Remaking Marital Law

Does legalizing gay marriage go far enough?

Minimizing Marriage: Marriage, Morality, and the Law, by Elizabeth Brake, Oxford University Press, 240 pp., $24.95.

Opponents of same-sex marriage are quick to raise the specter of polygamy. If "everybody should have the right to marry," Rick Santorum asked on the campaign trail earlier this year, then "what about three men?" While Santorum clearly intended this quip as a reductio ad absurdum of calls for marriage equality, the Arizona State University philosopher Elizabeth Brake argues in Minimizing Marriage that recognizing polygamous and polyamorous unions is not only required by justice but doesn't go far enough.

For Brake, marriage not only should not be restricted to opposite-sex couples, or indeed to couples at all. It constitutes unjust discrimination, she argues, to restrict marriage to romantic or sexual relationships. Instead, the social and legal status of marriage should be available to "caring relationships" of all kinds (though not to Santorum's further bugaboos of "man on child" and "man on dog" unions, since parties to marriage contracts must be legally competent). Moreover, the terms of such marriages should be flexible, rather than fixed by a state-imposed one-size-fits-all model; one might, as in one of Brake's examples, choose to cohabit with a lover but confer one's spousal health care benefits on an impoverished relative, and authority for end-of-life decisions on a close friend. The result is what Brake calls "minimal marriage": marriage with minimal requirements for recognition.

These proposals will sound attractive to many libertarians who seek to make marriage a purely contractual matter. But Brake does not follow the path to complete privatization, arguing instead that caring relationships are "a good that the state should support." However minimal it may be, Brake's ideal of marriage still entails such traditional legal accompaniments as access to government benefits (mandatory spousal leave, tax-funded relocation assistance) that libertarians typically condemn as unjust, and exemption from legal requirements (immigration restrictions, duty to testify) that many libertarians would exempt the unmarried from too.

While Brake is a Rawlsian liberal rather than a libertarian, her ideal of "minimal marriage" is explicitly modeled on Robert Nozick's conception of the "minimal state"—the most extensive restriction compatible with justice. And like Nozick, Brake must fight a war on two fronts: against those who want more state restriction than minimal marriage offers, and against those who want less.

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

To concerns about children, Brake argues that childrearing and marriage are separate issues that should be legally decoupled. To worries that polygamy is frequently oppressive toward women, Brake counters that in the "small patriarchal religious communities" where polygamy flourishes, monogamy is no better; the solution is to combat oppression generally, not just the polygamous variety.

And in response to the University of Chicago law professor Mary Anne Case's argument that the legal function of marriage is the "designation, without elaborate contracting, of a single other person third parties can look to in a variety of legal contexts," Brake argues that however efficient this may be, it is unjust insofar as it privileges one marriage form over others. (Libertarian readers may be reminded of Kevin Carson's argument that "by providing a ready-made and automatic procedure for incorporation" and so reducing the associated transaction costs, the state has "tilted the playing field decisively toward the corporate form" and so "reduced the bargaining power of other parties in negotiating the terms on which it operates.")

Against those who want less than minimal marriage—i.e., those who favor making the terms of marriage a purely private matter—Brake maintains that caring relationships are "primary goods" whose value is agreed upon by virtually everybody, regardless of their more specific moral or religious convictions. States exist, in part, to ensure equitable distribution of primary goods; and since these goods are not controversial, the state's involvement does not violate neutrality. Here libertarians are likely to find her arguments less convincing. Neutrality worries aside, are states well-suited to the task of distributing primary goods equitably? The institution's track record does not inspire confidence.

Brake argues that simply privatizing marriage would "cede control of this still socially powerful institution to the churches and other private-sector groups," while continuing state involvement "makes equal access to marriage as a social status more likely." Yet this argument asks us to contrast a state sector imagined as reformed and improved, one whose apparatchiks have evidently read her book and taken her advice, with an unchanged private sector where her arguments have made no impact—in short, a world where marriage traditionalists still dominate public discourse but somehow never get elected. Is this a fair or plausible comparison? (Brake also maintains that the state is best suited to administer marriage because it is "centralized" and "not subject to market pressures," which to libertarian ears is like saying that because a certain material is highly flammable it's the best choice for home insulation.)

Brake dismisses the likelihood of "ludicrously large marriages," on the grounds that caring relationships "require that parties be known personally to one another, share history, interact regularly, and have detailed knowledge of one another." But whence this requirement? Epicurus famously numbered his friends (Facebook friends avant la lettre?) by the cityful. For those of us who have been reared on a more Aristotelean, exclusive conception of friendship, the Epicurean view may seem impoverished; but by the standards of political liberalism, can the superiority of Aristotelean over Epicurean friendship permissibly be invoked in the framing of marriage law without violating liberal neutrality?

Brake is also confident that in most cases "abuse of the right would have no major costs," and in any cases where it might, she recommends "bureaucratic oversight" and "tests like those now used by immigration officials" to determine whether caring relationships are genuine. But Brake's confidence about the rarity of costly abuse seems excessively optimistic; it's not hard to imagine acquaintances who plan, for unrelated reasons, to move to the same city marrying to obtain relocation assistance. Or, more excitingly, the members of a criminal conspiracy marrying one another to obtain immunity from testifying. As for immigration-style tests of the genuineness of marriages, not only are these notoriously intrusive, but they are likely to lead in practice to the imposition of a normalizing model of the sort Brake seeks to avoid.

