Jon Easter has a good post on Senate candidate Joe Donnelly’s position on marriage equality: Donnelly’s agin’ it. (So is gubernatorial candidate, John Gregg.) For what it’s worth, Libertarian gubernatorial candidate, Rupert of Survivor (blanking on his last name at the moment) is in support.
Maybe it’s a way of capturing the middle. And, in any event on this, I expect it’s simply what the various men believe. But, it seems year after year, the GOP does what it can to fire up its base while the Democratic Party does what it can to depress its base. Bold strategy. Let’s see how it works!
Boneham. Rupert Boneham. Bone-in ham… Which reminds me of Easter…… Johnny Easter! The world is a circle.
If Rupert Boneham had a clue, he’s take the Libertarian position that the government should get out of the “marriage” business.
But then we would have to decide the question we’ve been assiduously avoiding, in favor of blather about “equality,” in the SSM debate: In what pairings or congeries, erotic or not, does the government have sufficient interest that it should recognize them (as civil unions or whatever) and confer some sorts of benefit on them?
I’d probably be on board if the state got out of the marriage business. Maybe in its place, establish family unit corporations or partnerships with bundles of rights and responsibilities contingent on membership.
Marriage is is a legally defined relationship, as Professor Cox at IU-Indy would have said, a form contract with terms that can be modified with post- and pre-nuptial agreements. How could the state ever get out of the marriage business?
Doug, I am not suggesting you are a libertarian, but I find Libertarians curious folks. They wish government to withdraw from all aspects of life and in their place establish nominally non-mandatory mechanisms that perform state police power functions far less efficiently and with far more complexity.
At the core of libertarian thoughts rests a misconception that the state is the sole source of coercive authority in society.
But it’s not. I didn’t realize that myself until the massacre at UC Davis last fall.
Last I checked, the maxim that government has a monopoly on lawful force still held true. That’s a pretty escalated level of coercion.
Direct violence isn’t the only means of coercion.
Controlling access to the resources necessary just to survive–not to mention achieving one’s moral, intellectual, artistic, and social potential–is just as coercive.
Absolutely.
Steelydanfan, Libertarians certainly do recognize that individuals can and do initiate force. The initiation of force is one of the primary reasons for government, in our view, to react against it on behalf of the victims. Police and courts? Yep, libertarians are for ’em.
You completely missed my point.
I’m well aware of how Libertarians think–I used to be one.
What I’m saying is, there is coercion in forms other than the direct application of force. The institution of private property is one of them.
I’d be interested in your explanation for this. It’s not hard to conjure what happens in the absence of private property rights. The American Indians and Somalia come to mind.
Not all coercion is inherently bad. Property rights, in my opinion, do more good than harm. But, they are man-made and they aren’t inevitable. They are a choice.
So, libertarians are in the same boat with everyone else when it comes to coercion and use of force: haggling over the price. “We’re fine with using government to define property rights and use force to implement them; but don’t go any further than that.” Other political philosophies maybe want to use government somewhat more than that and use government force perhaps more often.
But I think it’s a difference in degree and not in kind.
Getting government out the marriage business is an intriguing idea. Any examples of governments that have done that?
When I was in law school scarcely 30 years ago, it was a given that the state was involved in marriage, as a sui generis three-cornered contract, because of children and the procreative potential of coitus.
If we’ve abandoned that idea (and a fair number of ostensibly “married” heterosexual couples are calculatedly “child-free” – an odious neologism), then let the government abandon the term that carries so much legal, historic and religious baggage, cease issuing “marriage licenses” (why should people need a license to “love”?), and start from scratch on figuring out what interest the state has in pairings or congeries of people who may or may not be erotically involved. Leave “marriage” to Churches, Synagogues, Mosques, etc.
We might end up concluding, if we start with a clean slate, that civil unions per se deserve no benefits, but a generous income tax credit should be allowed for raising dependent children. Call it “pronatalist” if you like, but if we haven’t really figured out (as opposed to rhetorically figured out when school funding is at issue) that children are important to the nation’s future, we deserve the comeuppance we’ll be getting in due course.
