Social Conservatives, Gay Marriage, and The Future
There is an important chart everyone needs to see:
There are two trend lines, one is going down and one is going up. There may be a couple of bumps, but the direction of each line is clear. That is the future.
Tuesday night, Maine, Washington, and Maryland passed laws legalizing gay marriage and the one banning it in Minnesota lost.
That's the future. Look at those trend lines again.
You can object. You can talk about "redefining" marriage. I've heard it all before. But look at that trend line. That is the way the United States of America is trending. That's where the public is at. You need to adapt or conservatives will keep losing elections.
I know most of you reading this have very strong feelings about gay marriage. I'm not going to argue about your feelings, your belief structure, or what you think. All of us here at Ricochet have done that plenty of times.
What I am going to do is suggest a change for conservatives, one that I first encountered out of the mouth of a man who I know to be, frankly, a bigot.
Here is the solution: The separation of marriage and state.
Marriage is a lot of things, among them a legal contract. As it stands now, one needs a license to get married. A license is legal permission to do a thing. We license marriages now, but we did not always. It doesn't need to be licensed. Many of you will think of practical objections. "What about X?" There's always a solution for X.
Separating marriage from the state doesn't mean the end of marriage. It means the end of getting permission from mommy government to do a thing that is a natural right of free people to do.
Separating marriage and government means that how I feel about gays and gay marriage and how you feel about gays and gay marriage don't matter politically. We can both be on the same side without either of us compromising our belief systems.
It's also not an electoral loser.
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Aug '10
Re: Social Conservatives, Gay Marriage, and The Future
Astonishing
Steven M.
Joseph Stanko
Steven M.
So why are we letting the government have the power to define marriage in the first place?
Does that mean marriage would have no legal definition, and therefore no legal implications? What about divorce, alimony, child custody, inheritance, etc. How will the courts handle all these things if there is no legal definition of marriage?
How do they handle them now in cases where there was no marriage in the the first place?
Of course, there are laws for the situation of no marriage.
But "no marriage" does not create the lgeal confusion of the multifarious variety of customized "contract" marriage, each with customized provisions that would not necessarily sync up with existing family law.
Customized "contract" marriage would necessarily entail more, not less, government involvement to cure and to regulate the confusion and uncertainty the infinite variety of customized contract marriages would create about the rights and duties of (what has heretofore been known as) family.
That implies that more, not less, government intrusion is required when businesses enter into contracts freely, and that the state should rather impose one-size-fits-all terms on all businesses.
Aug '10
Re: Social Conservatives, Gay Marriage, and The Future
Ed G
But the opposition to SSM has no effect on the ability of individuals to form contracts with one another. Opposition to SSM - the legal marriage structure, really - is entirely to do with how society will interact (or not) with individuals.
With respect, I believe you are confusing "society" with "the state".
This is all simply an application of Bastiat to the institution of marriage:
Edited on November 9, 2012 at 10:23pmAug '10
Re: Social Conservatives, Gay Marriage, and The Future
Joseph Stanko
Astonishing
How would a "marriage" contractnecessarilydiffer from any other contract through which two or more people codify certain rights and duties?
How would a marriage contract differ from a contract between two people who merely want to have a piece of paper setting out their rights and duties as roomates and mutual caregivers?
Does such a "marriage contract" necessarily involve a provision covering sexual relations?
And if it a "marraige" contract is essentially no different from any other "contract," why call it marriage?
If marriage is a contract for anything you want to contract for, then the word marriage loses all meaning, and marriage is nothing.
And isn't that what Fred Cole really wants? That marriage should be meaningless? That marriage should cease to exist as a thing with meaning?
The proposal, in line with most libertarian though, seems to be radically individualistic. Marriage would have no socially agreed meaning, but rather would mean whatever the contracting parties agree that it means for them.
If that is true, then how did marriage have any socially agreed meaning prior to 1837, when the state did not regulate the definition of marriage?
Sep '12
Re: Social Conservatives, Gay Marriage, and The Future
Mollie Hemingway, Ed.
