Cutting Off Your Nose to Spite Your Face

Related Post Roulette

154 Responses

  1. Avatar nevermoor says:

    I’m actually not sure why this would have the same problem.

    If all any government issued to any couple was a “civil union”, and the only relationship that mattered for any federal, state, or other set of public rights was that “civil union” relationship, I don’t see how there’s any problem.

    People who want to be married, in the full religious definition of the term, would be free to do so in any religion they qualify for, but that would be a legally irrelevant act.

    (note, this was actually my favored idea at a time when last Friday felt impossible to achieve)Report

    • Avatar Saul Degraw says:

      Well it isn’t clear to me that Alabama is going to issue civil unions either.Report

      • Avatar Oscar Gordon says:

        So if Alabama stops issuing marriage certificates out of spite, do they have to still recognize marriages from other states?Report

        • Avatar Burt Likko says:

          Yup. Including, but not limited to, them same-sex licenses. But, they can deem all marriages, whether old in-state or out-of-state, to be civil unions. Boom, like that, no one is legally married in Alabama because there is no such thing as legal marriage in Alabama. You’re civilly unified and then your church does whatever your church does.

          But, and Alabama residents can correct me if I’m wrong on this, IIRC Alabama is one of those states that still has ‘common-law marriage.’ So they’ve got to deal with that, as would any state that holds on to that antiquated concept.Report

          • Avatar Oscar Gordon says:

            So it really would be, as Saul says, cutting off the nose to spite the face.Report

          • Avatar Kazzy says:


            I meant to ask this on your initial OTC post on the topic, but now I can’t find it.

            And if you’ve already written about this, I apologize for missing it. But can you discuss any broader implications of SCOTUS’s ruling on gay marriage. Does this make gay folks a protected class? Does this overturn other state laws that deny equal rights to gay folks? Or is this specifically limited to marriage?Report

            • Avatar zic says:

              I can answer @kazzy

              The majority did not rule decide the issue based on strict scrutiny; which would be required to protect gays as a discriminated class of people, so no, they are not protected beyond now having the right to marriage. The ruling doesn’t overturn any laws except those that limit marriage to heterosexual marriages. Yes, it’s specifically limited to marriage.Report

            • Avatar Burt Likko says:

              First of all, what @zic said. She’s spot on as usual.

              Secondly, for gays to become a protected class under Federal law probably requires an act of Congress, not of the Court. Whether this ruling adds to the momentum for a law like ENDA or creates a backlash against it, remains to be seen.

              Third, state laws are still state laws. The only ones invalidated are defense-of-marriage acts. Other marriage prohibitions, like consanguinity or polygamy, remain in place. (Until further notice, anyway.) Other kinds of legal protections (or lack thereof) for GLBTQ Americans remain in place as they were before Obergefell.Report

              • Avatar Kazzy says:


                Suppose Congress never acts but more and more cases make their way to SCOTUS (e.g., hiring and firing, housing discrimination… both of which I believe gay and lesbian folks can still be discriminated against in some states) and SCOTUS decides in favor of extending rights/protections to gays and lesbians. Do we reach a point wherein they can/will say, “Enough is enough”?

                I guess I’m trying to wrap my head around SCOTUS saying, “Gay people are just like straight people and, as such, have the right to marry whomever they chose. But they are not so much like straight people that they necessarily enjoy all other rights that the latter does.” Or is that too simplistic a reading of the ruling (which, by the way, you broke down quite exquisitely in your long form post on the decisions; took me a while to plug through but highly informative and accessible).Report

              • Avatar Burt Likko says:

                Well, after seeing a pleasant notation that the length of an essay digging into legal reasoning was slow going for you, I hesitate to point you in this direction. But of course I’m going to anyway.

                May 15, 2008 was a rather special day for me. In addition to being my wedding anniversary, it was also the day the California Supreme Court handed down its decision in The Marriage Cases, the first time same-sex marriage was made the law of my state. The majority opinion alone is 116 pages long and it is meticulously researched. Part IV(A) of that opinion, which runs from page 48 to page 79, analyzes in great detail what a “fundamental right” is and by necessity, what a “suspect classification” is under California law. The punchline is that homosexuals are a suspect class under California law.

                Given that you likely have limited time and less appetite for the minutae, maybe I can point you to a digest of the reasoning prepared by a lawyer of at least middling ability.

                If SCOTUS were to reason that homosexuals are a “suspect class” for Fourteenth Amendment Equal Protections Clause purposes, I would guess that its reasoning would resemble the intellectual work done for them by the California Supremes in The Marriage Cases.

                With that said, I don’t see Anthony Kennedy, California boy though he undoubtedly is, adopting this line of reasoning. California law is different than Federal law, and Kennedy is an assiduous student of federalism. Moreover, his vision of judicial modesty — and despite his Brother Scalia’s ranting and raving to the contrary, Kennedy has a principled vision of judicial modesty to which he adheres — is such that he will wait a long time into the future to give Congress an opportunity to do legislatively what a finding of “suspect classification” in the Court would do. I’m not even sure that Stephen Breyer would go along with importing California’s legal concepts into Federal civil rights jurisprudence, because the Constitutional and statutory framework upon which California law depends is significantly different than Federal law and Breyer’s vision of judicial modesty would at minimum face a significant challenge.

                So really, I think we’re going to have to wait for Congress.Report

              • Avatar Saul Degraw says:


                Strict Scrutiny for face comes from Korematsu (ironically). Why couldn’t the Supremes set a standard for homosexuality?Report

              • Avatar Burt Likko says:

                They could. I just don’t think they will. Three, maybe four votes for it, but that’s a bridge too far for Kennedy (IMO).Report

              • Avatar Saul Degraw says:

                You are probably right that this would be a bridge too far for Kennedy but in some ways all the decisions do lead to something between Intermediate or Strict Scrutiny.

                My Con Law professor was very fond of noting that Romner failed Rational Review and this is nearly impossible. She called Rational Review, the “Say Anything with a Straight Face” standard.Report

              • Avatar LeeEsq says:

                I would think that LGBT would most likely fall under the Intermediate level of scrutiny like gender rather than a strict scrutiny grounds like race.Report

            • Avatar LeeEsq says:

              To further elaborate on zic’s response, the three different categories of scrutiny fall under the Equal Protection Clause of the 14th Amendment. The Supreme Court decided that same-sex marriage is a country wide right under the Due Process Clause. The purpose of the Due Process Clause is to ensure that states and the federal government do not deprive people of their life, liberty, or property without a formal procedure of the law like a court trial. It also ensure that state governments grant as least as many rights as the United States Constitution permits. The Supreme Court held that bans on same sex marriage violate the Due Process Clause because same sex couples are being denied the liberty to marry without the formal process of law being used against them.Report

          • Avatar Michael Cain says:

            But, they can deem all marriages, whether old in-state or out-of-state, to be civil unions. Boom, like that, no one is legally married in Alabama because there is no such thing as legal marriage in Alabama.

            Of course it’s not really that simple. I feel quite sure that Alabama, like all the other states, has marriage firmly enshrined in both regulations and a lot of contractual requirements. The process of making changes to regulations is, by design, generally long and drawn out. If the legislature passes a statute that simply declares word substitution (eg, “civil union” for “marriage”, “civilly unified” for “married”, etc) in the body of state law and regulation, there are bound to be cases of unintended consequences where things don’t fit. Companies that have operations in Alabama with some corporate benefits defined in terms of marriage are presumably upset because changing benefit plans is a hassle.

            It’s one thing to say boom! no more marriage, only civil unions. But it’s likely to take years to sort everything out.Report

            • Avatar Kim says:

              Of course, and I wouldn’t really mind if they did that.
              But, this isn’t Massachusetts, and this isn’t the first rodeo.
              Everyone should have been planning for this as a contingency. If they haven’t, it’s their own fault for being stupid.Report

            • Avatar DensityDuck says:

              Or maybe the reason that they wrote “marriage” into all those laws and regulations is that they honestly never expected it to mean anything other than “one man and one woman”. And now that the Supreme Court has said “marriage can be whatever”, they’re going to be a bit more explicit about it.Report

  2. Avatar Sam says:

    Paul’s position here is the same as many other people who were desperately looking for a way to simultaneously deny marriage rights to gay couples without explicitly taking the position that marriage rights should be denied to gay couples.

