The Right to Unmarry: A Proposal Within a Proposal

|The Volokh Conspiracy |

Brian Frye and Maybell Romero's new essay on The Right to Unmarry has a most unusual abstract:

BLF: This is a marriage proposal in the form of a law review article. In this article, I observe that Maybell Romero and I are in love. I want to marry her, and I believe she wants to marry me. At least I'll find out pretty soon. But we cannot marry each other right now, because we are both currently married to other people.

Maybell and I want to end our existing marriages, and our respective spouses have even agreed to divorce. But the government will not allow us to marry each other until it decides to terminate our current marriages.

Maybell is unaware of this prologue to our article, describing our personal circumstances, but I'm sure she'll see it soon. Wish me luck.

The Constitution protects the fundamental right to marry the person of your choice, so long as the choice is mutual. Any two people can agree to marry each other, and the government cannot stop them.

But the government can and does regulate the dissolution of marriages. While people can divorce, they need the government's permission. A marriage isn't over until the government says it is. And a person cannot remarry until their divorce is final. In other words, The government cannot prevent people from marrying each other, but it can and does force them to remain married.

We believe that people should be able to end a marriage and start a new one whenever they want. Indeed, we believe it is their constitutional right. If due process protects the right to marry based on autonomy and dignity, then it must also protect the right to unmarry on the same grounds. If it offends autonomy and dignity to prohibit a marriage, it offends autonomy and dignity to preserve a marriage, against the will of the married.

The state can legitimately regulate the allocation of property when a marriage is dissolved, just like it regulates the dissolution of any other partnership. But it cannot legitimately force people to remain married against their will or prevent them from remarrying. As always, love will out.

On the merits, my immediate objection was that divorce requires tying up loose ends. But they offer an answer to this:

[D]ivorce disputes are not about marital status, but about the distribution of property, the custody of children, and other contentious issues. None of these are implicated by the right to unmarry. Courts can and must resolve these difficult questions over a period of time, in consultation with the parties. But there is no reason or need for the marriage itself to persist, in order to address them.

So the right of which the authors speak is not the right to unmarry so much as the right to unmarry immediately. My remaining objection then is that it is not clear to me that the right to marry entails the right to marry immediately or even quickly. Anthony Kronman has noted "the statutory rule (found in many states) that a couple may not marry until a stated period of time has passed until the issuance of their license and that, once married, they may not obtain a divorce decree before the end of a similar cooling-off period." Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763, 788 (1983). To be sure, the cooling-off period for marriage is generally much shorter than the time it takes to complete a divorce. One possible explanation is that states do not wish to discourage shotgun weddings when a woman is pregnant.

One could imagine a longer cooling-off period for marriage, at least when pregnancy is not involved. Would it be so terrible if states required a couple to take a trip together before getting married (if possible within their means), or to answer jointly a questionnaire about how they might deal with some difficult questions, especially as to children, or to attest multiple times over a three-month period that they really do want to get married? My purpose here is not to advocate that states require more deliberation before marriage, but the idea does not seem crazy to me, and if that's so, it's also not clear to me that cooling-off periods for divorce are problematic.

But Frye and Romero should be applauded for pointed out the asymmetry in current policy. I wish them (as well as their current spouses) best of luck in their endeavors, personal and professional.

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  1. They should grow up. The abstract gives off the vibe of that pathetic Michael Caine character in Hannah and Her Sisters.

    1. Yes. We must all be as grimly humorless as you. Good comment, bruh.

      1. They’re not going to sleep with you. (Am I getting the en vogue online snark reply right?)

      2. You figure that self-described law review article is a joke? Published a day late, perhaps?

  2. The State has an interest in stability in the relationships that form families. Divorce imposes externalities on society, and the State has business in limiting those externalities and their effects.

    Whether that gives the State any powers to prohibit marriages between particular individuals or classes of individuals is a reasonable point to argue. Cousin marriage is one example. Blood tests for certain diseases are another. These are quite apart from any arguments dealing with the benefits the State gives to married persons versus single ones. I admit I don’t know how these arguments mesh with, say, Obergefell.

    On the point of examining whether any two individuals are emotionally or psychologically fit to marry, however, the State is utterly unequipped to do so, and I’m reluctant to give them those powers because of how they are prone to misuse them.

    Religion is equipped to deal with those matters, and positioned to intervene to recover marriages at risk of failure, and the State should defer to religious institutions on them.

    If that approach risks complaints about Establishment clause violations, I submit the problem is not with marriage, or how the State recognizes it, but with how the Establishment clause is presently interpreted.

    1. How in the hell are religious leaders better suited to determine if two individuals are emotionally or psychologically fit to marry?

      Even in dip-shit Alabama, “a person can get ordained ‘in less than a minute,’ by the 20-million minister strong Universal Life Church and be credentialed to perform a wedding ceremony. . . .”

      1. “How in the hell are religious leaders better suited to determine if two individuals are emotionally or psychologically fit to marry?”

        It’s a miracle?

        1. I don’t think you understand what the definition of a miracle is, but you try to fake it for a joke here falls flat. No surprise that a fake faker fakes poorly.

          1. A ‘fake faker’ would be a person who tends to engage in truth, integrity, honest dealings, etc.. A *real* faker would be one who engages in fake or false behavior on a consistent basis.
            So, you are describing the Good Rev. as a generally honest person, who–not surprisingly–is doing a poor job of faking…since it’s something he does so infrequently in his life.

