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The obvious solutions often require a different world view

Sometimes when problems need to be worked out, the people trying to work it out keep trying to whack the problem over the head with the very thing that caused the problem in the first place.

Gay marriage… or even gay ‘marriage’ if you prefer… is one such issue. Some argue that if the state recognises heterosexual marriages, then it offends against natural justice for the state to discriminate against homosexual marriages (or ‘marriages’/unions whatever). And of course the people who say that are right.

This naturally does not appeal to people who oppose the ‘morality’ of homosexuality or just feel gay marriage, or gay anything really, is ‘yucky’ and thus dislike the idea of the state they support with their tax money adding its imprimatur, at their expense, to something they find repugnant. And of course the people who say that are right.

So the obvious solution lies in the root of the problem… the state actually has no compelling need being in the marriage business at all as marriage is just a contractually relationship between two people that requires no involvement of the state at all. Stop the state rubber-stamping any kind of marriage and the problem goes away.

And likewise an issue of separation of church and state in the USA…

It would be easy to miss among the yucca and Joshua trees of this vast place – a small plywood box, set back from a gentle curve in a lonesome desert road. It looks like nothing so much as a miniature billboard without a message.

But inside the box is a 6 1/2 -foot white cross, built to honor the war dead of World War I. And because its perch on a prominent outcropping of rock is on federal land, it has been judged to be an unconstitutional display of government favoritism of one religion over another.

OMG!…hmmm… bad choice of exclamation… a religious symbol on state land! The state has no business allowing displays for this or that religious faction showing their symbolic whatnots on state land! And that is indeed right.

But others say that if this is also a object of real historical significance commemorating the dead of the First World War, then it would be Taliban-style barbarism to simply destroy it or even rip it from its historical context! And that is indeed right.

So… stop it being state land. Make the land the private property of someone who will safeguard this object of historical interest. The problem is not the cross, it is that this land does not actually have any business being ‘state land’ at all.

There are some problems that simply getting the state out of the picture will not solve. However for the other 90% of things…

54 comments to The obvious solutions often require a different world view

  • Samsam

    My wife and I occaisionally find ourselves debating the level of effort needed to solve a problem. She generally takes the position that a problem must be ATTACKED and SOLVED, while I look for ways to let the problem solve itself. Kids won’t wear a coat to school in winter? She lectures the kids long and hard; I see it as a self-solving problem. Snow on the (private) sidewalk? She grew up near Lake Erie and SNOW MUST BE SHOVELED! I grew up in North Carolina and figure it will melt tomorrow anyway.

    Entropy guarantees that many problems do require effort to solve, but not all do.

    After 20 years of marriage my wife is mellowing. Alas, the State never mellows. It is filled with people who believe problems can only be solved with a flurry of high-energy activity. We need an army of bureaucrats to guarantee marriage laws are not discriminatory! Another army to ferret out harmless but improper land use! Your solutions are sensible, low cost, low effort, and thus cannot be tolerated. Heaven forbid those armies find productive work to do.

  • Laird

    FWIW, the United States government directly owns nearly 30% of the total land in the country. Most of that is in the west; for example, it owns nearly 85% of the entire state of Nevada, and nearly 70% of Alaska.

    That is obscene.

  • Jacob

    That is obscene.
    I don’t think so. Land that isn’t owned by anyone should be administered by the State.
    But – if anyone is interested in owning any lot there, this lot should be auctioned off, and sold to the highest bidder – supposedly the person interested in the first place.

    This presumes that land should be privately owned, when feasible, while land for which there is no demand should be administered by the state.

  • Mark Woodworth

    While I might be convinced that the state has no compelling need to be in the marriage business, I don’t agree that marriage is just a contract between two people.

    As I understand it, a marriage is at least a covenant between two people and a community that agrees to support them. It is also a covenant between generations, most importantly the generation yet unborn. And it is a commitment that exceeds the consideration tendered at the moment of marriage.

    Not everything is a contract. While I have sympathy for the libertarian impulse to limit the intrusion of the state into our lives, I reject the notion that this requires removing the element of transcendence from our lives. Unlike slavery, the free gift of self in marriage and parenthood makes us more as humans, not less.

  • land for which there is no demand should be administered by the state.

    Why do you think that there is no demand for it, and even if there isn’t, why should it be administered by the state?

  • K

    Agree that the state should stop calling the ceremony “marriage.” That sends the problem of what marriage is back to the churches or to the couple.

    That doesn’t mean the problem of definition will evaporate, it just means the state doesn’t have to be involved. What is left is a contract. Civil courts deal with those.

    I differ about the solution to the religious symbols on public land. But again there is no answer that will satisfy everyone.

