Help me, Mona
I just listened to the "Marriage Thing" podcast and it left me uneasy. {Full disclosure, I adore Mona Charen and Peter and James and Rob, so nothing personal here} Peter R. succinctly asked Mona about the libertarian attitude toward gay marriage; to wit, that marriage is between individuals and none of the government's business anyways. Mona's response troubled me. If I heard it right, her answer was (I paraphrase): Raising children is super important. Having married heterosexual parents is the best way to raise children. Therefore the state has a justifiable role in getting involved in who gets married and how.
Boy, that logic scares me. Isn't that the same line of thinking which says ____________ (fill in the blank) is important, therefore the government should get involved. Isn't that the same thinking that has brought us nationalized health insurance, individual mandates, government-run agriculture, government-directed housing, government-run schooling, etc. and everything else we conservatives/libertarians don't like? It seems to me that the marriage issue is a real litmus test for conservatives: here's an issue we truly think is important, but are we consistent enough to believe in it without the force of the government backing us up?
Let me know if I'm missing something.
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Oct '10
Re: Help me, Mona
Peter Christofferson
Think there's much chance of either thing being seriously proposed? Can you imagine what would happen to conservatives who proposed the repeal of no-fault divorce? "It's a war on women!" "Conservatives want to permanently imprison women in abusive relationships with no possibility of escape!" "Women as chattel: the Republican ideal!"
Great heavens, the attack ads write themselves… · 13 hours ago
I think it's possible, yes, but obviously no one is doing that right now. Hopefully people like me will change that in time, though until then I might find myself opposing many SSM initiatives (bleh). I do have relatives (lots of them) whose lives have been ruined by social breakdown and our stupid, nihilistic welfare system, and I don't think SSM should happen if it would make that worse. I'm very patient; if it takes ten years to get a "good" version of SSM, I'm willing to wait.
Aug '10
Re: Help me, Mona
Ed G.
Why do you think that marriage is, or ever was, simply a contract amongst individuals without a formal public component?
Just as a matter of clarity, several types of contracts (wills, real-estate closings, powers-of-attorney) typically have formal public components without libertarians seeming to mind too much.
Real property rights, for example, are not feasible if there is no public (and current!) record of who owns what piece of real-estate. De Soto documented this stuff in "The Mystery of Capital".
While De Soto self-identifies as a small-l liberal (i.e, classical liberal), he is a fellow many libertarian economists are happy to call their own.
In some sense, any rule of law that provides for legal enforcement of contract requires enforceable contracts to have a public component. Else how would those contracts be enforced by a public body like the courts?
Aug '10
Re: Help me, Mona
Joseph Eagar
I view gay marriage as a coercive means of bourgeoisafying gay couples, while libertarians view it as a right.
But not all libertarians do recognize gay marriage as a right.
Our very own Molly Hemingway doesn't. My husband doesn't. To the extent that I am a libertarian, I don't. (I haven't made up my mind on the issue, but I don't just think, "It's a right. End of story.")
Also, I did present several examples of why the two-party exchange argument isn't universally convincing...
But I tried to point out that libertarian economists (and they are pretty much the only libertarians I am familiar with) already recognize that factors such as asymmetrical information or duress and externalities (such as doing violence to others' rights) impose legitimate limits on our otherwise inalienable right to freely contract with each other.
With your economic knowledge, I would have hoped you had more familiarity with what many libertarian economists actually think on these issues, rather than buying into a cartoon version of libertarianism, even if there are self-identified libertarians out there who buy into that cartoon version of libertarianism themselves.
Re: Help me, Mona
Midget Faded Rattlesnake
Ed G.
Why do you think that marriage is, or ever was, simply a contract amongst individuals without a formal public component?
Just as a matter of clarity, several types of contracts (wills, real-estate closings, powers-of-attorney) typically have formal public components without libertarians seeming to mind too much.
Agreed. There is no reason to mind. In fact, my personal view of marriage is that there should be a recoding requirement, exactly as we record deeds to avoid fraud. But that's it - no deciding who can and can't file as with deeds.
