Marriage

More on Privatizing Marriage

Here's a list of questions that libertarians ought to ponder.

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Over at The Federalist Stella Morabito picks up on my piece pointing out the logical inconsistencies in proposals to

Gay Marraige
entrelec / Foter / CC BY-NC-SA

privatize marriage and asks five additional questions that serious libertarians ought to seriously think about (with the exception of Number Four). She notes: 

1. How does lack of state recognition of marriage—replaced by a system of domestic partner contracts—actually shrink government involvement? As Dalmia notes, these partnerships still need to be authorized, recorded, and registered by the state, all according to government regulations. Trading in the simple marriage license for a system of contracts seems akin to trading in a simple flat tax for today's Internal Revenue Service tax code. The government is and will be deeply involved in the law, rules, regulation, and enforcement of contract law. So, please explain and demonstrate how the government's role in our lives would be minimized by ending state-recognized marriage. (Emphasis added.)

2. How would you deal with possible legislation to license all parents, including biological parents, once the state no longer recognizes any union, including that of biological parents, as marriage? As stated above, the loss of state recognition of their union as anything more than an ordinary contract will deprive biological parents of the presumption of custody. This scenario seems to open us up to more state meddling in family life, as well as meddling by other parties—particularly when it comes to the child custody.

3. How does privatizing marriage preserve spousal immunity? At present, the government cannot force you to testify against your spouse. That is currently the law in all 50 states. But once the state no longer recognizes you and your spouse as a family unit—only as partners in an ordinary business-style contract—the case for spousal immunity significantly weakens. After all, what's the rationale for immunity if a "marriage" is no more special than an ordinary contract, and "spouses" are merely associates, individual parties to ordinary contracts? It seems clear this would invite more state intrusion in family relationships, not less. It would invite less privacy, not more. If you disagree, please lay out your plan for preserving spousal immunity in a system without state-recognized marriage.

4. What do you make of the fact that Sunstein, the Obama administration's regulator-in-chief from 2009 to 2012, argues for essentially the same plan? Sunstein is a long-time advocate of policies that grow government. He's a big fan of nanny-state style "nudging" intended to modify everyone's behavior. Clearly, your intent for limited government deviates about 180 degrees from his intent for big government. (Ditto with Fineman's project to end state-recognized marriage.) So it's worth connecting a few dots and figuring out what actual path the abolition of civil marriage puts us on. Sunstein has thought this issue through for a very long time and he no doubt sees a road to bigger government. Explain how he is incorrect.

(My response: Even a broken clock is right twice a day. In any case, it is by no means clear to me that Sunstein et al's sole purpose in life is to increase the size of government. I think he in particular and liberals in general view limited government instrumentally not normatively. They'll use it when it advances their preferred social ends and discard it when it doesn't. So I do doubt that he necessarily sees it as a "road to bigger govenrment.")

5. How would abolishing state-recognized marriage promote freedom of association for all? The family serves as a buffer zone, or mediating institution, between the individual and the state. But logically, if the government does not have to recognize your marriage, it does not have to respect it. It does not have to recognize your family relationships at all, or your family as a unit. You are merely a separate party in an ordinary contract with someone else, as far as the state is concerned. While the contract with your associate might mutually recognize one another as a "spouse," and claim that your biological children are "yours," the state isn't bound to do the same. And this legal separation in the eyes of the state is destined to reverberate through every other personal association in society. Please explain how abolishing state-recognized marriage protects the family and helps insulate individuals from an increasingly Leviathan state.

Excellent questions. My own feeling, as I noted previously, is that those who think that privatizing marriage would eliminate the culture wars by absolving individuals from gettting a social buy-in for their marital choices will be disappointed. Privatization won't take the state out of marriage, it'll simply push its involvement — and the concomitant culture wars — to another locus point.

In other words, turning marriage into a contractural arrangment between consenting adults might seem good for limited government in theory. In practice, however, it will eliminate those aspects of marriage that keep the state out of our hair — and introduce those aspects that invite it in.

Read Morabito's full piece here.

Update: Those of you engaging in vicious name calling, Dear H&R readers, because I don't engage in ad hominem reasoning and dismiss good arguments simply because a social conservative is making them, might also want to look at this excellent 2013 post by Scott Shackford, "Why the United States Can't Divorce Marriage," in which he quotes the uber-smart legal libertarian scholar Richard Epstein voicing his frustration over the simplisticness of libertarian calls to privatize marriage. They do not appreciate the severity of the legal tangles that would arise, he said.

One notable gap… [is] any reference to the status of children of this union. That covers issues dealing with child support and inheritance rights. It also deals with issues of guardianship and divorce. It is hard enough to deal with these questions when it is known who is married to whom. It is even harder to deal with them when the nature of these private relationships resists standardization.

Things do not get any easier when the subject turns to external attribution rules that are commonly tied to spousal status. Do your shares and mine count as a single holding sufficient to create a control block under tax or securities law? Or are they to be considered separately so that this designation cannot be applied? What about reporting rules for various kinds of conflict of interest situations in business or biomedical research? If there are intermediate statuses that people can adopt, all of these external groups are going to have to develop criteria to apply their own provisions. It will prove to be messy, costly, and inefficient.

Epstein's preference is to expand legal recognition to include same-sex partners and even potentially polygamous relationships, not to try to completely change the relationship between laws and families.

In a phone interview, Epstein expressed frustration at libertarians pushing such extreme changes without considering all the consequences.

"A libertarian has to sort-of understand that he's not making it in a first principles world," Epstein said. "We can make the world more libertarian in general by opening the licensing procedure."

OK — back to your name calling!

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  1. The answer is simple. Marriage should be registered, not licensed.

    1. Fuck registration.

      1. If we don’t register the fucking, we’ll have to license all parents. QED.

        1. GoPros for every sperm!

          1. GoPro Nano?

            1. Stop othersizing me, Almanian!

              1. No one NEEDS more than one size!!!

                /Bernie Sanders

                1. No one NEEDS more than one sperm per ejaculation.

                  /Bernie Sanders

  2. these partnerships still need to be authorized, recorded, and registered by the state, all according to government regulations

    will deprive biological parents of the presumption of custody

    please lay out your plan for preserving spousal immunity in a system without state-recognized marriage

    Sunstein has thought this issue through for a very long time and he no doubt sees a road to bigger government. Explain how he is incorrect.

    But logically, if the government does not have to recognize your marriage, it does not have to respect it.

    Really? Seriously? This is they best you two can do?

    I don’t know whether to start with the question begging or the “I don’t give a FUCK”.

    Worthless, meaningless questions. Horrible. You receive no points, and may God have mercy on your soul.

    1. will deprive biological parents of the presumption of custody

      What the hell is this? So unmarried biological parents have no presumption of custody under our current system? News to me.

      But logically, if the government does not have to recognize your marriage, it does not have to respect it.

      Just like government is not obligated to respect any other contract. Derp.

      Seriously sad argumentation on display

    2. Agreed. These questions are weak. they all amount to the government is going to stick it to you anyways. No duh!

    3. Government and respect is an oxymoron

      1. Well, except for, “RESPECT MAH AUTHORITAH!”

  3. I bet Donald Trump could lay all these arguments to waste.

    IF HE CARED ABOUT IT.

    Now, can we get back to What The Donald Did Today That Was Bad, and, OBTW, HE’S NOT A SERIOUS CANDIDATE!!! ? Thanks

    1. the most accurate TRUMP answer ever.

  4. A social conservative who opposes gay marriage agrees with you on this subject using the same irrational arguments you used in the original post.

    So the same points that were already easily refuted in the other comment section have just been repeated, this time by the sort of social conservative Dalmia would claim to despise in all other instances. You must be very proud.

    “Trading in the simple marriage license for a system of contracts seems akin to trading in a simple flat tax for today’s Internal Revenue Service tax code.”

    Jesus fucking Christ. I can write up all sorts of contracts to start a business (which is vastly more complicated), but God forbid I make some minor revisions to a form contract I got online regarding my marriage! That way lies utter madness!

    Do the people arguing against this know how contracts work? I don’t think they do.

    1. Note: The quote from the above post is from an earlier article by the same author that can be found here. It’s a doozy and really lets you know that this woman has even worse arguments about marriage contracts than Dalmia.

      “”Love is love” is an empty slogan when it comes to state interest in marriage. How two people feel about one another is none of the state’s business. The state’s interest is limited to the heterosexual union because that’s the only union that produces the state’s citizenry.”

      BLEEP BLOOP ALL MARRIAGE BELONGS TO STATE, PROPOGATION OF CITIZENS IS ONLY GOAL, MORABITO BOT 9000 POWERING DOWN *whirrs softly*

      Even her arguments from the linked piece are retarded, i.e.:

      ” What do you make of the fact that Sunstein, the Obama administration’s regulator-in-chief from 2009 to 2012, argues for essentially the same plan?”

      So fucking what? Sunstein can be wrong about everything else and be right about one thing. Sunstein’s support for a proposal does not negate that proposal’s value, which exists independent of Cass Sunstein. This is a text book ad hominem attack. She avoids the point and goes after Sunstein because the mouth breathing TEAM RED morons who will buy her schlock will hear the DREAD NAME OF SUNSTEIN and agree with her out of a Pavlovian response.

      1. That last part is crazy talk. Next you’ll be saying that Shikha’s trying to buttress her argument by invoking the authority of a Federalist author.

      2. BLEEP BLOOP ALL MARRIAGE BELONGS TO STATE, PROPOGATION OF CITIZENS IS ONLY GOAL, MORABITO BOT 9000 POWERING DOWN *whirrs softly*

        Hey, she ain’t wrong. And that’s exactly why state marriage is bad. “We want to promote the creation of more taxpayers!” Great, thanks for letting the mask slip.

  5. How does privatizing marriage preserve spousal immunity?

    How would libertarians save Medicare?!??!?

    1. Well put, Hugh.

    2. “How” not “Why”?

      1. Same style of loaded question. The answer is “They wouldn’t, necessarily.”

  6. From the idiotic article:

    How would you deal with possible legislation to license all parents, including biological parents, once the state no longer recognizes any union, including that of biological parents, as marriage?

    What kind of idiotic-so-called libertarian thinks that removing government marriage requires government parental licensing?

    And where the fuck does the idea come from that government must refuse to recognize marriage contracts as, uhhherrrmmm, *contracts*?

    What a bunch of fucking maroons.

    1. I guess Shikha never heard of Ancestry.com. For $99, you spit in a cup and get 1,000 years of biological genetic history.

      Cheap way to solve THAT “yeah, but. . . ” objection, Shikha.

      1. For $99, you spit in a cup and get 1,000 years of biological genetic history.

        And get all your forebears baptized as Mormons for no extra charge!

  7. “In other words, turning marriage into a contractural arrangment between consenting adults might seem good for limited government in theory. In practice, however, it will eliminate those aspects of marriage that keep the state out of our hair ? and introduce those aspects that invite it in.”

    Only if your beliefs about what the government must do are accepted… which only seems to be the case for Shikatarians, not libertarians.

  8. Congratulations, Shikha.This may be the world’s longest Straw Man.

    1. And thinnest.

    2. No, that would be Capital in the 21st Century

      1. I would’ve gone with Shock Doctrine.

        1. World’s Longest Association Fallacy

      2. Not according to Pope Francis, my son.

      3. Fair enough. Congratulations withdrawn. Keep trying, Shikha.

  9. Trading in the simple marriage license for a system of contracts seems akin to trading in a simple flat tax for today’s Internal Revenue Service tax code.

    You heard it here first, family law under current government control is so simple a monkey could administer it.

    1. It is: The Woman is Right, the Man gets fucked. Not sure how this will work in gay relationships.

  10. How would abolishing state-recognized marriage promote freedom of association for all?

    It doesn’t and no one is saying it does. Since when has the government ever respected freedom of association?