    What the position represented before Friday was a simply moving of the goalposts in which gays were asked to continue holding out until the state was no longer in the marriage business while straight couples continues to have their marriages recognized by the state. It was an absolutely shameless position which damned predictably damned gay couples and rewarded straight couples, all while allowing the person who had it to maintain some shred of, “I swear, this isn’t about hating gay couples!” credibility.

    But after Friday, it represents something different. The previous mechanism of legal exclusion has now been brushed aside. Social conservatives might be utter monsters but they’re not dumb, and even if some Republican candidates are promising that they’ll amend the Constitution to put gays back into the closet, what Paul’s doing is proposing a somewhat realistic sounding mechanism wherein social conservatives get what they want (unequal footing for straight and gay couples, who will presumably end up having their marriages approved or otherwise by selective private interests) while Paul doesn’t have to publicly take the position that he hates gays.

    It’s a win for social conservatives, a win for Paul, and wouldn’t you know it, a loss for gays.Report

    • Avatar Burt Likko says:

      “See! There! We told you that same-sex marriage would be harmful to opposite-sex marriage! Supreme Court tells us “you must have same-sex marriage,” and look at that — now there’s no more opposite-sex marriage because we just made it so that there’s no more marriage at all for anyone! We told you!!1!”

      As @chris has noted in another discussion, when a local culture spends over a hundred years confusing a public display of spite with a public display of regional pride and history, it ought not to be surprising that the culture comes to value spite itself. In such a culture, perhaps it ought not be surprising that a spiteful gesture like this gains some traction.

      Personally, I find a lack of generosity with liberty to be distinctly contrary to the traditional American character. But maybe that’s just me.Report

    • Avatar Oscar Gordon says:

      Not sure I follow Sam. If the a state stops issuing marriage certificates, as per the majority argument (I believe Kennedy said that if a state wishes to recognize marriages, then it has to recognize all of them), then straight marriage is out in the cold as well.Report

      • Avatar Sam says:

        I doubt it. A more likely guess is that employers/governments will continue to recognize marriages performed in the private sector, but because they’re being performed privately, they’ll pick and choose which ones count and which ones don’t. (Appropriately) religious ones get a pass, gay ones don’t. And if straight couples who aren’t religious have to be sacrificed along the way, well, that’s they’re problem for not embracing Jesus.Report

        • Avatar gingergene says:

          Considering how easy it is to either (a) get ordained in some random on-line Christian denomination or (b) find someone ordained in some random on-line Christian denomination or (c) find a minister ordained in one of the more liberal brick-and-mortar Christian denominations to marry you, I think businesses and especially governments would have a hard time defending THIS marriage but not THAT marriage. On what grounds could you possibly say that an American Anglican marriage is ok, but an Episcopalian one is not?

          Just about the only denomination that I could see pulling this off is Roman Catholic, who could possibly limit “marriage” to “married in the Catholic Church”, but I wouldn’t be surprised in that case if the Pope himself quietly (or not-so-quietly) put the kibosh on throwing out all those Catholics who were married in non-Catholic ceremonies.Report

        • Avatar Oscar Gordon says:

          IANAL, but I don’t think that would fly, equality under the law & all that…Report

        • Avatar Brandon Berg says:

          I want to point out here that some private employers were way ahead of the state in recognizing gay marriage. For example, Microsoft provided same-as-marriage benefits for same-sex domestic partners from 1993 until gay marriage was legalized.Report

          • Avatar Burt Likko says:

            With emphasis on the word “some,” so stipulated.Report

            • Avatar Brandon Berg says:

              The “some” isn’t as important as you might think, as the employers that treated gay employees better than others were disproportionately favored by gay workers. So even if, say, only a third of employees worked at companies offering SSDP benefits, that ratio might be higher for gay workers, and higher still for those in domestic partnerships.

              Lamentably necessary statement of stuff that should go without saying: Yes, I know not everyone has a wide variety of good jobs to choose from. But many, if not most, people do have a fair amount of choice in the medium run, and gays and lesbians have higher educational attainment than straights, giving them more flexibility in that respect.Report

              • Avatar LeeEsq says:

                Do you have any evidence that the average gay person has more educational attainment than the average heterosexual person? The mainstream perception is that the average gay or lesbian is more affluent and educated because of partly how the less radical LGBT members chose to depict themselves and public misconceptions about the lives of gay and lesbian people, mainly double income no kids. From what I’ve read, the reality is actually a lot more complicated. There are many gay and lesbians who are not well educated because they were either deprived of an education because their parents kicked them out and refused to support them once they revealed their homosexuality. A lot of LGBT people of color have the same problems as people of color compounded with the problems of being LGBT.Report

              • Avatar Jaybird says:

                From what I understand, the numbers show that people in same-sex couples are more likely to be educated than people in different-sex couplings.

                It’s possible to jump from there to “homosexuals vs. heterosexuals” but you’d be jumping over singles from both categories which seems like it’d be stealing a base.

                Also, due to a handful of small quirks related to biology, heterosexual couples are more likely to have children than homosexual couples and kids throw wrenches into stuff like education and careers and whatnot.Report

              • Avatar LeeEsq says:

                On the more liberal blogs I read, lots of people rally against the idea of homosexual affluence. This could be a highly situational think. A gay person from an accepting family might end up wealthier than average for the reasons we imagine, low chance of kids derailing the career and potential for double income. A less lucky gay person could end up a lot worse than a straight person in the same or similar position.Report

              • Avatar Saul Degraw says:


                As a counter,


                Now I think there are numbers issue. Since LGBT people are a minority, educational attainment shows more. The media also generally shows LGBT people as being well-educated and affluent. People media depictions of gay people are Will from Will and Grace, not someone who was kicked out of their home at 18 and couldn’t afford college or someone who grew up in an area where going to college just wasn’t a thing people did often.

                I think if you live in any large metro area, you will find a lot of blue-collar LGBT people. San Francisco has a large homeless population of LGBT teens and young adults. These teens and young adults were often cast out of their homes without support.Report

              • Avatar Jaybird says:

                Maybe it’s like a saddle, then.

                More people on this end or that end, few people in the middle.Report

              • Avatar LeeEsq says:

                That is another likely situation. You have lots of LGBT people on the economic extremes but fewer doing average like lower middle class levels.Report

              • Avatar Brandon Berg says:


                Pew survey here.

                Although…that doesn’t control for age. I’m not sure the age skew is big enough to explain the fact that 40% of gay men have bachelor’s degrees vs 26% of the general population, but I suppose it’s possible.

                From what I’ve read, the reality is actually a lot more complicated.

                The reality is necessarily more complicated than 40% > 26%. But 40% is still greater than 26%.Report

          • Avatar Oscar Gordon says:

            This speaks to what I was getting at.

            Assuming Sam is correct, in order for there to be a significant issue, there would need to be a critical mass of businesses who feel the need to not acknowledge marriages. Or there would need to be a degree of “Gay Jim Crow” state action involved to discourage employers who would rather recognize all marriages.

            There would also be pressure from the majority of states & businesses that already support SSM, such that employers would have to balance the potential loss of business* with the minimal savings on benefits paid to honor SSM.

            *Which makes me wonder, does anyone know if Hobby Lobby suffered loss of business because of the whole reproductive health issue?Report

            • Avatar Sam says:

              Can we imagine a major corporation deciding that it wasn’t going to extend benefits to husband-wife couplings while extending them to husband-husband/wife-wife couplings? No.

              Can we imagine a major corporation deciding that it wasn’t going to extend benefits husband-husband/wife-wife couplings while extending them to husband-wife couplings? Yes, absolutely.

              So even if the percentages are smaller (perhaps we might safely assume that most employers are going to extend benefits equally?), there’s still the problem of gay couples being othered in more situations than straight couples are. That’s the effect of Rand’s plan (just as the effect of his opposition to the Civil Rights Act is suffering for minorities without an equivalent amount of suffering flowing in the opposite direction) and that’s what matters. Rhetorical and theoretical flourishes don’t matter. The real world does.

              The current situation guarantees the most for the most people (although I wouldn’t be shocked if Republicans start beating the drum that employers can utilize their alleged RFRA rights to withhold benefits from married gay couples while still extending them to married straight couples).Report

    • Avatar Damon says:

      “Paul’s position here is the same as many other people who were desperately looking for a way to simultaneously deny marriage rights to gay couples without explicitly taking the position that marriage rights should be denied to gay couples.”