I think all this is a lousy idea, but I think giving 1000-whatever benefits to those “child-free” DINKs is a waste of money, too. Tailoring the state recognition to the dumbed-down state interest seems to me a reasonable proposal for political compromise on this contentious issue.
The state never denied marriage licenses to the post-menopausal or the spermatically immotile. On the other hand, it did deny licenses to the racially mismatched. Marriage laws, like tax laws, have always had a component of social persuasion.
And, as we often see when rights are expanded, people who disapprove suddenly think it’s time for rights themselves to be redefined. See, for example, literacy tests for voting, the sixty-year demolition of the public schools–once the wonder of the world!–in the wake of Brown, or the forty year attempt to regain control of the Uterus by legislating conception (and, when that didn’t work, by recourse to the trans-vaginal Louisville slugger). All of which has worked so well.
Why don’t we just extend rights, long-overdue, to our fellow citizens who have been unfairly discriminated against, and then return to our knitting (socks, or brows)?
Indiana even allows first cousins over the age of 65 to marry.
I have been reading the the Republicans are going to use gay marriage selectively in swing states where a large number of voters oppose gay marriage and to use it to define Romney as on of their “boys.”
My friend who is an election junkie and the most moderate Republican on earth, a real RINO, draws an analogy between Dukakis, Kerry and Romney. He notes that all three are/were moderate to liberal establishment candidates from the Northeast, specifically Massachusetts. He thinks that northeast lineage will make Romney also unelectable.
The state has an interest in marriage visa vi procreation, but it has been demonstrated that married couples, be they breeders or child free, are more successful economically, are lesser recipients of government aid, and generally lead more stable lives. So the government does have an interest in promoting marriage.
Also, while the marriage form contract has the children as the main intended third party beneficiary, we also recognize interspousal duties and protection. Examples would be the ability of a disinherited spouse to take agains the will. And the divorce propery division scheme acknowledges sacrifices made by one spouse to advance the other’s career. So I do not think that the state can or should divorce itself from the marital relationship business.
“Marriage Equality”?
Doubleplusgood duckspeak!
If “pro-life” is acceptable as a description, “marriage equality” shouldn’t be objectionable.
Quack!
Perhaps a real-live lawyer (I understand one writes this blog!) can answer this question:
Other than marriage, is there a legal contract that two sound-minded, consenting adults can NOT enter into, even if they so wish, even though it is otherwise legally available? (I add that last part so people don’t tell me you can’t legally enter into a contract with a hit man.)
“Legally available” probably needs some fleshing out. Obviously, as you point out, you can’t contract for actions that are inherently illegal. That gets into grey areas very quickly when you start talking about actions that are maybe legal, but only when performed by a certain person — e.g. contract with a lawyer to practice law is fine; contract with a non-lawyer to practice law is not fine.
Marriage might be akin to that – you can only enter into this contract with a specified subset of people. In the case of lawyers, someone who has been licensed by the state to provide legal services. In the case of marriage, someone of the opposite gender who is not, themselves, already married.
exhoosier,
I am also a real-live lawyer. Generally, contracts that are illegal or void against public policy may not be entered into. There are a good number of examples. One would be an agreement in a prenuptial to limit the amount of child support or eliminate the support. Certain gambling contracts are illegal.
Your second qualifier is tough. An auto wholesaler cannot enter into a contract for a retail sale, while anyone else could contract to sell a car to another consumer. Wholesalers can only sell to wholesalers or dealers.
An auto dealer cannot contract to sell a car on Sunday while a consumer can contract to sell a car on Sunday.
Those are a couple of things that come to mind.
Doug and Carlito, thanks for your responses. They were quite helpful. Here is another lawyer question — are the same arguments that were used to strike down laws against interracial marriages applicable to fighting laws against men-women-only marriages?
Probably fairly similar. The Bible has been used to justify most things at one time or another, including, slavery and anti-miscegenation laws.