    Trading in the simple marriage license for a system of contracts seems akin to trading in a simple flat tax for today’s Internal Revenue Service tax code.

    What an inept simile. The flat tax is a huge win at the very least because there are considerable savings to be found in compliance costs.

    1. It doesn’t and no one is saying it does.

      It absolutely does, and a lot of people are saying so. Not having to ask permission from the government to associate in a way you choose doesn’t just promote freedom of association, it is freedom of association.

      1. Don’t believe for a second same-sex marriage is a victory for freedom of association. If that was the case no one would be using armed agents of the state to force cake makers to associate with these celebrations. In spite of the fact that getting governments to recognize freedom of association would be an unambiguously good thing, that is not going to happen because of the masturbatory delight agents of government get abridging that right. To believe the legalization of same-sex marriage somehow moves us closer to the natural right of freedom of association is profoundly naive.

        1. How would abolishing state-recognized marriage promote freedom of association for all?

          Where does this say anything about same-sex marriage?

  11. 1. By removing government interest in the sexual dynamics of a relationship entirely, and expanding contract rights to other partnerships. Equating registration with regulation is like saying that government keeping a record of land ownership is communism.

    2. Marriage and biological parenthood are not inherently related concepts. A child has biological parents whether or not those parents are married.

    3. Does the government need to register your religious affiliation to protect the sanctity of the confessional? Presumably a domestic partnership would still be identifiable as a particular sort of relationship deserving of special protections.

    4. Doubt it. Maybe he supported it as a fallback if legal gay marriage efforts failed. But show me where he still supports such an arrangement now.

    5. Nor does it have to respect your family right now. It’s political and social pressure that keeps it honest, and that pressure isn’t going away just because of some nominal legal restructuring of households.

    These questions are fucking terrible. But, it’s a Shikha article, what can you do?
    5.

    1. Though I shouldn’t even dignify 4 with a response. It’s literally a “you know who else” setup.

      1. Hitler?

    2. //By removing government interest in the sexual dynamics of a relationship entirely,

      Bad idea. People need to have the right to require regular sexual relations in these contracts, along with fidelity. Without the right to regulate sex, nothing anyone could come up with would even be marriage.

  12. “Please explain how the government can continue to do everything it does now, which you say you don’t want, while still getting smaller.”

    What the fuck part of “smash the state” is so hard to understand?

    1. “More gods, more masters!”

    2. HULK STATE SMASH!

  13. “How would abolishing state-recognized marriage promote freedom of association for all? The family serves as a buffer zone, or mediating institution, between the individual and the state. But logically, if the government does not have to recognize your marriage, it does not have to respect it. ”

    It’s a contract, you idiot. By this logic, why would the government have to respect a business contract? Because of contract law. The government can’t just negate contracts at will.

    Again, do you people know what a contract is? Please provide evidence you do before embarrassing yourselves further.

    1. That’s what kills me on Dalmia, et al’s arguments. The government shouldn’t get involved in 99% of this shit until the parties have a contractual dispute, at which point – fucking surprise – you take your contract to court.

      1. Even then, any good contract will have a burn down of mediation and arbitration before the government even sniffs the dispute.

  14. Doubling down on retard, I see.

    1. She just went full retard.

      1. And kicked in the afterburner.

        1. Danger zone!

          1. Please don’t tell me Shikha’s going to start playing beach volleyball…

            1. Hey, if I were 20 years older and she were 20 years younger…

      2. They all want cake.

  15. As stated above, the loss of state recognition of their union as anything more than an ordinary contract will deprive biological parents of the presumption of custody.

    As we know, all parents currently are state-married.

    Plus, I’m pretty sure the biological mother won’t lose a presumption of custody. Why should I want to maintain it for some man who may or may not actually be the father? Because that’s what marriage does.

    1. Not to mention that presumption of parentage was a doctrine developed in a time when you needed to identify parents to assign financial and custodial responsibilities/rights and you didn’t have cheek swabs to easily determine it.

  16. My own feeling, as I noted previously, is that those who think that privatizing marriage would eliminate the culture wars by absolving individuals from gettting a social buy-in for their marital choices will be disappointed. Privatization won’t take the state out of marriage, it’ll simply push its involvement ? and the concomitant culture wars ? to another locus point.

    Sure. But it would totally change the terms of the debate. If marriage is just another contract issue, it becomes much more difficult to dictate the terms of it. I know our freedom of contract is not what it should be, but it is a lot better than what we have now.

    How does privatizing marriage preserve spousal immunity?

    The same way it does now. You just call the contract a “marriage contract” and give immunity to the three parties. Just because it is a contract doesn’t mean it can’t be treated differently from other types of contracts. We have lawyer client and doctor patient privileges and those are just business relationships.

    1. ^Bingo^

      Then again, if forced to choose between lying on behalf of the woman I love or prostrating myself at the feet of the state, the concept of “spousal immunity” is really just a moot point.

    2. I love that even on the topic of (don’t-say-gay) marriage, Shikha’s rampant idiocy is enough to bring John’s side and the other side together in harmonious sensibility.

      1. Government marriage is oppressive. I will give Dalmia credit in the sense that she understands that if you think gays should have gotten in on government marriage, you then have to explain why government marriage is great.

        The reality is civil unions were a better and more free system. Libertarians should have advocated for civil unions not government marriage for gays. Let gays have a better and more free system of contract and that would have caused straight people to want the same. Instead, by advocating for gay marriage, Libertarians just expanded government marriage to cover more people and made the system more entrenched.

        1. “Libertarians should have advocated for civil unions not government marriage for gays.”

          Uh, we did? I did, anyway, because of a little thing called foresight. But nobody listens to us anyway. We’re like the love child of Prometheus and Cassandra.

          1. No. Reason and most people on here advocated for a constitutional right to government marriage for gays. Apparently everyone has an equal right to be forced into an oppressive and bad system.

            They should have advocated for a contract based system that solved the real problems gay couples faced while still leaving them free to set the terms of their relationship in ways married straight couples stuck in the government system cannot and then let everyone in on the system. It would have been beautiful. Straight couples would have slowly stopped getting marriage licenses and instead entered into civil unions and government marriage would have started to go away. Instead, government marriage is bigger than ever and even Reason is publishing articles singing its praises.

            1. Im not sure I agree, John. It isn’t so much that Reason and most people here “advocated for a constitutional right to government marriage for gays” so much as Reason, and many of us, said “The system is broken, but we might as well make it equally broken for everyone.” If we are going to have government marriage, everyone should have it. That doesn’t, at all, suggest that government marriage is good.

              Dalmia excluded, of course.

              But the pushback from the comment here on her article should indicate that most of the commenters here don’t, in fact, agree with her, or what you are saying we do think.

              1. The system is broken, but we might as well make it equally broken for everyone.”

                And that is nuts. The system sucks and there is this new group on the outside of it. And there is an opportunity to put that new group in a new and better system. The solution is to do that not say “if the old system is going to exist everyone should be in it”. And that is exactly what Reason did.

                And now they are on this article pretending they didn’t. I don’t agree with Dalmia but she is much more honest than most of the people on here criticizing her. Most of them thought government marriage was great when the gays wanted it. Now that the gays have it and the damage is done they are back to pretending the whole thing never happened and they don’t like government marriage.

  17. While the contract with your associate might mutually recognize one another as a “spouse,” and claim that your biological children are “yours,” the state isn’t bound to do the same. And this legal separation in the eyes of the state is destined to reverberate through every other personal association in society. Please explain how abolishing state-recognized marriage protects the family and helps insulate individuals from an increasingly Leviathan state.

    You know what definitely makes people less free? When the state refuses to recognize them as the property of others.

    1. You know who ELSE made people “less free”….

      1. Something something arbeit sets you free?

      2. Abraham Lincoln?

      3. The Duke of York?

      4. The Duke of York?

  18. But once the state no longer recognizes you and your spouse as a family unit?only as partners in an ordinary business-style contract?the case for spousal immunity significantly weakens. After all, what’s the rationale for immunity if a “marriage” is no more special than an ordinary contract, and “spouses” are merely associates, individual parties to ordinary contracts?

    I dunno. What’s the rationale for it now?

    1. It’s special! And…stuff! And this would ruin it!

    2. A better question might be why the government can force you to testify against anyone in the first place.

      1. Come now, Hugh, it can’t force you to do anything. Now, kill you for refusing to testify, that’s something the state can do.

        1. So it can force you to die.

      2. Good question.

        Now, returning to this planet, how do your propose to preserve spousal immunity if the government doesn’t recognize you and your spouse as married?

        1. Why should it be preserved?

          1. With all due respect, you guys (H&R commenters in general, not you, FM, in particular) are the ones who brought up the subject by proposing a law with the logical consequence of eliminating the spousal testimony rules.

            Yet you have given the matter of spousal testimony so little thought you have to wait for someone else to bring it up before you discuss it. Then you display irritation that anyone would climb down from the clouds of libertarian theory to discuss something so mundane and practical.

            Then you give a whole bunch of hand-waving and stoner crap about how this wouldn’t be a problem in Libertopia.

            Finally, you address the real issue and shrug and say, “well, it’s no great loss. Why should we have marital testimony rules in the first place?”

            Then you shift the burden to your opponents to show why we should have these rules in the first place.

            Numero uno, you’re the one proposing radical legal changes, you should take a first crack at justifying these changes, including explaining why it’s OK to force spouses to testify against each other.

            Numero two-o, you’re trying to give the government the power to peer into marital secrets in the name of law enforcement. As if the problem was the government isn’t violating our privacy too much already.

            You are simply Burke’s “political geometricians,” laying out a plan which looks neat and pretty on paper (or a computer screen) and letting the practicalities of the issue work themselves out – or not, as in this case.

    3. My name’s Nikki and I don’t want the state to protect my pillow talk, thereby ensuring the destruction of the institution of marriage, the propagation of the human race and civilization as we know it. 😉

      1. If only my goals were so easily achieved…

    4. Because we don’t want to force spouses to rat out each other. Not everyone is like you Nikki. Some people have loyalty and feelings for others such that rating them out for even a bad crime would be really traumatic. So traumatic that the government forcing them to do so would be a real injustice.

      1. And why is that reasonable for a spouse and for no one else? I never realized “trauma” was a good enough reason to turn the state down, when everything it does is a real injustice.

        1. It is not “no one else”. They can’t force your therapist or your lawyer to rat you out either. The idea is that there are some areas of life that even the government should not reach. I would think Libertarians would support that. They only don’t when they let their hatred of normal people and fetish for equality cloud their judgement.

          1. Why should the government be able to force anyone to rat anyone out?

            1. Roads and children are the stated reasons. A jackboot stamping on a human face is easier for those who wear the jackboots, really.

            2. Yes. The government is acting on behalf of the victims of the crime. Their interests in obtaining justice and society’s interest in keeping dangerous people confined outweighs your interest in saying no. If you have your money stolen and I know who did it, no way does my interest in saying nothing outweigh you interest in getting your money back.

              Of course a lot of “crimes” these days don’t have victims and the people committing them are not dangerous. But that just means those things should not be crimes. It doesn’t mean the government doesn’t have an interest in forcing people to come forward with information about crimes.

              1. I suppose that all depends on whose doing the weighing. We all know there’s no objective measure of justice, and even if there were, this blog gives us almost daily reminders that the government has no interest in it.

              2. That’s weak. If your wife steals my money and you know it, does your relationship deserve more protection than if it’s your best friend since you were a toddler, or if it’s your boss?

                1. Or to put it another way — the whole point of libertarianism is that individuals know better than collectivists what works for them. What makes the decision to protect a relationship entirely dependent on the government classifications rather than the individuals who are at the heart of the matter, who have skin in the game?

                2. Some relationships are more equal than others.

                  1. Yes Nikki they are. You are right.

              3. Yes. The government is acting on behalf of the victims of the crime. Their interests in obtaining justice and society’s interest in keeping dangerous people confined outweighs your interest in saying no.