      That MAY be true, but it’s also my position, and I don’t give a damn about gay marriage. All I’ve ever cared about, and have repeatedly stated on this stie, was that gay marriage is the equivalent of enfranchising one minority group at the expense of the rest (poly amorous, etc.) and that TRUE MARRIAGE EQUALITY means anyone can marry anyone, or any group of people, they damn well want to and it’s none of the states business. It never should have involved the state. And we’ve already discussed the legal implications in previous threads.Report

      • Avatar Sam says:

        I don’t know if there’s anything less convincing than “I don’t give a damn about gay marriage” when it is coupled with, “So here’s my proposal that will never happen but that, while we stand around waiting for it to never happen, will seriously harm gay couples.”Report

        • Avatar Michael Drew says:

          How does it harm gay couples before it happens, again?Report

          • Avatar zic says:

            Because gay couples wouldn’t get the right to marry until the state got out of the marriage business, which Sam says (and I concur) won’t ever happen.Report

          • Avatar Sam says:

            This depends upon the time frame we’re talking about.

            If we’re talking before last Friday, gay couples were harmed because they didn’t have universal access/recognition to the institution.

            If we’re talking about after last Friday, the issue becomes one of what will realistically happen if the state gets out of the marriage business. Businesses will be free to pick and choose which marriages they’ll recognize and which ones they won’t. It isn’t hard (Hobby Lobby) to guess how those businesses (Hobby Lobby) are going to pick to recognize and pick to ignore.Report

        • Avatar Damon says:

          Nice try on changing the argument / point.

          You were attacking Paul on his position. I rebutted claiming that while you might snark on him for it, it’s been my position all along. Not because I don’t want gays to have the right to get married, but because IT’S NOT ENOUGH for just them to get married. And, as been posted on this site many times, most people who have supported gay marriage have a problem with poly marriage and other forms of marriage. And I’ve called them out for their hypocrisy.

          I’d PREFER that the state be out of the marriage thing entirely. However, that’s not going to happen. So, as I’ve said to everyone who supported gay marriage, “when are you going to get behind other forms of marriage and campaign for that? Or are you going to take your marbles and go home, after getting what you wanted?” So don’t pull that “my proposal that will never happen but that, while we stand around waiting for it to never happen, will seriously harm gay couples.” crap. I’ve been 100% consistent that for me it’s an all or nothing deal. Take exception to that if you want.Report

          • Avatar zic says:

            This novel development — if we have gay marriage, why not polygamy? — amuses me. I mostly see it coming from Libertarian writers; BleedingHeart’s got two posts up now, with a whole lot of talk about one man and many wives. Like they forgot that it could go the other way; one woman, two or three husbands.

            So there’s some suspicion (and much humor) that the FYIGM crowd covets all the women.

            Very amusing undercurrent.Report

          • Avatar North says:

            So in similar logical vein you would oppose ending any government program or department, no matter how wasteful, unless the proposed termination was of every single wasteful or unnecessary (by your assessment) government program and department? All or nothing?Report

          • Avatar Sam says:

            I don’t really care whether this is an “all or nothing” deal for you, because it isn’t really “all or nothing.” Straight marriage rights weren’t going anywhere. So what it really appears to be is “straight marriage rights or marriage rights for all” without a middle ground for “straight marriage rights and gay marriage rights and onward the fight goes for the polyamorous.”Report

    • Avatar Road Scholar says:

      Look, I don’t mean to be tedious and pedantic, but can someone please point me in the direction of one of these “marriage contracts” that everyone is talking about? Because I’m 30 years into my second marriage and I’ve never seen one. What I have seen and am in possession of is a marriage certificate, issued by a JOP in Jefferson County, Missouri and witnessed by a nice couple that we used to hang out with (and buy weed from) a long time ago. The closest thing my lovely wife and I have ever had to a “contract” would, I suppose, be the verbal vows to love and cherish yadda yadda.

      That verbal promise or vow is then followed up by someone with the proper authority intoning, “By the authority vested in me by the State of Euphoria, I now pronounce you husband and wife.” That someone can be a clergy, a judge, the captain of a ship, a village elder, perhaps the entire village in enthusiastic consent, maybe an Elvis impersonator… someone with recognized authority in that particular culture or situation. We’re not married because we said, “I do,” to each other. We’re married because the JoP said so and we can prove it by producing the Marriage Certificate. That pronouncement and certification thereof creates a legal relationship between us that converts legal strangers into legal next of kin, and it’s from this relationship that all the rights, privileges, duties, and obligations flow. And if we were to decide to divorce, we couldn’t just tear up some contract and go our separate ways, we would have to go before another judge who would have to declare that said legal relationship no longer exists.

      That’s why this libertarian proposal is nonsensical. Even in times and cultures where the government or state didn’t fill this role, someone did, usually a priest but some manner of recognized authority. And whatever the details of the mechanism, the force and utility of marriage ensues from the community (for whatever value of “community” is relevant) recognition of that relationship.

      This notion that marriage is just a contract between two people and it’s nobody’s business but your own is just silly. It’s literally everybody’s business who is married to whom. It’s the state’s business when you file taxes, it’s your creditor’s business when your spouse fails to pay a debt, it’s the hospital’s business in the unfortunate circumstance of someone needing to make grave decisions, it’s your employer’s business when you want to sign them up for the health plan, etc. It’s everybody’s business in the same way that which kid “belongs” to who is everybody’s business and it should be of some note that that relationship is also proven by a certificate issued by the state. Hell, it’s everybody’s business who owns which car or which piece of land in the relevant circumstances and those property relationships are also proven by state-issued documents.

      And since the operational core of the marriage relationship ensues from community recognition and affirmation of the relationship it is absolutely within the purview of the community to determine which proposed marriage relationships to recognize or not. That’s because the whole thing — the whole structure — of marriage within the larger fabric of society is a kind of quid pro quo. The parties to the marriage enjoy certain rights and privileges, it is true. But the community also derives benefits that, on the whole, “pay” back for granting those privileges. Example: My spouse is involved in accident and is brain dead. Who decides whether and when to “pull the plug?” Her parents are deceased, she has two living siblings, and two children. Under different circumstances there could be conflicts arising from different opinions or differing value systems, conflicts which could easily consume scarce public resources in the legal system to resolve. But since I’m around and her legal next of kin that puts the privilege, if one could call it that, and the responsibility, which is heavy indeed, to make that decision. I’m the “decider.”

      So when the community decides which proposed marriage relationships to recognize, part of that decision matrix is whether the proposed structure provides the appropriate services to the state to warrant inclusion. Same-sex marriage passes that bar of “why should we” and so then the only remaining hurdle was overcoming the “why shouldn’t we” objections. Happily, SSM has now cleared that hurdle. Yay! Proponents of poly-amorous marriages have to make their cases on both those fronts as well. My intuition is that clearing those hurdles will be a lot tougher.Report

      • Avatar Damon says:

        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.

        “by the authority vested in me by the State of Euphoria, ” yes, that’s why it’s a license–aka permission slip to get married.. The state has appointed and invested someone with authority to marry you. That’s how the state regulates.

        ” 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.Report

        • Avatar zic says:

          You’re conflating your personal choices with the legal binding of marriage.

          You got married; your choice. That marriage wasn’t just binding on you, it was binding on the rest of us, on the government. If you’d committed a crime, for instance, your wife couldn’t be compelled to testify against you. You each had the right to make decisions in the others stead should the other be incapacitated.

          These are the public reasons, the public concerns, of marriage. The government doesn’t (and shouldn’t) tell you who you can marry or if you can exit that marriage; but it has an interest in the privileges that marriage grants because those impact the way laws and civil responsibilities are administered.

          Those are two different things.

          You are also able to live with someone without the benefit of marriage; without the public record of it; but you do not get the benefit of the legal rights of marriage. Again, this is your choice to make.