Still, one need not be a Rawlsian to think that, so long as the state is involved in areas where by libertarian standards it shouldn't be, there's a prima facie case for its involvement at least being conducted in as nondiscriminatory manner as possible. Perhaps roads should be privatized, but given that the state is currently building and funding them, they clearly should be open to drivers of all creeds, races, etc.; the analogous point holds for marriage law. And by libertarian standards, immigration restrictions are arguably a worse injustice—more destructive of people's lives—than, say, tax-funded relocation benefits; so Brake's proposal would involve less total injustice than the current system. Minimal marriage, then, has a serious claim to libertarian support.

All the same, minimal marriage has its risks, even as a second-best option. As Judith Butler warns in her essay "Is Kinship Always Already Heterosexual?": "To be legitimated by the state is to enter into the terms of legitimation offered there and to find that one's public and recognizable sense of personhood is fundamentally dependent on the lexicon of that legitimation." Just as libertarians are divided as to whether to focus their efforts on petitioning the state for more liberty—inevitably, on the state's terms—or on building alternative institutions that bypass the state entirely, a similar choice faces those who favor marriage equality.

Roderick T. Long is a professor of philosophy at Auburn University and the president of the Molinari Institute.

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  • Fist of Etiquette||

    However minimal it may be, Brake's ideal of marriage still entails such traditional legal accompaniments as access to government benefits...

    She had me then she lost me. Like people will cease to couple up once the government goodies leave the picture.

  • Whiterun Guard||

    Yep, bingo.

    And WTF is 'spousal leave'? I don't think even the Greeks thought of that one.

  • JW||

    That's when you come home from work and all their shit is gone.

  • some guy||

    More like when you come home and all your shit's on the lawn.

  • Your Old TV||

    Actually, it's when you come home from work and all their shit and your shit is gone. Trust me on this one.

  • Metazoan||

    Yeah this is silly. Why not just remove government from the picture altogether? Now it's not even a debate, each person can believe what he/she wants about marriage.

    Besides, isn't all this discriminating against single people?

  • Bardas Phocas||

    Sorry, I won't even have sex with someone if I don't at least get a block of government cheese. A paid day off would be nice also. Of course we need the gov-coerced, employee-provided birth control is another requirement.

    I enjoy the sex but the paperwork can take the fun out of it all.

  • ||

    yes. it's not even debatable. the question isn't - is it discrimination (the answer is yes). the question is - is this discrimination lawful (according to the courts it is) and good policy (according to lawmakers it is).

    nobody can deny it's discrimination against single people, any more than you can argue women's field hockey commits gender discrimination in excluding men.

    marriage benefits are only available to married people. by definition, that is discrimination.

  • Randian||

    The problem is that outside of the law, the Left (especially) took a perfectly adequate word like 'discrimination' and turned it into a swear word. Even saying 'I have discriminating tastes' will get you a strange look from your typical College Commie D-bag.

  • sarcasmic||

    To discriminate is to make a choice. But choice means abortion. With choice meaning abortion and discriminate being a curse word, is there a word left for the act of making a decision between two or more options?

  • wareagle||

    no sarc; if Big Nanny wants you to have options, they will be given to you. Otherwise, you can't have any pudding if you don't eat your meat.

  • ||

    and of course, if you haven't made a choice, that's a choice too

    book of rush

    also, the more you try to go against nature, it's part of nature too... love and rockets channeling camus (a french dood but cool regardless)

  • Tulpa the White||

    b^2-4ac is racist.

  • ||

    of course. there are all sorts of legal (and arguably beneficial) forms of discrimination

    a track team discriminates by declining to sign up slow people

    that's discrimination

    i agree that discriminate has been misunderstood this way. people ask, as in this thread "is it discrimination" with the tacit assumption, that if it is, it's BAD

    but whether or not it's discrimination is entirely tangential to whether it's GOOD discrimination and/or whether it's legal/constitutional discrimination (which are also two unrelated things)

  • some guy||

    Government pretends to represent everyone, so it should be very limited in the types of discrimination it can practice. I think many libertarians would say that government should only discriminate based on actions taken by individuals that harm other individuals. Of course, then the definition of "harm" comes into play.

    On the issue of marriage, I say remove all laws regarding marriage from the books and let people handle it like any other contract.

  • Metazoan||

    Yeah I wasn't trying to suggest that it violated the law, just that it was unfairly discriminatory.

  • ||

    right but my point is it's better to ask "isn't it UNFAIR (or just "bad") discrimination"

    because asking "isn't it discriminating against single people" says nothing about whether it's good or not, and it's not even arguable that it's discrimination.

    laws by definition discriminate.

    murder laws, for example, discriminate. they only apply to people who... commit murder

    stupid example, but that's how laws work.

  • Metazoan||

    You are correct. It was an error on my part to leave out the word "unfairly." Obviously, when I choose one place for lunch over another, I am discriminating as well, but that is not unfair.

  • sarcasmic||

    All discrimination is unfair.

    Discrimination means making a choice between one thing or another. That means there is a winner and a loser.

    But losing isn't fair. It just isn't.
    Not fair! Not fair! *stomp* *stomp* *stomp*

    So there can't be any losers! Make everyone a winner!

    That's fair!

  • ||

    not going to get into a semantical wank about the meaning of 'fair'.

    i think a tacit belief of libertarianism is that stuff (laws etc.) are "fair" if they offer equality of opportunity, but not if they seek ANY equality of condition.

    by this definition, even laws that have a gross disparate impact (race, gender etc.) are not prima facie unfair

    robbery laws are fair. don't commit a robbery, and they don't apply to you (false arrests notwithstanding).

    but they have an "unfair" impact, in that they incarcerate FAR MORE men than women

    but that's the kind of cosmic fairness that sowell warns against.

    but it simply depends on which version of fair you use.

    are drug laws "fair"? imo, yes because people know X is illegal, choose to use X, and etc.

    but are they GOOD POLICY?

    clearly not.

