Marriage: It's Complicated

Let people love, in ways old and new.

David Ball/WikimediaDavid Ball/WikimediaIt's wedding season! More Americans get married in June than in other months. Why June? The timing seems pretty arbitrary if you look up its history. 

Some claim it's because June was named after Juno, the Roman goddess of marriage. Others say it's because in the 1500s, people took their annual bath in May, which meant they probably smelled best around this time of year. (Be thankful for modern times.) A third and more plausible explanation: If a bride got pregnant in June, she wouldn't be too big during summer to help with growing and harvesting food.

Whatever the reason for choosing June, marriage is an ancient custom, and its core function of giving kids a stable home remains very important. Most kids do better if their parents are married, so it's not a good thing that fewer American parents marry these days. 

On my show, Manhattan Institute scholar Kay Hymowitz said divorce and remarriage don't help kids much either. She noted, "One thing we see, particularly with boys," is that after a divorce, even if there is a new father figure in the picture, "children are more likely to have trouble in school, more likely to have behavioral problems."

Because of such data, politicians rush in with your money to "help" people stay married. But does government help? Probably not.

Every year, government gives the group Family Expectations $100 million to teach couples how to have "healthy relationships." Family Expectations gives parents "crib cash" if they follow certain rules and advice.

/joseanavas/Flickr/joseanavas/Flickr

Does this preserve marriage? No. The government's own study found that couples who attended Family Expectations workshops were no more likely to stay together. 

So did politicians stop the funding? Of course not. They're politicians—they never stop throwing your money away. This year they gave Family Expectations another $100 million. 

Republicans in Oklahoma may have stumbled onto a better idea regarding government's role in marriage. They were angry after a judge ruled their state must recognize gay marriages—so they proposed that the state stop recognizing any marriages. 

They may have been throwing a tantrum, but getting government out of the mix would put an end to many stupid fights.

If private individuals are free to make whatever marriage contracts and observe whatever marriage customs they like, that leaves everyone else free to ignore those couples if they don't approve. Arrangements that work best will tend to endure.

And despite the data showing that children do better if their parents are married, we shouldn't assume we know what works best. Even as marriage rates have decreased and divorce increased, youth violence dropped and high school graduation rates went up.

There was a lot of worry about teen pregnancy 20 years ago. Despite the decrease in marriage, the rate of teen pregnancy fell 43 percent from 1991 to 2008. The number of arrests for violence among teens is half of what it was when it peaked in the '90s. 

Society changes, and those changes aren't all bad. It's often foolish to predict what effects those changes will have. 

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  • Paul.||

    I believe that getting government out of marriage, forcing couples to craft their own contracts would get younger couples to think about divorce before they get married.

    The auto-kick-in contracts that happen now are what cause so much distress during divorce. Young couples getting married are in too much of a state of bliss to think about the consequences of what happens if things go south-- and go south they do in so many cases.

    If it became part of the normal culture to have a sit-down before the marriage and start going over bullet points about assets, children, living arrangements, moving to another town (if children are involved) would, in my opinion, lower the divorce rate.

  • anon||

    If it became part of the normal culture to have a sit-down before the marriage and start going over bullet points about assets, children, living arrangements, moving to another town (if children are involved) would, in my opinion, lower the divorce rate.

    This data is already out there. Catholics are required to attend this sort of pre-marital counseling before the priest will wed them.

  • Paul.||

    I know little to nothing about the Catholic customs, or what happens during that counseling. However, what I do know is the Catholics frown on divorce-- period.

    Is the 'discussion' largely religious based, or is it actually a cold-water discussion about how the assets and children gon' get divvied up if she ends up sleeping with the pool boy or he taps the nanny?

    Also, not everyone is Catholic. I'm talking about a secular conversation with a lawyer or contract mediator/negotiator who will attempt to create a template for what divorce might look like should it happen. Something tells me the Priest isn't really doing that.

  • anon||

    I was raised Catholic, so I know a little bit about it. It's more of a secular discussion; the Priest wants to make sure it's not an obviously bad decision for the couple to get married, and wants to make sure the couple understands that he won't condone a divorce. As far as I know, Catholic Priests will only actually perform a divorce under -very- special circumstances (involving wife beaters/child molesters/etc.) That may or may not have changed; I think there's a way to be -legally- divorced, but the church doesn't recognize it and won't allow another marriage, since it's one of the big sacraments.

    Since it's basically not recognized, I'm not sure they go over asset distribution should a divorce occur, since divorce is basically just not an option.

    I did a half-assed google search and that resulted in divorce rates for catholics being around 30% though, so whatever they're doing must have -some- effect, that I would consider positive. Pretty good considering I consider most of the church's activities having negative consequences.

  • Paul.||

    Since it's basically not recognized, I'm not sure they go over asset distribution should a divorce occur, since divorce is basically just not an option.

    But that's sort of my point. The Catholics are saying, "Look, you better be serious about this marriage because there's no exit once you get in. That's quite a bit different than what I'm talking about.

    I'm saying that having the more secular conversation which says that not only is there an exit, but it's fantastically easy for 50% of the contracted party to take, at any time... for any reason... y'all better think about what happens at that point.

  • anon||

    But that's sort of my point. The Catholics are saying, "Look, you better be serious about this marriage because there's no exit once you get in. That's quite a bit different than what I'm talking about.

    I don't think it's that different though. Having a zero-exit policy is a far deeper commitment than a "half your shit" policy. Having zero exit makes you (or at least, me) think a lot harder about entering the contract to start with than a half my shit commitment.

  • Paul.||

    I'm not disagreeing at all that the Catholic system results in lower divorce.

    But for the millions of non-religious or non-catholics of the world, there is no such structure, or stricture.

    You get married, a couple of years later you have a cathartic sexual and personal awakening-- you don't feel the marriage any more-- boom, you invoke divorce and the contract is a state applied one that in its attempt to be fair, can end up RAPING half the party.

  • trshmnster the terrible||

    But for the millions of non-religious or non-catholics of the world, there is no such structure, or stricture.

    Pretty much every Christian church offers such premarital counseling... we had that class at our Baptist church.