          The state ‘being in the marriage business’ is because the state interacts with families; with couples, and it goes way beyond tax privilege and extends to property rights, medical decisions, and rights of self defense in criminal courts, just to name a few.Report

        • Avatar Road Scholar says:


          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

          • Avatar Joe Sal says:

            “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. ”

            How does this not devolve into written law agressing against individuals? How legitimate is it when it does?Report

      • Avatar Burt Likko says:

        I’m with @road-scholar : marriage is not properly considered a contract as a matter of law. It is a special relationship, and all this “contract” verbiage floating around in the culture is the vestige left over from the days of coverture, when marriage was principally an economic transaction. Like other now-functionless vestiges such as the intestinal appendix, it generally does very little good and from time to time can cause significant danger.Report

        • Avatar LeeEsq says:

          People might be confusing pre-nuptial agreements with the rights and responsibilities conferred upon all married couples under the law when they talk about marriage contracts. Pre-nuptial agreements are marriage conflicts because it involves people negotiating variances to the rights and responsibilities they are normally afforded under the law to married people and usually require full contract formalities plus some to be enforceable.Report

        • I thought that is this case the “contract” verbiage came from a political/economic philosophy that sees enforcing contracts as the only legitimate function of government.Report

        • Avatar morat20 says:

          I think people use ‘contract’ as a shorthand, referring to the massive bundle of ‘things’ that happen when you get married. (Your spouse gets default power of attorney over you if you’re incapacitated, your assets are pooled, tax advantages, etc).

          You could draw up a legally binding contract to arrange a good chunk of that with another person (not the tax stuff, obviously). Or you can…just get married, and it magically happens.

          So while people generally think of ‘marriage’ as two people and a vow, there’s a lot of legal stuff behind the scenes that people take for granted is ‘part of marriage’. So there’s a need for a shorthand for ‘all that legal stuff getting married gets you’ (which is why you file stuff with the city or county when you get married, so it gets recorded and done).Report

          • Avatar Joe Sal says:

            Do people get married for the legal “bundle”, or do they get married for other reasons?Report

            • Avatar morat20 says:

              Both, actually. Or one, expecting the other.

              That’s how fundamental some of this legal stuff is. My wife and I got married. Ergo, I get to visit her in the hospital without hassle. That’s part of marriage! Except it’s the legal part, you know?

              There’s just this ton of “stuff” that happens or changes when you’re married, and so much of is legal stuff taken for granted. People just think of it as part of marriage, even though no priest outside of Vatican City himself can grant you any of them.

              But that slip of paper you file with the county can.Report

              • Avatar My life, marriage and legality, will never be reduced to slips of paper. I would expect the same for/of others.Joe Sal says:

                Should I recognize a county that places the legitimacy of my autonomy onto slips of paper?

                Who makes this “stuff” up and why?Report

              • Avatar Joe Sal says:

                Not sure how that block of text ended up in my name block.

                Touch mouse pad on this laptop does weird things.Report

      • Avatar DensityDuck says:

        Road Scholar, are you arguing for Paul’s position or against it?Report

        • Avatar Road Scholar says:

          Road Scholar, are you arguing for Paul’s position or against it?

          Honestly? I’m not really sure. Not because I don’t know where I stand but because I’m not really sure what Paul’s position entails. The orthodox libertarian proposal to “get government out of the marriage business” seems… under-defined to me.

          There was a time, maybe ten or fifteen years ago, when I was of the opinion that the government should do something like redefine legal marriage to the verbiage of civil union, which could be available to same-sex couples as well, and just let religious types define “marriage” however the hell made them happy seeing as how owning that word seemed to be the main point of contention. That option went out the window when red states started passing laws and constitutional amendments against even that.

          So, compromise was rendered impossible, battle lines were drawn, and the So-Cons lost. Same-sex marriage is no longer a proposal; it is now a fact. The only conceivable way that changes now is by constitutional amendment and that ain’t gonna happen. They might get the 2/3 vote in the House, the Senate is much less likely but theoretically possible, but 38 states for ratification? Nope. Too many blue and purple states.

          Given that legal reality I’m at a loss to understand why anyone should give a rancid shit what Rand Paul thinks should happen, as if what actually happened hadn’t actually happened and we were still arguing and negotiating about what should happen. They had their shot at negotiation and compromise and blew it.

          So just to be crystalline, I’ve been arguing against the uber-libertarian “I can marry my toaster if I want to” argument, not necessarily anything Paul has said.Report

          • That option went out the window when red states started passing laws and constitutional amendments against even [civil unions].

            Even against domestic partnerships, which are far weaker than civil unions. Which is why when I see Rod Dreher, for instance, ask why gays didn’t offer the compromise of civil unions rather than insisting on marriage, I have to wonder where the hell he’s been for the past decade.Report

      • Avatar DavidTC says:

        We’re not married because we said, “I do,” to each other. We’re married because the JoP said so and we can prove it by producing the Marriage Certificate.

        This is not actually true.

        A *marriage* is when two people agree that they are married. The end. This is something that has always been true.(1) It is exactly the same as two people saying they are engaged, or two people saying they are dating.

        Marriage is not anything besides that agreement. (2)

        People often get confused by not understanding ‘pronounce you man and wife’…pronounce doesn’t mean ‘make’, pronounce means *announce* or *declare*. You just *got married* by saying vows in front of each other and witnesses, and the guy is now *announcing* that said marriage is legally recognized.

        He’s not ‘marrying’ the two people, despite common parlance. He’s just conducting a ceremony where two people state they’re married, and, thus, they are.

        And then government issues a *certificate* of marriage is the government *acknowledging* you got married.

        A marriage licenses, conversely, is the government agreeing two people are allowed to get marriage.

        It’s not even ever been a *sacrament*, despite what some people seem to think…the reason churches got involved is that people kept getting married without permission of people who controlled them, namely, their parents. So churches set up rules about having to publish bains and stuff and how you should get married in a church…because those secret marriages, where two lovers met with some friends and proclaimed they were married, were *real marriages*.

        The *actual* marriage isn’t anything more than a state of a relationship, decided, as always, by the people in the relationship.

        The only complication is whether any authority *recognizes* it or not. And I agree entirely with you about whether or not they should recognize gay marriages…they clearly should.

        I’m just saying the word ‘married’ is, philosophically, the same sort of thing as two people ‘dating’…it’s not anything the government is charge of. The government *recognizes* it, not causes it.

        1) Which means almost all discussions about ‘traditional marriage’ are complete gibberish. As is the idea that the supreme court just made gay marriage ‘legal’

        2) Whether or not that agreement is a ‘contact’ is another issue entirely.Report

        • Avatar Road Scholar says:


          A *marriage* is when two people agree that they are married. The end. This is something that has always been true.(1) It is exactly the same as two people saying they are engaged, or two people saying they are dating.

          You know, I’m not inclined to get into a debate with you over the metaphysics of the precise moment and manner in which “Me and Thee” become “Us.” My point is more along the line of, for all practical intents, “Pictures, or it didn’t happen.”

          I mean, you and your honey go stand in a meadow somewhere, or on a nice beach, or heck, even in a church, and recite vows of eternal devotion. You can even have witnesses and a clergy type and everything. And it can be beautiful as all get out, and solemn and meaningful and sincere.

          But until you have the proper paperwork filled out by the proper authority, signed by the required witnesses, and filed in the relevant public office, no one, but no one, has the slightest obligation, or particular reason, to give a flying copulation. You can say you’re married all you want,and you can really, really mean it, and maybe even some people will agree to treat you like you’re really no shit married. But legally you’re still just two unrelated strangers. That’s what this entire struggle has been about; that’s why it all really matters.

          The metaphysics? Whatever. Peace out.Report

          • Avatar DavidTC says:

            The ‘metaphysics’ *are* important, because people have been framing this debate entirely wrong from the start, and are still framing it in a completely nonsensically manner.

            Imagine, if from the start, we had been talking about how gay *dating* wasn’t legal. Sorta frames the entire issue differently, doesn’t it? That seems like the government interfering in something it *really* has no business interfering in, doesn’t it?

            *That is what it actually was doing with gay marriage.* The government is not in charge of who gets married. It has never, ever, ever been in charge of that. Neither has the church. Those entities just recognize marriages that people *themselves* enter into.

            It’s rather absurd that, for centuries, the church and states *tried* to pull marriages under their control, usually via things like imprisoning or excommunicating people who got married in violation of their rules…and somewhere recently we just decided to hand that power over to them without a fight because of semantic confusion or something.

            And now we’ve got morons like Rand Paul asserting the government should get out of a business it’s not actually in, because he, like everyone else, thinks the government ‘marries’ people, and he doesn’t want the government to do that anymore. he thinks it should be more like a contract…WHICH IS EXACTLY HOW IT WORKED ALWAYS.Report

            • Avatar Road Scholar says:

              Seriously, @davidtc , I meant it when I said I wasn’t particularly interested in this at the metaphysical level. As soon as you do that you throw the debate open to people who want to argue the ontology of marriage, as in people who claim that marriage “just is” a union of one man and one woman, full stop. Basically, you’re trying to play in the Pope’s sandbox and he’s almost certainly a lot better at that game than you. At least he’s had a hell of a lot more practice.

