulfill the “renewed by acts that constitute the behavioral part of the process of reproduction,” or at least that’s what I’m lead to believe by the sit-coms. About all we’re really left with, in most states, is the “union of a man and a woman” bit and we (quite rightly) don’t inquire much further into the matter beyond that. So I’m not sure why that remaining bit is the morally relevant part of the definition.
Look… I have four siblings and my wife has two. They are all married and exactly half of those marriages proved to be naturally barren and they subsequently adopted. So almost half (6 of 13) of our nieces and nephews aren’t biologically related to us (including a couple of hispanic kids to add some sorely needed color to the otherwise lily-white family photos). I just don’t see the morally relevant difference between those marriages and Russell’s marriage with his chosen spouse.
That being said, however, I think there IS some morally relevant distinction to be made between marriage, hetero or ssm, and the kinds of arrangements that Murali is advocating. Marriage isn’t just about rights and privileges, although those are important. It’s just as much about duties and obligations. For instance, my wife and I are allowed to file our taxes jointly and thereby receive some financial advantage. But that’s because we’re considered to be a single economic unit. I am also jointly responsible for debts that she incurs, for instance. There are societal as well as personal benefits that result from this sort of legal bond.
Marriage entails an extensive bundle of these rights, responsibilities, privileges, and obligations that have been deemed appropriate to the sort of personal relationship with the sort of assumptions that are captured in the definition that Tom proffers. But there are other personal relationships that capture some subset of those assumptions that would benefit from a legal relationship similar to, but not identical to, the bundle of rights, etc. that entail from marriage. And I think it could be to society’s benefit to define some default legal constructions for those situations.
For instance, let’s say Bob and Sue marry and have children. Also, Sue’s brother Joe and his wife, Linda, do likewise. Then let’s also say that both Bob and Sue, and Joe and Linda, are subsequently divorced. For economic reasons, Sue and Joe (or for that matter, Bob and Linda, Bob and Joe, or Sue and Linda) decide to co-habitate. Wouldn’t it be both personally and societally advantageous for them to be able to enjoy many of the rights, responsibilities, etc. of marriage sans the assumption of sex and procreation? Things like legal guardianship of the children, for instance, but that such arrangements wouldn’t necessarily survive the death of a partner so that the biological parent would retain his or her rights.
So I can see societal benefit to other types of domestic partnership arrangements, but I wouldn’t want to call them marriages and I would insist that they serve some larger societal purpose beyond gaming tax law or health insurance.Report
+1. Really well stated, Rod.Report
I really like how the conversation has been shaping up. However, I would like to straighten a few things out:
@Tom
It is not that I am claiming that marriage is only a contract or that it has no greater telos. My argument is that the state should apply a studied blindness as to exactly what the true telos of marriage is and whether the institution as it exists adequately serves this telos. The reason for this studied blindness is because the state, as one of the fundamental socio-political institutions in society has its own telos which is much narrower than any such thing like human flourishing. The proper telos of the state is to provide a basic framework to facilitate on-going social cooperation. Doing anything more detracts from this purpose. So, as far as the state is concerned, marriage is just a social arrangement, and the morality or immorality of particular versions like incestuous marriage is no reason for the state to place legal restrictions on it. Of course the immorality of incest would be reason for us as moral agents to refrain from engaging in such practices.
@North:
Why should the legal arrangement of marriage be limited only to romantic relationships? Civil marriage in Singapore is separate from religious ceremmonies. People who go for the latter but not the former are not recognised as married by the state. When the justice-of-the-peace starts talking about the role of love in marriage and how it is between a man and woman etc, I always wonder how the state is competent to make such judgements.Report
Thank you, Murali. Re “studied blindness,” I’m more minimalist in the premise—from the first: society’s compelling interest [and later, government’s] was and is the welfare of the children, and in many places and times, the welfare of the woman after she’s no longer young, beautiful, “virginal,” if you will.
Thus, if this is true,
The proper telos of the state is to provide a basic framework to facilitate on-going social cooperation. Doing anything more detracts from this purpose.
it is not yet self-evident that forcing SSM on an unwilling society via government and politics facilitates social co-operation.Report
it is not yet self-evident that forcing SSM on an unwilling society via government and politics facilitates social co-operation.
But we’ve crossed the 50% threshold on approval nationwide so isn’t calling society “unwilling” question-begging? At what point is the opposing minority doing the forcing? I suppose I can understand your charge when the change comes about due to judicial fiat, but when it’s by democratic legislation? And how much deference should we be paying to majoritarianism when we’re dealing with an issue of human rights anyway?Report
Rights and majoritarianism are two different arguments. If SSM is a right, majority vote is moot: that’s basic constitutional rights theory.
The wisest pro-SSM folks seek to convince and work toward a consensus rather than the “by any means necessary” approach. In fact, those who are opposed have also learned that fulminating begets more backlash than support and avoid circuses like Judge Walker’s courtroom and most internet comboxes.