                Unless the person involved is married. Then fuck the victim.

                Sorry, John, that seems like a poor rationale.

          2. But they can force your best friend, parent, child, brother, sister, etc. And if you prefer not to use the special types of licensed professionals that the government recognizes as part of the medical cartel, you’re also fucked. This is all about people who play by the state’s favorite rules getting some kind of random break. I don’t think anyone should ever be compelled to testify in any way, shape, or form, but I don’t think this is a question libertarians need to answer as part of getting the state out of marriage.

            1. I don’t think anyone should ever be compelled to testify in any way, shape, or form, but I don’t think this is a question libertarians need to answer as part of getting the state out of marriage.

              Sure. So when someone victimizes you and you come looking for justice, I am totally entitled to tell you to go fuck yourself and not give the information that will convict the person who victimized you even though doing so doesn’t incriminate or harm me in any way. My interest in not “selling out my friend” or just laughing at your misfortune outweighs your interest in justice and everyone else’ interest in seeing dangerous people not get away with their crimes.

              I am sure you believe that, but that is because you are an anarchist who has no concept of the proper role of government beyond just saying not. I am not and don’t view it that way.

              1. I am totally entitled to tell you to go fuck yourself and not give the information that will convict the person who victimized you even though doing so doesn’t incriminate or harm me in any way.

                In a word, yes.

                1. Actually, to be more accurate, I am totally entitled to tell the State to go fuck itself.

                2. I agree, & I’m not even an anarchist. I don’t think testimony, let alone true testimony, should be compellable.

              2. Well, yes, I am an anarchist.

                1. I know you are Nikki. And your answer is perfectly consistent. I don’t agree with you but you are not some half wit like Old Man with Candy who says “I can say no to the state” out of some Pavlovian instinct.

                  You and I really can’t debate this issue because we both start from totally incomparable assumptions.

                  1. There’s a difference between Pavlov and principle, though I wouldn’t expect someone in the law biz to understand that. Especially one with the IQ of an artichoke.

              3. So when someone victimizes you and you come looking for justice, I am totally entitled to tell you to go fuck yourself and not give the information that will convict the person who victimized you even though doing so doesn’t incriminate or harm me in any way.

                Honestly, John, I am surprised at your satisfaction with the status quo here. If you think it is wrong not to testify, and it seems you do, when “doing so doesn’t incriminate or harm [you] in any way,” I’m a bit horrified by the fact that you think spousal immunity is a good thing. You think it would be immoral to tell a victim you weren’t going to help if you had info from your best friend, but moral if that info came from your wife? I really don’t know what to say about that. I emphatically do not share that position in any way.

                1. Nikki, you need to understand that marriage is different and special. It was instituted by John’s deity.

                2. Nikki,

                  I think there is such a thing as a family and that is different than someone you fuck or shack up with. Yeah, I am willing to live with that being outside of government control.

                  We are making different assumptions. You don’t see anything interesting or different about a familial relationship than any other. I do. If I thought like you, I would agree that spousal immunity is bad. But I am just not cold and unemotional like you are.

                  1. I love that the “cold and unemotional” version is to include more people higher in my feelings than the state than you do.

                    And I don’t see what interest you have in contrasting “shacking up” with “family” when you’re so busy making arguments for civil unions over state marriage. There are currently people who reject state marriage, and you are shitting on their lifestyle at the same time as arguing in its favor.

              4. So when someone victimizes you and you come looking for justice, I am totally entitled to tell you to go fuck yourself and not give the information that will convict the person who victimized you even though doing so doesn’t incriminate or harm me in any way.

                Yes.

                But doing so is not in your best interests, as someday the shoe will be on the other foot. Most will testify so that the favor will be returned when you are the victim.

                There is no need for compulsion.

                1. You guys know that spousal privilege was meant to protect female spouses from male retribution. That one was wealthy men not wanting their daughters killed out of hand when their husbands were arrested.

                2. Actually, like many shoes, odds are it’ll never be on the other foot.

                  1. So there is “need” for compulsion, but need is not a claim.

      2. Some people have loyalty and feelings for others such that rating them out for even a bad crime would be really traumatic.

        What If my brother lived with me for a while? Should I be forced to testify against him? I have “loyalty and feelings” for him.

        How about if I moved back home with mom? Does she not have “loyalty and feelings” for me? Wouldn’t it be “traumatic” for her to be forced to testify against me?

        How about my best friend for the last 35 years? (we don’t live together) Are you saying that my “loyalty and feelings” for him aren’t enough to make testifying against him “traumatic?

  19. So neither one of you understands how contracts work.

    1. What, government doesn’t have to review and approve every single contract that is made before it takes effect?

  20. Shikha’s credibility has been pretty shaky with me ever since she took time out of an article on India’s massive rape-and-murder rate to chastise the West for being “oversexualized,” and this may put the last nail in that coffin. Fallacies on top of fallacies.

    1. “”she took time out of an article on India’s massive rape-and-murder rate to chastise the West for being “oversexualized,” “”

      HAHAHAHAHHAAHA. When did this happen?

      1. Couple years ago. For a while, every single article she wrote about India was basically “Sure it’s a repressive shithole where women are routinely gang-raped and set on fire or left in ditches, but the West is totally oversexualized.” First search example:

        https://reason.com/archives/201…..udish-sexu

        What would work? Nothing short of transforming India’s puritanical culture and giving men and women more freedom to forge sexually mature relationships outside of marriage….Given India’s starting point in ancient traditions, one can hope that it will result in a balance healthier than what has unfolded in the over-sexualized West.

        It’s like she can’t stand to criticize her homeland without throwing in an anti-American shot to make herself feel better. Which is understandable, I get defensive about people criticizing the US, but it’s not very professional. Or relevant to the articles she is writing. Or supported in the articles she is writing; she seems to just take it as axiomatic that the West is oversexualized because she says it is.

  21. The arguments presented her are simply really poor and rely heavily on logical fallacies.

    For #1, how is allowing individuals to write their own contracts akin to the IRS tax code that applies in a mandatory fashion to everyone? There’s also no reason why there couldn’t be standardized contracts freely available that people could edit as much or as little as they deem fit.

    #2 is just bizarre. How does lack of marriage licensing deprive biological parents of custody? It’s not as if there aren’t millions of kids already born outside of marriage, and this doesn’t happen, so why would it absent licensing?

    #3 could be addressed by either a) removing immunity for everyone b) banning compulsory testimony regardless of marital status or c) allowing spousal immunity through contract. The last one would need some sort of rules to prevent anyone from simply claiming they’re married to protect themselves (such as in criminal gangs or organizations), but this is not an insurmountable obstacle regardless of which path you take.

    #4 is dumb, as admitted by Dalmia

    #5, I don’t even know what to say. The writer seems to think abolishing licensing makes it legal for the state to do whatever they want to couples, which isn’t what anyone is proposing. A government license isn’t some magical government-repelling totem. And how would abolishing marriage licensing affect how the state interacts with all other personal associations?

    1. *here

    2. So if government marriage is bad and contract better, why was bringing gays into government marriage so important? Wouldn’t civil unions have been better? Gays would have had their relationships recognized and been in the contract based system Libertarians rightly I think claim is better and more free. Unless you just have a fetish with everyone being equally miserable, why would you want gay couples to be in the worse system?

      1. You seem incapable of recognizing that perfect is the enemy of better. Government marriage may be an unnecessary travesty, but bigoted segregated government marriage is worse. Why is that so hard to understand?

        1. You seem incapable of understanding that if a system is bad, expanding it to cover more people is not a good thing. If you think gays getting access to government marriage is a good thing, then you have to admit that government marriage is not all bad and better than non government marriage.

          I don’t mind that you are stupid. But when you are stupid and then act like I am stupid, it is really fucking annoying. I don’t know how to make the argument any more clear for you. If you can’t grasp it, don’t comment on it.

          1. Nothing is all bad. Not even you know who; he liked dogs.

            You seem incapable of distinguishing “good” and “better”.

            If you can’t grasp that argument, maybe you shouldn’t comment either. Trying to pretend that “better” is worse than “perfect” shows a distinct lack of judgement.

            1. If the non government system is better, then why do you want gays in the worse system? Civil Unions would have put them in the better system.

              1. Because the system without gays in it is even worse.

                1. Because the system without gays in it is even worse.

                  No it is not. With civil unions there is a parallel system with gays and straight couples who want to opt out. The old system now has competition and people have an way to opt out of it. So what if gays can’t get into the old bad system? They can get in the new better system and so can straights. That is a whole lot better than making the old bad system cover everyone.

                  Face it. You people sold out. You should have advocated for civil unions and you didn’t.

                    1. Jed,

                      You might not be one of them. If not, good for you. But most of the people on this board did.

                  1. “You people”, that’s pretty funny, you assuming you know where I stand on much of anything, including this. Civil unions were not national and were not recognized by many states. There were some gays who married in one state but could not divorce in another. You write as if civil unions were an uncontested possibility there for the taking, but the proud gays haughtily rejected it. I’m sure some of them did, but for you to assume the fcat, and then to assume I supported it, as as ludicrous as the rest of your rigid and blind argument.

                    1. Civil unions were not national and were not recognized by many states. There were some gays who married in one state but could not divorce in another.

                      Then make states do that via the P&I clause. Or just let people end their unions in writing without playing mother may I with a judge. If there is a dispute, make courts resolve it via choice of law.

                      You write as if civil unions were an uncontested possibility there for the taking, but the proud gays haughtily rejected it.

                      They totally rejected it. And civil unions were not available because only conservatives advocated for them and lost. More importantly, Libertarians didn’t advocate for them because they were so in love with social signaling and sticking it to conservatives they walked away from their principles.

                      And that is what is going to happen when the Progs use the public accommodation laws to go after conservatives. Libertarians will walk away just like they did with civil unions. You watch. I have zero faith that Libertarians are going to do anything but stand by and watch as the Progs use gay marriage and public accommodation to wipe out the free exercise clause. They walked away from their principles here, why would next time be any different?

                    2. John, in this very thread you are shitting on people who aren’t state-married, yet wondering why people thought gays would be treated like second-class citizens if they couldn’t get state-married. You are not a good poster child for your own position here.

        2. You seem incapable of recognizing that perfect is the enemy of better.

          Nonsense. Just wait for election time to roll around, and voting for the imperfect Republican candidate will become our moral duty.

      2. Government civil unions were basically the same thing as marriage licenses, just with a different title. It wasn’t at all a contract based system.

  22. “If we get the state out of marriage, we will be forced to license all parents. QED.”

    Scott Bakula couldn’t make that leap.

    1. Wonderful reference.

      I am going to enhance it by linking to a nsfw photo of the great Scott Bakula.

      1. Not bad.

  23. Trading in the simple marriage license for a system of contracts seems akin to trading in a simple flat tax for today’s Internal Revenue Service tax code.

    This is ridiculously mistaken.

    There will be a default household incorporation contract. It will be one page long. It will have two or more places to put the members of the household incorporation. It will be like a simple flat tax. Anyone making a household corporation can use it.

    If you get your jollies from complicating things, you can go ahead and layer exceptions on top of it. But I seriously doubt that even the most masochistic family can get their household incorporation to be a hundredth as complicated as today’s IRS tax code. But, even if they could, they chose that result! The IRS tax code, in contrast, is imposed on those who must abide by it.

    What a thoughtless and statist analogy!

  24. So this is why everyone hates Shikha.

    1. Is Dalmia just libertarian click bait at this point, like we click on her articles just to see what horrifying nonsense she’s spun out into the world this week?

      1. There’s also fashion.

    2. Yeah, I finally started to understand with the Free the Nipple stuff, but this is getting REAL.

    3. This is the only comment necessary

    4. Nobody actually hates Shikha. There are no personal attacks here or even references to woodchippers. But this article, and the prior one, are just absurd collections of logical fallacies and unsupported conclusions.

