Cutting Off Your Nose to Spite Your Face

Road Scholar in reply to Damon says:

Damon,

The “contract” is all that stuff behind your vows. All the stuff about how you are treated tax wise, benefit wise, etc. post marriage. And how they handle your divorce…alimony, support, the type of divorce; no fault, etc.

Okay, let’s examine this premise. A contract is, in general, an agreement between two (or more) parties, again in general, something along the lines of “in consideration of Bert doing X, I, Ernie, will do Y.” Where X and Y are things like pay money, transfer property, perform services, etc. In your conception of the marriage “contract” who exactly are Bert and Ernie? The two people getting married? (From what I can tell from conversations with libertarians on this issue, that seems to be the assumption.) But aside from the largely ornamental vows to “have and to hold” yadda yadda, there simply is no contract that my wife and I have entered into for specific performance in return for considerations. What would that look like? You cook and I’ll do dishes? Sex at least three times a week, no anal, but oral is negotiable? Three kids within ten years and we go to my church?

Of course not. All those things, plus about a million others, are stuff that couples negotiate and hopefully come to some equitable agreement over, but rarely does any of that look anything like a contract. The contract, to the extent that marriage looks anything like a contract, is between you and your spouse, as the party of the first part, and the whole rest of society/community/government/etc. as the other party to the contract. That’s where the stuff like taxes, community property, shared debts, power of attorney, etc. come in.

To get government “out of the marriage” business is nothing less than to nullify the entire concept of marriage. Entering into a marriage looks a lot like forming a business partnership. Where before the marriage there was only Damon and Susie as independent persons, after becoming married much (but not all!) of the autonomous aspects that Damon and Susie individually possessed become subsumed into this new entity of Damon+Susie.

” It’s literally everybody’s business who is married to whom. ” Really? I don’t recall you having a vote or a voice in my decision to wed, my divorce, or my marriage process. Don’t use the nebulous “society” I’m an independent person and make those decisions on my own. The fact that you, through gov’t action you support, insert yourself into my romantic life doesn’t make it right.

Nobody — including me, society, the government, whatever — truly gives a crap whether you marry or not, or beyond some specific prohibitions for which there are ostensibly good reasons, who you should decide to marry. But the fact that you have married, and to whom, is of practical interest to potentially anybody that conducts any kind of business with Damon, Susie, or Damon+Susie. If Damon runs up credit card debt that he can’t repay it is of practical interest to the credit card companies because Susie is also now liable. If Damon should die without a will, it is of practical interest to know that the entity Damon+Susie exists so that title can pass automatically to the now-single Susie. The list of practical interests is quite long.

The one thing that conservatives have been correct about throughout the SSM debates is the notion of marriage and family as THE foundational construct in society and altering that foundational construct is of no small consequence. Where they failed is in asserting that opening the construct to same-sex couplings would somehow destroy that foundation or fundamentally alter it with catastrophic consequences.

Of the remaining restrictions? Well, age restrictions speak to consent, so, while necessarily somewhat arbitrary and one-size-fits-all’sy, in principle at least they seem well justified. Restrictions on consanguinity rest on the, not unreasonable, assumption that the parties to the marriage will engage in sexual congress and that children may ensue. Here the justification is prevention of harm, particularly genetic, to innocent third parties. (See Hapsburg Dynasty) Same-sex unions, being necessarily non-productive, at least for the time being, add a new wrinkle to that debate, but to the extent that it’s desirable to construct an easily adjudicated rule, these restrictions also seem reasonable well-justified. That leaves poly-amory. I don’t have any particular objections in principle, but the history of this sort of thing isn’t pretty and a lot depends on the specific structures that are envisioned. Advocates have a lot of work to do describing the proposed structures, justifying the inclusion of this and the exclusion of that, and working out how all of that would interface with the existing institution of marriage as we know it. I’ve seen none of that so far, just bleating about not being able to do what you want. SSM succeeded largely because it didn’t propose to actually alter any of the existing structure beyond the specifications of who could participate and who couldn’t.Report