            Based on all your past postings here; I doubt you wanted to give the Rev such a ringing endorsement of integrity and good character. But, thank you, on his behalf.

            1. So, a grammar Nazi Rev defense?
              However, calling some a fake faker is like calling them a f*cking f*ck, or a cheating cheater. The double use of the word is emphasis. It also is saying he a “fake” who in the past tense was recently faking (his recent comment coming from his fakeness), thus the “er” suffix.

              I think everyone understood as well, even without resorting to pedantic arguments. And I could care less *wink*.

              Now, let the faker defend himself please.

              1. If I’m gonna die from Covid-19; then, damn it, it’s gonna be with proper English on my lips! 🙂

                (But, seriously, I hope each and every commentator here survives this crisis and lives on to make snarky–or ingenuous–posts for years to come.)

      2. “How in the hell are religious leaders better suited to determine if two individuals are emotionally or psychologically fit to marry?”

        At least in my faith, a wedding is a contract amongst three parties — after both the husband and wife say “I do”, the minister then turns to the congregation and asks us if we are willing to help and support the young family, and we respond that “we do.”

        Prior to 1855, at least in Massachusetts, it was the town saying that as there was no distinction between church & state — it was the town making this promise. And if people thought that the couple were not emotionally or psychologically fit to marry, they’d bring that to the attention of the Town Minister (an official post, paid via town property taxes) although either he likely had known both of the young people since birth, or had been told about them by his predecessor.

        And above and beyond the all-day Sunday services which were common back then, the minister (or his wife) was the town schoolteacher. And police chief. So think of all the folk today who were combined in that one person, and how much knowledge he had about the people asking him to marry them (and he could refuse to do so).

        1. I will spare everyone the old-timey stories about my fraternity’s initiation procedures, Hell Week, and similarly solemn occasions — let alone claims that the uninitiated should take pointers from the centuries-old practices of our sacred brotherhood.

          (Anyone who figures an omnipotent, ostensible omniscient town minister-schoolteacher-police chief is a sound approach is probably beyond the reach of modernity or anything close to it. Although that seems to have been at least roughly the Penn State model.)

          1. “Anyone who figures an omnipotent, ostensible omniscient town minister-schoolteacher-police chief is a sound approach is probably beyond the reach of modernity or anything close to it”

            The Town Manager or Mayor of a small community holds a similar “omnipotent, ostensible omniscient” position today.

            And I have no use for fraternities — NONE.

        2. “At least in my faith, a wedding is a contract amongst three parties…”

          It’s not a contract among three people. You can’t enforce it against the congregants. Everybody in your life who has ever offered to help you with your marriage is not in a contract with you.

          It’s also completely non-responsive to anything here. The question is why would your congregation be any better able to help than the State, if we wanted them to. The broader point is that there’s no reason to think churches are any better than the government at assisting. I think arguments exist (churches are for-profit institutions), but they have to be made.

          1. It’s a contract before God, along with the “forsake all others” — and it is not legally enforcible by the state.

            My point was/is that when marriage came to be, it came to be in a society where there was one religion that everybody belonged to, and hence the promise of the congregation was the promise of the state. It was the beginning of the social net.

            Your question as to why the congregation can BETTER look after the family than the state is a legal one, the state has to have bureaucratic rules, while the church can rely on the judgement of the minister. Hence where the welfare rules say that the father has to divorce (if ever married) and leave the family for the wife/kids to get aid, the minister can say “no, he can stay with you” and still give aid. Etc.

            Conversely, if he sees you buying frozen lobster, he might ask a few questions that the state isn’t allowed to ask.

            1. Dr. Ed, even if I believed — as I do not — that your deity actually exists, my fundamental disagreement with your premise is that it fails to take into account the principle of “that was then, this is now.” What worked in an agrarian society thousands of years ago probably won’t work today because times have changed. Biblical marriage may or may not have worked at the time the Bible was being written, but that it not the society we live in now. You also can’t sell your daughter as a chattel slave to pay your debts, which is also biblical.

              And if you want evidence, look no further than what happened to marriage once the heavy hand of the state no longer pushed people in the direction of living biblically whether they wanted to or not. Once we actually had a free market of living arrangements, so to speak, the percentage of people who chose to follow biblical ideals dropped dramatically. That tells me that what you’re selling simply doesn’t meet people’s needs. If it did, that’s what people would do even without the heavy hand of the state.

            2. “My point was/is that when marriage came to be, it came to be in a society where there was one religion that everybody belonged to, and hence the promise of the congregation was the promise of the state.”

              The concept and practice of marriage precedes Christianity. In some cultures in antiquity, e.g. ancient Greece, it was not necessarily a matter of religion or faith for any kind of “congregation”, though it was typically considered a matter of government interest (this was particularly true in Sparta). There was marriage in ancient Rome, yet Rome tended to be tolerant of other religions, so long as their adherents were willing to recognize the Roman deities, which is, in great part, why the early Christians were treated so badly.

              If that part of your post was intended to be constrained to Colonial America, then you’ve ignored the existence of marriage in Rhode Island, where separation of church and state first took root in the New World.

        3. “At least in my faith, a wedding is a contract amongst three parties — after both the husband and wife say ‘I do’, the minister then turns to the congregation and asks us if we are willing to help and support the young family, and we respond that ‘we do.’