  • wareagle||

    I think we can safely add "fair" alongside choice and discrimination in the hall of words whose meaning has forever changed.

  • ||

    w3rd!

  • ||

    fwiw, i like the distinction sowell makes in his great work 'a conflict of visions'

    the unconstrained vision (historically the people who end up liberals) primarily look at fairness in terms of RESULT, whereas the constrained view (usually conservative/libertarian - burke, etc.) view it in terms of process.

    i see a lot of results vs. process analysis here when it comes to legal pet issues like cop prosecutions, etc. but it really is a substantial distinction one should at least recognize

    due process, for example, is about process not results.

  • ¿Ex Nihilo?||

    due process, for example, is about process not results.

    Dunphy, the big problem many people here have with cop vs. non-cop is that many times the stories show that due process is MUCH different with cops. From the sample I see here and in the local news, it is almost impossible to hold cops to the same standard as non-cops.

  • ||

    no, a select biased sample of stories don't support that the due process is different for cops, or at least better for cops

    when one looks at the WHOLE picture, one realizes in some respects it favors cops, in some respects it is disfavorable towards cops, and in some respects it's the same

    that's the reality when you look at the totality

    of course one can use selection bias iow pick and choose to try to claim that cops get beneficial treatment, but imo the evidence does not support that.

    people will see a story of a cop getting a crime nolle pros'd or small sentenced and ASSUME a double standard, when they are (as i prove over and over again) completely ignorant of what actual sentences are given out for other FIRST TIME offenders.

    let me give you one clear example that is never addressed.

    cops are quite frequently double prosecuted. iow, given an unsuccessful state prosecution, the feds will prosecute them too. this is not (technically) double jeopardy, although in reality it is

    it is done MUCH more commonly with cops than non cops

    a classic example is rodney king.

    but there are many others

    i have provided all sorts of counter examples. i showed a case in WA where a cop who was not a convicted felon got a 20+ yr sentence for an ASSAULT and i have challenged anybody to find ONE example of a noncop nonfelon who got such a sentence for assault

    nobody has found ONE

  • ||

    furthermore, the judge outright said he thought cops deserved a harsher sentence for the same crime vs. a noncop

    again, that's indisputable the judge said that and he was NOT recused and that was viewed as ok

    i am sorry, but the reason sacred belief that cops get a beneficial double standard is not supported by evidence when one looks at the totality

  • sarcasmic||

    The double standard relates to what cops get away with when they are in uniform.

    Your bringing up examples of cops being prosecuted for things that they do while not in uniform is irrelevant to the argument.

  • ||

    paul schene was in uniform. don griffee was in uniform, etc.

    hth

    and furthermore, arugments have been made that off duty cops get a double standard too

    hth

  • sarcasmic||

    I don't know those people.
    Like Ex all I can go by is what I see here and in the local news.
    For example round here a state cop recently blew a 0.16 while flying nearly 100mph down the highway.
    Anyone else would have lost their license, and not only that but the state police will not hire someone with either criminal speeding or DUI on their record.
    He kept his license, was demoted, and given a fine.

    But there's no double standard. Nope, not at all.

  • ¿Ex Nihilo?||

    Are you in CO?

  • sarcasmic||

    Not anymore, no. I left Boulder in the 90s and never looked back.

  • ¿Ex Nihilo?||

    Just wondered as we had the same situation with a state trooper. Drunk as hell flying down the road in his patrol car. Warning, training, back on the streets. To be fair, it was a county deputy that pulled his ass over after someone 911'd him.

  • ¿Ex Nihilo?||

    i am sorry, but the reason sacred belief that cops get a beneficial double standard is not supported by evidence when one looks at the totality

    Which is why I said that based on the stories here and in the local news. A person can only judge based on the samples he has in front of him. And of course only the bad stuff is reported. That said, when you have cops video-taped beating the shit out of some dude and not only are they not prosecuted, but are re-instated after being fired, makes you lose faith in the system.

  • ||

    and again, i totally understand. if my sole basis of knowledge was reason.com i would believe the same thing you do. similarly, if my only basis of knowledge was the nation.com i would think corporations are inherently evil and that govt. needs to actively intervene in micromanaging economic matters

    funny how that works

    and fwiw, i will say that from what i have seen (far more extensive than reason coverage), FLORIDA does have a totally fucked up system that protects bad cops

    however, that's one state.

    no such system exists here in WA or other states i have worked.

    again, i see far far far more cases than you do. i have friends that have been prosecuted (unfairly) and rehired. i have spoken to a prosecutor who ADMITTED in regards to a criminal case, that if the suspect was not a cop, he probably would NOT be prosecuting it. i appreciated the honesty.

    if you want a negative double standard, again, look at the josh johnson case (oh wait, there was no article on it, therefore it never hapened).

    in brief, he was fired with almost no due process after a domestic violence advocate convinced his wife to CHANGE her account of the incident BECAUSE when she reviewed the report, she saw he was a cop.

    the case did not even make it to trial, it was woefully legally insufficient, but he was fired anyway, and initially charged without sufficient evidence

    because he was a cop. i have never seen such a weak case prosecuted against a non cop

  • ||

    after a year, he got rehired with back pay and the arbitrator (correctly) concluded that he was denied due process and it was a kneejerk reaction .

    double standard.