    Also, there are supposedly some secular places that offer the same thing, but I'm not sure where they would be offered (maybe community centers).

    However, your point is well made, without stakes of "the God of the Universe will be pissed at you if you break your vows," it's hard to incentivize the altruism that is sometimes involved in staying in a struggling marriage.

  • trshmnster the terrible||

    NEEDZ MOAR EDIT BUTTON!!!

    I think the conclusion that should be drawn from this is not that we should incentivize people staying in bad marriages, but that people should be incentivized to think very long and hard about whether they actually want to be married and if they actually want to have children.

    A point that I brought up in a somewhat unrelated facebook conversation applies here. We have a generally agnostic culture with puritanical roots. It leads to strange things like people wanting to have extra-marital sex, then reaching a certain age and "settling down" into a marriage that they stay in for 5-15 years, before ending that marriage, having more extra-marital sex and "settling back down" into another 5-15 year marriage. All the while pumping out kids that the $8.50/hr daycare attendant will raise.

    Modern westerners seemingly start down very restrictive paths (marriage, kids) that rely heavily on self-sacrifice and altruism, and then back out of those restrictive paths (divorce, hands-off parenting) after the initial jollies wear off. It makes me scratch my head as to why they go down those paths in the first place. It seems like not getting married, and not having children would be better than divorcing at the first hint of a downturn and resenting your kids for ruining your life.

  • Notorious G.K.C.||

    "for the millions of non-religious or non-catholics of the world, there is no such structure, or stricture."

    Maybe not any more, but not all non-Catholics are into the American-style system of serial monogamy (or serial try-to-be-more-or-less-monagamous).

  • Mark22||

    FWIW, the US is on the conservative end of fidelity, more than any European nation. The countries most tolerant of infidelity are France and Germany.

  • LiveFreeOrDiet||

    the Priest wants to make sure it's not an obviously bad decision for the couple to get married,

    I can't think of many worse-qualified people to discuss the decision than someone who will never marry.

  • trshmnster the terrible||

    +1 vow of chastity

  • Notorious G.K.C.||

    Think of how much a priest learns about the ins and outs of married life through the confessional. Of course, we can't know for sure, because he can't talk about it. But it would be kind of like what a deep-background briefing is for a journalist.

  • Notorious G.K.C.||

    "As far as I know, Catholic Priests will only actually perform a divorce under -very- special circumstances (involving wife beaters/child molesters/etc.)"

    Here's how I understand it - the Church will recognize divorce from bread and board (separation) under certain circumstances, like adultery, abuse and the like. You can't *remarry,* but you live apart with no requirement of getting back together. Some secular laws have similar provisions, by which the guilty spouse loses some marital privileges.

    Then there's annulment, of course.

  • cavalier973||

    I'd imagine it would depend on your priest.

    My wife and I went through pre-marital counselling; I don't know how much it helped. Living with another person, even if you love her, is difficult. The only thing that will really keep you together is a personal commitment to stay together. Laws are really ineffective.

    The late Dr. Adrian Rogers, pastor of Bellevue Baptist Church in Memphis, used to say "Your love doesn't keep your marriage together; it's your marriage that keeps your love together."

  • anon||

    Living with another person, even if you love her, is difficult.

    Ain't that the fucking truth.

  • John||

    If you don't go to that, you just can't get married in a Catholic Church. You can still get married. That is just them putting requirements on you using their institution.

  • anon||

    If you don't go to that, you just can't get married in a Catholic Church.

    This is correct. Also, if I remember right, both parties must have actually gone through the other sacraments to become a catholic up to Confirmation, similar to Jews.

  • John||

    No. Both parties just have to be some variety of Christian. My wife and I married in a Catholic Church and I am not and do not plan to be a Catholic. Being a garden variety Protestant was good enough.

  • anon||

    Ok, I wasn't sure if it was just Christian or Catholic.

    I know that when my mom remarried after my father died, the church made him convert. He was previously a Baptist.

  • robc||

    From cases I have seen, both have to be Catholic to have the full catholic mass wedding. A catholic and a protestant can get married in the church, but its a "lesser" service.

    YMMV

  • John||

    Yes. We didn't have a mass at my wedding, which was fine with me. I am pretty sure we could have though but I might not be remembering correctly.

  • Paul.||

    Yep. I knew a devoutly catholic family whose son got married in a catholic church. Got divorced about a year later, remarried in Vegas. The church never recognized his divorce or his new adulterous marriage.

  • Francisco d'Anconia||

    I believe that getting government out of marriage, forcing couples to craft their own contracts would get younger couples to think about divorce before they get married.

    Excellent point Paul. I never considered the unintended consequence of marriage laws.

  • ||

    I think this is a good idea too.

    For peeps who want to look up more about the Catholic pre-marital counseling, it's called "pre-Cana," which is like...terrible.

  • ||

    Pre-Carnal would be worse.

  • politicsbyothermeans||

    And highly inaccurate, if the Catholic school girls from my hometown are a representative sample.

  • Paul.||

    I don't know if there really is anything that can be done for younger people with little life experience, few assets and no children. One really can't get ones mind around how painful divorce can be once you have all three.

  • anon||

    Society changes, and those changes aren't all bad. It's often foolish to predict what effects those changes will have.

    If only Government listened...

  • John||

    It sounds nice in theory but to the extent that the government can choose not to enforce an agreement in court, government will still very much be in marriage. You want to make marriage contract based? Great. It will be all fun and games until someone seeks to enforce a marriage contract that leaves their poor wife nothing after the rich husband trades her in on a newer model. Then the feminist and the angry divorcee lobby will be out in force getting a law passed that says "no marriage contract that does not divide community property equally shall be enforced in this state". I seriously doubt any marriage contract that allowed either party to get out of child support would ever be enforced. In fact, since enforcing a contract in court is less of a government sanction than granting a marriage license, a state might have a better Constitutional defense for a refusal to enforce marriage contracts signed by two parties of the same sex. The standard for enforcing contracts is generally lower than for granting government privileges. Wouldn't that be a pisser if Libertarians finally got what they wanted only to lose the ever and all important gay marriage in the process.