      1. And trust Almanian to take a running leap over that line.

  25. The family serves as a buffer zone, or mediating institution, between the individual and the state.

    How? Or are we just taking this as axiomatic?

    1. It’s a micro-tyranny to get you ready for the real world.

  26. Quick poll:
    Who is more hated Dalmia or Richman?

    1. What’s Chapman, chopped liver?

      1. Goddammit, didn’t refresh the page

        1. Was going to do _______man three way thunderdome.

    2. Dalmia is more interesting in her insanity because she doesn’t have the straight ahead drive to propagandize you get out of Richman. You know exactly what Richman is going to say about any topic, whereas I did not see this Dalmia obsession with marriage licensing coming.

      1. You so you’re saying your a Dalmia man at heart?

        Get him fellas!!!

        1. “You so you’re saying your a Dalmia man at heart?”

          I see what you’re trying to say here, but sense you didn’t proof read.

          1. *hangs head*
            I’m…I’m not good at things and stuff.

            1. It’s nearly 2 in the afternoon in most of Florida, just blame it on the alcohol.

              1. Speaking of alcohol, have you tried Ron Zacapa Rum? My FIL turned me on to it. Delicious, and I’m not a rum fan in general.

                1. Hmm, I’ll have to check it out. I don’t drink often, but when I do, it’s usually rum. Pyrat XO is my goto.

                  1. I’ll try your Pyrat XO next time I see it.

                    1. You’ll either love it or hate it, there seems to be no inbetween. Runs about $30, so it’s not real expensive gamble though. It doesn’t mix well. Lot of citrus and vanilla.

                    2. I drink my spirits straight.

                    3. Right on. I occasionally like to partake of a Dark ‘n Stormy or classic Cuba Libre, but it’s just not a good rum for that.

      2. Richman is a principled retard. Shikha just wants cake.

        1. So Shikha = Adam Lanza.

          I can buy that.

      3. Meanwhile Chapman you have no expectations from, so he doesn’t really count.

  27. As stated above, the loss of state recognition of their union as anything more than an ordinary contract will deprive biological parents of the presumption of custody. This scenario seems to open us up to more state meddling in family life, as well as meddling by other parties?particularly when it comes to the child custody.

    I’m not sure why this is a complex question. Are 100% of children born to parents who have previously been legally wedded? the law deals with custody issues for unmarried people all the time. Will regulations need some tweaks? Sure.

    3. How does privatizing marriage preserve spousal immunity? At present, the government cannot force you to testify against your spouse. That is currently the law in all 50 states. But once the state no longer recognizes you and your spouse as a family unit?only as partners in an ordinary business-style contract?the case for spousal immunity significantly weakens.

    I need a lawyer to explain to me why spousal immunity exists in the first place.

    If Goldie Hawn shacks up with Kurt Russel, they also enjoyed no spousal immunity. Yet they were a happy couple for many years.

    1. Sunstein has thought this issue through for a very long time and he no doubt sees a road to bigger government. Explain how he is incorrect.

      This isn’t a problem with marriage, this is a problem with Sunstein. There IS NO SCENARIO that Sunstein (and people like him) won’t see an opportunity to grow government. Like clever business people always see an opportunity to make money, Sunstein has the same personality, except he expands his wealth at the point of a gun.

      5. How would abolishing state-recognized marriage promote freedom of association for all?

      You know how the state made it illegal for people of different races to marry? ‘Nuff said.

    2. Good point on Goldie and Kurt; Shika seems to think that if marriage is privatized, the state would then have reason to push Goldie and Kurt’s relationship Overboard.

      1. *narrows something, not sure what*

        1. “Stop squeezing your junk, Lee!”

          1. How many times have I heard that.

  28. What is really hilarious is that, if these idiots did a modicum of research other than trying to think up reasons this is all a bad idea, they would realize that 80% of these questions ALREADY HAVE ANSWERS.

    About 5 years ago, the wife and I did our family trust and will. All of this stuff is covered in our trust. Sure, current marriage law gives defaults (your spouse gets kids and property if you die) but in the event that both spouses die, the will and trusts handle ALL of this.

    My will says who will get my kids if the wife and I kick it. Is it unimaginable that such contracts would also include language for the spouse if we removed the default? It says how assets will be divided and the conditions of that. It even appoints someone (not a judge or government) to administer all of this.

    Imagine a world where a Catholic couple being married could go to their church, talk to their priest and get a boilerplate contract with all of the intricacies of Catholic marriage included? A secular couple could go on LegalZoom and fill out questions to get their contract filed. By abolishing the Government’s “default marriage laws” they increase freedom of association by allowing adults to choose the exact terms and conditions of their marriage. Does the wife want her parents to raise the kids if she dies, but the husband lives? Does the husband want to specify maximum alimony if the wife is caught cheating? All possible in contracts. How can this not increase Freedom of Association?

    1. About 5 years ago, the wife and I did our family trust and will. All of this stuff is covered in our trust. Sure, current marriage law gives defaults (your spouse gets kids and property if you die) but in the event that both spouses die, the will and trusts handle ALL of this.

      Yes it is. And most of the “harms” gay couples suffered by not getting access to government marriage were just the result of them not having access to these default terms. If you are married and don’t have kids, you don’t need a will. Your spouse gets everything. If you are not married but want your g/f to get everything, you (gasp) have to take responsibility for your affairs and write a will that gives her everything otherwise your parents are getting it.

      That is most of what “government marriage” is; a set of default rules for people who don’t write wills or medical POAs.

      1. There were federal bennies they didn’t have access to, without recognition of marriage. Pensions etc. Also state bennies. For instance, if you’re a cop, and you’re sexting a teenage girl while driving down the road and you plow your cruiser head on into a semi, your spouse is entitled to your pension for life. Without recognition of marriage, your partner is S.O.L.

        1. Then change the rules. Make those things available to anyone you want to give them. Unmarried straight couples are fucked by those rules too. Yet, that is never portrayed as some kind of crisis.

          1. The crisis is the number of goodies the government gives out to married people. I nearly drove off the road when NPR reported there were some 12,000 benefits denied to people who couldn’t get married.

            The real crime is how we got here in the first place.

            1. I don’t believe NPR. Most of those “benefits” are default rules that can be overcome via a will or a POA or rights of survivorship. Understand right of survivorship is not a goodie. You have to pay for it. If you want your wife to get your pension after you die, you have to accept less money to pay for the possibility that the pension might continue after you die. You don’t get it for free. And if she dies before you, you are fucked and don’t get your money back.

              One of the more frustrating things about this subject is how misinformed most people are. They just make shit up that fits what they want to think.

      2. That is most of what “government marriage” is; a set of default rules for people who don’t write wills or medical POAs.

        And the problem I have with articles like the above is that they haven’t done a modicum of work to even think through how all these defaults could just get folded into a boilerplate contract and a couple tweaks to the law make this possible. But they won’t do that because they aren’t interested in seeking a solution. They are interested in preserving marriage as some government artifact for various inscrutable reasons.

        Unlike John, however, I am pretty glad that people- including many libertarians- pushed for Gay marriage recognition. Only now are both sides offering up the suggestion that marriage be divested from government control.

        Previously, when conservatives had the marriage system they wanted, they were happy to say that government was ok managing this stuff. It is only once their ox was being gored that we begin to see a dawning realization that government control is bad just as soon as the wrong people get in charge.

  29. Not content with being thought an idiot on the basis of her original piece, Shikha decides to go about providing meticulous proof of the fact.

    For as much shit as I like to give ENB for the tripe she was writing for Bustle a couple years ago, it was more meaningful than the entire collected works of poor Shikha.

  30. Also, while we’re on the subject of guilt by association with Dalmia/The Federalist arguing that we should be ashamed Sunstein is on our side, I’d like to point out that Bryan fucking Fischer is name-checking Shikha Dalmia on the subject of marriage licensing.

    No, I’m not kidding.

    “According to Dalmia, even libertarians recognize that marriage, just like private property, is a “pre-political right” that government “doesn’t grant, it guarantees.” As Christians, we entirely agree with the sentiment that marriage is “pre-political.” It was designed and defined by God at the dawn of time as the union of one man and one woman. The writer’s point is that you can’t free marriage from government any more than you can abolish property rights hoping to free them from government authority.

    It is the state’s sanction of marriage that protects the right of a married couple to keep and raise their own children, which means neither the state nor disaffected in-laws can simply take their children away because they don’t like the way they are being raised. The state’s sanction of marriage protects the right to make medical decisions for a sick spouse, inheritance rights, and parental rights in case one of the parents dies. ”

    These are the people you’re in bed with, Dalmia! This is the quality of argument! I hope you’re proud.

    1. I wasn’t aware Sunstein was on “our” side. And yes, Sunstein is an embarrassment to whatever side he is on.

    2. It really always comes down to keeping power over your chattels, doesn’t it?

    3. “According to Dalmia, even libertarians……”
      As if Dalmia actually could identify a libertarian or a libertarian position.

      Holy fucking gods. This nitwit Fischer literally can’t put two thoughts together. Not only that, but I don’t think this guy even knows his own religious canon. Didn’t his guy Jesus stress separating religious stuff from state stuff? (Frankly, not that I give a rat’s ass, but this guy is a self-proclaimed Christian).

      Oh well, “Don’t fuck wit de Jeesos”

      1. Fischer flew into one of the funniest fits of hysterics I’ve ever seen after the gay marriage decision. It was brilliant. You should really look it up – he claimed Christians are going to be put in concentration camps soon by the vile Gaystapo.

        Actual quote:

        “”From a moral standpoint, 6/26 is the new 9/11,” Fischer declared, “because it was on this day that five justices of the United States Supreme Court became moral jihadists, They became rainbow jihadists and they blasted the twin pillars of truth and righteousness into rubble. And they did this by imposing sodomy-based marriage on the United States through an act of judicial tyranny.””

        1. “That was–and I don’t say this lightly–worse than a hundred September 11ths.”

        2. To be fair, I know a lot of gay people. A lot. Gay people in my family. They believed that if Romney were elected in ’12, Christian brownshirts would be driving around in vans and rounding up gay people. These were high earning, educated gay people, with advanced degrees. They believed this.

          A person is smart. People, on the other hand…

          1. I know a lot of gay people. A lot.

            What an odd humble-brag.

            1. You’re right. I could have just as easily said “I live in Seattle”. I don’t know what it’s like to live in flyover country (any more), because when I last lived there, gay people were definitely not out and proud. So other peoples’ daily interactions may be few and far between.

              My point being is I had to indicate somehow (perhaps I failed) that this wasn’t some odd non-mainstream view within the gay community. I heard it often. Something something sample size.

              1. I understood your point. I was just being a shit. I agree 100% with what you said. People are not very smart.

                Although I still say we keep an eye out during Jade Helm.

              2. I could have just as easily said “I live in Seattle”.

                And that would have explained their beliefs more than being gay.

                I don’t live in Seattle and I don’t recall hearing much of that silliness from the gay community here.

                1. Paul’s bigger point – that absurd opinions and group-think are not relegated to socially conservative nitwits – is valid.

    4. It was designed and defined by God at the dawn of time as the union of one man and one woman.

      Really? Even before man was created? And even when man was created, there was a bit of time before a woman was created.

  31. Aww, you guys! Once again, Shikha hate brings everyone together.

    1. Well her and Richman.

    2. We Are the Worrrrrrrrld!
      We are the Peoplllllllllllle!
      Who hate on Shikha
      when she brings the derp
      like this triiiiiiiiiipe….

      1. *presses uncomfortable close to the back of CJ*
        Ssh…daddy’s got you.