That said, distinctions between genders strike me as less arbitrary than distinctions between races. Race is an artificial construct. (Gender may be as well, Y chromosomes and reproductive organs notwithstanding. My ability to regard race as an artificial distinction but not gender might be a function of the time in which I live — people of other times have regarded race as immutable).
But, even assuming that gender is a less mutable distinction, the question is whether it is a proper basis for denying people the bundle of rights that come with marriage. I say no. Obviously others disagree.
Quack! (again)
Creating or dissolving a legally recognized marriage is about as difficult as selling real estate or a car. Sure there are some disclosures and rules, but it is fairly easy to do. Willing opposite sex couples can marry and divorce at will heedless of any traditions, procreative interests, effect on children, social costs or notions of morality. For heterosexual couples it is hard to see what the government interest is other than to provide a generic legal structure to all willing opposite sex adults to marry and then split up for any reason shortly thereafter. That is the system adopted by the voters of Indiana through their duly elected representatives. My sacramental marriage is a different story — a lifelong commitment to my wife blessed by the Catholic Church and based on mutual love, sacrifice and respect. Those values mean nothing to the state institution of marriage, but my sacramental marriage does fit nicely into the legal marriage framework because of our status as an opposite sex couple — and for no other reason. So if the state got out of marriage, and, provided I was treated like anyone else, I would see no difference.
Barry,
Interesting analogy on the marriage issue. I would say that marrying is as easy as buying a car. If you have the money or can get a loan, just sign a few papers and drive away.
But the buying real estate analogy is more instructive relative to divorce. If it is a clean sale and the money or financing is in place, a couple hours at the closing and the sale is done. Just like an agreed and uncomplicated divorce. But cloud up the money issues, or leave a cloud on the title, and call out the lawyers.
Similarly, though a mess of financial issues into a divorce, or cloud the title with infidelity, adultery, a custody battle, and again, call out the lawyers.
What entity other than the state could provide the marriage form contract? I would like to see a persuasive argument that any other insitution could do so as efficiently, with predictable provisions, and enforce those provision while the marriage contract is executory and when the marriage is terminated.
If the state got out of marriage, then it also would get out of all the tax breaks and legal protections that married couples receive, correct? However, I see what Barry is talking about regarding the difference between how his church views his marriage, and how the state views it. The state has no compunction to look at the marriage as being anything other than a legally enforceable contract. The church, however, can attach all kinds of provisions to it that makes it more than that. As Barry is likely well aware, if the state ever granted him a divorce (not that you would ever ask!), in the eyes of the Catholic church he would remain married (unless he was granted an annulment, which can only happen, in theory, for very extreme reasons).
In the marriage equality debate, one thing I think gets obscured, and something even advocates could impress upon people, is that legalization of same-sex marriage should NOT mean any religious entity must not recognize it. Again, a Catholic church, for example, may already refuse to perform the marriage of a divorcee on the grounds that person is still, in the eyes of the church, married to someone else. Or even my church, the crazy wild-eyed hippie liberal United Church of Christ, can refuse to perform a ceremony if a couple refuses to go through pre-marriage classes, or in the course of those classes isn’t deemed ready, or for whatever reason. Houses of worship aren’t the courthouse, and that won’t change no matter if marriage turns into Rick Santorum’s man-on-dog nightmare.
You make good points, Barry and Exhoosier. Let the state provide the template and let religions put their own glosses on the relationship (excluding things that violate public policy, like polygamy, child marriage, or an IU grad marying a Purdue alumnae.)
I see no reason why a religious (or even cultural) marriage separate from a civil marriage should be prevented from recognizing polygamous or polygynous marriages, provided all parties recognize that the legally-enforceable benefits of civil marriage will only apply to one particular pair of partners.
Of course, ideally three-or-more-way marriages would be legally recognized too, but even if they’re not I don’t see why independent organizations can’t go ahead and recognize/sanctify/whatever them for their own purposes.
This seems reason enough to me. Child marriage, sexual abuse, all the attendent benefits of child abuse and male child abandonment that flows from polygamous communities.
http://www.nytimes.com/2008/04/08/world/americas/08iht-texas.1.11761542.html
But hey. put polygamy in your party platform and run on it.