          Prior to 1855, at least in Massachusetts, it was the town saying that as there was no distinction between church & state — it was the town making this promise.”

          It was bollocks like that which inspired Roger Williams, a Puritan minister, to leave (expelled, actually) and form a separate colony, in part founded on the principle of separation of church and state, which later became Rhode Island. In your scenario, the minister was certainly _empowered_, but we shouldn’t confuse that with _qualified_.

      3. The only advantage I can see as far as religious organizations go is we’re talking about fairly subjective moral beliefs. There’s no objective reason for one set of beliefs to be better than another. However, a religious group can choose a set of beliefs and only those who subscribe to those beliefs are involved. The government is ill-equipped because it has to pick rules for everybody.

        Additionally, there’s a solemnizing function when it comes to religion for those who subscribe to its beliefs to help ensure they understand the significance of it. Of course, this requires that they genuinely subscribe to those beliefs to be effective, though.

      4. Well, religious leaders at least in Reformed Protestantism have a say in who they are willing to perform the ceremony and while yes the universal church is less of a ministry and more like a prostitute who sells herself to anyone with a coin (ie. instead of having a standard or expectation for their ministers and congregation who can and are dismissed if they behave inappropriately without repentance or heretically, the Universalist church believes even satan will go to heaven). You get what you pay for so to speak. Marriage is by definition a religious ceremony and divorce is extremely frowned upon in actual religious communities. The secular getting married is essentially pointless. You don’t believe in sin so living together and sleeping together or even having kids together out of wedlock doesn’t matter to you as a core belief. The whole article’s premise is idiotic… “Why can’t marriage be just like being boyfriends and girlfriends.” Well why try to change a religious thing that is meant to be “until death do you part” a secular thing that is as easy as changing your shirt bc you don’t like the color anymore?

        1. “Marriage is by definition a religious ceremony…”

          This is simply false. Marriage was a civil matter in some pre-Christian societies. Even through the early Christian period of Europe, marriage was rarely a religious matter.

    2. I’d like to see some data to support the proposition that religion is better equipped to deal with these matters than the state is. Intuitively, I would say both institutions are run by fallible humans and there’s no reason to think either would be better than the other at predicting marital outcomes. I’d also like to know how people like me who aren’t religious would fit into this picture.

      That aside, I agree with you that the state often ends up having to clean up messes left behind by people who shouldn’t have married, but I don’t see any way around it. Some rights are so fundamental that they don’t get messed with even if they produce bad social consequences; just ask the nearest Second Amendment absolutist. And the decision as to whom one will spend the rest of one’s life with strikes me as one of them.

      1. “just ask the nearest Second Amendment absolutist”

        you disqualified yourself from the table right there.

        1. What part of the statement do you disagree with?

          1. that the right guaranteed by the Second Amendment imposes externalities on a scale that affects you.

            1. I didn’t say that the Second Amendment imposes externalities on a scale that affects me. What I said is that at least some rights are not measured by whether or not they cause public harm. If they were, there’s a whole bunch of stuff in the Bill of Rights you could wave goodbye to.

              1. Fair point again.

      2. “I would say both institutions are run by fallible humans”

        Throw the baby out with the bathwater. Religious communities see functioning and nonfunctioning marriages up close, before the dysfunction deteriorates to the point that the State has to intervene.

        1. Police, social workers and other state employees see all that too. What makes their observations less valid than those of religion?

          1. they aren’t involved until the marriage goes south. Religions are involved from the outset. I concede, some are far less active and skilled at it than others.

            1. You know something? As an attorney, I’ve probably handled close to 200 family law cases. I saw none of those relationships until they had gone south. But after watching that many, I think I have a pretty good handle on why a lot of relationships end up not working out.

              1. you’re proving my point.

          2. Police, social workers and other state employees also operate at gunpoint.

            1. And in a theocracy, so would the pastor.

              “Somebody” is going to bear the sword, under any system. But what that has to do with what we’re discussing I don’t know.

            2. In a society like the one you describe the minister exercises an awful lot of power as well. I see no reason why his judgment should be better than that of a social worker. I can think of reasons why it might be worse.

      3. “how people like me who aren’t religious would fit into this picture.”

        Fair question. Perhaps the State has to clean up those messes, while religious communities will be free to weigh in on the cleaning up of those messes that take place under their care. Just fewer externalities for the State to own.

        1. You seem very fond of superstition.

          1. If you will not discriminate religion from shamanism, sure.

            Why then do you introduce yourself as a Reverend?
            Iowahawk’s ‘skin suit’?

            1. How is religion distinguishable from shamanism . . . and which, if either, is superior, in your judgment?
              Thank you.

              (I am associated with the Congregation Of Exalted Reason)

            2. “If you will not discriminate religion from shamanism, sure.”

              I think that in common usage the only principled(?) distinction is that shamanism is religion of which the speaker disapproves. Much like superstition vs faith.

      4. “I’d like to see some data to support the proposition that religion is better equipped to deal with these matters than the state is”

        It’s whom they answer to. A religious person answers to God while the state merely answers to itself.

        Religious participation is voluntary while obedience to government is compulsory — there are competing religions and one upset with the practices of one religion is free to go join (or form) another (and people do in large numbers). Absent leaving the jurisdiction or conducting a successful coup, one can’t join a different government.

        1. Dr. Ed, none of those things gives religion any more competence than the state has.

          1. I’ve noticed a BIG difference in how they approach issues of mental health — to the point where I started sending undergrads with issues to the religious folk instead of the Voodoo Scientists.