        1. That made me laugh out loud at work.

          Awesome

          1. It just made me feel safe.

  32. The practical realities of existence don’t phase you guys one bit, do they?

    You all proposed abolishing our current understanding of marriage as an alternative to applying it equally to gays. That presupposes a society that will in the immediate future ever do such a thing. Or does that not matter? What’s presented here is a logical argument for why doing so would not actually shrink government. The arguments for how it would have always been thin on plausibility. Rather obviously a flimsy excuse for denying rights to fags. But the vicious name-calling over an actually reasonable argument, just for that? You guys really must have been invested in denying rights to the fags.

    1. Uh, retard, you already got your gay marriage pony. With the full-throated approval of official libertariandom. This is a discussion about principles – you wouldn’t understand.

      1. No it isn’t.

        1. Solid argument, Tony. Between that and claiming that libertarians like me (who would be absolutely supportive of 7 transsexuals marrying each other in the greatest trans-ceremony of all time) are anti-gay homophobes, you’ve really brought your A-game.

          Any more slurs or petulant one-line rejoinders you’d like to toss out? I’m sure you’ve got seven or eight of the most moronic arguments I’ve ever heard still stored up in that otherwise vacant little head of yours.

          1. So what is the principle? That government should get out of the marriage business, then get back into it in a much more patchwork and invasive way?

          2. Between that and claiming that libertarians like me (who would be absolutely supportive of 7 transsexuals marrying each other in the greatest trans-ceremony of all time) are anti-gay homophobes, you’ve really brought your A-game.

            That’s because Tony’s only debate tactic is to scream that you’re a racist, sexist, homophobe, etc. and hope that he can somehow shame you into accepting his position. If that doesn’t work he just declares his own positions to be objective fact and keeps screaming names at you hoping they’ll stick.

    2. Oh good Lord, and just like that Tony comes in with an argument even dumber than Dalmia’s. Let’s bask in the glory for a moment before cutting his testicles off and feeding them to him.

      “You all proposed abolishing our current understanding of marriage as an alternative to applying it equally to gays. ”

      No, I supported applying marriage laws equally to gays, which is why I supported gay marriage, and also believe everyone should have freedom of contract. These two issues (equality vs. freedom to contract) are not related to one another. I would support freedom of marriage contract even if gays had always been allowed to marry, so it wasn’t an ‘alternative’ to anything.

      “That presupposes a society that will in the immediate future ever do such a thing. ”

      So you started from a false statement and now you’re into the non-sequitor section of your argument. Impressive.

      “What’s presented here is a logical argument for why doing so would not actually shrink government. ”

      No, what’s presented here is evidence that Dalmia and the Federalist don’t understand contract law.

      “You guys really must have been invested in denying rights to the fags.”

      Given that, as I posted above, Bryan Fischer of the American Family Association (aka, America’s Greatest Gay Hater) agrees with Dalmia and disagrees with us. So how does this fit into your idea that we’re saying this out of hatred for gay people when the people who actually hate gays disagree with us?

      1. I don’t believe any political idea is worth entertaining that can’t actually apply to the real world. If I were drawing up society from scratch, would I do marriage the way we do it? Maybe. Standard contract for consenting adults, who can alter it in any way they see fit. But if you’re arguing for contracts at all you’re arguing for government involvement. The point that shifting to a different system in which everyone has to write up their own contracts not only necessarily entails more government invasiveness, but would inevitably evolve to the very system we have, because people would find it efficient to make the system standardized. And Dalmia is absolutely right that it would do nothing to change anyone’s minds about whether they hate fags.

        I don’t know why you continue to push this increasingly obsolete and implausible line. You tell me. I’ve got John in one ear saying “stop talking so much about the gays!” and you guys in the other saying it’s a national imperative to abolish marriage as we know it. How about we all move on? You’re welcome to take the current situation as a win for liberty, and nobody would think twice about it. If you insist on admitting defeat instead, that’s your prerogative.

        1. “The point that shifting to a different system in which everyone has to write up their own contracts not only necessarily entails more government invasiveness”

          And another idiot who doesn’t understand contract law! Hint: There are these things called form contracts you can find on the internet, so you wouldn’t have to draw up your own contract if you didn’t want to – you could get a form contract saying the general things you wanted. So there would be standard contracts, but you could have MANY TYPES of standard contracts, plus customized contracts in the rare occasion someone wanted one.

          “And Dalmia is absolutely right that it would do nothing to change anyone’s minds about whether they hate fags.”

          Which is relevant to the discussion because…oh, what’s that? It’s totally irrelevant because no one’s arguing we should allow freedom of contract as a means of increasing approval of gay people? You’re immensely brilliant when it comes to inventing arguments and then arguing against things no one said.

          1. How is this less government? I don’t even fucking know what you do when you get married. I hate weddings and monogamy, so it’s not something I’ve investigated. My only position is that the law should treat gays the same way it treats straights, however that may be. Which is yours as well. But your way is not less government, it’s just changing the status quo for no good reason.

            1. Re: Tony the Marxian,

              How is this less government?

              There’s less to keep track of.

              My only position is that the law should treat gays the same way it treats straights

              That’s less government. Giving special treatment to groups entail keeping track of those groups and their privileges. That requires more government. Treating everybody equally takes less resources. That is one of the reasons why government grows when more groups demand more special treatment.

              1. I’m sure you’re referring to “couples who choose to marry” as the ones getting special treatment. Eh, take it up with someone who really likes marriage.

                1. Re: Tony the Marxian,

                  I’m sure you’re referring to “couples who choose to marry” as the ones getting special treatment.

                  Yes ? heterosexual couples. Until recently, at least.

                  take it up with someone who really likes marriage

                  That’s a cop-out. You asked how is it less government. I explained it to you. If you don’t agree with the answer, explain why.

                  1. You’re far more principled and less of a goddamned liar than John, so I am going to presume that you’re not married, and if you ever were you divorced on principle once you saw the light?

          2. “I don’t know why you continue to push this increasingly obsolete and implausible line. You tell me. I’ve got John in one ear saying “stop talking so much about the gays!” and you guys in the other saying it’s a national imperative to abolish marriage as we know it.”

            And? John is more anti-gay marriage than most of the people here. You trying to use him (who doesn’t even identify as a libertarian) as an example of what people here think is the height of dishonesty. And no one says it’s a ‘national imperative’ to abolish marriage as we know it (and we wouldn’t be abolishing it any more than private business means business has been abolished since it isn’t nationalized). We’re arguing that Dalmia’s arguments are moronic because they’re moronic and evince a total lack of understanding about contract law. The abolition of marriage licensing is about 7000th on my to do list.

            You keep making this about gay people because you’re a narcissist. This has nothing to do with gay people, but because you’re gay and care about no one but yourself, you think this has something to do with homosexuals. It does not – it has to do with freedom to contract. And polyamorous people still don’t have the right to marry, but for some reason you don’t seem to care about them since (just like the Christian conservatives you claim to despise) you got your right to marry, so poly people can go fuck themselves.

            1. I will probably always suspect that privatizing marriage, a concept that doesn’t actually make any sense (why not just call yourself married now? What harm comes to you if your neighbor gets real married?), is a smokescreen for people who couldn’t get on board with simply equality, either for bigoted reasons or they are too tribal to ever agree with liberals on anything. But again, I’ll take you at your word that you actually believe there is a small-government alternative and that current marriage law is an impermissible intrusive aspect of the Leviathan. Go knock yourself out keeping that fight alive.

              Polyamory is distinct–and again, this seems like another obvious distraction–in that it is an activity. The issue is that gay people didn’t have equal rights as individuals because of how they were born. If polyamorous adults want to have their day in court, they can knock themselves out too. I don’t know what their political action arm wants, and I’m not sure why I should be expected to care. I don’t care about any of this except applying the constitution where it needs to be applied.

              1. If polyamory is an activity, than so is monogamy.

                Face it, Tonykins: you don’t like this nasty religious conservatives who want to get poly-married. Admit your bigotry.

                1. Indeed it is, and as I said I don’t give a shit. Let’s have polyamorous marriages officially recognized. Just as long as the gay ones are treated the same as the straight ones.

                  1. Great, then we’re in agreement. But this is in contrast to what you wrote just above, which is that “[p]olyamory is distinct … in that it is an activity.” I interpreted that as you supporting the idea that the government can discriminate against polygamous marriage but not against gay marriage simply because polygamy is an “activity,” which, to be consistent, implies that you think gay marriage between two people – i.e., monogamy – is not an activity. Of course, since monogamy is, as you admit, also an “activity, your previous argument is totally illogical.

        2. The point that shifting to a different system in which everyone has to write up their own contracts not only necessarily entails more government invasiveness…

          So individuals defining marriage for themselves, with the government merely providing venues to work out contract disputes, is more invasive than the government actually defining marriage and determining who can and can’t be married. Right.

          …but would inevitably evolve to the very system we have, because people would find it efficient to make the system standardized.

          Why would this necessarily be the case?

          1. Marriage, by definition, is a socially determined institution. Individuals can etch contracts into watermelons and call themselves joint emperors of the Andromeda Galaxy for all anyone gives a shit. What is relevant to society, and hence government (since we’re not talking about a church-run society), are the practical issues of our culture’s understanding of family units. Nobody is forced to marry, we’ve simply found it practical to standardize the institution so that everyone knows what you’re fucking talking about when you say you’re married.

            And nobody gave the slightest shit about that until the gays started agitating for equal rights. If you want to claim it’s always been a priority, fine, I believe you, but nobody cares, because it’s fucking niche and stupid.

            1. “Marriage, by definition, is a socially determined institution. Individuals can etch contracts into watermelons and call themselves joint emperors of the Andromeda Galaxy for all anyone gives a shit. What is relevant to society, and hence government (since we’re not talking about a church-run society), are the practical issues of our culture’s understanding of family units.”

              By this logic, there was no justification for gays to get the right to marry. After all, it’s just a socially determined institution HURR DURR.

              This argument is nonsensical. It’s true in that marriage is defined by the society, but that fact is of no relevance since we’re arguing it should be defined differently. You’re avoiding the argument by playing the definitional weeds. The fact that what marriage is is socially determined says nothing about whether or not allowing it to be determined through individual contracts is a good idea.

            2. Re: Tony the Marxian,

              Marriage, by definition, is a socially determined institution.

              Not anymore (even if it were true). Now is determined by judicial fiat.

              Individuals can etch contracts into watermelons and call themselves joint emperors of the Andromeda Galaxy

              Contracts are agreements between two minds that stipulate exchanges. They’re not pronunciations. You don’t even know what you’re talking about.

              Your ignorance is boundless, Tony. It actually hurts my eyes reading such stupidity from you.

              1. Then by all means stop reading. You live in a delusional fantasy world and none of your principles are relevant to me. You think the only permissible society is one in which all interaction is governed by whim and firepower. You’re a ridiculous anarchist radical and I have nothing to rebut, because I can’t rebut that much crazy.

                1. Re: Tony the Maxian,

                  You live in a delusional fantasy world and none of your principles are relevant to me.

                  A reason why I pity your neighbors. Who knows when that ticking time bomb they call “our neighbor” is going to go off?

                  You think the only permissible society is one in which all interaction is governed by whim and firepower.

                  You haven’t learned anything. Who said whim or firepower? Firepower is to protect oneself from the likes of you, a Marxian. And action is not mere whim.

                2. Tony, every time you comment on here you construct imaginary arguments to attack and deliberately ignore everyone or just throw names at them. Just because you’re too arrogant to see it does not mean you don’t live in a ‘delusional fantasy world’.

                3. Hmm, I didn’t read anything OM said to you that would make him an “anarchist radical.” He just described basic contract law, which is a “meeting of the minds” (though not always technically that, since sometimes people can have unexpressed understandings going in that aren’t spelled out and therefore might not be enforced in a dispute).

                  I’ll just assume your substance-less rejoinder means you have begrudgingly conceded defeat.

                  1. It means I’ve engaged with him before. He is a loony anarchist radical who brushes everything aside with loony anarchist bullshit. It’s like talking with someone who believes the world is made of cheese. There’s no point.