    LOTS of others.

    and again, griffee and schene were both on duty incidents

  • sarcasmic||

    FLORIDA does have a totally fucked up system that protects bad cops

    however, that's one state.

    It's not the only one.

  • ¿Ex Nihilo?||

    It's not the only one.

    Nope, this happened in Colorado.

  • sarcasmic||

    Nope, this happened in Colorado.

    It was Colorado cops who shattered my youthfully naive trust in law enforcement.

  • ||

    fwiw, i had NUMEROUS contacts with cops (i played in a loud rock band) etc. when i was younger. and i LOOKED like a dirtbag, too

    the only time i was treated with disrespect was when i treated the cop thusly.

    that taught me a lesson

    hey, in a perfect world, you could be a disrespectful rude asshole and the cop would be the height of perfect professionalism

    we don't live in such a world. cops are human

    like i said, i was proned out at gunpoint on one occasion, arrested in another, etc. etc.

    and always saw professionalism and restraint on the aprt of the cops

    EXCEPT when i was a rude asshole and got a rude, vaguely threatening comment back

    lesson learned

  • ||

    look, i can respect that some people believe this shit. again, if my primary source was reason, i'd believe it too.

    there was a lot of (erroneous) stuff i believed about cops that i found out to be untrue... once i became a cop

    one thing that irks me about reason is how good they are with stats IN GENERAL but how rarely they use them with cop force stuff. it's always individual cases, some of them horrific

    but when one looks at the stats, one realizes that cops use force very rarely. far more rarely than one would infer if one read reason.com

    deadly force is used exceptionally rarely

    reason writes article after article about the increased militarization, force etc. but NEVER mention stats - iow have shootings/lethal force by cops gone up or down per capita and more importantly have they gone up disproportionately with violent crime in general?

    stuff like that would be MUCH more robust data than merely reporting on john q excessive force. excessive force will ALWAYs happen. heck, i can honestly say i've never used it, but MAN there were a few times it took a herculean effort not to

    imagine you got kneed in the balls. hard

    and the guy is handcuffed

    it took every ounce of restrain not to haul off and sock the guy in the face.

  • ||

    would it have been unjustified? sure. but understandable? of course

    and i suggest many cops and noncops for that matter, would have had that reaction.

    it is much easier to judge force with 20/20 hindsight than it is to use it properly.

    also noted that when people compare civilian (quote unquote) use of force with cop stuff, they should concentrate on citizen arrest uses of force since that is a much more valid comparison. and i've seen courts give great latitude to NONcops using force IN arrest situations.

  • sarcasmic||

    With my own eyes I've witnessed (Colorado) cops beat the fuck out of people simply for giving them a smartass remark.
    These people took pride is making a "show of force" whenever possible.
    They wanted people to be afraid of them.

    They succeeded.

  • ||

    i'm not saying it is.

    and i am saying that from what i have seen, GROSS miscarriages of justice occur there, SYSTEMICALLY

    i also know that is UNreasonable to say that cops have a double standard IN GENERAL in their favor based on what happens in florida.

    again ,this is a republic . shit varies.

  • ||

    oh, another example. i think paul schene was guilty as fuck as assault (jail cell assault of female auto theft suspect), and i noted that from the beginning, as well as the fact that he was turned in BY ANOTHER COP, something that is very common, but ignored by the pre-serpico thin blue wall of silence meme people here.

    however, after the first hung jury he was tried a second time (also hung).

    for a gross misdemeanor.

    why?

    because he's a cop. double standard (to his detriment).

    it is EXCEPTIONALLY RARE to retry a GROSS MISDEMEANOR when there is a hung jury. but again, a negative double standard.

    and again, he was guilty as fuck imo, but any "civilian' in a similar circ would have been tried ONCE not twice.

  • SusanM||

    Meanwhile, at a Cato Institute position paper meeting regarding Ron Pauls Presidential run:

    "...a landmark in the continuing struggle to liberate the parent land from the hands of the Roman imperialist aggressors, excluding those concerned with drainage, medicine, roads, housing, education, viniculture and any other Romans contributing to the welfare of Jews of both sexes and hermaphrodites.

  • ¿Ex Nihilo?||

    the question is - is this discrimination lawful (according to the courts it is) and good policy (according to lawmakers it is).

    The question should be "is it moral," and it is not. The government should not discriminate, all should be equal under the law. This to me is the biggest stumbling block they face. They don't want equality, they want their split of the spoils.

  • ||

    by "good" i am including moral.

    the thing is there is lots of stuff that is immoral, that govt. should not legislate. that's why i said "good policy".

    cheating on a spouse, for example, is clearly immoral. however, it also clearly would be bad policy to prohibit/criminalize it.

    lots of stuff that is immoral should not be within the realm of govt. regulation. i think that's pretty clear cut, ESPECIALLY for a libertarian

    that's why i disagree.

    asking whether something is immoral or not doesn't answer the question of whether it should be a concern of govt.

    that's why i specifically chose the term "good policy"

    i'm a libertarian, not a libertine. iow, one can think a behavior is entirely immoral, even abhorrent, and also think govt. should not proscribe it.

    that to me is a core tenet of libertarianism. we DO legislate morality, but only SOME morality. optimally, we only legislate immoral behaviors that negatively affect others.

    that's why assault should be illegal, but drug use shouldn't.

    one can believe (i don't btw) that using cocaine is immoral but as long as one doesn't think govt. should prohibit it, one is still "libertarian pure". because it's not about what you believe is moral, it's about what you believe the role of govt. is in dealing with it

  • ¿Ex Nihilo?||

    because it's not about what you believe is moral, it's about what you believe the role of govt. is in dealing with it

    I agree totally. This is why I don't think the gov should have any say in marriage. Not through tax codes, inheritance rights, etc.