😉Report
it is not yet self-evident that forcing SSM on an unwilling society via government and politics facilitates social co-operation.
Tom, a state which imposes fewer restrictions on the franchise of marriage between consenting adults necessarily facilitates social cooperation to a greater extent than states which do.
In the latter, there are certain forms of cooperative activity people cannot engage in (or it is more difficult to engage in) while the former is pareto superior in that not only is any form of cooperative activity that is possible in the latter also allowable in the former, the former also allows and makes easier certain other kinds of cooperative activity as well. (And to belabour a point, consent is a necessary condition to cooperation. Preventing people from marrying is not a cooperative activity)Report
Au contraire, Mr. Murali: I submit that the state which imposes its will upon its underpinning society is unwise. I’m with Montesquieu:
“[W]hen one wants to change the mores and manners, one must not change them by the laws, as this would appear to be too tyrannical; it would be better to change them by other mores and other manners.”
I submit that cooler heads among SSM advocates realize this.
As for your locution “preventing people from marrying,” it rather begs the question: I suppose we’re “preventing” polygamy at this point too, etc., etc.
Neither do I think that an abstraction like
“the former is pareto superior in that not only is any form of cooperative activity that is possible in the latter also allowable in the former, the former also allows and makes easier certain other kinds of cooperative activity as well. “
although a healthy default, translates back to reality very well since it returns to the interests of the adults involved and once again the question of children is again left unaddressed, my original concern from back at comment #36—that “If there were no such thing as children and the need to raise them,” we might not be having this discussion atall.Report
I’m being neutral about mores and manners. I’m only talking about laws. I don’t particularly wish to see more plural marriages either. But if we cannot stop those who would want to engage in such by moral education and persuasion, then they should be free to continue sinning as they would. The force of law is the wrong tool to use to correct people’s moral failures. I am generally not necessarily averse to letting mores and manners adapt on their own. I just dont think what is legally allowable or forbidden need match up with what is forbidden or permissible by custom.Report
On what ground are you discussing law? Utilitarian? Philosophical? I’m not following.
You write, “the state should be neutral between conceptions of the good,” but I submit that “neutrality” is never neutral, and cannot resist assigning values and declaring what is good, what is best.
And in this case, nullifying a society’s prevailing ethos is quite an active choice, and not “neutral” in the least.
[As for “sin,” I don’t go there, although legislating “morality,” like making animal torture illegal, troubles me not in the least. But I’m quite with Locke—and Jason Kuznicki!—that the government cannot save anyone’s soul.]
This is relevant to yr project.
http://www.edwardfeser.com/unpublishedpapers/libertarianimpartiality.htmlReport
By law, I mean positive law, not the moral law.Report
With regards to children, it is a possible worry, but I do not think that we have any particular reason to worry on that count. Admittedly, while I would ordianrily urge caution, we are talking about fundamental rights and liberties here.
Intuitively, plural marriages should be better able to manage the finances of the family and will have a deeper more enduring family support system. I imagine that a plural marriage contract would be able to bind the extended family together better. That is a plus on the raising children angle.Report
Intuitively as soon as you have more than two humans in a room two of them will start scheming against the third one. Plural marriages are inherently unstable in a manner that dual marriages are not (though singular marriages would be the most stable of all I suppose, I’ve not heard of anyone getting a divorce from the lower half of their body before).Report
Presumably, if George, Tom and Joan wish to enter into a plural marriage, they would have established ground-rules which allow them to co-exist as a married triple.Report
That’s all well and good. Have you ever been in a dual relationship where you start out with some nice sensible mututally agreed upon ground rules? Trust me on this if you haven’t, human relationships (dual) are incredibly complicated and the more humans you have in them the more the complexity increases exponentially.Report
Okay, so this is probably my weak spot: haven’t been in any kind of romantic relationship dual or otherwise.
While the probable unviability of plural relationships may mean that there will never be a sizeable constituency to campaign for it, it does not mean that we can’t let people try if they want to. If after trying it they find that it is not for them, then no harm done. If some people are able to make plural marriages work, then more power to them.Report
as soon as you have more than two humans in a room two of them will start scheming against the third one.
As a father of three daughters I can vouch for that!Report
Murali, to my knowledge marriage is not limited to romantic relationships. When a man and a woman roll up to the legal clerk for a license I’m not aware that their motives are examined at all. So marriage for practical or nonromantic purposes are currently recognized by the state. As I understand the process Justices of the Peace generally get to speechify however they’d like so long as a couple very basic legal clauses are included so when a Justice of the Peace talks about love in marriage that’s his or her own opinions being injected not a government assumption of romantic marriage.Report
But immigration officials still stick their heads where they are not wanted in order to ask whether a particular marriage is a “sham”. I don’t think that the state ought to be making such judgements.Report
Yes but that’s not the state’s regulatory power of marriage that is involved. That’s the state’s regulatory immigration power.Report