                    1. It’s like talking with someone who believes the world is made of cheese. There’s no point.

                      So you know how everyone of nearly any political stripe feels about talking to you.

            3. Marriage, by definition, is a socially determined institution.

              HAHAHA!!!!! You are such a disingenuous scumbag!

              To echo Sevo, do you every get dizzy from all that spinning?

              *continues laughing*

          2. People would create standard contracts for simplicity’s sake, but you could have multiple different types of standard contracts for different sorts of relationships. So it’s true there’d be a great deal of standardization, but you’d still have far more choice than you do when everything is defined by the state.

        3. Re: Tony the Marxian,

          I don’t believe any political idea is worth entertaining that can’t actually apply to the real world.

          Like Marxianism, for instance?

          But if you’re arguing for contracts at all you’re arguing for government involvement.

          What? That’s a Non Sequitur. Contracts don’t need government, only a meeting of the minds.

          The point that shifting to a different system in which everyone has to write up their own contracts not only necessarily entails more government invasiveness

          “Necessarily” you’re engaging in question-begging.

        4. Hey Tony, I know this is difficult for you, but maybe you should actually listen to what Irish is saying rather than just constructing delusional strawmen that are easy for you to attack?

    3. Re: Tony the Marxian,

      The practical realities of existence don’t phase you guys one bit, do they?

      You should get that hemorrhaging tongue checked out, Tony, before you bleed to death.

      You all proposed abolishing our current understanding of marriage as an alternative to applying it equally to gays.

      Aw. You don’t even understand the meaning of the word “abolishing”. That’s quaint. And sweet.

      You can’t abolish understandings.

      Nobody is talking about that. The discussion is centered on getting marriage out of the hands of government just like everything else it has touched and turned to shit.

    4. Dalmia, Tony fucking agrees with you. Congratulations. You won the race to the bottom.

  33. You guys really must have been invested in denying rights to the fags.

    It’s true, it’s so true, I pray to Aqua Buddha every night that the nasty, nasty faggotses don’t gets my precious.

    1. Ass sex for some, and miniature American abortion for others!

    2. You have to remember that for Tony “rights” means the ability to stick your boot on the face of your enemies. So any contract based system that denies gay couples the “right” to do that, is denying them their rights and something Tony wants no part of.

      1. But you’re perfectly happy to avail yourself of that same right.

        1. I would love to have the government stop recognizing my marriage. It wouldn’t bother me in the slightest. The only reason I have a marriage license is my wife insisted. The existence of my marriage doesn’t depend on the government recognizing it.

          1. This is clearly an issue of dire importance to you, but I’m sure your glad is pleased to know how much you’re willing to compromise your clearly cherished principles to appease her irrational demands.

            1. Somehow I typed glad instead of wife. Weird.

            2. No it is not. I couldn’t care less. I only get upset about marriage when fascist idiots like you want to use marriage as a way to stick it to your enemies.

              1. So gays shouldn’t get equal rights because it offends Christians. Got it. Heard it before, and not just on this issue. But, and I say this with all due respect, fuck you, fuck your God, we don’t live in a theocracy, we live in a society that is supposed to guarantee equal rights under the law.

                1. we live in a society that is supposed to guarantee equal rights under the law.

                  Hey Tony, remember how a couple hours ago you said people with uncompromising principles were narcissists? Guess what, those are uncompromising principles, you moron. Of course, since you legitimately are a narcissist you’ll be unwilling to apply your position to yourself.

                  1. Well it’s a pretty damn good one, and that’s not what I said. I said that people who vote for guaranteed losers because they are more pure are acting on narcissism instead of social concern.

                    1. Of course, Tony, the contrast of “you shouldn’t vote for guaranteed losers” is not “you should vote for guaranteed winners.” I mean, really, how do you square voting for, say, Hillary Clinton with “social concern”? One can vote for guaranteed or even probable winners entirely out of narcissism. And narcissism perfectly describes voters who vote for Hillary “because she’s a woman.”

    3. Is your “precious” your anus or marriage?

      1. Honestly, they’re both precious to me.

  34. Alright, everyone has to stop the name calling or else.

    1. I will turn this thread around if you don’t clean it up, people

  35. OK ? back to your name calling!

    1. Well, I tried to name call, but the squirrels at them.

      1. I’ve been following Hit and Run for a full decade now. Dalmia is far and away the worst writer to appear her. He work is routinely a shocking combination of bad ideas expressed with bad writing.

        You’ve been called.

        1. And some day, Reason will give us an edit button, and my typos won’t live on to mock me.

        2. And some day, Reason will give us an edit button, and my typos won’t live on to mock me.

          1. Your quadruple posts, however, will remain.

            1. squirrel + wood-chipper == plant food.

            2. squirrel + wood-chipper == plant food.

        3. “Put a sock in it, boy, or else you’ll be outta here like shit through a goose.”

  36. What if instead of what happened, states had created civil unions. You could have had a contract based civil union system where any couple gay or straight could instead of getting a marriage license, signed a civil union contract. In return for not having the ability to force anyone other than the courts to recognize their marriage, couples would have gotten the ability to opt out of the divorce laws and set the terms of their marriage any way they liked. And you could have changed the tax code and the immigration code to include anyone in these unions as a “spouse”.

    Wouldn’t that have been a much better result than sticking gays in government marriage by court decree? There would have been no religious exercise issues. The practical concerns of gay couples would have been addressed. And there would have been an alternative and freer system to government marriage available. What would have been the downside to that?

    1. I would be game, but that offer wasn’t on the table.

      1. Yes it was. Civil unions were totally on the table. And the gay community said no. Civil unions were offered in multiple states. Why didn’t Libertarians advocate for those?

        1. And you could have changed the tax code and the immigration code to include anyone in these unions as a “spouse”.

          Which states offered this?

          1. That is a federal issue. And once they had civil unions, you could have gone to the federal level and changed that.

            Libertarians were so happy to shove it in the face of the evil SOCONs they walked away from their principles and embraced government marriage.

            1. Do you really think it is easy to get federal tax and immigration laws changed? Also plenty of commenters here argued that government shouldn’t be in the marriage business, but if it is, it should treat everyone equally. I don’t see how that is unprincipled.

              1. Once states started recognizing civil unions why not? And more importantly, if doing the hard thing was the only way to ensure gay marriage didn’t destroy religious freedom and also meant creating a better and more free system, then the thing to do is the hard thing.

                As a side note, most duel income couples get fucked by being married under the tax code. Very few couples benefit on their from being married. So chances are changing the tax code would have made most gay couples worse off.

                Lastly, if you think these things are “bennies” and welfare, since when is the solution to welfare giving more people access to it?

                This is another thing that Libertarians have done, they have managed to turn the argument against government marriage from a pro freedom one into a nasty envious one about cutting off welfare going to married couples. That is not a good thing.

    2. Good point. I wonder why conservatives never listened to us and did that? If they did, they might not be in the boat they’re in now.

      1. Conservatives will never listen to drug-addled hippies who disrespect the police. Like you, hippie.

        1. No, Libertarians will never listen to conservatives because damn it gays wanted marriage and that was all that mattered.

          1. Not true. Conservatives like to impose their beliefs on to everyone else, which makes libertarian-minded people reflexively recoil. In the case of gay marriage, conservatives wanted to preserve their version of what marriage theoretically means to them. You have stated before that it would be smart for the religious to shun government marriage, and I agree with that.

            However, I doubt it happens. Free stuff, “traditional marriage,” etc.

            1. Bullshit. The Conservatives advocated for the system i described and the Libertarians didn’t. The libertarians wanted more government marriage and were perfectly okay with screwing anyone who objected to gay marriage as a price for getting it.

              Libertarians should have advocated for civil unions and they didn’t. That is what happened here.

          2. We’re not the ones who failed to apprehend the Iron Laws. There was an unfair system which suited conservatives. Conservatives failed to fix it in a way that would make it fair, so leftists exploited the opportunity to fix in a way that would make in unfair in a manner they prefer. Thus it ever was. There was plenty of time to gracefully transition to civil unions when the shoe was on the other foot.

            1. Yes. The conservatives should have gone for civil unions earlier. No question about that. Hell, the conservatives should have gotten ahead of the curve and advocated for gay marriage as a way to reign in the evil sodomites. Had they done that, gays would have never wanted it in the first place.

              But Libertarians should have always advocated for civil unions because that was their position from the beginning.

      2. They did. Conservatives have argued for them for years.

        Ben Carson just to name one

        http://www.cnsnews.com/news/ar…..ay-couples

        Where were the Libertarians? Why were they not arguing for that?

        1. 1) A conservative arguing for something in 2015 is not in any way indicative of what conservatives have argued “for years”.
          2) Conservatives have not usually embraced “civil unions for all”, at best they’ve embraced “civil unions for gays”, ie separate but equal institutions.
          3) I. am. speaking. to. you. as. a. libertarian. I have been arguing for that since I have been arguing on the subject, circa the late nineties. I doubt I’m alone. I knew exactly how all of this bullshit was going to play out back then, and both the conservatives and the progs have been completely predictable.

          1. But on the plus side, if things continue to go to plan, you can go live in Jesusland. Progs can’t not be totalitarian, and yet there are huge geographies filled mainly with their enemies, and not much of their own. They will continue behaving more and more horribly because the social mechanisms keeping them in check have failed (or more accurately, they’ve deliberately disabled them). Secession will be seen as a necessary last resort to protect freedom. Civil war seems likely, and it’s anyone’s guess what happens then.

      3. Conservatives are in the boat they are in now partially because Libertarians didn’t help advocate for civil unions. They advocated for constitutionally mandated government recognition of gay marriages.

        1. Civil unions were entertained by a lot of people before it became painfully obvious that they were the very essence of separate-but-equal.

          1. Yes Tony. Civil unions meant you couldn’t fuck with people you hate. And since for you and your ilk that was the entire point, you didn’t want it.

            1. That doesn’t make any sense. Civil unions mean you get the smug unconstitutional satisfaction that your marriage, which you claim not to care about, is more special than gay people’s. And stop assuming motives on behalf of the whole gay population. That’s not an argument, it’s being a whiny bitch.

              1. And stop assuming motives on behalf of the whole gay population.

                This is rich coming from the guy who said, in this very thread, the following:

                I will probably always suspect that privatizing marriageis a smokescreen for people who couldn’t get on board with simply equality, either for bigoted reasons or they are too tribal to ever agree with liberals on anything.

  37. How does the size of government shrink if it has to officially recognize countless numbers of marriages (polygamy, cousin marriage, etc)? Gays can’t produce kids of their own, they already have to form some sort of private agreement to adopt kids or use third party as sperm donors or surrogate mother (you don’t have to be married to do those things).

    Privatizing marriages can be thought as “decriminalizing” extra marital affairs or taking government out of the divorce business. Let people make their own decisions and face their own moral dilemma for cheating. If I lived with my girlfriend for 10 years and decided to break up, the government doesn’t dictate that I have to give her 50% of my money. No prenups would be involved.

    If there children are involved, then the government should get involved a bit. And there was already some gray areas involved with gay divorces. But even without a strict government were involved, most human beings would feed and clothe their offspring.

    1. How does the size of government shrink if it has to officially recognize countless numbers of marriages (polygamy, cousin marriage, etc)?

      That is one hell of a good question. It would have been nice if someone had asked it before Libertarians decided government recognized gay marriage was the most important thing ever.

    2. I don’t know, how does the size of the government shrink if it has to recognize countless small businesses? Damn, I’m glad regulations are making sure only a small number of giant corporations can afford to exist, otherwise government would terrifyingly large.

      1. I don’t know, how does the size of the government shrink if it has to recognize countless small businesses?

        When “recognize” means giving licenses and setting the terms of how those businesses operate versus just giving public notice the businesses are incorporated, then yes the government gets a lot larger.