    IMO the best solution is in the courts. The Supreme Court should just instruct federal courts to not hear lawsuits if the symbol in question has existed for twenty years. That is, arbitrarily grandfather them in.

    In time most of the symbols would disappear. And it would take a long time. But I can’t get too concerned about the hurt feelings of someone who sees a very old symbol and insists it ruins their life.

    The weakness of letting the symbols be on private land is that the state is still acting to preserve the symbol. The title transfer is a sham. And someone who wants the symbol destroyed will object, probably successfully.

  • The weakness of letting the symbols be on private land is that the state is still acting to preserve the symbol. The title transfer is a sham. And someone who wants the symbol destroyed will object, probably successfully.

    If the people who want the symbol to remain there value it so much, let them bid to buy the property (and why should they not be allowed to?). Nothing sham about that. And if they don’t, well I guess they were not that serious about it after all.

  • Verity

    Mark Woodworth – d’acuerdo.

  • Midwesterner

    The monument doesn’t reflect the religion of the state that ‘owns’ the land, it reflects the beliefs of those it memorializes. Are they going to bar crosses and stars of David from Arlington National Cemetery? So even if it was on land that could reasonably be operated by the federal government (ie soldiers cemetery), it should still stand unmolested and placement for other religions or non-religions from the group of those memorialized in the initial monument be made available as appropriate.

    Regarding the institution of marriage, I had a discussion last week with a conservative fundamentalist Evangelical on exactly this topic. To leave out an hour or so of discussion that delved into tax breaks, welfare and other related issues, we were quite easily able to agree that the institution of marriage should be returned to the churches, synagogues, houses of pasta, etc. The government need only concern itself with guardianship of dependents and need not ever know of someones marital claims.

    A major advantage of this is that people who disapprove of homosexuality cannot be legally required to recognize something they morally reject. For a similar example, I personally refuse to use the title ‘Pastor’. Nobody is my ‘pastor’. Nobody can make me address them with as ‘Pastor’. If government approved pastors, I could well be required to use the title against my personal beliefs. The same holds for recognizing marriages. Somebody could ‘marry’ their classic car but nobody can ever force me to call it their ‘wife’.

    My point, if even conservative Evangelicals can become comfortable with removing the institution of marriage from the purview of the government, then there is common ground for a near majority of the population to pursue this goal. Guardianship of dependents would remain as it is for the time being.

    As long as we keep our goals narrow in scope yet widely based, these sorts of reversals of government usurpations are possible.

  • veryretired

    My prediction about the great amount of federally owned land in the US, especially in the west, is that the sale of that land will be the final, panicked action of the collapsing welfare state as it attempts to avoid the technical bankruptcy of repudiating the massive debts it has, and will, accrue.

    Land in Alaska will eventually become extremely valuable because it has the water that the desert land in the southwest lacks. Other than the winter, which is not as gruesome in the southern part of the state as many in the lower 48 might think, it has the potential of being the Oklahoma of the 21st century.

    All that is needed is electrical power, the demand for which will become another nail in the coffin of obstructive statism.

    Anyone who thinks that Americans will docilely accept electrical shortages and a lack of fuel for their vehicles will find themselves grasping for a different world view very quickly if it ever happens.

    The guys I have lunch with on occasion still refer fondly to the old custom of tar and feathers for certain miscreants, and anyone who would get between them and fuel for their pickups during hunting season would definitely fall into that category.

    (Don’t much care about the marriage thing. I agree with your point about the state getting out of it, but just don’t see any path to get there.)

  • andyinsdca

    I have 2 takes on the cross in the desert:
    1: Can’t they just farking shut up about it, already? It’s a historical thing. Just. Shut. Up.

    2: We went thru that privatization mess here in San Diego (and are still, to some extent) with the Mount Soledad cross. It started out as an Easter Memorial in the 50s, then someone decided to start putting memorials/plaques of dead servicemen on it, converting it to a war memorial. It’s an ongoing battle, still.

  • Mark Woodworth – Sure, but take that further. The fact that marriage is a commitment before civil society is itself a strong positive reason to keep the state’s nose out of it. As to transcendence, that works out differently for different people. A Catholic marriage isn’t and shouldn’t mean exactly the same as a Buddhist, a secular contractarian, a neo-Pagan… and each is declared in front of a different voluntary community. Which is the only kind of witness and support worth having.

    When congregations mingle, as is usual in this place and time, civility is common recognition enough. When I introduce Jacqui as my wife, I don’t expect anybody to deny us to our face because our marriage breaks some rule of their church or other. Well, y’know, if I were the kind of guy to be introducing Jack as my husband, I’d expect no more courtesy and no less. The other fellow doesn’t have to like it, and I don’t have to like his rules, and neither of us have to seek out the other’s company if we can’t stomach the difference.