  • sarcasmic||

    Not only that, but redefining marriage is the only possible way for same sex couples to reap these government benefits.
    There is absolutely no possibility of finding another way to accomplish this goal.
    No way, no how.
    Completely and totally impossible.
    Cannot be done.
    Don't even waste time thinking about it or talking about it, because doing so makes you guilty of homophobic bigotry, and the only way to prove your innocence is to jump on board the redefining marriage train.

  • Metazoan||

    Can't I just say, no more government recognition of marriage, believe what you want?

  • ||

    sure. but the prevailing theory is that

    1) marriage is a "good" institution
    2) govt. should encourage marriage
    3) to encourage marriage, govt. offers incentives to marry

    noting that it also offers at least ONE disincentive (tax treatment in some respects)

  • ¿Ex Nihilo?||

    I would have to say the prevailing theory is wrong on points 2) and 3). Government should protect peoples lives, liberties and property; nothing more or less.

  • ||

    right. but we are libertarians, whereas this is not a libertarian society, or legal system. god knows

  • ||

    fwiw, i am pro gay marriage, but i 100% disagree with most gay marriage advocates who claim it's not a "redefinition" of marriage

    it CERTAINLY is. and a contrast with, for example, the legalization of interracial marriage, which wasn't (because marriage is an evolved institution and had included interracial marriage for thousands of years in scores of societies before certain societies proscribed it).

    a male-male or female-female coupling is a COMPLETELY different biological reality than a male-female one.

    the two genders have substantial and functional differences, in a completely different way than people of different "races"

    thus, it CLEARLY is a redefinition and gay marriage advocates should be honest and admit it.

    imo, it's a GOOD redefinition, and one i support as policy (given that govt. is going to recognize marriage at all), but is clearly not merely a recognition of rights, it's a redefinition

  • wareagle||

    historically, marriage has been defined on the basis of three principles: it involves two people of the opposite sex who are unrelated. If one of those pillars is removed, the other two will surely be questioned.

    Personally, I don't care who marries whom or how many whoms so long as no one's rights are violated, all parties consent, and no tax money is involved. But if the gay marriage advocates are intellectually honest, they have to support polygamy and the occasional cousins who want to marry.

  • ||

    i agree. an argument can even be made for people within the bounds of consanguinity (e.g. brothers) being able to marry since the classic objection (birth defects) in marriage of such people doesn't apply (brothers or sisters)

    it presses most people's "ick factor" but apart from ick morality issues, i'm not sure how compelling the other arguments are.

  • Gabriel Hanna||

    Birth defects isn't a valid objection to incestuous marriages anyway; if it were we'd have eugenics laws. We don't. The "birth defects" argument is only used against related couples, not unrelated ones.

    Therefore, by analogy with the argument "we don't forbid infertile couples from marrying", the "birth defect" argument is just a rationalization of an prejudice.

    Incest does not create birth defects. Reinforced recessive genes do. Incest has been used by stock breeders for thousands of years to produce strains with desireable traits.

    I do not say this to argue for incest, which I am unreservedly against. Just pointing out that the arguments against it are purely moral, there is no legitimate biological argument.

  • ¿Ex Nihilo?||

    I do not say this to argue for incest, which I am unreservedly against. Just pointing out that the arguments against it are purely moral, there is no legitimate biological argument.

    If both consent, then you do not have a moral argument either.

  • sarcasmic||

    The gay marriage advocates are not intellectually honest.

    I figured this out when I realized that there will be absolutely no compromise that gives them the legal protections but not the word.

    They argue that it's about legal protections, when it's all about the word and social acceptance.

    They're not going to come out and say that they want to use force of government to redefine marriage because it hurts their feewings to not have a government issued slip of paper with the word "marriage" on it.
    They'd be rightfully laughed at.

    So they lie.

  • ||

    i agree. and i am a gay marriage advocate. i see the same thing with pro choicers who claim it's just a medical procedure, a matter of privacy, and purely between a woman and a doctor

    they ignore even the existence of the fetus and the same people who claim medical stuff should be private don't take that view vis a vis drugs etc. that people choose to use.

  • ||

    I agree 100%. I don't think libertarians should be on board this train at all. It presents a wrong idea of their philosophy. Government marriage provisions are by definition unjustly discriminatory, and the more broadly government defines marriage, the more problems and complications associated with it will arise.

  • tarran||

    I just loooove the idea of having a bureaucrat deciding whether I had enough affection for another person.

  • Rich||

    "Little death" panels, as it were.

  • nicole||

    I LOLed.

  • PACW||

    Smiling!

  • Whiterun Guard||

    "And like Nozick, Brake must fight a war on two fronts: against those who want more state restriction than minimal marriage offers, and against those who want less."

    That's like saying that the US had a war on two fronts, with Russia at its peak, and with Burkina-Faso.

  • o3||

    read that mexico now offers a 5yr marrage option which can be renewed.

  • Joe R.||

    No, that was the Ferengi.

  • ||

    . . . Elizabeth Brake argues in Minimizing Marriage that recognizing polygamous and polyamorous unions is not only required by justice but doesn't go far enough.

    There's never going to be true "marital equality," or whatever the fuck you want to call it, as long we keep buying into the notion that government has any business "recognizing" marriage at all.

  • Paul.||

    Swish!