  • John||

    The bottom line is that Libertarians want the state to recognize any agreement two people create as a marriage. That is not necessarily a bad point of view. But making marriage a contract isn't going to get you there. What will get you there is getting the public and the legislatures to agree with you. Otherwise you are just renaming the same shit.

  • robc||

    The bottom line is that Libertarians want the state to recognize any agreement two people create as a marriage.

    ???

    I want the state to "recognize" contracts between people and leave off the "as a marriage" part.

    As far as things like child support, I agree with you, but that is because that is generally outside of the contract scope. There are child-rearing obligations that have nothing to do with marriage.

  • John||

    I want the state to "recognize" contracts between people and leave off the "as a marriage" part.

    The problem is not the name. You sound like a prog obsessed with magic words. The problem is the government's willingness to enforce the terms of an agreement. Just because you call it a contract and not a marriage doesn't mean the government is going to agree to enforce it against an unwilling party in court. If we ever went to a contract based marriage system, you would end up with the same set of rules you have today. The government would just decide that certain terms of marriage contracts are unenforceable in court. You think you can get out of community property laws by having your wife sign your nifty new "life commitment contract"? Tough shit buddy, the state will just pass a law saying all "life commitment contracts" are presumed to divide community property equally and any term to the contrary is against public policy and read out of the contract. Think you are going to have polygamy? Tough shit, the state will make it a crime to enter into two "life commitment" contracts at the same time just like it is a crime to take out two insurance policies on the same property. See what I mean?

  • R C Dean||

    I don't see it, John, at least not as an inevitability. There's a pretty small handful of contracts that the courts just flat-out refuse to enforce. The default is that they enforce them as written, and an exception to that default requires climbing a pretty steep hill.

  • John||

    There's a pretty small handful of contracts that the courts just flat-out refuse to enforce.

    Courts are not enforcing marriage laws as contracts right now. Why do you think family law is written as it is? Do you think it being a "license" just makes people crazy? Or maybe it is because society and the by extension the legislatures view marriage as pretty important and don't want it to be as flexible as signing a loan agreement on a car?

    I am betting the latter. The problem here is that Libertarians don't like restrictions on marriage. Maybe they are right about that. But calling marriages "contracts" isn't going to get the rest of society to agree with them. There is nothing magical about the word "contract" and nothing to prevent a legislature that wants to from defining marriage via contract just as or more restrictively than they do now. Why wouldn't they?

  • robc||

    There are a few more areas where they force terms. Mortgage contracts, lease contracts, etc.

    But they are still somewhat open, just not fully. Mortgages may be the worst, as they are pages and pages of boilerplate that cant change.

    But even within them, there are different lengths, and interest only, and 125% and balloons and adjustable rate and etc. So its more free than a single mortgage contract that everyone uses.

  • John||

    Usury laws are a good example of states deciding some contractual terms are just not valid Rob.

  • robc||

    But payday loans are still allowed. Losing some flexibility is better than having no flexibility.

  • Paul.||

    actually the mortgage contract is a good thing to look at.

    People entered mortgage contracts. Then when they couldn't make their house payments and banks forclose, they whined to legislatures about the unfairness of it all.

    So legislatures got involved in defining, limiting and crafting mortgage contracts. Because *wah*wah* unfair!

  • Mark22||

    "If we ever went to a contract based marriage system, you would end up with the same set of rules you have today."

    Nonsense. In a contract-based system, the government would enforce the contract both members of the couple voluntarily agree to.

    "Tough shit buddy, the state will just pass a law saying all "life commitment contracts" are presumed to divide community property equally and any term to the contrary is against public policy"

    That's not a "contract based system".

    "See what I mean?"

    No, I don't. You falsely call a legal requirement a contract. It isn't surprising that your "contracts" don't have the nice properties of contracts because they aren't actually contracts.

  • Brett L||

    It will be all fun and games until someone seeks to enforce a marriage contract that leaves their poor wife nothing after the rich husband trades her in on a newer model.

    How is this different than a person with no assets finding a lawyer to take any other lawsuit on contingency? People litigate black-letter contracts all the time.

  • John||

    It is different in that it has nothing to do with my point. The point is that government can and will inevitably get back involved in marriage law by deeming some marriage contracts against public policy and unenforceable in court. The result of that will be the same system we have now with the same restrictions and presumptions, you will just now have to go through the pain in the ass of drafting a contract to get married. It won't make marriage any more free or people any more free to dictate the terms of their relationships. It will just put the same system in a new and probably unwieldy form.

  • robc||

    So, in other words, no different than any other contract?

    You may be right, it could end up like lease agreements and etc where there is a lot of boilerplate that the state requires. But maybe not.

  • John||

    So, in other words, no different than any other contract?

    yes. That is all family law is. It is one big standard contract that the state enforces on couples who get married. That is a screwy way to think about it but it is a valid way none the less.

    In the end, the Libertarian obsession with making marriage a contract is screwy. It just shows they really don't know shit about how contracts actually work and see the buzzwword "contract" and think it must mean freedom. Well, it doesn't.

    And it wouldn't be a question of if the state would get involved and restrict contracts under such a system. They would. It goes back to my point above. The problem here is that the public and the legislatures do not think marriage should be as free and mailable as Libertarians think it should be. Changing the system to contracts isn't going to change that.

  • robc||

    But even with boilerplate, there would be SOME more wiggle room than today, where the "marriage contract" is literally one-size-fits all.

    For example, there is no place today to make a 7 year contract options to extend. Would the state allow a limited term contract or would they mandate that it be for life (or until divorce)?

    Gains are gains, even if it isnt full freedom.

  • John||

    For example, there is no place today to make a 7 year contract options to extend. Would the state allow a limited term contract or would they mandate that it be for life (or until divorce)?

    They don't make you refile your marriage license every seven years now, so why would they want to require you to resign your marriage contract? They sure as hell don't give anyone an out on the community property requirements every so many years. Again, why would they do that under contract?