Feb '11
Re: Help me, Mona
Tommy De Seno
Midget Faded Rattlesnake
Ed G.
Why do you think that marriage is, or ever was, simply a contract amongst individuals without a formal public component?
Just as a matter of clarity, several types of contracts (wills, real-estate closings, powers-of-attorney) typically have formal public components without libertarians seeming to mind too much.
Agreed. There is no reason to mind. In fact, my personal view of marriage is that there should be a recoding requirement, exactly as we record deeds to avoid fraud. But that's it - no deciding who can and can't file as with deeds. · 23 minutes ago
Fine, but that still doesn't address the antecedent disagreement: what is marriage and does gender have anything whatsoever to do with it? Even still, there must be identifiable property in order to obtain/record a deed and one must be able to prove rightful ownership of such; there is still some minimum standard which must be met before the deed will be accepted and recorded. Similarly, with marriage there must be an underlying relationship that is appropriately handled by the institution.
Feb '11
Re: Help me, Mona
Midget Faded Rattlesnake
.....
Just as a matter of clarity, several types of contracts (wills, real-estate closings, powers-of-attorney) typically have formal public components without libertarians seeming to mind too much.
.....
My point isn't that contracts don't have a formal legal component. My two points, poorly articulated, are that
Aug '10
Re: Help me, Mona
Ed G.
What is the consideration given in a marriage?
Given that consideration can be a future action or abstention from a future action, the consideration in marriage could be, for instance, to love, honor, and cherish (future actions) and to forsake all others (abstention from future actions).
Ed G.
I don't think the marriage agreement is simply and only between the spouses.... public promises... obligat[ing] third parties...
I'm sympathetic to this argument myself.
While all legally enforceable contracts are public to some extent, a traditional Christian marriage ceremony, for example, does seem to involve third parties in a special way, as when the third parties present at the wedding pledge to uphold the couple's marriage.
Not being a lawyer myself, though, I'm unsure as to whether marriage obligates third parties in a way that is simply unusual, but still possible, for private contracts, or whether it obligates third parties in a way private contracts cannot.
I don't consider marriage merely a contract. First it is a sacrament. The contractual aspects of marriage serve to reinforce the sacrament in a sinful world. But I'm unsure of what the law makes of sacraments.
Aug '10
Re: Help me, Mona
Tommy De Seno
That's not the purpose for those of us who hold as we do.
Our purpose is to not have government force or forbid to every extent possible.
...
Let's accept one another's stated purposes as truthful, even if we disagree with them.
I accept your stated purpose as truthful, but the "gay marriage" movement would never have gotten off the ground based on that. The political center of gravity of the movement is not libertarian, it is totalitarian, because it is about forcing people to abandon an utterly universal conception of marriage, and of gender itself, in favor of something unprecedented in human history. You may not feel that way, but that's the ideological neighborhood you've chosen to reside in.
Imagine a constitutional amendment guaranteeing gays marriage rights, but also guaranteeing that no individual, business or private entity would have to recognize such a marriage. How do you think the movement would react to that?
Aug '10
Re: Help me, Mona
Midget Faded Rattlesnake
While all legally enforceable contracts are public to some extent, a traditional Christian marriage ceremony, for example, does seem to involve third parties in a special way, as when the third parties present at the wedding pledge to uphold the couple's marriage.
Not being a lawyer myself, though, I'm unsure as to whether marriage obligates third parties in a way that is simply unusual, but still possible, for private contracts, or whether it obligates third parties in a way private contractscannot.
I could imagine that if cohesive religious communities (close-knit, like the Amish, or everywhere, like the Catholic Church) were the norm, marriage could be privatized as a three-way contract among the two spouses and the witnessing religious institution. Such a contract would echo the sacramental structure of marriage as a three-party covenant between the couple and God, with the religious institution serving as a proxy for God in the contract.
But just because I can imagine such an arrangement doesn't mean it would be practical these days. In fact, I can think of numerous reasons why it wouldn't be practical.