              I’m sorry, but I just don’t want to go there. Is it okay if I can just be happy SCOTUS ruled the way they did?Report

  3. Avatar Jaybird says:

    This isn’t *THAT* different from the opinion he had 4 months ago.Report

    • Yeah, it’s not like he became a wacko suddenly.Report

      • Avatar Kim says:

        Yeah, and it’s no different than the publically held sentiment of Democrats, as well.

        Really, this is a way to beat up on Paul for being Paul, rather than disliking the sentiment as a whole.Report

        • Avatar Sam says:

          I dislike the sentiment as a whole for the reasons that I’ve spelled out – it’s a cowardly end-run around having to publicly hate gays, because Paul’s smart enough to know that his proposal will be less good for gays than it will be for more “traditional”* couplings.

          *Per his use of the term.Report

  4. Avatar morat20 says:

    In all fairness to Rand Paul, he can put this forward with a straight face because:

    1) He knows it’s never going to happen
    2) He’s never going to be in a position to have to try to make it happen.

    Therefore, one can simply conclude that Rand there is pandering for all he’s worth, content to know that he doesn’t actually HAVE to solve problems or get results. He can just simply stand there on the sidelines, screaming that if only coach would put him in the game, we’d totally win — after, of course, letting coach know he’s got that twisted ankle and a note from his doctor that says he can’t play.Report

  5. Avatar greginak says:

    This is a nonsense position. He fails to explain how the hell this works. If all he wants is no more standard marriage contract but people make up their own contract than how is that meaningful in any way. The courts still have to arbitrate the contract, that isn’t changed in any way. Insurance companies, hospitals etc still need to abide by the contract. It changes nothing except eliminating a standardized form.

    It is the part about other states having to honor that contract or businesses and such that puts other people in the mix. Nothing about Paul’s position changes that, that i can see. He seems to be trying to thread the needle between pandering to socons and ranting at the gov while also avoiding being anti gay marriage equality. Yeah that is sort of three sided needle which does make it hard to thread.Report

    • Avatar Oscar Gordon says:

      Well, we already have non-standard marriage contracts, they’re called pre-nups.

      If (& I have no belief that this is going to happen), government got out of the marriage validation business, I imagine some pretty boilerplate marriage contracts would become available in short order for people to fill in & sign with a notary.Report

      • Avatar gingergene says:

        Don’t pre-nups have a sketchy enforcement history? That seems like a recipe for disaster- having couples download some “standard” marriage contract and sign without reading like it’s Apple’s terms of service.

        I agree with you and @morat20 though, that this is entirely an academic concern as all this talk about getting gov’t out of marriage is nothing but jiggery-pokery and applesauce.Report

      • Avatar greginak says:

        @oscar-gordon @gingergene Yeah pre nups are a non standard contract. For people with big money they are easy enough for a lawyer to set up. The problem is if people are divorcing there may be a lot of circumstances that weren’t anticipated. If there is domestic violence or child abuse, to use big examples, that could nullify the pre nup regarding child custody. The courts also laws to follow regarding child custody as well as all the other things. If people are just splitting money that likely isn’t’ going to be a big thing.

        I’m sure various companies would come out with standard marriage contracts which makes Paul’s idea just as silly. Whether there is a standardized form of a contract is not relevant to who has to arbitrate it and follow it. If somehow there is a blank form with lines to fill in or boxes to check instead of a standard set of rules is a petty change that doesn’t affect the deal that marriage is a contract.

        As an aside, i work in custody disputes. Most people, even educated ones, have little idea of the laws regarding divorce, child custody or child support. People just don’t know how it works.Report

        • Avatar morat20 says:

          That’s for sure. I’ve got a close relative working through the following nightmare:

          1) Two eighteen year olds, one baby.
          2) Disputable paternity (whether the OTHER 18 year old is the dad depends on the weather, I think).
          3) A completely toxic relationship that had ended before the pregnancy was known.

          The father applied to the state child support offices (basically he wanted to settle paternity and arrange for child support, having decided exercising his parental rights would probably be worse for the child due to point 3).

          Last I checked, having tried mediation through the AG’s office (the mother, who has physical custody of the child since, you know, she gave birth to him, did not show the first time and called in the second) which resulted in the potential father giving DNA and the mother told to show up with the baby by a certain date for testing, or lose state benefits.

          Said mother had not, last I checked, shown — and that was more than a month past the due date.

          I believe the AG’s child support offices are automatically elevating it to the courts, wherein — I deeply suspect — the mother will not show. And wherein, I am sure, the father will simply ask for paternity order and try to sort out child support contingent on the results.

          No lawyers for anyone. About the best advice I could give the father was to point out he’s been trying to arrange for child support for months now, and the mother hasn’t cooperated at all, and to see if he can get the child support to start when the DNA results are in (and not pay back support).

          The infant’s almost a year old at this point.

          *sigh*. What a mess.Report

          • Avatar greginak says:

            ughhhh. Yeah that is a cluster. I’ve had similar kinds of cases and they suck and blow.

            What is even harder is how people change their desires over the lifetime of the child. The dad, pending dna tests of course, might want to be involved in a few years and so back to court. The mom might not care now, but will likely want that child support and suddenly become cooperative even if she hasn’t done squat, so back to court. And if mom screws up big time and the child is taken away by CPS then dad will be the first one to look at.Report

            • Avatar morat20 says:

              I’m mostly worried for the father (my relative) is that he’ll one day get whacked for like 5 years of back child support, which is why everyone has been pushing him to keep going through the process. (The fact that if it’s his it’s the very, very, very, very least he’s morally responsible for has been pressed home quite a bit).

              Honestly, if they were both 5 years older I’d just assume she didn’t really think he was the father, but “18 and stupid” is the only way to describe that age. I have no clue what’s driving her actions and choices.

              So I’m hoping when the court process finally spits up a court date, that the judge will structure his order in a way that’ll at least shield him from back child support of the mother ignores the order for paternity testing. The mediator at the child support offices indicated that his record (starting the mediation process and showing UP and general cooperation) would be a factor in his favor in general.

              I really wish he could afford a lawyer, but I’m better off than he and his parents are and I don’t think I could afford a lawyer for this.Report

        • Avatar Oscar Gordon says:

          Yep, the law with regard to marriage has just way too much baggage associated with it. Getting out of the marriage business, as much as it might appeal to the libertarian ideal, it just not going to happen.

          If I want to read Paul charitably, he knows this & is, in a way, calling people’s bluff while still staying within the limits of the party platform (he may be off-key, but he still has to whistle to the GOP tune).

          The only way this ends in a way the anti-SSM crowd likes is via constitutional amendment, and by the time something like that could happen, a lot of SSM’s will happen, and the world will fail to end, and more & more people will just flat out not care enough to push for it because more pressing issues are front & center.Report

  6. Avatar zic says:

    So Marcotte followed this up at raw story, taking Paul to task for this:

    Do consenting adults have a right to contract with other consenting adults? Supporters of the Supreme Court’s decision argue yes but they argue no when it comes to economic liberties, like contracts regarding wages.


    Or, for the TL;DR version: If a dude can marry a dude, why can’t I pay my employees 50 cents an hour? Your move, liberals!

    And lest her snark trouble the tender sensibilities of my more libertarian friends here, she actually does follow up with this very wonderful explanation of liberal contract:

    The liberal position is completely consistent here. We believe that the government should create sensible regulations on what kind of contracts people can enter into, to protect people and help society flourish. Liberals don’t oppose the idea of an employment contract. We simply believe that there should be limits on what an employer can demand of an employees, to prevent exploitation. More specifically, we believe all employment contracts should have a built-in baseline: Minimum wage, maximum hours, health and safety protections, minimum benefits, that sort of thing. Anything you want to add to it, have at it, but in order for your contract to be valid, it had to fall within these parameters.


    • Avatar Murali says:


      That just begs the question and illiberally forces some people’s some people’s conception of what constitutes a flourishing society onto others who may disagree.Report

      • Avatar zic says:

        And free market solutions, rife with information asymmetries, is the other side of that coin on what constitutes flourishing.