    I don't see where or why there would be any wiggle room. And to the extent their was, whatever good that did would be more than outweighed by the harm done to people who mistakenly put the wrong terms in a marriage contract only to have some vicious spouse screw them over it. It is not as easy as you guys think to get a contract right and have it reflective of what each party thinks it is agreeing to. You guys totally under estimate the difficulty of that and the real injustices that occur because people fuck up or don't pay attention or lie.

    It goes back to Libertarians thinking there is something magical about calling an agreement a "contract".

  • robc||

    It is not as easy as you guys think to get a contract right and have it reflective of what each party thinks it is agreeing to. You guys totally under estimate the difficulty of that and the real injustices that occur because people fuck up or don't pay attention or lie.

    There is no freedom without the freedom to fuck up.

  • John||

    That is true Rob. But the fact that people do fuck up is a good argument for having a one size fits all contract called family law, especially when you know as well as I do that states are going to make sure contracts are no more free than marriages are.

  • ||

    But the fact that people do fuck up is a good argument for having a one size fits all contract called family law

    Wait, what? The fact that people are retards is a good argument for a larger state? I thought that was exactly what we didn't believe.

  • robc||

    What Nikki said.

  • robc||

    On a related note, my wife's lawyer told her not to sign the prenup we prepared, as it was too one sided in my favor.

    She still signed it.

    Of course, once the lawyer understood the reason for the prenup, she agreed that it was written correctly. Im not getting divorced, so that aspect of it isnt an issue.

  • Paul.||

    Of course, once the lawyer understood the reason for the prenup, she agreed that it was written correctly. Im not getting divorced, so that aspect of it isnt an issue.

    I don't wish to impugn or make cynical remarks about your circumstances, but one wonders if divorces are more rare when there's a prenup sitting in a safe-deposit box.

    "go ahead, sleep with the pool boy, I dare you... I double DOG dare you..."

  • Ivan Pike||

    Im not getting divorced, so that aspect of it isnt an issue.

    Just out of curiosity, why a pre-nup then?

  • trshmnster the terrible||

    Just out of curiosity, why a pre-nup then?

    Not to speak for robc, but sometimes there may be familial shared assets, such as the family business or "dad's old farmland", in which the spouse getting partial ownership may complicate management and administration. I'm not an expert in the area, but that's what comes to mind.

  • Ivan Pike||

    Ok, a family heirloom would make sense. Thanks.

  • robc||

    Litigious relative. Hes threatened to sue my wife in the past and has sued other family members. I dont want him as an accidental partner in my business.

    Not that he would win a lawsuit, but even one pending threatens my assets. Prenup keeps my assets, and primarily the business, out of target.

  • ||

    You guys totally under estimate the difficulty of that and the real injustices that occur because people fuck up or don't pay attention or lie.

    If it were nearly as difficult as you make it seem whenever you want to beat this particular immobile horse of yours to draft an enforceable contract, literally no business would be conducted in this country. Some of us would rather take a gamble on a different system that was freer even at the margins. Your argument is as abjectly retarded as saying we should socialize all real property because real estate transactions are so goddamned complicated that no sufficiently thorough contract could ever be written to effect the sale of a property between two individuals. Complex transactions take place every day, governed by contracts thicker than the bible, that the government hasn't generally (thus far) arbitrarily canceled or modified. And importantly, even if you were right, the absolute worst case scenario is that "marriage" in the legal sense would end up exactly the same as it is today with a boilerplate contract you have to fill out instead of a license you have to go file for. So what your objection might be is anyone's guess. You don't want the system to change, because it would result in the system not changing?

  • Mark22||

    The term "private contract" has a well defined meaning in law and economics. When the government regulates such contracts or imposes standard terms, the regulations are not part of the contract, they are additional legal requirements.

    When libertarians say that marriage should be "based on contracts", it means that it should be based on contracts alone and that the state should not regulate or restrict them signficiantly. That's neither "screwy" or "buzzwordy", it's the correct usage of the term.

  • Paul.||

    In in partial agreement with John here.

    A lot of the modern divorce laws were created because of women's groups screaming bloody murder about the inherent unfairness of divorce.

    In large part, there was a time where they had a point. In the old days, women were caught between a rock and a hard place. Society didn't really brook women working- certainly not in any prestige or high-pay areas, and therefore the breadwinner could walk away with a younger model and leave the Mrs. without a pot to piss in.

    However, as times have changed, equality between the sexes is largely in effect, but men still get raped in divorce, like it was 1902.

    I suspect there would be a feminist movement that would scream bloody murder if you ever tried to implement something where it was perceived the woman was being punished.

    I admit my vision is a bit libertopia-- John, in this case talking reality.

  • robc||

    In in partial agreement with John here.

    As am I, but partial gains are still partial gains.

  • R C Dean||

    Yeah, I try not to let the perfect be the enemy of the good.

    Which causes me some angst on the whole licensed-marriage issue, to tell you the truth. I suspect that getting rid of state licenses is the perfect, and removing restrictions on them is the good.

    But, that said, most of the arguments made for gay marriage aren't particularly principled (as they only apply to gay marriage, and not to plural marriage, say, they are special pleading), and the current state of play is putting us on our way down a slippery slope to yet another privileged class.

    This will come as a shock to Epi, but I have no objection to gays getting married. I have serious objections the arguments being deployed, and the obvious endgame.

  • ||

    I seriously doubt any marriage contract that allowed either party to get out of child support would ever be enforced.

    No, I'm sure it wouldn't be, as that wouldn't be "in the interests of the child." I'm sure you also couldn't say, "If we have kids and get divorced, you have to take them, I don't want them." Until you can write your own contracts like that...I dunno. Bah.

  • John||

    I would bet you money that every state in the union would have a law that said something to the effect of "no terms of a marriage agreement whereby one party renounces rights to custody of any children of that marriage shall be enforced in this state".

  • ||

    Yep. It's possible that I'm the only one who thinks that's severely fucked up, but I do.

  • trshmnster the terrible||

    It is, because in other contexts (surrogacy, adoption), it is not only enforced, but celebrated. Heck, wasn't there some big kerfluffle about this shit when two lesbians went after the biological father of their kid for child support?

    Not shockingly, the state is inconsistent at times.