    Not inviting the State to the party makes it so much easier to keep that sort of thing polite.

  • guy herbert

    I think one of the problems is that the public – and even the educated elite – have no historical perspective. They think whatever is now is natural, and whatever rationalisation they come up with for the use of state institutions now must have been the original purpose – when in fact the original utility is often long-gone.

    Try telling people that there is no need for a census, nor registration of births marriages and deaths, and for most of them it does not compute. That they arise from 18th and 19th century concerns about population shifts through industrialisation and the availability of military manpower in the first place, and about legitimacy and inheritance in the other, simply does not occur. I have faced the wrath of people outraged by the suggestion that the census should go because they see me as interfering with genealogical research.

  • MarkE

    Maybe things are different in the US, but here in the UK marriage and civil partnerships are more than a simple contractual relationship between two people. The estate of a person in a registered relationship may be passed to the surviving spouse without suffering Inheritence Tax.

    As people who value their privacy over mere money (and having too little of the latter for it to matter), Mrs MarkE and I decided to keep the state out of our bedroom. If we become wealthy we may marry, to keep our wealth out of the hands of the taxman. If Mr & Mrs millionaire can enjoy tax free inheritence, why shold the same benefit not be extended to Mr & Mr (gay) millionaire?

    In a perfect world of course, the answer is the abolition of IHT but I don’t see that happening any time soon so civil partnerships provide some level of equity.

  • The protection of intellectual property is not a matter of natural right, at least in the US position it is not. It is a practical compromise. A state interference of the natural right to imitate and copy for the purpose of artificially increasing the progress of the natural arts and sciences.

    State marriage is a similar compromise. In order to avoid nasty Orwellian or Brave New World type arrangements, the lightest of incentives are given to monogamy, fidelity, the creation of further generations so our civilization does not simply die out. Marriages are registered, benefits are granted, social honors are bestowed, and an organic institution emerges from a thousand trials without any sort of overarching conscious plan. The vague intent is that we have enough kids, that they are generally raised well, and that the billy club of the state stays as far away as possible consistent with the above two general goals.

    Homosexual marriage does two offensive things. Its advocates persistently misstate the societal bargain that’s evolved and claim marriage as a sort of stamp of societal approval without any procreative or multigenerational responsibilities. Its advocates are forcing the rationalization of the whole affair which drastically increases the probability that we’re going to end up in Brave New World territory.

    Ultimately, without societal support, the demographics will drift out of sync with what the law assumes will happen with our defense requirements and welfare state. When the demographics of a state go out of whack enough, the state will enter back into the marriage business and it is likely to do so in a perfectly rational, ugly, and dignity destroying way.

    No thanks.

  • Ultimately, without societal support, the demographics will drift out of sync with what the law assumes will happen with our defense requirements and welfare state. When the demographics of a state go out of whack enough, the state will enter back into the marriage business and it is likely to do so in a perfectly rational, ugly, and dignity destroying way. No thanks.

    Societal support? Social honours? But we are talking about state involvement, not societal/social involvement. State and society and quite different things, something Thomas Paine pointed out in 1776.

    The whole argument here is that your view of marriage should not have force of law to make it *the* view when clearly other views not just exist but are indeed actively practised socially. People have been voting on traditional notions of marriage since the 1930’s and they did not do so at the ballot box for the most part, they did so socially.

    A vast chain of consequences follow from replacing the social expectations within self selecting communities of people, with state imposed force backed demands that consensual relationships follow a specific form that you, or anyone else, thinks collectively beneficial. The result is creeping replacement of diffused social forms with state imposed regulation of how people interact in ways that are toxic to the very existence of civil society.

  • Brad

    Very sound argumentation and when used reveals the real objectives of those who oppose such logic.

    People want the State in the picture because ultimately they want to Force other people to abide by their construction of right and wrong. They of course try and obscure it but when you present them with the option of diffusing the whole situation by pulling the Statist plug that is keeping in the foul water, they blanche at such a thought. They want and need the State and can’t imagine a world without its superior, rarified, removed nature that gives starch to their abstract notions. I guess the thought of having a reservoir of Force all lined up and ready to go is a comfort in and of itself.

    The most unfortunate part is, since they are so accustomed to the presence of the State, that when the sound “remove the State from the equation” card is played those with whom one is arguing feel that they have won. Libertarian/Minarchists are seen to have resorted to reductio ad absurdum….

  • Here in New York I often run across guys in the street trying to get people to sign up in support of gay marriage, When I tell them I’m against gay marriage they are shocked and hostile, when I add that I’m also against heterosexual marriage they are simply confused.