        These are matters that change with time and our perceptions; for each age to grapple with; @murali and people will always disagree. Always.Report

    • Avatar Brandon Berg says:

      So the “liberal” position, like the right-wing position on gay marriage, boils down to “We think certain kinds of contracts should be prohibited because we don’t like them. We can’t actually articulate any kind of coherent explanation for why they’re harmful that stands up to rational scrutiny, so we’ll try to discourage rational scrutiny by using terms like that sound scary as long as you don’t think about them too hard, like ‘exploitation’ and ‘redefining marriage.'”

      My experience so far, based on a great deal of sample data, is that using “exploitation” to describe voluntary employment is a pretty sure sign of fuzzy thinking, but I’m open to having my mind changed. Anyone here want to take a crack at defining “exploitation” in a way that is a) economically literate, b) applicable to voluntary employment, and c) demonstrably harmful?

      And free market solutions, rife with information asymmetries, is the other side of that coin on what constitutes flourishing.

      Pointing out that information asymmetries exist sometimes does not actually justify whatever government interventions you please. You have to show that the specific issue you want to address is due to information asymmetries, that the intervention you propose will fix that problem, and that the cost of the intervention is less than the cost of the asymmetries.

      Now, this isn’t the QJE. You don’t have to develop a rigorous model that incorporates real-world datasets, or natural experiments, or anything like that. But the phrase “information asymmetries” isn’t a magic “I Win!” button. You have to at least make a somewhat reasonable argument.

      And I can’t think of many cases where the argument for intervention to correct information asymmetries is weaker than in the market for low-skill labor. There’s no reason to believe that low-wage workers are systematically being paid less than their marginal product. As I’ve pointed out over and over again, if employers are getting such a screaming deal on labor, they should want to hire more workers, and that’s not happening. Unemployment remains over 10% for workers age 20-24 and in the high teens for teenagers,

      Really, do you have any reason at all to believe that low-wage workers are systematically being paid less than their marginal product, or that they would be without minimum wage.

      It’s also worth noting that the employer often has the short end of the stick when it comes to labor market asymmetries. Prior to hiring, a worker will usually know more about his or her abilities and work ethic than the employer, and since employees often have a learning curve before reaching full productivity levels, an employer can waste quite a bit of time and money on a bad employee before realizing the mistake. Sometimes former employers will give feedback, but why risk a lawsuit just to help your competitors?

      On the other hand, it’s not that hard for a worker to figure out who else is hiring. There are web sites and And with most minimum-wage workers working fewer than 35 hours per week and/or nonstandard hours, they can often even interview for other jobs without missing work.

      Also, note that information asymmetries are also a problem in non-market interactions, such as elections, and even (especially?) personal relationships—do you also think government needs to step in to regulate those?

      The market is also adept at providing partial solutions to information asymmetries, often more efficiently than the government can. Product reviews, sites like Glassdoor, classified ads and their modern Internet equivalents, money-back guarantees, etc.Report

      • Avatar LWA says:

        Anyone here want to take a crack at defining “exploitation” in a way that is a) economically literate, b) applicable to voluntary employment, and c) demonstrably harmful?

        Lets look at your framing.

        Explained to whose satisfaction, and to what end?

        The various laws and regulations against “exploitation” are generally derived from the social justice teachings of Christian churches, stripped of their theological rhetoric.
        They start with the moral intuition that all people are entitled to choices which are reasonably free, and that human dignity may never be a negotiated away.
        The boundary between “making a bad deal” and “exploitation” is fuzzy and open to debate- but ultimately the majority can decide what it believes to be the case, as in the minimum wage.

        This argument has been largely accepted by the majority, but of course is highly debated around the margins.

        So my comment would be, if you don’t accept the moral intuition that form the groundwork of the idea, then there really is no argument possible. If you buy into these moral intuitions then a fruitful argument can be made.

        This relates to Murali’s comment and my response below- there exists a set of moral intuitions, arbitrary and subjective, which form the basis of all our laws and conventions. They are widely shared, but by no means unanimous and by no means perfectly clear.Report

      • Avatar Jaybird says:

        Anyone here want to take a crack at defining “exploitation” in a way that is a) economically literate, b) applicable to voluntary employment, and c) demonstrably harmful?

        The shit going on in Qatar.Report

        • Avatar morat20 says:

          I think Qatar is a highly useful post when it comes to this sort of thing.

          Here, in America, bounded and protected as we are by centuries of government effort and regulation, we can ask the question “Why should such things be regulated by the government” without the answer being obvious.

          Because centuries of effort have divorced us from Qatar.

          That is not to say all regulation is effective, needed, or that such questions shouldn’t be asked! Only that our very successes have created a place wherein things are SO great we often don’t think about how truly, truly, awfully bad they can get. We’ve lost that thread of history.

          The Pure Food and Drug Act is another, somewhat more obvious place. I’ve heard people question the need for it (“Surely in a free market, companies will not skimp or else go out of business!) — that one might be a little more obvious, with the high number of recalls and bad foods that still sneak out (often due to insufficient inspectors and enforcement) and cause havoc (Blue Bell proves quiet nicely what happens absent enforcement. They knew about their listeria problem for years, but fixing it was more expensive than shipping tainted food and hoping it wouldn’t get noticed).

          So congratulations. US government has been so effective that US citizens can calmly discuss what “worker exploitation” is without someone smacking them and pointing to about a million examples right around them. 🙂Report

          • Avatar Murali says:


            One of the things I wonder is whether we’ve reached or ever can reach the point where we have civilised ourselves sufficiently that we don’t need the regulations any more even if we once did.Report

            • Avatar morat20 says:

              I would say that’s…unlikely.

              If nothing else, you quickly run into the age old problem of “What’s good for me, here and now, is not good for everyone else” — which is, I think, a problem that always has to be addressed by government or some other ‘thing’ with the ability to enforce it.

              Whether or not we want to look at “This is good for me now, but awful for me later” or even “This is awful for me, but I want to do it” is another question that’s got more complex bits and pieces, I think. (Although in there, in those impulses, is where you find the art of the con)Report

          • Avatar Oscar Gordon says:

            Or GM & the ignition problems.Report

        • Avatar Chris says:

          The definition of exploitation in classic and contemporary Marxist/socialist thought meets all those criteria, of course.

          The example of what’s going on in Qatar is extreme, of course: people so desperate for a wage that they will do back-breaking work under extremely dangerous conditions for a tiny wage. This is less exploitation than a form of slavery. However, one does not have to look for for less extreme examples.Report

          • Avatar Jaybird says:

            The fact that people stood in line to get treated like that gives me pause.

            But, still, nobody should treat people like that. Not even people who volunteer for it.Report

            • Avatar Chris says:

              It certainly raises several questions: in what ways are things so bad where they were that they will travel to another country, in many cases another continent, in order to work under such conditions? Why are things so bad in those ways? Are there things that could be changed elsewhere that would cause things to not be bad in those ways? Are there ways in which we can create incentives for business people not to treat people who come from places where things are so bad in those ways like slaves? And so on.Report

            • Avatar DensityDuck says:

              “nobody should treat people like that. ”

              Nobody should violently rip living things out of their habitats and throw the still-living bodies into a steam bath so hot that their flesh explodes.

              But vegans still luuuuuuv them some steamed fresh beans, don’t they?Report

              • Avatar North says:

                Hell, I love me some Lobster.Report

              • DensityDuck:Nobody should violently rip living things out of their habitats and throw the still-living bodies into a steam bath so hot that their flesh explodes.

                That’s an interesting way to cook embryos. Why not just suspend them above a pot of water and bring it to a boil? They’ll cook more evenly that way, and will probably not explode in the process.Report

  7. Avatar LWA says:


    …illiberally forces some people’s some people’s conception of what constitutes a flourishing society onto others who may disagree.

    What is the opposite of this?

    I see this a lot, that society shouldn’t pick one concept of the good over others.

    Yet when it is stated so unequivocally like that, without any qualifiers or boundaries, it seems fundamentalist in its own way.Report

    • Avatar Murali says:

      Not society, government.Report

      • Avatar morat20 says:

        What is Democracy but the action arm of society?