  • John||

    The argument is that some rights are fundamental and inalienable such that you can't sign it away. You are always the kid's parent and no agreement you signed when you got married changes that.

    Think of it this way, if the cops came around and said "in return for $100,000 we would like you to sign this document giving up your right to proof beyond a reasonable doubt if you are ever charged with a crime. For you it will be by a preponderance of the evidence, but you get $100,000 in return."

    Would you consider that a valid contract? I wouldn't. Your right to proof beyond a reasonable doubt is a fundamental right you have as a human being. You can sign anything you want but if the time comes to try you for a crime, you will still be a human being and have that right. Same thing here, you are still the parent and parents have an inalienable rights concerning their children.

  • trshmnster the terrible||

    you are still the parent and parents have an inalienable rights concerning their children.

    if that were true, adoption wouldn't exist.

  • ||

    Your right to proof beyond a reasonable doubt is a fundamental right you have as a human being.

    ORLY, how do you plead?

    Additionally, current sociopolitical climate has inflated the social institution of marriage (whatever that means) to a right. The preference of contract-based marriage isn't entirely an attempt to re-write the laws as it is an attempt to re-write common understanding.

  • Mark22||

    Custody isn't a contractual matter between the partners, it is a financial, legal, and moral responsibility of both partners to their children. There is no contractual way to eliminate that responsibility.

  • Brett L||

    Well, you can't as the guardian of a ward, act against the interest of the ward. So the problem is that you can't abrogate your role as guardian of a second party in a contract with a third party. I guess you could write an ancillary contract that surrendered your guardianship upon termination of the primary contract, but again, the court may rule that not in the interest of the ward if a third party who is also a guardian to the second party claims hardship.

  • ||

    So the problem is that you can't abrogate your role as guardian of a second party in a contract with a third party.

    But the only reason you are the guardian of the second party (really, the third party) is because of the one-size-fits-all license you signed with the third party (really, the second party). I can't enter into a marriage that says, "If we have kids, they're yours, and if we get divorced, they're going with you." I.e., I can't estop my guardianship of the child if I'm married to the woman who bears it (this all makes more sense if you look at it from the perspective of a man, since I'd find the argument legit that a woman shouldn't be able to estop guardianship, since she's the one who decides to have the kid).

  • Brett L||

    Which is why once a man claims guardianship of a child, even a DNA test doesn't change his responsibility under current law. He has taken guardianship, and it would be bad for the ward to revoke that. It might be different if you both agreed to use contraception every time and it was provable that one party failed to live up to that part of the contract.

  • R C Dean||

    Let's not overlook the fact that the man doesn't have to voluntarily claim guardianship. He can be deemed the guardian, and a subsequent DNA test proving he's not the father makes no diff.

  • Paul.||

    I'm sure you also couldn't say, "If we have kids and get divorced, you have to take them, I don't want them."

    Actually you probably could do that, depending on the circumstances and dispositions of the parties involved.

    I know of quite a few divorces where one party or the other just wasn't feeling the kids, and the other party was more than happy to take full custody.

    Had my ex-wife said she didn't want any involvement with my daughter, I'd have been A-ok with that.

    Of course that wasn't the case, and she's and excellent mom. And I'm glad she didn't. Having full agreement on the childcare arrangements are like gold if you can come out of a divorce with two parents who agree on everything child-related.

  • ||

    Jesus fuck John, can't you just copy/paste this from EVERY marriage thread you've ever been in?

  • DJF||

    A big problem I have with government marriage is that the government not only sets the rules for that marriage but claims the right to change those rules whenever the government wants without the married couple having any say in the matter.

  • John||

    Pretty much. And not only that, the state can via common law marriage and palimony declare you married even if you never intended to be. If the SOCONs were half the authoritarians people they are made out to be, they would have inflicted government marriage on gays years ago.

  • Paul.||

    If by that you mean the government sets the rules for divorce, without any say from the married party, I agree.

  • John||

    You can make any agreement you want, provided you never have to make the other party live by it. That is pretty thin gruel isn't it?

  • DJF||

    Its not just divorce but all the other things such as ownership of property, inheritance, taxes, medical permissions. You can get married under one set of rules and the government can change those rules whenever they want.

  • Paul.||

    I now see what you're saying, and I agree.

  • robc||

    That is one of my big issues with state licensing of marriage -- the no fault divorce laws.

  • Paul.||

    No fault, community property. The deadliest combination.

  • DEATFBIRSECIA||

    Wow! Bruce Lee has a gay son?!?

  • cavalier973||

    Let people love, in ways old and new.

    What's love got to do with it?

  • cavalier973||

    I just want to point out that God bans marriage in heaven. True Story.

  • Notorious G.K.C.||

    Which explains the whole concept of "till death do us part."

  • Notorious G.K.C.||

    "marriage is an ancient custom, and its core function of giving kids a stable home remains very important. Most kids do better if their parents are married, so it's not a good thing that fewer American parents marry these days."

    Homophobe!

  • R C Dean||

    And here we have an example of a libertarian argument for getting the government out of marriage without first expanding government involvement in marriage. See? It can be done.

  • sarcasmic||

    But, but, but it's not real marriage unless you can aggressively initiate government force against people and businesses for the heinous crime of not recognizing the government's definition!

  • Francisco d'Anconia||

    Have I mentioned I like Stossel?

  • MarioLanza||

    Libertarians, like Stossel, have gotten suckered by liberals. The reality is that those pushing marriage "equality" are the worst kind of government statists. As soon as they are in power, all dissent is crushed and government compliance is mandatory - about as far from libertarianism as you can imagine.

  • JEP||

    I saw a meme on MyFace that was a picture of a caveman with a club, dragging a cavewoman behind him, with the caption "Support Traditional Marriage!"

  • sarcasmic||

    I get it! Because only cavemen believe marriage is between a man and a woman! Ha ha ha! Stupid conservatards are cavemen! Did the caveman have Bush's face? That would be even better! BOOOOOOOOOSH! Ha ha! That's great!