Oct '10
Re: Help me, Mona
Midget Faded Rattlesnake
But I tried to point out that libertarian economists (and they are pretty much the only libertarians I am familiar with) already recognize that factors such as asymmetrical information or duress and externalities (such as doing violence to others' rights) impose legitimate limits on our otherwise inalienable right to freely contract with each other.
I also tried to tie the socially conservative view of "moral citizens are vital for capitalism" into that framework. That's why I brought that line of criticism up in the first place.
Aug '10
Re: Help me, Mona
Joseph Eagar
I also tried to tie the socially conservative view of "moral citizens are vital for capitalism" into that framework.
OK. And what is the environment best suited for citizens to practice morality?
Morality requires freedom: a person who's always been forced to do "what's right" has never had to make a moral choice.
Morality is also affirmed through consequences -- rewards and punishments.
Altogether, the free market, which gives people scope to choose for themselves, while at the same time rewarding them for serving -- or at least pleasing -- others, is hardly the worst environment for cultivating virtue.
Are other, more centralized schemes, where the power to dominate others is the main currency, and cronyism and zero-sum dynamics rule, more hospitable climates to virtue than an open market? I hardly think so.
The very fact that an exchange economy causes a participant to ask, "What can I do for my fellow man to make my living?" rather than, "What can I do to my fellow man to make my living?" is no small moral accomplishment.
Mar '12
Re: Help me, Mona
We are seeing the fruit of children unattached to marriage. We are seeing the fruit of women who fail to marry and then expect the state to fulfill the husband role when operating as Uncle Sam.
We are also seeing the fruit of words whose meanings become ambiguous, such as gay - which used to have one perfectly good meaning and now means something else completely; and the attempt to re-image the word "marriage."
Henry Ford made mass produced automobiles. Automobiles are still produced now, more than 100 years after their invention. We all know what an automobile is, even though the modern automobile does more than its early Model A and T predecessors. The meaning of the word has not changed.
People have relationships. Those relationships may include marriage, but historically marriage is seen as a man, a woman and their children. It is a fruitful relationship, not a sterile relationship. It is built on a promise that should endure even as emotions wax and wane; and that relationship can look at the fruits of marriage and associate them with the other person.
Edited on May 16, 2012 at 2:52pmFeb '11
Re: Help me, Mona
Midget Faded Rattlesnake
Ed G.
What is the consideration given in a marriage?
Given that consideration can be a future action or abstention from a future action, the consideration in marriage could be, for instance, to love, honor, and cherish (future actions) and to forsake all others (abstention from future actions).
.....
Are these really examples of actions , though? Are they "something of value" (as I've seen consideration described) that can appropriately be judged by a court? Refraining from sex with other parties would count, I suppose, but what remedies could a court impose for breach of such agreement? Surely no property or money would be involved as such a breach doesn't cause financial loss, right?
Mar '12
Re: Help me, Mona
There is a reason for the government to be involved in marriage licensing. Genetic problems have been noted when people who are closely related (brother/sister, first cousins) marry, and then have children. It is the children who suffer from those genetic problems. In this case, I believe government intervention was for a good purpose.
People who cannot have children don't merit that kind of consideration. There is no chance of conception.
Aug '10
Re: Help me, Mona
Ed G.
Are these really examples of actions , though? Are they "something of value" (as I've seen consideration described) that can appropriately be judged by a court?
Going by the history of marriage law, yes, to a certain extent.
Obviously, a court is not competent to judge many of the ways in which happy couples love, honor, and cherish each other, but clear breaches, such as abandonment, withholding sustenance from a dependent spouse, one spouse flagrantly dishonoring the other, and of course adultery, are the sort of things that have been recognized as breaches by marriage courts over the years. Even withholding sexual access from your spouse has been grounds for divorce in certain courts.
Throughout history, many family courts have been affiliated with a religious body, such as the Catholic or Anglican church (canon law) or a Beth Din (rabbinical law). However, when you consider that much of our own law evolved from medieval canon law, the fact that these courts have often been religious does not make them irrelevant.
Aug '10
Re: Help me, Mona
Ed G.
Surely no property or money would be involved as such a breach doesn't cause financial loss, right?