            It’s a difference in approach — the religious person views the person as an equal before the Lord while the person as a subject, not unlike a lab rat. It results in a much more humane approach to addressing the same thing — the VooDoo scientists are quite cruel.

            And its a focus on what upper management will be upset with you for, and where the state’s people are worried about messed up paperwork and not precisely following protocol, the religious folk are more afraid of offending God by treating the client badly.

            On a more pragmatic level, the religious person can only exist voluntarily — people chose to belong to the religion, people chose to donate, etc. By contrast the state mandates people patronize it, and its money is confiscated at gunpoint.

            1. I’ve noticed a BIG difference in how they approach issues of mental health

              There’s a big difference all right. Like how that woman you were talking about the other day thought homosexuals should seek conversion therapy.

              It’s a difference in approach — the religious person views the person as an equal before the Lord while the person as a subject, not unlike a lab rat. It results in a much more humane approach to addressing the same thing — the VooDoo scientists are quite cruel.

              If by Voodoo Scientists you mean professional therapists you are simply wrong. Your statement is nothing but proud ignorance.

            2. It’s a difference in approach — the religious person views the person as an equal before the Lord while the person as a subject, not unlike a lab rat. It results in a much more humane approach to addressing the same thing — the VooDoo scientists are quite cruel.

              This is complete bullshit. You’ve never talked to a therapist, a social worker? My dad was a therapist, and if you think he treated his patients as subjects….you continue to be a complete dick.

              I can’t believe you are part of any educational institution; what you no is so often wrong and easily dispelled by just living in the world that I just don’t know what is wrong with you.

            3. “…I started sending undergrads with issues to the religious folk instead of the Voodoo Scientists.”

              I consider that to be egregiously irresponsible. One cannot, for example, “pray the bipolar away” any more than one can “pray the gay away”.

        2. “A religious person answers to God”

          A religious person claims to answer to God. Mostly when convenient.

          1. No, a hypocrite claims to answer to God.
            A religious person believes that God actually knows the difference.

            1. Aye, “No true Scotsman!”

      5. Second Amendment only applies if it’s a shotgun wedding.

    3. No, it’s simpler than that — a marriage is a “license” — a state-issued permit to do “something” — and what is the “something”?

      To create children. This is my issue with gay marriage because the state has no other legitimate right to regulate the ability of consenting adults to live together, in whatever combination(s) they desire, or to do whatever they wish amongst themselves in private (I argue that in nullifying sodomy statutes, SCOTUS also nullified fornication and adultery statutes.)

      And I like to remind the LBGTQ community that the power to issue a license includes the power to deny said license, and do they really want the state to have the power to say who can’t live together, or what they can’t do in private?!?

      The state has a compelling interest in providing for minor children. In an era before central heating, microwave ovens and the rest, the state had an interest in providing for pregnant women as well, and in an era before DNA testing, the state needed to be able to assign paternal responsibilities to a specific man.

      Hence marriage was created as an inter-generational compact overseen by the society — remember that the eldest son was legally required to provide for his parents in their old age.

      The “Great Society” changed a lot of this, and one of the problems in the working class communities (not just the Black community, but it is most noticeable there) is that the government is a better husband — a better provider — than any man she is going to meet.

      That’s why I really don’t have any problem with polygamy or anything else — and what do you call a fraternity (or sorority) but a group of men (or women) who have a caring relationship amongst themselves, and live together in furtherance of that relationship…

      Now the various religions have every right to define marriage any damn way they want to — much like they have the same right to define their clergy. Much as the state recognizes a Rabbi, Minister, or Bishop without any authority to define who is (or isn’t) eligible to become one, the state could recognize the religious marriage as a contract subject to certain procedures like any contract, essentially under concepts of corporate law.

      Much as the duty to clean up toxic waste can’t be dissolved with the dissolution of a corporation, the responsibility for minor children will survive the dissolution of a marriage — in both cases, the state has a vested interest in holding the principals to their obligations.

      1. Y
        There are plenty of other state interests besides children. Monogamy reduces STD transmission. Marriage helps with property rules and estate planning.

        It was never actually about children. That was made up by the homophobes during the SSM debate.

        1. Wrong. It was always about the children, in that pair bonding, or “marriage” (even in short spells until children are old enough to fend for themselves) are universal across all cultures and all recorded history. It’s an institution that has stood the test of time because 1) it worked, and 2) there is no replacement

          No one cares for children as much as a biological parent, and that is a proven scientific and social fact.

          1. It’s not just humans who do this — a lot of animals (e.g. birds) that form a pair, with the father feeding the mother (who is setting on the nest) and then both feeding the young until they are old enough to survive on their own. Human children just take a lot longer to reach adulthood…

          2. It was always about the children, in that pair bonding, or “marriage” (even in short spells until children are old enough to fend for themselves) are universal across all cultures and all recorded history.

            Wrong.

            The Mosuo
            Kibbutzim
            Congo.

            Come one, man. We’ve been around the exact tree before.

          3. Pair bonding is definitely not universal. Many societies have other arrangements.

            At any rate, there’s no evidence that marriage, historically, was about children. It was originally about property and patriarchy.

        2. “It was never actually about children. That was made up by the homophobes during the SSM debate.”

          No, the myth that it wasn’t about children was made up by the heterophobes. Estate planning inherently involves children.