  • Tony||

    Presumably Mr. Stossel's marriage is of the official sort. So, was it a lapse in judgment he's soon to correct? Or is the argument along the lines of, "I'm going to avail myself of whatever goodies government offers, but I don't think anyone should have them in theory"? That's fairly ubiquitous among libertarians. Of course, in this case, arguments about "getting government out of marriage" are always in the context of gay marriage, so it's a little more crass than just taking advantage of reality--it's telling gay people they should be happy with not having the same benefits and that the government should continue treating gay people under a libertarian marriage regime, in the hopes that someday, in a thousand years perhaps, straight people will also be able to have the same.

    Of course anyone can be married outside of government. People can call themselves whatever they want. If there is a contract involved, government is necessarily involved, and it makes absolutely no sense to say that making people draw them up from scratch and hope they hold up in court is "less government" than the more template-like versions that exist.

    Yes, Oklahoma was throwing a tantrum and it had absolutely nothing to do with small government and everything to do with Oklahoma conservatives really hating gays that much.

  • R C Dean||

    Or is the argument along the lines of, "I'm going to avail myself of whatever goodies government offers, but I don't think anyone should have them in theory"?

    ROADZ!!

    Proggies take an opposite approach. They think laws should apply to everyone but them.

    Libertarians recognize that laws apply to them, and operate within the law. That means complying with laws (generally speaking) that they think should be repealed.

  • Tony||

    They think laws should apply to everyone but them.

    What?

  • Vincent Milburn||

    Obamacare.

  • Tony||

    I don't follow.

  • barfman2014||

    *barf*

  • R C Dean||

    They think laws should apply to everyone but them.

    Exhibit A: High-capacity magazines are illegal to possess in DC, unless you are a proggy waving one around on TV.

  • R C Dean||

    They think laws should apply to everyone but them.

    Exhibit A: High-capacity magazines are illegal to possess in DC, unless you are a proggy waving one around on TV.

  • R C Dean||

    If there is a contract involved, government is necessarily involved,

    No, its not. The vast, vast majority of contracts are neither seen, implemented, or enforced by any agency of government.

  • Tony||

    A contract entails enforceable legal obligations. And with marriage we're talking about myriad things that end up under dispute all the time like property, divorce, and child custody. Talking about still having marriage contracts, just without government, is to talk complete nonsense.

  • sarcasmic||

    Talking about still having marriage contracts, just without government, is to talk complete nonsense.

    That's not what he said, dipshit.

  • R C Dean||

    A contract entails enforceable legal obligations.

    Sure. And the vast, vast majority of contracts are never seen, etc. by any arm or agency of government, including the courts.

    Thus, the government is not involved at all in the vast, vast majority of contracts.

  • Vincent Milburn||

    "...conservatives really hating gays that much."

    Is anyone allowed to disagree with you in good faith or must they all be hateful?

  • Tony||

    Actually on this issue, no. There has yet to be a convincing argument made, even in well-argued high-profile court cases, as to why gay people shouldn't be entitled to the same marriage rights as straight people. Since there's no good argument that is convincing to any rational person, the only conclusion (because it's obvious) is that anti-gay marriage people are motivated by anti-gay attitudes, usually coming from religion.

  • sarcasmic||

    Because not wanting to redefine marriage equals not wanting same sex couples to have any legal rights. Because the only possible way for same sex couples to have legal rights is to redefine marriage. There is no other way. At all.

  • Tony||

    Since you claim to have an argument for an acceptable legal regime wherein we don't change the definition of marriage, why don't you explain it?

  • sarcasmic||

    It has been made abundantly clear that there is no "acceptable" solution that does not include the ability to initiate lawsuits against people and businesses who commit the violent act of not recognizing same sex couples as "married."

  • Tony||

    So gay people shouldn't be allowed to get married because they might sue people?

    How about you don't get a right to own a gun because you might shoot people?

    Still waiting for the argument. You'd be the first, so it's a great opportunity.

  • sarcasmic||

    So gay people shouldn't be allowed to get married because they might sue people?

    No, that's not what I said.

    I'm not going to waste any more time with you because you're a dishonest piece of shit.

    c-ya

  • Brian||

    Tony:

    How about you don't get a right to own a gun because you might shoot people?

    Since this is exactly the socialist democrat's position on gun control, when you make arguments like this, I can't keep track of which side of the argument you are on.

  • Tony||

    The difference is you don't have a right to shoot people except in extremely limited circumstances, while you have the right to sue for whatever you want (though some freedom loving libertarians think this is a bad thing and government should limit it).

  • R C Dean||

    Since you claim to have an argument for an acceptable legal regime wherein we don't change the definition of marriage,

    (1) Eliminate marriage as a necessary condition for any treatment, good or bad, by the government. Taxes, immigration, etc.

    (2) All other economic and legal consequences of marriage can be replicated via contract.

    That wasn't so hard, now, was it?

  • Tony||

    Until that comes to pass, surely legal equality doesn't hurt anybody.

  • ||

    Until that comes to pass, legal equality doesn't exist.

  • Brian||

    Tony:

    There has yet to be a convincing argument made, even in well-argued high-profile court cases, as to why gay people shouldn't be entitled to the same marriage rights as straight people.

    Since getting the state out of marriage would be exactly giving gay people the same marriage rights as straight people, your argument doesn't apply.

  • Tony||

    What you mean is abolishing marriage (otherwise what are you talking about?), and a) good luck with that and b) what suspicious timing.

  • Brian||

    Marriage as an institution existed long before legal definitions.

    This is the mistake that statist make. When the law defines marriage, it's not creating the concept. If you want laws to regulate marriage, then you have to define what it is you're regulating. That is not the same thing as creating a concept where none existed prior.

    Believing that the law creates marriages, and that marriage would be abolished without state intervention, is equivalent to believing that air quality regulations create car exhaust, and, without them, car exhaust would not exist.

    It's as if we decided to legally define was friendship is so that we could regulate it, and then claiming that, without such recognition and regulation, friendships would no longer exist.

    You really need to open your eyes, take a deep breath, and realize that the government really isn't holding this stuff up in the air on it's shoulders.

  • sarcasmic||

    You really need to open your eyes, take a deep breath, and realize that the government really isn't holding this stuff up in the air on it's shoulders.