    The problem is that marriage is an essentially tribal institution, Getting the state out of the business of regulating it is of course a great idea. Yet the state is still there and will still seek to regulate interpersonal relations in all sorts of ways. Freedom is far more sophisticated and hard to manage than most people realize.

    Anyway , Bravo Perry !!!

  • Taylor, I think that putting it in terms of ‘opposing marriage’ (gay or otherwise) is misrepresenting what seems to be your real point of view: obviously it is not your or my place to oppose anyone’s consensual marriage. I think that a better way to put it to those guys you speak to is to ask them: why are you seeking anyone’s permission in the first place? This way you could almost immediately separate the statists from the good guys among them.

  • Kevin B

    Since for much of human history and in most human societies, marriage has been about the transfer of property between two families, then the community has perforce been involved as referee.

    As the scope of the community has expanded to become the state, the state has remained involved in the transaction. It is only in the last hundred years or so and in a few societies that marriage has ceased to involve property transactions between families, (at least by definition), and become more a matter between two individuals.

    It may be that the law has not evolved to cope with the new status of marriage or it may be that the mores of the few societies that practice this new form of marriage will soon revert to more traditional ways, but either way the situation will soon be resolved.

  • Since for much of human history and in most human societies, marriage has been about the transfer of property between two families, then the community has perforce been involved as referee.

    Not quite right… firstly ‘the community’ is not a synonym for ‘the state': if you mean ‘the state’ then say ‘the state’. ‘The state’ is the politically directed institution that exercises the collective means of force backed cohesion… and politics is what we call the process of controlling that institution and thus who gets coerced into doing what by whom.

    ‘The community’ is a nebulous conglomeration of several interactions, defined by custom, exchange and affinity/dis-affinity… not the same thing at all.

    Secondly, contract law works just fine for dealing with disputes (i.e. acting as a referee when there is a dispute ) without the state pre-involving itself in every consensual exchange of property, or affections or bodily fluids for that matter… so it is actually very hard to see why the state is an essential element to pre-determine the form of a social relationship either on a historical or utilitarian basis.

  • Laird

    “The problem is that marriage is an essentially tribal institution, Getting the state out of the business of regulating it is of course a great idea.”

    I’m not sure what is meant by the first part of that sentence. A “tribe” is just a society, and if big enough could become a State. It could “regulate” marriage in some fashion, even without a written Code of Laws.

    I agree with the second part, but the key word is “regulating”. Historically, “marriage” is a religious concept, which is why most people are married in churches. However, the State has some legitimate interest in the institution, because it affects such things as inheritance (via intestacy), post mortem marital support (one can’t completely disinherit one’s widow), and the devolvement of titles of nobility (obviously not in the US). That is why we have (or had, as I believe every state in the US has now abolished it) the concept of common-law marriage.

    The State has an interest in defining “marriage”, whether or not it issues marriage licenses. That definition has profound implications for a host of issues which permeate modern society, not merely tax rates (which could be managed in other ways) but such things as who possesses the legal authority to act on behalf of an incompetent (“next of kin”), the legal privilege against being forced to testify against one’s spouse in a criminal trial (an adjunct to the privilege against self-incrimination), liability for debts, etc. Merely telling the State to stop issuing marriage licenses won’t change any of that.

  • Laird

    “Secondly, contract law works just fine for dealing with disputes (i.e. acting as a referee when there is a dispute ) without the state pre-involving itself in every consensual exchange of property . . “

    That works fine, Perry, when there is a contract. If there is a will* as a rule its terms will be honored. What, however, do you do with a decedent’s property if there is no will? We have “default” rules, which are the laws of descent and distribution, and they rely heavily on “marriage” however defined. I don’t find this at all unreasonable.

    * Which presupposed it is a valid expression of the testator’s true intentions, something for which we have laws.

  • Laird: but this has nothing specific to do with marriage, as far as I can see. What happens to to an unmarried person’s property when they die, absent a will?

  • Kevin B

    Perry, I meant that the community referees the property transaction and that as communities banded together, (often by force), the state evolved from this and retained it’s role as the provider of laws including those laws concerning property transfer.

    I also don’t agree that marriage is about religion as such. It is, (or has been historically), primarily about property and the religious aspect has grown up only to the extent that religion and law have long been intertwined, although the tensions between the religious law-givers and the secular law-givers have occasionaly been quite intense.

    It is also worth noting that, in the traditional forms of marriage practised throughout history, the major part of the property that is transferred is often the bride, who ceases being the property of her father and becomes the property of her husband. The implications of this in terms of gay marriage for the in-laws are quite interesting to contemplate.