          1. No it doesn’t. Many couples die childless.

      2. God shut up nobody cares.

      3. “No, it’s simpler than that — a marriage is a ‘license’ — a state-issued permit to do ‘something’ — and what is the ‘something’?

        To create children.”

        Balderdash. If that were the case, then the state would have no reason to issue marriage licenses for heterosexual couples who are medically incapable of creating children.

    4. I think bad marriages impose much more serious externalities than divorces do.

      At any rate, people have sex drives. None of these dumb divorce restrictions stop people from doing the nasty with their new partners. It’s just petulance from religious conservative losers who can’t stand that the public rejects their rules.

      1. The religious rules serve to regulate said sex drive. Unregulated and you have lots of date rapes and the rest….

        1. I mean, first of all, organized religion is made up. Telling people lies about eternal torture to regulate their sex drives is evil.

          But nonetheless, it also doesn’t work. 99 percent of Americans disobey traditional Christian rules on sex. And that’s because those rules are dumb. If God really required them, God is an idiot unworthy of worship.

        2. Sure seems to work for Catholic Priests…

          More seriously, do you have any legitimate evidence to back that claim?

          Tangentially, among US states, there is a significant correlation between those which rank highest in religious adherence, and those which are highest in per-capita pornography consumption. Sure, that’s not date rape, but it’s certainly not what organized Christianity traditionally had in mind as a means of regulating sex drive.

  3. “Maybell is unaware of this prologue to our article, describing our personal circumstances, but I’m sure she’ll see it soon. Wish me luck.”

    Gave me a larf.

    Me, now.

  4. Just live together. Why worry about the piece of paper? Are there any states which still prosecute adultery or fornication?

    1. Because he and she freely choose to marry.

      1. Yes I know. They freely chose to marry with, and according to, the government’s blessing, and now they complain they don’t like or want the government’s blessing.

        1. That was shameful, dishonest or just plain dumb.
          Doing what the government requires is not a blessing.
          Presumably, your conspiratorial nature is also ignorant of the substantial legal benefits of marriage. Optional, since you don’t even know if it’s possible to live together. Maybe when you graduate?

    2. My same sex partner and I have lived together since 1994. Before 2008, gay marriage wasn’t legal where we lived, so we did without the piece of paper. In 2008, we got married and got the piece of paper.

      And the short answer is that living together without the piece of paper works just fine so long as nothing goes wrong. If neither of us dies without a will, or becomes incapacitated and has an emergency medical or financial decision that needs to be made, or gets arrested, then you’re right, there is no need for that piece of paper. If any of that does happen, life can become pretty unpleasant pretty quickly, especially if there are relatives in the picture who are hostile to the relationship. Things like powers of attorney fix some, but not all, of those problems.

      1. Government defines marriage and that’s what happens when they have a monopoly on it. Why would not contracts work as well? — because government wants the monopoly on marriage. Why? — because that’s what governments do — mind your business for you.

        1. At the gut level, I’m completely sympathetic to your argument. The practical answer, however, is that somebody has to have the authority to decide who is, and who is not, married, and who gets the benefits, because there will be disputes about it. Contracts can sometimes resolve that, but not always.

          Plus, it costs a lot of money for unmarried people to pay a lawyer to draft a contract for what married couples get for free.

          1. “Plus, it costs a lot of money for unmarried people to pay a lawyer to draft a contract for what married couples get for free.”

            And maybe 3 cents worth of paper to download & print the .pdf off the internet. There are no shortage of lawyers who support the LBGTQ (etc.) cause and perhaps one or two could draft such a contract.

            How do you think that the Uniform Commercial Code came to be?

            1. And if I have a serious medical condition, maybe I can just self-diagnose and treat based on information on the internet rather than see a real doctor.

              Mr. Ed, the raw level of ignorance and stupidity required to think that stuff you pull off the internet is a substitute for professional analysis is just staggering.

          2. “The practical answer, however, is that somebody has to have the authority to decide who is, and who is not, married, and who gets the benefits, because there will be disputes about it.”

            I get where you’re coming from on that, but perhaps state governments should only have very limited authority to deny marriage licenses, e.g. no marrying 6 year old children. Otherwise, marriage licenses should be “shall issue”, and states must recognize the licenses of other states (that’s pretty much the case now, AIUI) even where the specific rules differ somewhat, as in allowing marriage at 18 vs. 16. The feds should recognize a marriage if a state does, and have no say in the legitimacy of the license. It seems to me that such an arrangement would get government’s nose out of marriage to the extent that it is reasonably possible. To my eye, we seem to be clumsily stumbling in that general direction already.

        2. Now do red lights, stop signs, physician credentials, loading zones, subpoenas, and street closure permits.

        3. Marriage being more convenient than not for couples is not a conspiracy by big government.

          1. What part of “monopoly” did you not read?

            1. I don’t think government is driven by maintaining the monopoly on marriage.
              I don’t think the incentive is there.

              1. I’m forced to somewhat agree here, while the monopoly certainly exists, and will continue into the foreseeable future, the monopoly’s existence is due to a path dependency when religion and the state were more intertwined.

            2. What part of “monopoly” did you not read?

              What parts of Consent of the Governed and Will of the People does your compulsive authoritarianism EVER respect?

              Too extreme for even Ayn Rand!

        4. What is this monopoly?

          Aren’t people perfectly free to live together under the terms of a contract they draw up themselves?