    Tony is a liar. Period. The end justifies the means, and if those means involve dishonesty, then so be it.

  • Tony||

    People are free to call themselves married now without any government involvement. But nobody takes it seriously, because we understand marriage to be, in part, a contractual arrangement. The piece of paper, to everyone's mind, is what distinguishes it from boyfriends and girlfriends.

    All beside the point. Your plan has nothing to do with increasing freedom, only taking the ball and ending the game at the very moment gay people want to get in. Nobody's questioned anyone's libertarian bona fides because they were married, and I don't see you all lining up to get divorced so you can enter a government-free arrangement.

    So you'll forgive me if I call maximum bullshit on this whole thing.

  • Brian||

    Tony:

    Nobody's questioned anyone's libertarian bona fides because they were married, and I don't see you all lining up to get divorced so you can enter a government-free arrangement.

    The first part of this sentence seems to contradict the last part.

  • Tony||

    This is so tedious... The point is nobody gave a shit about government marriage until the gays came along and started asking to be treated equally.

    I respect people who change their minds to the correct position more than those who hold steadfastly to absurd ones.

  • Brian||

    Tony:

    I respect people who change their minds to the correct position more than those who hold steadfastly to absurd ones.

    So gay people can't get married, and, Tony decides that, out of equality, gay people should be able to get married, too.

    to some libertarians, this issue reminds us that the government shouldn't be defining and regulating relationships between consenting adults, including different tax treatment, benefit treatment, etc., out of respect of the varieties of family arrangements people may want to engage in. To which, you reply "Bullshit! Homophobia!"

    Just relax. Everyone's not out to get you.

    And, don't worry: expecting the government to get out of regulating marriage is about as utopian as you expecting the one world government you're waiting for. I'm quite confident that gay people will be enjoying regulated marriage in the United States, and I hope they enjoy divorce court as much as straight couples do.

  • Tony||

    I have news for you, abolishing official marriage is far more of a pipe dream than global governance.

    Look, if you can't just take a practical position that increases equality for the time being while doing absolutely nothing to increase the scope of government, then it doesn't matter what your utopian bullshit excuse is.

    Is your position that we should tolerate easily remedied injustices, and by implication any other policy imperfection, until utopia arrives and everything is perfect? Just hitch a ride on the next comet and get it over with.

  • Brian||

    Tony:

    People are free to call themselves married now without any government involvement. But nobody takes it seriously, because we understand marriage to be, in part, a contractual arrangement. The piece of paper, to everyone's mind, is what distinguishes it from boyfriends and girlfriends.

    This is question begging. Of course, once the government decides regulating a type of relationship, it is automatically distinguished from non-regulated relationships, or relationships regulated under different terms.

    All beside the point.


    Actually, since you claimed that getting government out of marriage would abolish marriage, I agree: noticing that this would be different doesn't establish the abolition of marriage, and this entire paragraph seems beside the point.

  • sarcasmic||

    What you mean is abolishing marriage

    Uh, no. That's not what he said. You sure have a talent for misinterpreting things. I'll give you that. Or maybe it's your being dishonest. Yeah. Most likely the latter.

  • sarcasmic||

    Anyone who supports traditional marriage hates gays. The only possible way to prove that you don't hate gays is publicly renounce your support for traditional marriage. That's the only way. Otherwise you are a mean and hate filled person.

  • Tony||

    It's highly unlikely that you, among all people including those represented by very good lawyers, have come up with the rational, secular, non-homophobic reason gay people shouldn't have equal rights.

  • sarcasmic||

    Because redefining marriage is the only possible way in the world for same sex couples to have legal rights. There is no other way. At all.

  • Tony||

    You're speaking in bullshit code words. Yes, the only way for gays to have equal rights is to "redefine" marriage to include them where it isn't already. A separate institution for gays is not equality.

  • sarcasmic||

    You're speaking in bullshit code words.

    It's called being honest. Not something you would know anything about.

  • Brian||

    Tony:

    Or is the argument along the lines of, "I'm going to avail myself of whatever goodies government offers, but I don't think anyone should have them in theory"? That's fairly ubiquitous among libertarians.

    This is the part where statists accuse libertarians of being immature because they use the roads they're forced to pay for against their will. Or, for, in general, acting in their own best interest in a system that's definitely set up against their principles. Clearly, only libertarians do such things.

    The same could be said for socialist democrats who scream about "tax loopholes" while deducting the interest on their home mortgage, and their charitable donations, or who whine about companies like Wal-Mart while they shop there. Or complain about pollution while they drive their cars everywhere they want to go, as if everyone recycling their plastic bottles would be enough to save the planet. Etc.

  • Tony||

    You're absolutely right. But we're talking about marriage, and nobody forced John Stossel or any other libertarian to enter one. Nor is anyone saying that gays should be excluded from tax loopholes or shopping at Wal-Mart, regardless of how you feel about those things.

  • Brian||

    Tony:

    You're absolutely right. But we're talking about marriage, and nobody forced John Stossel or any other libertarian to enter one.

    Nobody forces socialists to have a home mortgage, or deduct their home mortgage interest, or any of those others. So, what's your point?

    Nor is anyone saying that gays should be excluded from tax loopholes or shopping at Wal-Mart, regardless of how you feel about those things.

    Really? I thought one of the primary purposes of a legal marriage was the tax implications. Thus, people who oppose gay marriage are denying gay people the taxation status of a married couple.

    In a way, I agree with you. The best thing to do would be to get the state out of marriage. If that's not going to happen, then it should be legally defined not to exclude gay people.

    But, this is all part of the fun of legal fictions, apparently: choosing who gets screwed and who doesn't.

  • Tony||

    And all I'm saying is straights and gays must get screwed in the same way. I'd be all for abolishing marriage too if I thought it remotely plausible. But, as I've said, unlike libertarians I try not to waste my time daydreaming about fantasy worlds.

  • Brian||

    When you can explain your road map for how we get to both one world government and communism, as you've stated you prefer, I'll believe you take your own nirvana fallacies seriously.