        We are the government. The government is not some ‘other’ placed over us.Report

        • Avatar Jaybird says:

          And Corporations are People.Report

          • Avatar morat20 says:

            Corporations are made of people. If they’re actually people, quite a few of them need to see a shrink. They’ve got undiagnosed socopiathic issues.Report

            • Avatar Oscar Gordon says:

              Well, Jaybird was talking about blood in the mortar…Report

            • Avatar Jaybird says:

              Well, so long as we figure out a way to other them, we can then point to them as being the other.Report

              • Avatar morat20 says:

                Nah. The corporate structure is useful. But it has unwanted incentives. I’d prefer a more pragmatic solution, which seems to often be antithetical to ideology.

                Your ideology doesn’t work 100% in the real world. Neither does mine. Nobodies does.

                I’d rather be honest about the problems, unwanted outcomes, trade-offs, and such and try to craft a solution.

                I would no more ditch corporations than I would let them run free of rules. 🙂Report

        • Avatar LeeEsq says:

          The argument of all the anarchists is that the state or government is always its’ own beast and does what it wants, which is to terrorize, punish and control for the most part. They think that any sort of democratic control is at best illusory and that nothing could really restrain the state.Report

    • Avatar Murali says:

      The opposite of coercing some people to live according to conceptions of justice that are unacceptable to some is to have a conception of justice which is acceptable to all. Neutrality of justification between conceptions of the good life (not individualism or autonomy) is the central liberal tenet.

      The neutrality principle is itself neutral. Here is why:
      In order for a conception of justice to be a coherent justificatory basis for political coercion, it must be possible for public institutions justified on its basis to engender a well-ordered society. That is to say, institutions justified by the principles must work in such a was as to generate support for those institutions. Given that pluralism about conceptions of the good is a permanent fact about modern society, it is impossible for public institutions to generate support by appealing to a controversial conception of the good. The support for the public institutions can only be generated if the public institutions operate on principles that are acceptable to anyone regardless of their conception of the good life.Report

      • Avatar LWA says:

        Can you offer an example of this in practice?

        A principle that is acceptable to all?Report

        • Avatar Murali says:

          Whatever principles that would be chosen in Rawls’s Original Position would be acceptable to all. Although, I have yet to work out exactly what they are. I think that it would be something along the lines of equal basic liberties (though it may be harder to delineate which liberties are properly basic). I think some principle, subordinate to the first*, which at the very least guarantees some minimum standard of lifetime wealth and opportunities is also acceptable to all. That is to say, a regime that is, broadly speaking, liberal. I’m sympathetic to the notion that regime types that are closer to the libertarian/neoliberal end of the spectrum, all else equal tend to achieve liberal goals better than those towards the social democratic end. I can’t give you anything more specific than that for now.

          *This part is important. Not all effective ways of guaranteeing a minimum standard of wealth and opportunities are permissible. Thus, minimum wages would probably be impermissible (apart from questions about their efficacy) but a social safety net (even a slightly paternalistic one) may not.Report

          • Avatar LWA says:

            Although, I have yet to work out exactly what they are

            You are not alone.

            I don’t believe that such an animal exists, a principle that is acceptable to all, bar none, without exception.

            I mean, we have recent evidence of a young man who firmly believed that all humans enjoy human rights. Black people of course, are not human, so he felt no need to afford them human rights.
            And he was not even alone- there are a shockingly large number of people who share his opinions.

            The most basic of all possible principles- that all humans are equally entitled to respect- is a highly contentious principle, debated and argued constantly. Yet nearly all self-described liberal people have no problem with enforcing this, coercively when necessary.

            The liberal principle of non-coercion becomes an empty platitude when its boundaries are erased and it is allowed to stand as an absolute.

            The platitude gets used for convenience- My principles are self evidently acceptable to all, so they may be enforced- yours of course, are personal quirky superstition, and need no enforcement.Report

            • Avatar Murali says:

              Let me get back to you on that in 3 years time when I finish my PhD.

              I do think that the original position (or something rather close to it) is justified. Look at the 3rd and 4th chapters of my thesis for the argument.


              It also seems as if the problem of choice from within the Original Position is not intractable. If both pan out, there are principles that are acceptable to all. In fact, so long as they are not so completely vague as to trivially permit or forbid everything, I should be right.Report

  8. Avatar North says:

    Paul’s position is consistent in libertarian terms but a-historical. Government has been in the marriage business since Babylon at the very least. That makes state involvement in marriage older than libertarianism, modern and pre-modern states and Christianity itself so I think anyone who doesn’t take the (internally and logically consistent) libertarian position on marriage very seriously is probably on solid ground.Report

    • Avatar Jaybird says:

      The criticism of it that makes the most sense to me is that it’s abstract to the point of being, for lack of a better word, Aspy.

      “Guys, the perfect solution is something that doesn’t take human nature and human history into account!”

      While I suppose that that is technically true, it’s likely to fail and fail hard during the implementation phase.

      For me, seeing this answer from him makes me sigh and think “Oh, Rand…”

      Them who are attacking Rand, I just want you to know: he’s not doing this out of malice. It’s more like he’s Data (from Star Trek) asking “Why do you not get government out of marriage entirely?”Report

      • Avatar Sam says:

        I’d seriously quibble with the idea of getting-the-state-out-of-marriage as a “perfect solution.” It’s a perfect solution depending upon what the goal is only, and the unspoken goal tends to continue being the othering of gay couples, particularly from Paul’s perspective.Report

      • Avatar North says:

        I do actually view it rather that way personally but between libertarians association with the greater GOP and left libertarians relative invisibility in the Democratic Party a lot of people don’t read it charitably.Report

      • Avatar LeeEsq says:

        People are disinclined to read libertarians charitably, like their Data from Star Trek, when they propose things like this because it doesn’t require an extraordinary amount of social intelligence to realize how dumb these proposals are. You can be really stupid socially and still realize that these proposals are just unworkable.Report

        • Avatar Jaybird says:

          Oh, I know how people are disinclined to read libertarians charitably.

          I’m just pointing out that once you get to a particular level of abstraction, it’s a place you never want to leave. Once you’re there long enough, you can even forget that there are other places.Report

          • Avatar LeeEsq says:

            Not everybody has the luxury of getting to this level of abstraction. I get exasperated with this level of abstraction regardless of whether it is the libertarian variety like Rand or the radical leftist burn everything down and start again level or anything else. There have been attempts to implement lots of different varieties of radical utopianism on a large scale in real life from the Soviet Union to Italian fascism to the Taliban’s theocracy. None have ended well. Anybody with a decent grasp of history should realize this.Report

            • Avatar Jaybird says:

              The radical utopianism of “we should make everyone homogenous” and the radical utopianism of “everyone should leave everyone else alone” seem like two radically different utopias.Report

              • Avatar LeeEsq says:

                Both ignore a lot of factors that go against their practical implications. The radical homogenous utopianism ignores the fact that people are different and that what is good for one person or group might not be universally applicable. The burn everything down and start again radical utopians ignore the human need for safety and stability. The “everyone should leave everyone else alone” tend to forget that world is not and will never be a level playing field and that some people or groups are not going to be left alone because of human nature.Report

    • Avatar Glyph says:

      @north – I don’t disagree with anything you’ve said here, which is why even though I intellectually agree with the libertarian position that in today’s modern world there is no good reason whatsoever that government SHOULD be involved in marriage (beyond enforcement of contract), I also agree there’s also no real way to get there from here, and so I support whatever smaller intermediate steps increase overall liberty.

      But it’s still incumbent on me to point out that what we have then is, essentially, a conservativish appeal to tradition.

      “This is the way we have always done things, and so must we always.”Report

      • Avatar North says:

        Indeed, but many times the libertarian protest of marriage presents state involvement in marriage as if it is some recent and pernicious development. One can debate if it’s pernicious or not but any allegation of it being a recent liberal invention is a pure canard.Report

    • Avatar LeeEsq says:

      Its like the blog posts on dating, nice guys, etc. where you have people who argue that women always had free choice in who they mated with and it’s the men that had to do all the heavy work in courtship. This ignores all the cultures where marriages where arranged and where about property, politics, powers, alliances, and really anything but love and affection.Report

    • Avatar Brandon Berg says:

      That makes state involvement in marriage older than libertarianism, modern and pre-modern states and Christianity itself so I think anyone who doesn’t take the (internally and logically consistent) libertarian position on marriage very seriously is probably on solid ground.

      Twenty years ago, people were saying exactly the same thing about gay marriage.