          But you can’t cover everything in a contract, and some couples won’t negotiate one, so when problems arise it’s useful for there to be a backup set of rules. That’s what government provides, as well as some privileges and obligations.

    3. The United States Uniform Code of Military Justice. Maybe not a State, but with many of the powers of the State, including financial and criminal penalties and the power to expel.

      Ask the DoD how much they lose to such externalities, at least those they can calculate.

      1. Last time I checked, our military is a VOLUNTEER force.

        You join, you agree to follow the rules – which include giving up some 1A and 2A rights.

        It is NOT a state-like entity that can impose its will on its citizens.

  5. In Washington State, an uncontested divorce can be initiated by either party. They even give free classes on how to do the paperwork.

    A week or so later, we both showed up to confirm that it was mutual. Judge banged the gavel and it was over … less than 5 minutes.

    Then we went out to lunch, shook hands and said goodbye. Because of the legal entanglements, it can’t be much easier.

    1. What about child custody, division of shared real estate, and all the other entanglements which are often part of a marriage? Were all of those details covered by paperwork, or was your situation relatively uncomplicated?

      In my case, I had to file for divorce by public notice, which required legal representation. I had no knowledge of where she was, so there was no way to serve legal papers. Fortunately for me, none of the complications I asked you about applied, else it would have been messy. It also would have been legally risky, in a sense. For example, according to my attorney, she could make a legal claim for custody of the pets (the only thing left that was “shared”) or even maintenance/alimony for some period (I forget how long, but at least a couple of years) after the divorce was finalized.

  6. That “Liberty ” thing – denying someone the right to marry is a constitutional violaton under the due process clause.

    Maybe the legal rationale of Obergefell is valid for removing all impediments to marriage

    1. That depends on how broad your definition of “all” is.

      Marriage is, among other things, a contract, which means that all parties must be competent to enter into a contract. That’s why the people who claimed Obergefell would open the door to people marrying their dogs were wrong; show me a dog who has the capacity to enter into a contract and I’ll reconsider. That’s also why (among other reasons) you also can’t marry an 8 year old.

    2. That “Liberty ” thing – denying someone the right to marry is a constitutional violation under the due process clause

      Not to anyone who’s read the clause, understands it, and has an IQ above that of a gerbil.

  7. This reminds me of how the States entered into a union, and the States have the right to leave that union.

    1. Oh yeah? The tall ugly one, with his insatiable thirst for mass murder, settled that otherwise.

      1. Right you are! It’s as if King George won, and the Declaration of Independence is nothing but a preposterous act of treason forever discredited.

    2. States don’t have any rights at all.

      1. Uh, minor detail from an old discredited piece of parchment;
        “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

        1. “Powers” not “rights”. Its a pedantic point.

        2. Pay attention, Longtobeking
          Our is a government of delegatedI powers. Why do you sneer at a core American value??

          What that means is that rights are superior to powers
          The 9th Amendment severely limits the 10th.

          “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

          This was how the Declaration’s unalienable rights were incorporated into the Constitution.

          It means we have “fundamental rights,” (under natural law), which never stated, that no level of government may deny or disparage.
          Can you list those rights?
          I didn’t think so.

          Your “argument” is that of States Rights, as originated by the KKK and southern racists, most shamefully through Jim Crow. Now promoted by the likes of Ron Paul and the Authoritarian Right.

      2. States don’t have any rights at all.

        What about the right not to be deprived of equal representation in the Senate without its consent?

        1. That’s a right of the people in that state.
          Still confused? Cite that part of the Constitution that says states have rights

          Hint: compare the 10th Amendment on state POWERS. with the strict limits in the 9th on RIGHTS (of the people)

          1. ….with the strict limits in the 9th on by RIGHTS (of the people)

  8. Assuming this prologue is serious, only a cad discusses his wife [and mistress] in such a manner.

    I hope Ms. Romero has a good prenup and a private detective on retainer. She is going to need them.

    1. Assuming this prologue is serious, only a cad discusses his wife [and mistress] in such a manner.

      Who uses “mistress” these days?

  9. “I wish them (as well as their current spouses) best of luck in their endeavors, personal and professional.”

    Assuming it’s possible for all those endeavors to succeed simultaneously.

  10. I have long thought marriage is a obsolete legal institution. The State should just get out of the marriage business. If two (or more) people want to cohabit, fine, they do so now anyway. If those people want to consider themselves married with or without a solemn ceremony let them.

    Many people do that already. Over 40% of the children in the US are born outside a marriage, many even outside a relationship. If those people decide to go different way, then that’s fine. If they have trouble dividing up property or children then the courts can step in, they already do that for many unmarried people forcing fathers to pay support to women or the reverse. Placing children with the appropriate guardian/parent and resolving similar disputes after a divorce.

    I’ve been happily married for a very long time . I was married in a religious service with a license and everything. But I never considered that important. What was important were the mutual promises we made to each other. That didn’t require the state to do anything.

    1. I’d say marriage exists with or without state recognition. The state ought to come in when there’s some dispute over who’s married to whom, or what the responsibilities are.

      But ideally, this would be akin to a judicial function, ascertaining the boundaries of a pre-state institution.

      Of course, leave it to the state to undertake, not simply to recognize marriage, but to define and redefine it.

      1. How would you recognize an undefined thing?

        1. “the laws of nature and of nature’s God”?