  • ||

    Bingo

  • Rhino||

    Isn't Marriage a religious rite? I can see civil unions based solely in legal contract as something that two or more people should be able to enter, but marriage is based in religious union so i believe the govt should be completely out of the marriage racket. Leave it to the church. freedom of religion. that sort of thing.

  • Randian||

    Isn't Marriage a religious rite?

    Not historically.

  • Whiterun Guard||

    France's government is explicitly non-religious and still recognizes marriage.

  • ||

    I'm getting married to a fellow atheist. Neither of us call it a marriage because the government says so. It doesn't have to be a religious rite. Two (or more) individuals should be free to contract and call it whatever you want.

  • wareagle||

    ceremonies joining two people predate the church as we know it.

  • ||

    yes. i think marriage is an EVOLVED institution (very hayekian). religions included it because it was so ingrained in the societies).

    it's hard to argue against the utility of an institution that evolved similarly in so many disparate and often unconnected societies.

    it's pretty fucking universal.

  • Paul.||

    The social and legal status of marriage should be available to consenting "caring relationships" of all kinds.

    What about the social and legal impacts of divorce?

    How everyone feel about their consenting, caring relationship ending with half your wealth walking out the door when the consenting, caring relationship isn't quite as consenting and caring as it once was?

    I want half, Eddie, HALF!

  • ||

    How everyone feel about their consenting, caring relationship ending with half your wealth walking out the door when the consenting, caring relationship isn't quite as consenting and caring as it once was?

    You should get out only with what you brought in in the first place - or your share of whatever wealth you helped create during the marriage, that's it.

    I want half, Eddie, HALF!

    LOL I haven't heard that in years.

  • Paul.||

    I can't take full credit. I owe Pro L for that one.

  • ||

    You should get out only with what you brought in in the first place - or your share of whatever wealth you helped create during the marriage, that's it.

    This is essentially how it works in community property states like Texas (and Cali I think?). Of course shit like child support and alimony can skew that.

  • Paul.||

    This is essentially how it works in community property states like Texas (and Cali I think?). Of course shit like child support and alimony can skew that.

    Uhh yeah, no.

    Community property states divide everything in half.

    Now technically, everything "acquired during the marriage" is divided in half. However, things acquired before the marriage can also be divided in half if that resource is 'touched' during the marriage.

    Example: You got your eye on that hot little barrista over at Starbucks.

    You skipped college and went right to work and started building up a retirement.

    After wining and dining the lass, you fall hopelessly in love and marry her. She's smart, educated (has a B.A. in Art History) and wants to set the world on fire!

    Shortly after marriage, her student loan bills start arriving at the house. You look at the unpaid balance and it shows $58,000.

    Along the way, the two of you have purchased a home together. You say, "Hey Baby, let's refi this loan and get it rolled into our mortgage that has a much better interest rate".

    After a few years of marriage, you two want to do an addition on to your home. So you take a loan out of your 401k, in which you'll repay yourself with interest. You both share a primary checking and savings account, both of you have your paychecks deposited into that account.

  • Paul.||

    (contd)

    One day, you wake up and she says, "Baby, I'm not sure if I love you anymore... but it's not you... it's me".

    Divorce ensues.

    When the smoke clears, she gets half the house, half your retirement, and hands you $20,000 in student loan debt.

    Welcome to community property.

  • ||

    it applies in the law a lot too.

    i deal with this all the time.

    fwiw, there is conflicting case law in WA circuits whether a spouse damaging community spousal property can be prosecuted as vandalism.

    for example, spouse kicks a hole in the wall, resulting in damage.

    since the house is community property, some districts view this as "domestic violence malicious mischief" (mal mis is our vandalism statute), whereas some don't, since the husband is destroying property he is community owner of.

    for a ridiculous example, no prosecutor would prosecute the offender for breaking clearly personal property, even if married, but "community property" is problematic.

    even if a car is registered to one spouse, it is still mutually owned.

    dood smashes the windshield of the car registered to him, could be prosecuted as mal mis DV, whereas if they were just bf/gf or bf/bf it could not

  • Paul.||

    even if a car is registered to one spouse, it is still mutually owned.

    dood smashes the windshield of the car registered to him, could be prosecuted as mal mis DV, whereas if they were just bf/gf or bf/bf it could not

    That's another ugly side of community property.

    Anything you purchase before the marriage becomes community property the moment monies from a mutually held account pay a single dime on an ongoing loan. Even if you paid 97% of the loan before the marriage.

  • ||

    Paul, your story freaks me the fuck out. Would a well-crafted pre-nup have protected you (or hypothetical person X) from WA state's nasty community property web?

  • Paul.||

    Paul, your story freaks me the fuck out. Would a well-crafted pre-nup have protected you (or hypothetical person X) from WA state's nasty community property web?

    It should freak everyone the fuck out.

    Yes, a well-crafted pre-nup would help. But there's something that I call the Ultimate Pre-Nup: Staying single.

    You can protect yourself without a pre-nup, dagney, but you have to take careful pains to keep finances separate.

    First is, keep separate checking accounts, and have your respective paychecks deposited in them.

    If you have a pre-marriage car loan going that you've paid a significant portion of, pay those types of debts exclusively out of your account. Same with student loans-- I know that cute boy you like who plays guitar is totally charming, Dagny, but if you refi his film school debt, it's yours. Make sure he pays his Sallie Mae out of his account.

    There are some good resources on the web about how to protect yourself in a community property state. Bill Gates is fucked.

  • Paul.||

    *dagney* = Dagny. Sorry.