      I don’t particularly care one way or the other about privatizing marriage, but you have to note the irony.Report

      • Avatar North says:

        Well gays as a distinct social group are only around a century old to begin with.Report

        • Avatar LeeEsq says:

          Probably a bit longer, somewhere between century and ten years to a century and fifty years. Gays as distinct social group seemed to have cropped up for the first time as an idea in the 1860s in Germany from a gay man who worked in the judiciary for a living. Note I learned this from being bored and reading it on Wikipedia so I might be off. It took a few decades for the idea to develop fully.Report

        • Avatar Brandon Berg says:

          It seems to me that that only further underscores how out of left field gay marriage was. I realize I’m exaggerating somewhat here, but wasn’t the concept of state-sanctioned gay marriage basically invented by Andrew Sullivan? One lone blogger’s idea is pretty much the definition of crackpot.Report

          • wasn’t the concept of state-sanctioned gay marriage basically invented by Andrew Sullivan


          • Avatar LeeEsq says:

            Andrew Sullivan did not invent the concept of same sex marriage. There were homosexual couples that attempted to marry in the early 1970s and sued all the way up to the Supreme Court for that right. Andrew Sullivan’s innovation was to provide a sort of frame work which could be used to sell same-sex marriage to heterosexual people, particularly the most skeptical about it. The earlier attempts at same-sex marriage were justified on more radical grounds without really any explanation on why heterosexuals should respect it. It was part of the burn everything down and radically transform society phase of the LGBT movement. What Sullivan argued was that same-sex marriage would add a lot of the stabilizing factors of heterosexual relationships into same-sex relationships rather than radically transform bourgeois heterosexual marriage into something more equitable and radical.Report

  9. Avatar Kim says:

    For fuck’s sake. I must consider that this is beating up on Paul because he’s Paul.
    You didn’t say Boo when it was Tester saying the same damn thing. In fact, kos and company cheered.
    (note: Tester’s from Montana, where he really MIGHT be able to get the State out of the marriage business. If anyone can do it, it’s Montana)

    (Note: timing is of course suspicious, but I assume Paul’s stood on this before, and will again).Report

    • Avatar morat20 says:

      If I’d have heard Tester say the same thing, I’d have mocked him just as squarely. Because it’s a stupid idea, put forth either BY idiots or for the consumption OF idiots.

      Dumb, con, or pander. Dealer’s choice.Report

  10. Avatar Francis says:

    Brother Burt writes: “marriage is … a special relationship” I’m going to respectfully disagree with my fellow member of the bar.

    Marriage is a legal Status.

    Every American goes through several changes in legal Status through life, no matter what state they live in. Dependent / Juvenile then Adult. Single then Married then Divorced then Widowed. Childless then With Children. Free, Convicted, Imprisoned, On Parole, On Probation. Solvent then Bankrupt. There are others.

    Each change in status comes with a huge packet of new powers and responsibilities scattered throughout federal and state codes. Whether you can vote, drink, marry, leave the State. The taxes you owe. The power of various agencies to enter your house without a warrant. The power of the State to garnish your wages. Your power to demand that the State seize the assets of another. etc.

    The idea that a majority of Americans will suddenly be willing to eliminate the Status of married from all the various codes that reflect that Status is, simply, ridiculous. Many people like being married, and they mostly like the role that government plays in recognizing and facilitating that Status.Report

    • Avatar Burt Likko says:

      Well, let’s say we have concurring positions, as it seems you agree with me at least insofar as you dispute that marriage is a “contract.”Report

      • Avatar Francis says:

        Agreed. Describing a marriage as a contract is sloppy thinking. No one cares about the contract terms, which are largely unenforceable anyway. The key terms of most marriage contracts are to love, honor and cherish. (Mine, anyway.) Can you imagine suing on that? Money damages, counsel, or specific performance?

        The whole point of a civil marriage is to invest the pair with rights and responsibilities as against the rest of the world, as set forth in various statutes. Some of those can be separately negotiated (survivorship benefits, community property), but many cannot (spousal privilege, taxation).Report

        • Avatar greginak says:

          People argue about the “contract terms” of a marriages all the time. Almost always in terms of a divorce; who gets the kids for how much time and how do we split property. Also after a death with no will the contract nature of a marriage comes in. Same thing with medical decision making. Legal marriage is very well described as a contract. It’s religious marriage that people describe in all sorts of ways and however they want.

          I don’t think that takes away from the marriage as a status view. But i dont’ think there is much difference either.Report

          • Avatar Francis says:

            I respectfully disagree with this analytical approach.

            Contracts are agreements by and between the parties who have agreed to it (and the rare intended beneficiary). A contract requires a meeting of the minds / mutual understanding. So, a pre-nup is a contract. A judgment of divorce is a contract. But outside of those circumstances? Not so much.

            Go ask your average married couple without a pre-nup what the existing agreement is on allocation of assets and/or kids in the event of divorce (what lawyers would call a condition subsequent). If there is a contract, then each party should be able to answer the question the same way without referring to the other. The contract would govern. If you are married now, can you answer that question? Would your spouse agree with the answer?

            A will is, in some sense, a contract between the decedent and all her beneficiaries. People who die intestate have their property divided by statute. The status of the decedent (married, widowed, kids) will govern the allocation. Again, ask yourself and your spouse that if you died tomorrow do you have a clear agreement with your spouse as to what she gets? How is that agreement embodied – a will? Then you have a contract. But the will is the contract, not the marriage. The marriage just changes how the state will allocate your assets on your intestate death.

            Medical decision-making is a further example of a lack of contract. The hospital had no prior contract with me. My body just showed up, and my very presence (plus a substantial body of statutory law) has created a situation under which the hospital must obtain my agreement before engaging in certain procedures. But since I’m not capable of answering someone must answer for me. As many gay couples found out during the AIDS years, hospitals frequently refused to recognize contracts and instead insisted on deferring to statutory determinations as to who was empowered to make in-lieu determinations. And its the statute which recognizes the spouse as the primary in-lieu decision maker, not your agreement with your wife, that empowers the hospital to take her direction.Report

            • Avatar greginak says:

              Oh i know people don’t know what many of the legal parts of marriage entail. I see it all the time. People don’t think of marriage like a type of standardized contract. They think in terms of romance and love and spiritual stuff ( and the occasional, she’s pregnant so we gotta get hitched). But when they marry they are agreeing to a bunch of laws that say how their contract can be broken or what happens in a certain situation. People take the laws about marriage as right and true and don’t think about all the stuff people would usually agree to if they were consciously writing a contract.Report

    • Avatar DavidTC says:

      I’m going to respectfully disagree with my fellow member of the bar. Marriage is a legal Status.

      And I’m going to disagree further.

      All y’all have been tricked.

      ‘Married’ is a relationship status that has eff-all to do with the law at all. The government *recognizing* that marriage is a legal status, but the marriage itself isn’t.

      You can even see this in the wording used in marriages. Hey, lawyer guys, what does ‘pronounce’ mean? It doesn’t mean ‘make’, it means ‘announce’. Does the guy running the ceremony do an action making them married? Nope…he’s *announcing* the marriage they just entered into by saying they agreed to get married, and then he signs a piece of paper saying that happened.

      Why do you need witnesses for getting married, even in a courthouse, when you don’t need them for anything? Because they’re witnessing the existence of a marriage, not the signing of paper.

      Common-law marriage is the government saying ‘If you have lived together X years, we’re just going to assume you’re married even if you haven’t told us’. (Basically the same way that they assume you renounce US citizen if you naturalize to another country.)

      In some places, if you get married without a license, that’s illegal…and if the government catches you, you’re still married. And sometimes can get a pardon of the crime of *getting married* without a license…because you are, in fact, actually still married.

      All of history, every way the law *actually works*, agrees with this interpretation, despite the fact the US seems to have forgotten it a few decades ago and started arguing about whether gay people could ‘get married’, instead of the more accurate ‘if the marriages of gay people would be recognized by the state’.

      Even this argument over whether or not it’s a contract just sorta proves the point. Contracts are things entered into by two people…whether or not such a contract is *enforceable* is up to the government, but even contracts that are unenforcable are, technically, still contracts. A prostitution contract is an illegal *contract*…note the word ‘contract’ is still there.

      Just like marriages are things entered into by two people that may, or may not, be recognized by the government. But they’re still marriages.

      As to that question itself, I’d argue that marriages aren’t contracts, just like contracts aren’t marriages, but they both belong in the same superset of things I’ll call ‘agreements between people that might have the backing of law if the government agrees, and also you probably want to write down on paper’.Report