  38. If Dalmia made several defective or vague arguments, that hardly justifies hand-waving away the issue of spousal testimony.

    You can’t simply hand-wave this issue away by saying “there shouldn’t be any compulsory testimony at all.” OK, so abolishing spousal testimony rules wouldn’t have an effect in Libertopia. Now let us ask ourselves what effect it would have in the planet on which he happen to live now?

    *Of course* abolishing the spousal-testimony rules means spouses would be forced to testify against each other.

    At least one of the commenters tried to face up to the problem:

    “#3 could be addressed by either a) removing immunity for everyone b) banning compulsory testimony regardless of marital status or c) allowing spousal immunity through contract. The last one would need some sort of rules to prevent anyone from simply claiming they’re married to protect themselves (such as in criminal gangs or organizations), but this is not an insurmountable obstacle regardless of which path you take.”

    (a) is what will happen.

    (b) is the puppies-and-rainbows, dorm-room bull session answer.

    (c) Simply involves using different words for the same concepts. If you sign a contract calling yourselves married, we’ll recognize the marriage, subject to some exceptions. /facepalm. In other words, the same situation as today, except the privilege will be triggered by signing a contract, and the government will recognize your marriage in some cases but not in others.

    1. “Simply involves using different words for the same concepts.”

      Yes, different words that don’t cause civil war between the totalitarian prog religion and all the religions that have particular ideas about what god thinks a marriage ought to be.

      1. Allow me to register a disagreement. Caldissident’s proposal included “some sort of rules to prevent anyone from simply claiming they’re married to protect themselves.”

        Yeah, no way *that* could be divisive! I mean, debates over whom the government should recognize as married haven’t been divisive before, why should they be now.

        And of course this isn’t a privatization proposal at all, it’s a system of government-recognized marriages, where the government recognizes some marriages and not others.

        But somehow we avoid the divisiveness by omitting the m-word and using different terminology?

    2. Now let us ask ourselves what effect it would have in the planet on which he happen to live now?

      Very, very little. It’s rarely invoked. And the testimonial privilege only applies to the witness spouse, meaning it’s solely up to your partner if they want to fink on you. Unsurprisingly, prosecutors have a knack for encouraging the witness spouse to waive the privilege.

      1. That’s an argument for beefing up the privilege, not for abolishing it.

        1. I mean, plea-bargaining has the effect of eroding all sorts of rights of the defendant, including trial by jury (by imposing a de facto penalty on the exercise of this right, so that most defendants don’t exercise it).

          So by your logic we need to abolish trial by jury altogether. Put it out of its misery.

          1. Or we could, you know, make the communication and testimonial privileges universal, since there shouldn’t be a legal distinction between, say, your business partner, financial adviser or shrink and the person you happen to be in a romantic relationship with.

  39. The state should at least stop licensing marriage, which means assuming for itself the power to pre-approve marriages. The state does not license the right to speak, believe, or publish beforehand, nor does the state claim the right to preapprove normal contracts. You can draft sign, execute and fulfill a business contract without ever interposing a state authority figure or registering your business contract with any state official.

    The main distinction is that governments can continue to treat people as married, even though no authority provided prior approval for the match. For simplicity, marriages could be registered as a way to officially record an act, sort of akin to deeds, but without any ability of the state to preemptively assert its authority to approve or reject the marriage.

    Licensing is about control to reject marriages. The state doesn’t need that power.

    1. The state does not license the right to speak, believe, or publish beforehand, nor does the state claim the right to preapprove normal contracts.

      Give it time.

    2. It is not just about that. It is also about the ability to control the terms of those marriages. You don’t get to determine the nature of your relationship. The state determines that. Sure, you can agree to anything you want but if your spouse decides they don’t like that, you can’t enforce it. You go to court and get a divorce and a judge decides the terms of your relationship and how it shall end.

      Such a system makes people less free. Yet somehow Libertarians convinced themselves that giving gays access to a system that made them less free was an important civil rights issue.

  40. 1. The key thing is to remove any benefits accorded to marriage in government benefits programs or taxes. At that point, it doesn’t matter if you are married or not. Inheritances can be spelled out in the contract any way you want. You could have a law mandating that any valid marriage contract spell out inheritance rights upfront to simplify things.

    2. I don’t see why the law wouldn’t simply presume that biological parents have custody rights by default, irregardless of whether the parents are married. Why does marriage have anything to do with it.

    3. Spousal immunity would go away. So what?

    4. I have no idea what’s going on in Cass Sunsteins head, and I don’t care.

    5. How about this to spin your head a bit: It increases the freedom of association of family members to disassociate themselves from eachother. If a child is not legally bound to his parents until age 18, the child can simply leave. That increases the child’s freedom of association. Why should the government be forcing people to associate with their biological relatives? How does that increase freedom of association. If anything, the state taking a larger role in allowing family members to freely disassociate INCREASES freedom of association. The fact that maybe one person in the family is pissed off that the state is protecting other’s rights to leave is not something we should care about. The state should always protect the rights of individuals above families.

    1. Uh, five year olds should not have the freedoms granted to adults. Sorry.

    2. It increases the freedom of association of family members to disassociate themselves from eachother. If a child is not legally bound to his parents until age 18, the child can simply leave.

      OMG, Hazel, you actually think people should be free! GET HER!

    3. 2. I don’t see why the law wouldn’t simply presume that biological parents have custody rights by default, irregardless of whether the parents are married. Why does marriage have anything to do with it.

      Because without a paternity test, you don’t know who the father is. So if you say “marriage has nothing to do with it”, then married fathers have to get paternity tests to prove they are the fathers of their wives children. While that would certainly produce some entertainment as men whose wives had whored around on them found out the kid wasn’t theirs, it would be a real imposition and a humiliation ot married men to have to go to court with a paternity test and prove that their kids were in fact theirs. Without the default position that the husband of a woman is the father of her children, how else but getting a paternity test and going to court would you establish who is the biological father?

      And the government doesn’t force people to associate with their biological relatives. Children are only “forced” in the sense that their biological parents are required to provide for them until they are 18. So, number 5 makes no sense at all.

      1. I read somewhere that 1 in 25 men are unknowingly raising children who are not their own. A shockingly high figure I think. But whatevs, men are evil oppressors and women are saintly victims of patriarchy or something.

        1. It is worse than that. Doctors routinely discover this and don’t tell the husband out of concern for the wife. No shit.

          1. “Well the wife is the patient and the baby is hers and the man’s job is to be responsible for any and all choices made by his wife.” Or at least so says statutory divorce law.

      2. How about we just take the biological mother’s word who the father is at birth? If the father, or even some other man, wises to contest the parentage, he can ask for a paternity test.
        The majority of cases nobody will challenge the mother’s claim.

        1. How about we just take the biological mother’s word who the father is at birth?

          Sure. Just let any woman stick any man she wants with child support until he proves otherwise.

          That is actually what we do with regards to unmarried mothers. And it is a pretty shitty system.

          1. So, basically, it involves no difference from what we do now. So how does the argument work again that not recognizing marriage will screw things up?

            Also, how else is it supposed to work for unmarried mothers? No parental rights for the father at all? Most of the time I would think the actual biological father would want to be named so that he can get visitation and potentially custody.

    4. 3. Spousal immunity would go away. So what?

      “Tell us about your husband’s meth lab or we’re going to put you away for conspiracy and obstruction. Your children will fare very well in state custody.”

      When your justice system is routinely pursuing victimless crimes and destroying families, every little bit of common law that liberty takes refuge is worth preserving from statutory erosion.

      1. Thank you. That is exactly it.

      2. Testimonial privilege is one-way though. Prosecutors can (and do) still exercise that same pressure on the witness spouse. You can get certain privileged communication out of evidence. That’s it.

        1. Well it depends on the state or whether you’re in a federal court. From what I’ve read on the common law, in some jurisdictions the meth making husband (party to the case) has testimonial and/or communications immunity to not implicate his wife (witness to the case) in the crime and in other courts it’s the wife that has some immunity against not testifying against the meth making husband. And depending on the state, some apply it to both criminal and civil cases or one or the other. It’s a big hodgepodge.

          1. Why should either of these things be dependent on marriage? What about parents being compelled to testify against children, or children against parents, or brothers against sisters? Why is marriage singled out for special privileges?

            1. It’s a holdover protection from a pre-welfare state time when families really were the social safety net. The idea was to not destroy the family by inserting a legal obligation to betray one’s spouse to third parties in civil or criminal proceedings. And of course the “immunity” we’re talking about here isn’t broad and absolute. I don’t see it as a privilege so much as a common law check on the authority of the judiciary. As small or inconsequential as it may be…

  41. One caveat about spousal testimony – there’s still a Fifth Amendment right against self-incrimination, and most questions a prosecutor would ask about your spouse’s links to a crime would be incriminating to both you *and* the spouse.

    But unlike the spousal-testimony rules, the prosecutor can grant immunity when it comes to self-incrimination.

    And analagous to what was pointed out above, you can be made to waive the privilege against incrimination via a plea-bargain.

  42. OK ? back to your name calling!

    Oh, stop it, Shikha.

    Honestly the level of random antipathy from the reason staff to the commentariat gets annoying sometimes. Yes there’s a bunch of dipshittery here including third-grade insults and the grown-up equivalent of booger jokes. And, surprise surprise, there’s critique of the articles. Unlike the boards at salon or slate or HuffPo I actually learn things fromthe comments. And I have a lot more respect for the authors who, heaven forbid, come down here into the basement to engage (Hi Ron) intelligent (if possibly harshly worded) rebuttals.

    And we must be a bunch of dumb fucks, since obviously we keep spreading the word about reason elsewhere and, you know, donating to you and all.

    Libertarian-on-libertarian violence is nothing new. Put on the big girl pants and actually respond to some of the critiques instead of citing the same arguments made by someone else. Christ, a huge percentage of the readers here reject AGW despite “the science is settled”. You’d think trying to prove a point by saying “well so-and-so said the same thing” would be the least likely successful argument to make here.

    1. And by the way, when the hell did spousal immunity become the ROADZ!!! of privatizing marriage? Jesus.

      1. It is absurd. Courts recognize immunity in contractual relationships like lawyers and therapists and could do the same with marriage contracts.

        You have to give Dalmia credit for one thing. She is honest enough to admit that anyone who advocated for gay marriage versus civil unions better be able to explain why government marriage is needed and better. Her position sucks but it is the rational result of advocating for gay marriage instead of civil unions.

    2. Yes there’s a bunch of dipshittery here including third-grade insults and the grown-up equivalent of booger jokes.

      What do boogers and apples have in common?

      They both get picked and eaten!

  43. Shika, you have outdone yourself.

    This is quite litterally the dumbest article I have ever seen posted on Reason.

    You want answers to your 4 little questions…

    1) “As Dalmia notes, these partnerships still need to be authorized, recorded, and registered by the state, all according to government regulations.”

    No they do not, this is called question begging. Businesses do not need to record and register contracts they enter into in order to have those contracts enforced by the courts. Nor does the government authorize them.

    There is literally no need to have marriages registered, authorized or recorded.

    Now, there “might” be some benefit to registering them depending on what shape the rest of the law takes but there is literally no need to have any authorization at all, and the only registration “regulations” required would be what forms of id are required and what proof of free consent of the parties is required. The regulations could literally be shorter than your article.

    1. No they do not, this is called question begging. Businesses do not need to record and register contracts they enter into in order to have those contracts enforced by the courts. Nor does the government authorize them.

      Some contracts do;. Mortgage contracts for example have to be registered or the lien is no good. And the reason why that is, is to keep people from defauding one another. And marriage contracts would be the same way. You just go down and register it like a deed so that everyone is on notice of it. That is totally different than the family law system we have now and in no way inconsistent with it being contract based.

    2. 3) ” How does privatizing marriage preserve spousal immunity?”

      Ah here we at least have a legitimate question. It doesn’t necessarily.