  • ||

    Yeah, with the many ways getting married can fuck you, I am leaning towards the living-in-sin approach. Also trying not to fall in love with a deadbeat doesn't hurt. Appreciate the good advice for those who aren't able to follow my first two rules, though.

    Plus it will just be kind of fun to describe my situation, in utter deadpan, as living in sin.

    I was talking with some coworkers the other day and somehow pre-nups came up, and this dude asked the chicks present if we'd be offended if the pre-nup subject were broached. We both laughed and said we would be the ones insisting on it.

  • Paul.||

    I was talking with some coworkers the other day and somehow pre-nups came up, and this dude asked the chicks present if we'd be offended if the pre-nup subject were broached. We both laughed and said we would be the ones insisting on it.

    Where I work most of the women are the bread-winners. Highly advised.

  • Libertarius||

    Well that sounds very stylish, but on earth it is the men who get liquidated in kangaroo divorce courts.

    How many women have you seen reduced to living in a barn or showering at the YMCA? Any man who gets married in this day and age is a chump who is hopelessly plugged into the fiat dollar/feminism matrix lolzozlzlzlzolzo

  • ||

    I'm not sure what you said that refutes what I said. You split everything you earn after marriage. I guess I took "your share of the wealth" to mean half. Maybe Karl meant something else but that was how I read it.

    In any case I'm marrying a MSME and while I have more savings from putting money in Roth IRA since childhood I also have my law school debt so it's a wash.

  • ||

    And I get what you are saying about assets that were yours become ours but I think it works better that way too. The 97% loan is an extreme example and it could have been dealt with with a prenup. When money is flying back and forth, going back later to parse it out becomes impossible, especially when you consider non-monetary contributions.

  • Paul.||

    Apatheist:

    Here was how I interpreted your reply in context:

    You should get out only with what you brought in in the first place - or your share of whatever wealth you helped create during the marriage, that's it.


    This is essentially how it works in community property states like Texas (and Cali I think?). Of course shit like child support and alimony can skew that.

    Taking those two statements literally, that's not how it works in community property states.

    Using my marriage (and subsequent divorce) as an example, had we got out of the marriage what we'd brought into it, I would have left with a sweet loft-style condo, 401k, $0 in personal debt an credit rating of well over 800, and my wife would have left with a 1976 Datsun pickup with a broken windshield, $60,000 in student loan debt and a credit rating of 150.

    I understand the OP's followup statement, not in bold, changes the dynamic subtly. So I apologize if I misinterpreted your statement. But "community property" is one of those things that everyone thinks is very straightforward and simple, but it's not.

    The way community property works is, the one that brought wealth into the marriage gets it divided in half, the one who brought debt into the marriage gets it divided in half.

  • Gam||

    Property that was yours before you got married remains your separate property unless you commingle it with community property.

    Debt that you acquired before marriage is your own separate debt.

    Your suggestion to deposit paychecks into a separate account won't work, since income earned during marriage is community property.

  • Skomoroh||

    Brake is in the muddled middle. Either we like social engineering and should base marraige on what the data shows gives us the best results or we should privatize the whole thing.

    Brake is simply trying to rationalize her opinion on the whole thing.

  • Tulpa the White||

    Unless you're going to totally open the borders OR eliminate the marriage visa, the govt has to be involved in marriage to some degree.

    Ditto for child custody/guardianship.

  • Paul.||

    Child custody/guardianship is the only gotcha in the realm of why government would need to be involved.

    However, without marriage, there could certainly be some other construct to deal with this, but at the same time, it's not like no one's ever been knocked up outside of wedlock before.

    It could be handled without the concept of marriage. We'd just need to beef up some new legal precedents and laws dealing exclusively with custody.

  • Eduard van Haalen||

    Building up marital and family law from scratch, after an apocalyptic catastrophe, would be one thing. But reconstructing marriage and family in response to ideological imperative is different - unless we say (and I'm sympathetic to this) that certain ideologies getting implemented are in the category of apocalyptic catastrophe.

  • SugarFree||

    All-out nuclear war is an apocalypse. Two dudes getting married is not an apocalypse. Hysterical much?

  • Metazoan||

    Yeah I fail to see how people doing something you don't like, but that doesn't directly impact anyone else, falls anywhere near the same category as nuclear war.

  • Eduard van Haalen||

    "I fail to see how people doing something you don't like falls anywhere near the same category as nuclear war."

    Leaving aside that I was using some rhetorical overkill when I said I was sympathetic to the apocalyptic impact of certain ideologies getting implemented.

    I wasn't thinking of the libertarian ideology, but of the whole governing ideology which has given me a whole lot of things in addition to gay marriage.

    In fact, I would say that business and property owners making their own decisions about who is married is fine. It's the other side which sees this scenario as apocalyptic.

  • Eduard van Haalen||

    given *us* a whole lot of things. Me, it's given a source of amusement. The community as a whole, not so much amusement.

  • Metazoan||

    Like what though? What does marriage equality have to do with anything bad, and what are those bad things?

  • Eduard van Haalen||

    Previous Reason coverage:

    Why Not Force Somebody Who Hates You to Photograph Your Wedding?

    http://reason.com/blog/2012/06.....tes-you-to

    Why Not Force Somebody Who Hates You to Be Your Therapist?

    http://reason.com/blog/2012/06.....tes-you-to

  • Paul.||

    Two dudes getting married is not an apocalypse.

    What about two dudes with an extensive wardrobe getting divorced?

  • SugarFree||

    Closetdome! Two outfits enter, one outfit leaves!