    I agree that the state could quite easily butt out, (so to speak), of the bedroom aspects of marriage and concern itself solely with the contractual details, but remember that for most societies this is the first generation where such options exist, and to expect this to be smoothly and immediately accomplished is perhaps a tad optimistic.

  • I also don’t agree that marriage is about religion as such. It is, (or has been historically), primarily about property and the religious aspect has grown up only to the extent that religion and law have long been intertwined, although the tensions between the religious law-givers and the secular law-givers have occasionaly been quite intense.

    Very good point.

    I agree that the state could quite easily butt out, (so to speak), of the bedroom aspects of marriage and concern itself solely with the contractual details, but remember that for most societies this is the first generation where such options exist, and to expect this to be smoothly and immediately accomplished is perhaps a tad optimistic.

    But I doubt that Perry had in mind places like Afghanistan anyway. In the West this is by far not the first generation.

  • Mark Woodworth

    To Mr. deHavilland and Mr. Woodland:

    I am sorry that my post was not clearer. I was not arguing for the involvement of the state in marriage. In general, I am for reducing the involvement of the state in our lives, without being completely certain about what the right amount is.

    What I was objecting to is the seeming reduction of all human relationships to contracts. I am all for the free association of free individuals, especially when the alternative is transactions forced by the state. The clear superiority of free exchanges, always win-win, is intoxicating.

    But as useful an Occam’s razor as this is, it just isn’t enough. We can never interpret the relationship between a parent and newborn as a contract. The newborn is simply incapable of entering into this relationship freely.

    So, yes, two cheers for freedom and free markets, and push back the state. But while adopting a worldview that reduces all human interactions to contracts may be the obvious solution to societal issues for Mr. deHavilland, I am not convinced.

  • We can never interpret the relationship between a parent and newborn as a contract.

    But we can – and should – interpret that relationship as, among others, a contract between the parent and the community of which he is part, stipulating that, for example, the parent will do his best to keep the newborn healthy and happy. There is also, in most cases, a similar contract between the parents themselves. There is always an (often unwritten) contract involved in any freely-entered relationship.

  • botogol

    the state should recognise long-term partnerships. There are many practical reasons why we should acknowledge (and support them), but should get out of the ‘marriage’ business.

    – civil partnerships should be available for any two people who consider themselves long term partner, whether their relationship is sexual or not, and carry various privelges and responsibilities.

    – marriages should be left to churches to arrange as they think fit, like confirmations, and of no interest to the state.

  • Mark Woodworth

    To Alisa:

    What an interesting point. If you see the relationship between a parent and newborn as a contract between parents and community of which they are part, could the community refuse to enter the contract? Could the community say no, you two cannot marry, you two cannot have children? If the community cannot refuse, is it still a contract? And if the community can refuse, are you arguing for social regulation of what marriage is and who may and may not marry?

  • Mark, at this point I am not arguing for anything, since arguments only have place in a context of a contract/um,…agreement. I am merely describing the way things work absent the use of force (by state or anyone else). There is an unwritten contract between me and you that we will not be rude to each other. If I do choose to be rude to you, the contract is void. You can say ‘don’t be rude’ all you want, if I choose not to cooperate, tough luck. If the community refuses to enter into any kind of contract with an individual, that individual can choose to ignore the community. If he has sufficient means of physical force to do so, it might work. That scenario not being very realistic, the individual may have a choice of choosing a different community, with general cultural customs more in line with his own. Otherwise, tough luck. I, for example, would rather live in a community where anyone can marry anyone/anything they like, as long as I am not asked to actively support their choices. Furthermore, I’d rather live in a community where people are generally left alone, as long as they leave everyone else alone. Unfortunately for me, I do not live in such a community, and no viable alternative seems to be available. So, other than trying to peacefully change the cultural customs of my community more to my liking and using whatever physical force available to me to resist the attempts of the community to force their customs on me (yeah, right), tough luck for me. You didn’t really believe all this time in that rose garden you were promised, did you?:-)

  • Paul Marks

    On marriage I am reactionary – so reactionary in fact that I am against the 1836 Births, Marriages and Deaths (Registration) Act.

    Oh, that makes me so reactionary that I am liberatarian.

    Let people get married in whatever denomiation they wish, Babtist, Catholic, Jewish, even the Church of Athiest Humanism, whatever.

    And let the state not even record the matter – as the Financial Secretary of Hong Kong said in the 1960s……

    “Population figures? What would we want them for?”

    As for government land – the Constitution is plain.

    The Federal government is allowed to have an area “not exceeding ten miles square” for a Capital (in short if any bit of Washington D.C. is not in that “ten miles square” it is not Washington D.C.) and the only other land it is allowed to own is land “purchased by the consent of the legisature of the State” in which it is in – for the military “for the erection of forts, magazines, arsonals, dockyards and other needful buildings”.