      It certainly could, you could for example allow 2 people to designate themselves as primary partners and they get spousal immunity but their other partners do not.

      That said, the better question is why SHOULD we continue to support spousal immunity?

      The ideas behind spousal immunity are based on antiquated gender roles that haven’t really been true for decades.

      Further, the switch to allowing gay marriage poses much the same problem as now criminal partnerships can shield themselves from having to testify against each other by simply getting married

      1. I don’t think so. The idea of immunity is based on the idea that we don’t want the government fucking with families. It has only become an issue because a lot of unmarried people are now effectively families and are unfairly denied the immunity because they won’t get a license.

        A true contract based system would solve the issues of spousal immunity. Right now you either are nothing or you get married and have the government dictate the terms of your marriage. Under a contract system, couples could get married on their own terms and would be much more likely to do so as a result. And you would have fewer couples denied the immunity.

        1. Hey, just a word to the wise. There’s this other commenter named John who gets ridiculous and hysterical on this subject. Despite the fact that your comments, like this one, are totally reasonable and calm, people still might accidentally think you’re him. You might want a different handle, to avoid unnecessary and undeserved insults.

          1. That or maybe the hysterical parts are not so hysterical. You just pretend they are because they bring up truths you don’t like to hear.

    3. 4) “What do you make of the fact that Sunstein, the Obama administration’s regulator-in-chief from 2009 to 2012, argues for essentially the same plan?”

      So here we get a Reductio ad Hitlerum.

      Are you going for a record on the number of fallacies you can quote from one article?

      Who cares what Cass Sunstein thinks the proposition either stands on it’s own or it doesn’t.

      This by the way is literally the way progressives argue, implying we should not support something because some other individual we disagree generally disagree with happens to support it should frankly be beneath writers at Reason

    4. 5)“How would abolishing state-recognized marriage promote freedom of association for all? The family serves as a buffer zone, or mediating institution, between the individual and the state.”

      Ah assertion without evidence.

      Please provide evidence that the family operates as a buffer between you and the state.

      Why on this very website I have seen article after article detailing the states abrogations of family integrity. Why you even have a writer whose sole dedication is to that very issue.

      Even if you argue that the family “should” act as a buffer between it’s members and society at large the fact is it hasn’t been the case for multiple decades and you still have to deal with the problem that families are defined by relationships not legal contracts. Even WITH legal recognition of marriage the family will not be honored and respected by the state, only certain approved families will be honored and respected by the state.

      So please explain to us how legal marriage promotes freedom of association for ANYONE forget everyone

  44. “And by the way, when the hell did spousal immunity become the ROADZ!!! of privatizing marriage? Jesus.”

    Because the H&R people, at least, have some difficulty coming up with a coherent response.

    If y’all responded to the “roads” question by brushing it off as irrelevant, and in particular if some of you admitted (as in the case of spousal testimony) that adopting “libertarian” ideas would *strengthen the government,* then yes it would be quite legitimate to hammer you over roads.

    Your position on roads is at least coherent and in some ways persuasive. Anyway, you can articulate it and keep your coherence.

    1. I don’t understand why it is even an issue. A contract system could keep immunity. Why Reason people have a problem with spousal immunity is because they just react sometimes.

    2. Why is the position on immunity any different from that on roads?

      There exist (roads/systems of immunity) based upon private contract that the government recognizes, work just great and are already broadly used. We could expand upon those.”

      Fucking done.

      1. And by the way, my comment is up here. Quit looking down here at the blog-equivalent of my boobs.

        1. Oh, hamilton, I wasn’t looking at your books, I was just studying the words on your T-shirt, totally different.

          1. boobs, not books

            1. boobs, not books

              Would be a great name for an anti-education campaign.

      2. “based upon private contract”

        So you and I could sign a contract promising not to testify against each other, and we could show that contract to a judge, and he’d say, “oh, well then, if you agreed not to fink on each other I won’t force you!” Then His Honor would hand out marijuana brownies for everyone. I mean, why not, if we’re amusing ourselves with fantasy?

        1. Um, yeah, that’s what “could” means.

          Meaning, since we (American society) would be changing one set of laws, we might maybe maybe just change one more small one while we were at it. Or not. Or we could decide the whole concept was silly and try something else.

          I mean, why not, if we’re amusing ourselves with fantasy?

          This is argumentam ad Tonyum.

          1. OK, hamilton, but like your namesake, when you’re proposing a radical revision of the laws, you need to explain why it’s a good idea and why it will lead to good results, and not to bad ones. You can’t say “the whole concept is silly, just pass my law and we’ll work out the implications later.”

            1. Yes, I get that, and if you’re bitching about the general “oh shut up you’ll be better off without that law” response, fine. But that wasn’t the first response I gave you. Deliberately. The same theory applies to the MUH ROADZ argument as well, which perhaps is your point. But it’s not too hard to come up with a tight response that isn’t mind-blowing and points to existing schemas that work instead of scaring the locals by waving the bloody shirt.

              1. “But it’s not too hard to come up with a tight response that isn’t mind-blowing and points to existing schemas that work instead of scaring the locals by waving the bloody shirt.”

                I *think* you’re saying that your side can adequately address the spousal-testimony issue. OK, then, but there are some H&R posters who don’t try, or who in general register their annoyance that I or Shikha or whoever mention the question at all.

                Since it’s a key question about the real-world consequences of a law, then the people you’re talking to deserve to have their concerns met, just like your namesake resolved concerns about the Constitution with his assurances that the President wouldn’t be a dictator, and that the courts were the least dangerous branch.

                1. there are some H&R posters who don’t try, or who in general register their annoyance that I or Shikha or whoever mention the question at all.

                  There are some H&R posters who write Hilary Clinton slashporn, too. I wouldn’t extrapolate from that to a general assumption of the dominant libertarian thought.

                  Well, actually, that might be a bad example. Let me think this through a little.

    3. Because the H&R people, at least, have some difficulty coming up with a coherent response.

      I take it you have a coherent response to why spousal immunity is a must-have (but, for example, mother-child and brother-sister immunity aren’t), and are just hiding it from us or something.

  45. 2) “How would you deal with possible legislation to license all parents, including biological parents, once the state no longer recognizes any union, including that of biological parents, as marriage? As stated above, the loss of state recognition of their union as anything more than an ordinary contract will deprive biological parents of the presumption of custody.”

    This is what we call a non sequitor.

    Already today more than half of children in the US are born out of wedlock and last I checked those parents did not need to be licensed in order to have a presumption of custody.

    Any such attempt to “license” parents would be utterly divorced from whatever laws around marriage exist for the specific reason that marriage and childbearing are completely unrelated. Further if such a law were to pass the legal status of marriage would be the least of our concerns because at that point the American people should be rising up in rebellion against an overbearing oppressive state.

    1. at that point the American people should be rising up in rebellion against an overbearing oppressive state

      Okay, now I agree we’ve dropped into fantasy land.

  46. OK ? back to your name calling!

    Does “butthurt” count as name calling?

  47. 1. It doesn’t shrink government involvement in enforcement (because we already treat marriages as a civil matter handled by specialized courts), but it shrinks government involvement in rule making. You may have noticed that polygamy is still illegal in this country.

    2. As stated above, the loss of state recognition of their union as anything more than an ordinary contract will deprive biological parents of the presumption of custody.

    Apparently single moms don’t have rights? Is that a thing?

    3. How does privatizing marriage preserve spousal immunity?

    Many states have common law marriage, and spousal immunity applies to those, even in the absence of a license. To anticipate the usual “how do you deal with all the mafiosi getting married?” followup: They even have court precedent on what the prosecution needs to do to establish that the marriage is a sham, and hence the members don’t qualify for spousal immunity. Furthermore compelled testimony is already a bad thing, so let’s try getting rid of id.

    4. Ad hominem right back at you, or something.

    5. How would abolishing state-recognized marriage promote freedom of association for all?

    Replace the “recognized” with the more accurate “defined”, and I think the response is self-evident.

    I am sympathetic to the argument that it’s complicated, and will take time to implement. But if you want to portray it as fundamentally not serious or feasible, you’ll have to do a better job.

    1. I noticed I didn’t give a reason in favor of using private arrangements, so here it is:

      We just went through a whole round of kulturkampf over gay marriage. It was messy, it led to a lot of judicial/legislative fights, etc. Brendan Eich lost his goddamn job over it. There’s still a messy aftermath, with clerks refusing to sign papers, judges getting booted off the marriage-officiating rotation, etc.

      And that was for a mostly cosmetic change to the laws. Same-sex marriage behaves the same, with none of the benefits/rules/privileges behaving in an utterly broken way when you change the gender of one of the members.

      The next marriage fight is probably going to be polygamy. Justice Kennedy anticipated as much when he avoided using arguments that would create precedent for it in the last few rulings he made.

      Except having more than 2 people is going to be trouble for the tax code, custody rules, etc. The existing legal framework is going to need to change, much more dramatically than it did for SSM.

      We can do this in 2 ways. We can wait 20 years then go for a massive messy battle once critical mass supports it, or we can preempt the big fight, and build an alternative that solves the problem before it becomes another stupid fight.

      Best of all is that there’s support from some on the left and on the right, enough to get a state or two to try it out and see what happens.

      1. All people have to do is stop getting married. That’s the beauty of this particular policy: its political support will coincide naturally with its realization.

        The question is should we have continued denying equal protection to gay people while we waited for that to happen?

        1. No. I’m very much in line with Justin Amash on this one: If government does something, even if it shouldn’t be doing it at all, it cannot make arbitrary distinctions about who does and doesn’t get the benefits/costs.

  48. *surveys wreckage of 300+ comments*

    OK then

  49. Shikha makes a “you know who else…” argument about Sunstein wanting to abolish marriage licensing and then proceeds to criticize the H&R commentariat for for making “you know who else arguments” because they’ve compared her inexplicable position to that of ardent conservative statists.

    1. To be fair, she didn’t make the #4 argument. She just quoted somebody else’s argument.

      Of course the person she’s quoting is an ardent conservative statist.

      1. I realize that, I misspoke when I said she “made” the argument. The problem is that she fully endorsed that argument as supporting her position and reposted it to further her argument without any further discussion, then she goes on to make the “you know who else” critique, which all hypocrisy aside, is not exactly a fair representation of the commentariat’s counterarguments.

  50. So, do the writers get to pick their own headlines, or do editors do it? I only ask because the first two syllables are “more on”. Maybe someone was trying to tell us something.

  51. Aw. I missed out on a Shikha hatefest thread.

  52. Bastards worrying about out-of-(state recognized)-wedlock births!

    Not all private contracts or agreements need ANY registration. I doubt any of the contracts I’ve ever signed required more than a Notary.

    For the uncertainty, consider Terri Schiavo and her husband that was shacking up and had two bastards instead of just divorcing, yet maintained the right to make decisions for her.

    Being a minarchist, I get it from both the anarcaps and regime liberts. But I give the anarcaps the advantage here.

    Privatizing marriage legislatively would handle cases like testifying against a spouse.

    Is every opponent so stupid to assume a single line law would be passed and everything else left to the courts and chaos?

  53. If we replaced gov. Liquor stores with liccenses…

    Registration Post card.
    My “spouse” now is (insert ID info) and has the rights and responsibilities of a “spouse”.
    My previous spouse was:
    [X] I declare that I now have no “spouse”.

    Constitutional carry doesn’t register guns. Constitutional marry….

  54. Parents are biological (can be ascertained with 99.9% certainty). Only need termination of rights, adoption.

    We already have tyrannical “child support” including cuckoldry.

  55. All of these objections are bullshit. The courts deal with custody and inheritance and other rights between unmarried parents all the time. There’s no reason married people couldn’t be treated the same.

  56. I keep seeing these articles and wonder why Reason continues to employ Shikka (who, amusingly, does not reciprocate by employing reason).

    Then I see how many comments the articles generate and I have my answer.

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