          1. Non-responsive. Out of context. Irrelevant.

            We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

            Learn what a “just” power is.
            Hint: NOT your diktats.

      2. The state ought to come in when there’s some dispute over who’s married to whom, or what the responsibilities are.

        That’s exactly how it works, which requires a legal definition of what marriage is, else the state be a dictatorial body, devoid of any standards or principles.

        If you don’t like the law. change it. But that requires Will of the People … and you’d lose. Bigly. Accept our form of government

  11. All of the current complications of marriage are a result of lazy legislators using what, at the time, was near universal convention. Instead of writing tax breaks and child welfare laws independent of religious institution as the establishment clause may require, they just said ‘such and such benefit or obligation fall to only the married’.
    A marriage should be whatever the various religions say, with allowed distinctions concerning the number of participants and real or assumed sex/genders of those involved.
    If the state has any actual justification for involvement, it is to protect any children that may join a given family unit.
    Laws can be written to accomplish those goals. A child free marriage should also be free of any and all government interference.

    1. Marriage not only precedes the state, it precedes the organized religions existing today.

      Of course religious groups, being religious, aspire to tell people what marriage is, not to mention telling people about war and peace, helping the poor, and all sorts of other issues.

      If you’re not in the tradition of any of today’s organized religions, you still have to answer the questions they pose, including what marriage is, and whether it’s created by the state or exists independently of it.

    2. Instead of writing tax breaks and child welfare laws independent of religious institution as the establishment clause may require, they just said ‘such and such benefit or obligation fall to only the married’.

      That’s even worse than your total confusion on rights vs powers.

  12. I have been saying for a long time that the government should just not be handing out marriage licenses just based upon a one page application (that is if it is going to regulate marriage at all). In fact, if divorce is going to be essentially a heavily regulated industry I don’t know why the other end of marriage should not fit into the same regulatory scheme.

    1. Application, social worker visit, classes on being faithful. Useful for the article author.

      People who cheat on the spouse should probably not be allowed to marry the “other woman/other man”. After all, if one cheats once.

      1. Why the hell would you care?

      2. Those concerns, however valid they may be, are no business of any government.

  13. Gentlemen, may I propose a toast? Yes? Okay. “To our wives and our mistresses, and my they never meet.”

  14. Academic criminal conversation. Beats the converse.

    Mr. D.

  15. I think Abramowicz’s musings start from the wrong premise, which seems to assume that of course the state can take an interest. Rather than wonder if it would be permissible to require a longer waiting period, we should be looking for some justification for the state to care at all. And it should need to be a *strong* justification, because rights are at stake. Some general ‘social benefit’ claim is not sufficient. (Any government justification for involvement should be subject to strict scrutiny).

    Marriage is a contract. The government is not otherwise in the contract signing/permission business, nor the contract dissolution/permission business. The government only steps in when there’s a dispute between parties to a contract about what the contract requires. (That could be a dispute about whether the contract allows dissolution in the circumstances, but we accept marriage contracts include dissolution at will in the status quo anyway).

    Similarly, divorce proceedings are disputes about what the contract requires when it is dissolved. The government should limit its interests to resolving those contract disputes.

  16. This is a silly, juvenile idea that reflects a profound immaturity on the part of its author.

    I hope this “proposal” goes directly into the circular file.

    1. It’s actually possible in Washington State.
      Your rejection of individual liberty loses, again.
      Which puts you into the circular file!

  17. Here we are, having a nice respectful thread, where of all things the liberal gay married guy is debating the religious apologetic guy with the libertarian anarcho-capitalist guy….then Hiln has to come in and stink up the place with insults and dishonest arguments, and responding to every comment thread at that.

    Hiln, are stuck at home during this pandemic? Because it was awful nice around here without you the past couple weeks, even with that fake Rev, who is like a crazy streetcorner preacher you can just walk past (or maybe listen to for a moment for a wry chuckle at his antics).

    Heck, we even and multiple gun and abortion related threads where, you know, some agreement on substance was met, about the limits of a quarentine, even if nobody agreed on when life starts or the extent of 2nd amendment protections. That’s how non autistic spaz monkeys get along with each other.

  18. So basically he is arguing that saying “I divorce thee…” three times is two times too many?
    In exchange for the social, legal, and economic benefits granted marriage, in exchange, society may benefit from people entering/exiting from marriage lightly.

    Marry anyone you wish without bothering with the state or partaking the legal protections and fiscal benefits of state sanctioned marriage. A contract between two parties enumerating rights and responsibilities should be simple to construct. And exiting such a contract, you did put exit clauses in it presumably, is not a matter for the state nor divorce courts. If you and your business/marriage partner, like any contracted partnership find that you cannot resolve a post exit breakup, you still have civil courts to resolve your dispute, which if greater than the sum of $20 could even be a jury trial.

  19. “ThThis e Constitution protects the fundamental right to marry the person of your choice, so long as the choice is mutual. Any two people can agree to marry each other, and the government cannot stop them.”

    This is not true for cases of actual or legal consanguinity.

    1. And why does it have to be just two people?

  20. None of which is the government’s business in the first place.

  21. It’s probably worth noting that government benefits for marriage probably also shouldn’t exist. The government’s obsession with recording marriages and giving them (tax) benefits is an act of biopolitics to shape the actions and attitudes of the population for the benefit of the sovereign’s war-making power. (Population growth was the key engine for warfare for almost the entirety of the modern period, and all developed countries instituted domestic policies designed to encourage population growth in response).