    How the above (all from Article One, Section Eight of the Constitution of the United States) got mutated into the Feds claiming to own one third of the United States shows how government grows like a cancer.

    Nor does it matter to say “the Feds administered many places before they became States” – sorry when a place become a State it gains all the rights that the first 13 had.

    Including no Federal land without the approval of the State legislature.

  • Kim du Toit

    Having been to Nevada several times, and driven through it more than once, I feel safe in saying that the FedGov can own all of it, if it pleases. And then, if they would care to relocate Washington D.C. in toto to “their” state, we could just end the thing, right there.

  • Duncan

    As mentioned by Brad, the majority of people on either side of the issue won’t tolerate the idea of just removing the State from the picture. I’ve argued this line with people from both camps. One side dislikes the idea of the state getting out because that means they lose the power of the state to deny the other side and will in fact mean that *gasp* people will be able to do whatever they want. And for the opposite end, they somehow feel that it cheapens the whole thing and doesn’t have the sense that justice will have been done and their foes vanquished, and it becomes clear that equality means nothing to them if there is no trophy.

  • Mark Woodworth

    To Duncan:

    I think this is a case where seeing everything through the lens of contracts leads you astray.

    If marriage is simply a contract between two people, then objections to gay marriage will seem like a petty and overbearing desire to stop other people from doing whatever they want, and proponents will seem to unreasonably need more than equality, but some trophy from a vanquished foe.

    But marriage is necessarily more than a contract between two. It is a covenant between a couple, a community, and generations yet to be. The community also takes on obligations of support and recognition towards the couple.

    In this light, a community that balks at changes in marriage is not pettily sticking its nose in other peoples business but is instead refusing to be told that it must take on obligations towards this couple against its will.

    And those who are denied the covenant of marriage with the community are not just denied a trophy of victory in a battle for equality, but are instead deeply hurt by being spurned by the community, by not being loved by the community in a way that they want.

    The parties are not petty, not busibodies, not trophy seekers, but humans struggling with love in its many forms. Missing this aspect of humans, and trying to squeeze marriage into the confines of a contract is not a worldview shift that simply makes the problem go away, but is a confusion that leads to frustration and snide anger.

  • Mark, I’m afraid that you may be missing an important point here: when I (and some others) say that marriage, as well as other human relationships, are contracts, we are not saying that they are ‘merely’ or ‘only’ or ‘simply’ contracts. What we are saying is that they are contracts while also being many other things, and are only contracts as far as people outside these relationships are concerned. Now, to go along with your line of thinking (with which I happen to agree): a traditional marriage between a man and a woman is not only a contract between these two individuals (and that, like I said, in addition to being many other things), but the community, however defined, is also party to some aspects of this contract (such as dealing wit inheritance issues, for example). So if we go back to gay couples who want to have their relationship to be recognized as ‘marriage’ by their community, the most they can do is either peacefully convince that community to do so, or to go seek a community who shares their world view, and if they cannot find one, it is their problem. In any case, they shouldn’t be able to force anyone to accept their world view, including their view of their relationship. The only thing they are entitled to according to my values is to be left alone.

  • But marriage is necessarily more than a contract between two. It is a covenant between a couple, a community, and generations yet to be. The community also takes on obligations of support and recognition towards the couple.

    Gah. Why is it necessarily more than a contract between two? I have been married (shudder) and I assure you, I did not enter into any covenants with any damn ‘community’ or generation yet to be.

    And I do not recall agreeing to take on any obligations of support and recognition towards anyone else.

  • Paul Marks

    However, the pack between the generations does apply to you Perry.

    No one is going to miss the Marks family.

    But it would be rather sad if the family de Havilland died out with you – as it will if you and people of your generation have no children.

  • Mark Woodworth

    Why is it necessarily more than a contract between two? I have been married (shudder) and I assure you, I did not enter into any covenants with any damn ‘community’ or generation yet to be.

    So let’s say that you are married, and you have a child: that child has no claim on you? You entered into no covenant with a generation yet to be, so who is that child to you?

    Or you are married, and at a swank Samizdata get together, and some guy is hitting on your wife constantly. You tell him, `Hey, ease off, friend, that’s my wife’ and his response is “what is that to me? I have taken on no obligation of recognition of your purely private contract!’ and you are fine with that?

    The point of your original post, it seemed to me, was that societal issues like gay marriage are problems that disappear if you simply remove the state as an actor, leaving only freely contracting individuals.