  • wareagle||

    it's not like no one's ever been knocked up outside of wedlock before.

    and we have the welfare, food stamp, govt housing, and subsidized everything else receipts to show for it. This area is one benefit of marriage; barring DNA tests to the contrary, the state can tie you to those kids. Most married fathers will be responsible; the state of single motherhood speaks poorly to makeup of the single dad.

  • Metazoan||

    Open the borders? Yep
    Eliminate marriage visa? Yep, because if the borders are open, it's not really necessary.

    As Paul. said, child custody can be handled without marriage.

  • ||

    there are some pretty substantial marriage rights that one cannot contract for, fwiw.

    one of the most obvious is the spousal privilege against incrimination.

    if you admit to your partner/gf/posslq/whatever that you just murdered somebody, they can testify against you, and can be penalized for not doing so

    if you admit it to your spouse, not so much

  • ||

    Inheritance from your spouse with out paying an estate tax is another.

  • Metazoan||

    Abolish estate tax, that problem is solved.

  • BarryD||

    "And by libertarian standards, immigration restrictions are arguably a worse injustice—more destructive of people's lives—than, say, tax-funded relocation benefits"

    Really? The existence of nation-states is a "worse injustice" than confiscating resources from someone who has earned them in order to hand it to someone else because, well, just because?

    Why? While less restrictive immigration policies certainly appeal to me for various reasons, SOME "immigration restrictions" are essentially synonymous with national borders.

    To start with, there's the restriction on large numbers of people wearing matching clothes and carrying rifles, immigrating across the border at the same time. Without some restriction that, there is no such thing as a country.

  • BarryD||

    "without some resrtictions against that"

  • Metazoan||

    Yes I am extremely pro-open borders yet that sentence struck me as the epitome of retarded.

  • BarryD||

    Me, too. I'm pro-open-borders in the sense that I favor free trade and the free ability of those who want to move around in search of opportunities to be well-compensated for contributing to a free marketplace.

    But I'm not, say, in favor of piracy, though, as a form of free maritime trade... :)

  • GlenchristLaw||

    Putting aside all the romantic and romanticist claptrap for a moment...

    Marriage is a legal status declaring a spouse to stand above all others in terms of rights and obligations.

    When someone explains to me how two or more people can simultaneously stand above all others, as a matter of legal status, then -- and only then -- will I care about the asinine rantings from old bigots and young libertarians about how same-sex marriage "requires" polygamy.

  • ||

    What you're saying is pretty much analogous to saying that you can only have 1 secured creditor because he's your most specialistest creditor and your secured assets belong only to him. That's not how marriage works in any legal or practical sense. Although it does make for some very lovely romantic and romanticist claptrap. Marriage "equality" "requires" polygamy because marriage can't be "equal" in terms of opportunity or outcome until it includes every conceivable configuration, which is why the idea of gay marriage somehow bestowing "equality" upon the institution is comical. Gay marriage expands the lobbying group a tad, but still sticks everybody else with the same second class status.

  • Tak Kak||

    "(Libertarian readers may be reminded of Kevin Carson's argument that "by providing a ready-made and automatic procedure for incorporation" and so reducing the associated transaction costs, the state has "tilted the playing field decisively toward the corporate form" and so "reduced the bargaining power of other parties in negotiating the terms on which it operates.")"

    Doesn't that work two ways though? The state also undercuts marriage with tax filing rules, SS changes, and divorce laws.

    (Same for corporations, with increased regulations, antitrust laws, and taxes)

    "Decisively" seems more like "possibly."

  • R C Dean||

    "(Libertarian readers may be reminded of Kevin Carson's argument that "by providing a ready-made and automatic procedure for incorporation" and so reducing the associated transaction costs, the state has "tilted the playing field decisively toward the corporate form"

    OK, sure, at least as far as saying that someone is morely likely to incorporate than choose some alternate form of organization because incorporating is so easy now.

    and so "reduced the bargaining power of other parties in negotiating the terms on which it operates.")"

    What other parties? What exactly are they supposed to be negotiating? What bargaining power should they have?

    Open incorporation just increases the number of corporations. It doesn't do anything about their bargaining power with third parties.

  • BarryD||

    If marital law is remade, does that mean that habaes corpus could be suspended?

  • Paul.||

    *badump bump*

  • Mickey Rat||

    "...,Brake argues that childrearing and marriage are separate issues that should be legally decoupled."

    If childbearing is legally decoupled from marriage, then what societal purpose does marriage as an institution serve? Brake wants to shanghai marriage in order to create a new type legal relationship, but what purpose does such a relationship serve that anyone would care about it.

    Only an intellectual could have an idea this divorced from human reality.

  • Mr. FIFY||

    Well, lookee here!

    http://www.huffingtonpost.com/.....ack-voices

    Call 'em bigots, Tony. I fucking *dare* you to call black people bigots over this issue.

  • ||

    d "man on dog" unions, since parties to marriage contracts must be legally http://www.maillotfr.com/maill.....c-3_9.html competent). Moreover, the terms of such marriages should be flexible, rather than fixed by a sta

  • Nike air max womens||

    the Epicurean view may seem impoverished; but by the standards of political liberalism, can the superiority of Aristotelean over Epicurean friendship permissibly be invoked in the framing of marriage law without violating liberal neutrality?

  • dbobway||

    Marriage and government were brought together to control how couples money is spent. Period. It's a contract with marriage on the paper. Take marriage off the paper. Make all your stupid tax laws to manipulate couples lives to meet your agenda a contract. " A civil union" or whatever.

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