    1. You can have population growth without marriage!

      And for some young man who grew up in a fatherless household, the military might be attractive as a substitute for the paternal discipline he missed out on in childhood.

      I’m not saying that’s how the military operates today, but it could adapt quite readily to a society of fatherless, drifting young men who want action and meaning in their lives. Of course, the training and discipline costs would be a tad greater than if an intact family had done the necessary socializing of the youths, but the military could adapt.

      1. I’m not claiming promoting marriage was the *only* way to achieve population growth goals, just that it was *a* method for doing that. The problem is the government’s interests here is not at all in the people’s interest – biopolitical action is hateful to a liberty-loving people, and should be curtailed at every opportunity.

        Also, how governments went about promoting population growth wasn’t exactly a free choice – it was limited by other commitments. Marriage promotion goes back a long time in western governments (early modern period starts at 1500, and marriage promotion for government purposes, while I don’t have a specific time at hand right now, surely starts by 1600). Alternative population-growing proposals (such as free love without contraceptives, for example) wouldn’t be compatible with preexisting religious commitments of both the government and their population. It was much easier to hijack an existing religious institution to achieve the government’s aim.

  22. Marriage is a religious institution, after time in history sanctioned by the state. If other words you can always shack up.

    1. Marriage was not a Catholic sacrament until 1500 years after the death of Christ. Before that it was a handshake deal, between the groom and the father-of-the-bride … because women were property.

      1. While it’s certainly true women were property, it was still *also* a religious sacrament before 1500. At least for the wealthy. These are not mutually exclusive realities.

        1. There is no such thing as a Catholic Sacrament for “only the wealthy.”

          But not as wacky as the notion that the purpose of sex is procreation, a blatant rejection of the obvious Will of Almighty God.

  23. Let’s take this logic and follow it to its logical conclusion.

    Current state policy subsidizes education, but it doesn’t subsidize ignorance. It subsidizes employment, but it doesn’t subsidize layoffs. Both are policy asymmetries.

    If we start with the premise that Government should not take sides, that it should not take positions on people’s behavior based on what it thinks best, it follows that positions like education is better than ignorance, employment better than unemployment, health better than sickness, being housed better than sleeping in the streets, are all just as outrageous instances of gross unfairness as the position that marriage is better than non-marriage.

    If such positions are grossly and inherently assymmetric, and hence per se unfair, then government ought to make it as easy to become sick as to get health care, as easy to become homeless as to get housing, as easy to be ignorant as to be educated. It should equally stop favoring one over the other.

    1. On the one hand, it is indubitably true that education is superior to ignorance, but why does *government* need to promote it? Employment is generally preferable to unemployment. The thing is, employment and education *promote themselves*. (Healthcare, similarly, should promote itself.)

      It is not clear, however, that marriage is superior to its absence. Marriage’s beneficial qualities are a matter of disputable moral, religious, and social values, not any sort of objective fact. To the extent that people hold values which elevate marriage, marriage will also promote itself.

      Further, unlike employment and education, marriage isn’t a general state of being. It is a specific state of being (married to one particular person). While marriage might generally be a good, a specific instance is not necessarily a good, and the people in the best position to judge that are the people directly involved (the couple, whether wishing to marry or wishing to unmarry).

      It should not be the government’s job to decide what is good for us, and entice us to do those things. Part of liberty is having the liberty to make decisions for ourselves, even if we don’t decide ‘correctly’ according to the government.

      1. If you take a consistent view that government shouldn’t promote education, employment, health, etc., fine. But why should government promote non-violence over violence? If one takes a neutral scientific view, anything that is, is right, and there’s no basis for moralizing over it and claiming that civil resolution of disputes is somehow better than vigilanteism and vendettas. They are simply alternative approaches. Preferring one over the other is simply a policy assymmetry.

        If Professor Abromowicz had argued that preferring marriage over non-marriage is bad policy and government ought to be neugral about it, I might disagree but his argument wouldn’t engage anything like the snark I’ve been giving him. The problem is he treats policy neutrality as an obvious given, and lack of policy neutrality as if it were some sort of oversight, an accident, rather than the result of a long-standing conscious, intentional policy. This is what gives rise to the snark. If lack of policy neutrality is an accident, then government largely consists of accidents, most especially its curious preference for non-violence over violence.

  24. A note to Professor Abromawicz.

    One of my difficulties with some of your posts, including this one, is that you tend to simply assume your position is not merely the correct but the only one, to the point of expressing wonder at the fact that the state of the law doesn’t take your position. In doing doing so, your posts often don’t seem to even consider the possibility that others might take a different position from you or that that they might have considered, reasoned basis for doing so. If the law doesn’t your position, you automatically look to anomaly or accident as the reason why this is so.

    Hence my snark answer to your post. Any policy position is by definition a policy asymmetry. And on as subject that people have beliefs and feelings about as strongly as marriage, it’s very unlikely that any “policy asymmetry” with respect to marriage would either have gone unnoticed before (part of your post’s charm, not to mention its attractive nuisance status for snarkists, is that it seems to suggest you have made a novel discovery), or be the result of accident or chance.

    1. you tend to simply assume your position is not merely the correct but the only one,

      He does the exact opposite. Explicitly.

      to the point of expressing wonder at the fact that the state of the law doesn’t take your position

      Those are mutually exclusive. Plus, he did not do that.

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