    And I think that the magic wand of contracts just isn’t that powerful. Absent the state, people will still want from marriage more than an agreement with consideration for both parties. They will want to be seen and accepted as married by their friends and neighbors. If they are hurt because their friends and neighbors don’t accept and treat them as a married couple, having the state in or out makes no difference. The new worldview offers an obvious solution only to the state.

    Are you really arguing for a world where infants are left to fend for themselves? If not, what structure do you propose to protect them?

  • Midwesterner

    Of course the child has a claim on their parents. What does that have to do with marriage? The government has made very clear that children outside of marriage is a new norm; do you think that those particular children have no claim unless their parents are married? That’s nuts. I utterly reject your inferred claim that a marriage is necessary for a child to have claim on their parents.

    Your hypothetical of a guy hitting on your wife at a party has nothing to do with marriage either unless you hold a rather chattelesque view of the status of a wife. I hope you didn’t mean your argument to imply women can not make decisions or act for themselves.

    Your whole party example creates a clear case where the woman has no role in whether to reject or accept the attention. By her silence in your example you infer that marriage turns a women into the property of a man. I like to think I would come to the assistance of anyone regardless of gender, age or marital status if they wanted my assistance and that I would refrain if they did not. Again, what has marriage to do with it? Or would you consider the assault of a stranger to be none of your business? People will take greater risks to protect someone they care greatly about than somebody they don’t and you place credit for that on the institution of marriage. You are quite clearly mistaking correlation for causation.

    Your whole comment is such a cascade of strawman statements (and that is the generous interpretation) that I can’t clearly answer it much less take it seriously.

  • So let’s say that you are married, and you have a child: that child has no claim on you? You entered into no covenant with a generation yet to be, so who is that child to you?

    I have entered into a covenant with the child if and when one comes into existence as my actions… my choices… cause the child to come into being. I have no covenant with some hypothetical future anything however.

    Or you are married, and at a swank Samizdata get together, and some guy is hitting on your wife constantly. You tell him, `Hey, ease off, friend, that’s my wife’ and his response is “what is that to me? I have taken on no obligation of recognition of your purely private contract!’ and you are fine with that?

    A 100% *social* event between me and the guy. It is up to me to fight my corner (and throw him the fuck out of my “swank Samizdata get together”). I have no expectation that my relationship is anything more than an agreement between me and my inamorata… no “covenant with society” is called for or implied.

  • Absent the state, people will still want from marriage more than an agreement with consideration for both parties. They will want to be seen and accepted as married by their friends and neighbors.

    True, and? Mark, no one here is arguing that taking the state out of the equation will solve all and any problem, but it will solve some serious problems which are a direct result of state intervention in our lives, gay relationships being one of those.

  • I really do appreciate Mid’s comment. If anyone feels compelled to ‘fight their corner’, they are free to do so, only I am no part of anyone’s corner. It is absolutely possible that I would ask the guy I am with to help me get rid of some clueless enough to ignore my lack of interest, but in that case the guy I’m with (or any other guy, for that matter) would be fighting my corner, not his. That is unless by ‘his corner’ Perry meant SI HQ…Sorry for an OT – Mid started it…

  • …someone clueless enough…Apologies.

  • Sunfish

    So let’s say that you are married, and you have a child: that child has no claim on you? You entered into no covenant with a generation yet to be, so who is that child to you?

    Let’s say that Perry and the hypothetical mother of our hypothetical Perry Junior are NOT married but have a child. What’s the difference? (Hint: there is none.) Parents have a legal obligation to the care of their children, regardless of marriage. Courts (in the US, no idea about the UK or elsewhere) will easily order child support even where the parents were never married.

    Or you are married, and at a swank Samizdata get together, and some guy is hitting on your wife constantly. You tell him, `Hey, ease off, friend, that’s my wife’ and his response is “what is that to me? I have taken on no obligation of recognition of your purely private contract!’ and you are fine with that?

    The odds of me being at a swank Samizdata get-together are very approximately the same as the odds of me being asked to emcee a Barack Obama 2012 fundraiser being hosted by Focus on the Family. However, the marriage is irrelevant. Crass behavior towards a woman is not a crime until it becomes one (usually, with unwanted physical contact) and her marital status is irrelevant either way. And state involvement in her relationship with someone else is also irrelevant.

  • Mark Woodworth

    Of course the child has a claim on their parents. What does that have to do with marriage?

    What claims could the child make on it’s parents? That they provide for it, that they make a home, that they both are in the home together to nurture it on a daily basis? You don’t see what that might have to do with marriage?

    I am not saying that the claims a child may make on its parents are not there if they are not married. I would argue that parents who do not have the kind of relationship we think of when we think of marriage are hard pressed to make good on those claims.

    Your hypothetical of a guy hitting on your wife at a party has nothing to do with marriage either unless you hold a rather chattelesque view of the status of a wife.