    Of course, such a road map soul have to involve:
    1. solving the Israeli Palestinian conflict
    2. Uniting various groups of people (for example, Palestinians and Jews, Muslims and Christians, etc.) under one rule of law, to the exclusion of violent conflict
    3. Coming up with one size fits all rules for the entire globe, and all to the satisfaction of everyone such that no group of people say "Screw it! we're doing it our own way, with our own country, so piss off, global government!" And try to have a war over it.

    Because the minute you have a war, you have multiple governments (not once world government), each assuming the legitimate use of violence to enforce its demands (I.e., laws) in whatever geographic area it controls.

    How limited, and, dare I say it, libertarian would such a government have to be to actually give people enough freedom such that they wouldn't prefer another arrangement, more suited to the different ideals they may have?

    Good luck getting religious wackos to go for one world marriage equality.

  • Tony||

    But I spend maybe 10 seconds a month thinking about that utopian future, whereas you guys spend virtually no time at all on the real world.

  • Brian||

    Tony:

    But I spend maybe 10 seconds a month thinking about that utopian future, whereas you guys spend virtually no time at all on the real world.

    The real world, in which gays have to beg the supreme court and congress for the right to get married and treated equally under the law?

    What you call thinking about a utopian future, I call stating the obvious.

  • Vincent Milburn||

    Note on the Catholic Church: They allow separation, but not divorce. In practical terms, this means no new marriage ever unless a spouse dies.

    They give out annulments, which declares that the marriage never happened, but these are supposed to be rare or ideally non-existent as all marriages should be valid. A marriage can only be invalid if it was invalid when it happened or hasn't been consummated. Later abuse doesn't invalidate a marriage.

  • trshmnster the terrible||

    There are petrine and pauline privileges in the Catholic church.

    Wiki on petrine privilege

    It's strange, but the runup to my Baptist wedding got a good taste of those privileges. My wife was previously married to a non-believer. My friend, who is an official representative of the Catholic church (not a priest, but in an official role), struggled with whether he could participate in the ceremony under Catholic doctrine. He wasn't trying to be a jerk or anything; he was simply stuck between a rock and a Catholic place. Anyway, we tried to make the Petrine privilege argument, but according to Catholic doctrine, that privilege must be bestowed by a Catholic priest (or even a bishop... i forget), and cannot simply be invoked willy nilly. Works fine for Catholics, not so great for my Baptist wife who has probably never set foot in a Catholic church.

  • Paul.||

    Whelp, abandon thread!

  • davec52||

    Tons of people here saying that Government should stay out of marriage. It sounds nice but won't work.

    1. Our courts have spousal privilege, honored by county, state and federal courts, which I happen to agree with. In order for the judicial branch to honor this, the government has to "know" if you are either married or not, and government must know if you have spousal privilege or not. Out-sourcing this to private sector would allow for vast amounts of fraud.

    2. If you move it out of a government recognized "marriage contract" the courts have no way to establish any contract as a "marriage contract", where the default property rights are 50/50, then all it takes is one private contract that does not address this to cause problems and default property rights are, if any, are gone.
    -Government recognized marriage is necessary to enforce property rights in divorces.

    These are not fixable issues. Government must certify you as married. It is the constitution's full faith and credit clause that is causing the hiccup here. There is a distributed definition of marriage, by the States, and other States then have to honor the "public acts" of other States.

    The only way to remedy this is either a supreme court decision stating that the States can choose whether or not to honor the marriages of other States, or to amend the constitution to state this explicitly.

  • Mmsndobson||

    I agree it is not that simple. If people vote on getting rid of marriage licenses in their state they also have too take responsibility for their decisions concerning family and relationships. Government shouldn't be involved when thing fall apart from an individual decision. Do we create our own nanny state?

  • ||

    1. Spousal privilege shouldn't be a thing. No one should ever be compelled to testify for any reason.

    2. Precisely the point of "getting government out of marriage" is to do away with the restrictive default arrangements in regards to property and to change the relationship of government to individuals in "certifying" marriages. In regards to property, a 50/50 split often isn't an equitable distribution. That's why most states have done away with a default 50/50 split anyway. In regards to marriage "certification", it's only actually necessary if you want to continue doling out special dispensations to people based on their relationship status, which shouldn't be done in the first place. But even if you're hung up on continuing that fine tradition, add a recording requirement similar to real estate transactions and it's solved.

    Furthermore, your full faith and credit argument only holds muster so long as the states continue to issue and recognize their own marriage licenses. And even at that there are a variety of licenses, documents and permits that states do not mutually accept. In this particular context, it's analogous to a handgun permit from New York not being "recognized" in, say, Texas, because Texas doesn't require a permit to own a handgun. If state A stops issuing and acknowledging marriage licenses within its borders, a marriage license from state B doesn't cease to be valid, it just has no function.

  • Mmsndobson||

    I agree with the proposal in Oklahoma to get out of the marriage business. Whatever their incentive was to suggest this, I believe the power should be with the individual on what family structure and relationships to use to raise their children. Individuals and the private communities they choose will just do it better as a whole compared to government.

  • kewa622||

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  • davec52||

    *expanded* I posted on this earlier, here are other issues.

    3. Custody rights: How can you possibly have a pre-defined contract on custody rights before you even know what the reason for your divorce is? How many kids and of what gender will they be when you get divorced? What if it's for issues, or claimed issues, about abuse? Unless there is jurisprudence established in law then judges will have nothing to go on.

    4. What if the contract itself comes under dispute?

    5. Whether you like it or not, the courts are the final arbiter of all disputes and there is no way around this. This means that unless the pre-defined contract anticipates everything that could go right and everything that could go wrong(won't happen), justices will have to make arbitrary and capricious decisions about who gets what.

    Further, the word marriage has long existed, even before any government ever did, and means the union of one man and one woman for the natural purpose of making babies and raising them in a stable family environment... whether you like it or not. Government being allowed to redefine words will undermine the rule of law. If the meaning of words is demonstrated as being "fluid" then laws mean nothing.

    This can be remedied by defining it in the constitution as such, or at least by amending it to let the States decide whether or not to honor the marriages of other States. The way it's going right now you undermine even the pretense of representative government.

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