Financial loss is not the only kind of economic loss. Common law has long recognized this, for example, in awarding damages for disturbance of peace and reasonable enjoyment in a nuisance suit.
While money is the only convenient universal measure of value, both law and economics recognizes that there are many things of value that are not money or tangible property.
In the case of marriage, for example, if a woman gives a man "the best years of her life" by being a stay-at-home mom when she is young and fertile (hence sexually attractive), but he later abandons her for a newer model when she's all wrinkly and infertile looking (not so attractive), that man has cost her the opportunity of either finding a husband who would not have abandoned her in her old age or pursuing a career that would have allowed her to provide for her own old age . Alimony in the case of abandonment isn't just a matter of justice. It also makes economic sense.
Edited on May 16, 2012 at 5:03pmAug '10
Re: Help me, Mona
My choice of "love, honor, and cherish" as a phrase may have not been the best one for talking about the considerations involved in a marriage. But many marriage pledges also include phrases like "keep" (i.e, maintain with physical sustenance) and "all that I have is yours" (obviously including tangible property). Older marriage vows sometimes had specific references to bed and board, that is, sex and food.
A final afterthought:
I don't mean to suggest that it's the courts' job to sort out all the opportunity costs involved in a contract. It isn't. Rather, good contracts -- the ones that withstand the test of time -- tend not to ignore the larger opportunity costs faced by the parties involved.
Insofar as it's possible to view marriage as a contract, there's good economic reason for it to be lifelong, as women tend to have more of what men want at the beginning of marriage (youth, beauty) and men tend to have more of what women want (power, wealth) at the end of a marriage. True, these are our base wants, and we try to rise above them. But it's imprudent to pretend they're not there.
Edited on May 16, 2012 at 5:24pmFeb '11
Re: Help me, Mona
Thanks for taking the time to comment on my contract questions, MFR. You bring up many good points. Thinking it over this morning, I'm still unsettled on the topic. It seems to me that there's still only one reason we'd want to (or have sufficient cause to) enforce the permanence of an agreement about sexual activity or presence in the home: the effects it would have on children within the family (the emotional effects on a spouse are alone not sufficient, IMO, to get involved). There's only one reason we'd want to impose opportunity cost penalties on the withdrawing spouse: the effects it would have on the children directly and the effects it would have on the spouse who gave up financial interests in order to tend the family (spouses without children have ample time to develop themselves, plan for their future, make provision for their eventual old age support, have no obligations preventing them from supporting themselves should the union break up) - without children it's just like quitting a job.
Aug '10
Re: Help me, Mona
You're welcome. I'm not settled myself about how marriage works as a contract, and if a contract is enough.
I agree that children are the overwhelming reason. But other reasons are also possible, if perhaps uncommon.
The spouses of the extremely eccentric, mentally ill, or disabled may not need children to be full-time unpaid caregivers.
If one spouse works, say, 12 hours a day in an absorbing career, the other spouse may have a sizable unpaid job (enough to preclude more than part-time work elsewhere) handling all other responsibilities (obviously, you can't take a shower for someone else, but you could make sure the career spouse never has to worry about a single bill, or what to eat, etc).
There's also the issue of elder care, which is becoming increasingly common.
Oct '10
Re: Help me, Mona
Midget Faded Rattlesnake
Altogether, the free market, which gives people scope to choose for themselves, while at the same time rewarding them for serving -- or at least pleasing -- others, is hardly the worst environment for cultivating virtue.
...
The very fact that an exchange economy causes a participant to ask, "What can I do for my fellow man to make my living?" rather than, "What can I do to my fellow man to make my living?" is no small moral accomplishment.
That's the fusionist argument: moral people do not create the free market, the free market creates moral people. We've had half a century of experimenting with that idea, and I submit that it has failed. Freer economic policies have done nothing to stop moral breakdown among working-class whites and inner-city African-Americans.
Instead, moral breakdown has decimated the ability of entrepreneurs to start successful businesses and provide decent jobs in those areas affected by it. I think it's clear the causality runs in the direction of moral people creating free markets, not the other way around.