    I guess this was a clumsy example. I didn’t think of the guy hitting on your wife as an assault, deserving the protective intervention by any bystander, but instead I was thinking of the perfectly civil byplay to be expected between single adults who are wooing each other. What I was trying to get to was this: can’t both you and your wife expect single men to treat your wife differently when they know you are married than they would if you were each single? If so, then you see what it means for a community to accept and support your marriage. If marriage is just a private contract between you and your wife, you could reasonably expect your wife to rebuff his advances, but you would have no role in the matter, no claim on his behavior.

  • Sunfish

    What claims could the child make on it’s parents? That they provide for it, that they make a home, that they both are in the home together to nurture it on a daily basis?

    I don’t know whose marriage you’re describing. It sure wasn’t mine.

    What I was trying to get to was this: can’t both you and your wife expect single men to treat your wife differently when they know you are married than they would if you were each single? If so, then you see what it means for a community to accept and support your marriage.

    So, why is state involvement required (and what would state involvement do) to prevent legal-but-boorish behavior, again?

  • Sunfish, I hope that the odds of you attending a SI swank get-together are better than the odds of the Olympics taking place in Chicago in 2016. Just thought I’d mention that in passing…:-)

  • Mark Woodworth

    Sunfish:

    I am not arguing for the involvement of the state.

    I am arguing against the claims made in the original post that:

    a) marriage is no more than a contract between two parties, and

    b) removing the role of the state from marriage will resolve the social issues surrounding gay marriage

    Marriage is, and is widely understood to be, more than a contract between two people. When gay couples want to be married they want it all: covenant between couple, community, and future, the works. By all means, remove the state from marriage. I just don’t think this will magically resolve the social issue as claimed by Mr. de Havilland.

  • a) marriage is no more than a contract between two parties, and

    You are entitled to your opinion of course but I suspect for once my view is far from a minority view (not often that happens) and becoming more prevalent every day.

    To say marriage as an institution has been de-sanctified is a masterly understatement. Just look at the divorce rates and lack of enthusiasm for ending no-fault divorces.

    b) removing the role of the state from marriage will resolve the social issues surrounding gay marriage [...] I just don’t think this will magically resolve the social issue as claimed by Mr. de Havilland.

    Ah, then you misunderstand me… indeed it does not resolve the social issue because that was never my objective. What it does do is to make it a social issue. My approach stops it being a political issue entirely.

  • Mark Woodworth

    Ah, then you misunderstand me…

    And for that I apologize. I am sorry that I have taken up people’s time if we have just been talking past each other, and I really appreciate the engagement all have made with the discussion.

    If I understand your point now, the legal problem of gay marriage is resolved if the state is removed as an actor, leaving the social problem.

    Is is fair to say that when you claim marriage is only a contract, you mean that legally marriage is only (or should only be) a contract between two parties, while socially it may be much more? And also, that you are open to non-contractual obligations like that between a parent and infant?

    We will be governed. If we do not wish to be governed by the state, then we must govern ourselves. We must ask ourselves what extra-legal claims made by our neighbors we should honor. This is what (albeit clumsily) I have been trying to get at. If a woman tells us she is married, we should act differently towards her socially even if we have no legal or contractual obligation to do so. If we are only sensitive to those restrictions on our actions enforced by the state then we deserve to be its serfs.

  • Is is fair to say that when you claim marriage is only a contract, you mean that legally marriage is only (or should only be) a contract between two parties, while socially it may be much more?

    Indeed.

    And also, that you are open to non-contractual obligations like that between a parent and infant?

    Quite so, but but also that relationship is the result of choices, I would actually say that there is an implicit contract involved too.

    We will be governed. If we do not wish to be governed by the state, then we must govern ourselves.

    That is exactly why preventing the destruction of civil society is so important and why statists of every ilk try to destroy it so unrelentingly. When civil society is gone, there is no alternative to the force imposed politically derived values of the state.

  • Laird

    “If we are only sensitive to those restrictions on our actions enforced by the state then we deserve to be its serfs.”

    That’s a very deep statement, Mark, and deserves a thread all its own. What is the source of those restrictions? Their nature and scope? You state “We must ask ourselves what extra-legal claims made by our neighbors we should honor.” This implies that honoring such claims is voluntary. What is the consequence of declining to do so? And what if the claims I choose to honor are different that those you do? Does that mean that either one of us really “deserves” to be a serf?

    I think what this is all getting at is the basis of a moral code. But even if you can answer that, how do we handle competing moral codes? This appears to be the fundamental problem being faced by western society today, and (because of mass communications, ease of travel, and globalization generally) it seems more serious than at any other time in human history.