You didn't read the link I posted earlier, but that's ok. You seem pretty sure about this need to have government redefine marriage to include same-sex couples.
I do have a question: How do you define marriage? What is it? Just curious. · 58 minutes ago
I didn't read the link because, even though a happen to be on my one vacation of the year this week, I don't have time to read a 43-page academic paper, which is what the link appeared to be. (I'm open to correction if I'm mistaken)
I am comfortable with government re-defining marriage only because society has first assented to this step. It is becoming harder and harder to argue that society has not consented in large portions of the country. And do you know what happened to traditional marriages in those places where SSM exists? Absolutely NOTHING! The idea that SSM harms tradional marriage simply doesn't stand up to scrutiny.
Am I wrong? I'm completely open to any non-religion based argument you may care to advance.
Jun '10
Re: Social Conservatives, Gay Marriage, and The Future
Misthiocracy
If that is true, then how did marriage have any socially agreed meaning prior to 1837, when the state did not regulate the definition of marriage? · 16 minutes ago
You cannot mean to suggest that same sex marriage was legal prior to the introduction of marriage licensing laws?
If there was no statutory definition, than the meaning of marriage under the common law was surely understood as a union of husband and wife, one man and one woman. It would require a positive intervention by the state, an exercise of legislative authority, to overturn that and replace it with "a union of any two (and no more) people regardless of sex."
Jun '10
Re: Social Conservatives, Gay Marriage, and The Future
Misthiocracy
"Get government out of marriage," is a poor choice of slogan.
It's the executive and legislative levels we'd like to get out of marriage. The judicial level of government would still be involved, to adjudicate disputes.
So, essentially, in our hypothetical libertarian scenario: · 47 minutes ago
Please explain to me how #4 works in absence of #1. Jack and Jill fall in love and decide to get married. Neither is religious, so they don't want a church wedding, just a simple ceremony on the beach with some close friends.
Do they need to file some paperwork? Fill out any forms?
Re: Social Conservatives, Gay Marriage, and The Future
Great Goldwater's Ghost!
Mollie Hemingway, Ed.
You didn't read the link I posted earlier, but that's ok. You seem pretty sure about this need to have government redefine marriage to include same-sex couples.
I do have a question: How do you define marriage? What is it? Just curious. · 58 minutes ago
I didn't read the link because, even though a happen to be on my one vacation of the year this week, I don't have time to read a 43-page academic paper, which is what the link appeared to be. (I'm open to correction if I'm mistaken)...
Am I wrong? I'm completely open to any non-religion based argument you may care to advance. · 29 minutes ago
Let's just start at the beginning. What is marriage?
Oct '12
Re: Social Conservatives, Gay Marriage, and The Future
Joseph Stanko
Please explain to me how #4 works in absence of #1. Jack and Jill fall in love and decide to get married. Neither is religious, so they don't want a church wedding, just a simple ceremony on the beach with some close friends.
Do they need to file some paperwork? Fill out any forms?
In terms of purely legal matters, like "We shared X property" but now we need to split it, they will have a contractual relationship that establishes the conditions of shared property ownership in term. Anything that is legal would be prepared this way, and in that sense would be open to either civil courts or arbitration courts - per the contract.
In terms of issues of marriage, it would depend on the cultural institution through which they took their vows. If you say they are not religious, and we imagine this hypothetical couple has no cultural norms concerning divorce, the dispute would be final at agreement of separation. If they were, instead, Catholic, they're dispute on spiritual terms would be resolved exactly the way it is now in the Catholic church.
Nothing changes, except that their marriage and their shared rights are distinct.
Jun '10
Re: Social Conservatives, Gay Marriage, and The Future
William McClain
Joseph Stanko
Please explain to me how #4 works in absence of #1. Jack and Jill fall in love and decide to get married. Neither is religious, so they don't want a church wedding, just a simple ceremony on the beach with some close friends.
Do they need to file some paperwork? Fill out any forms?
In terms of purely legal matters, like "We shared X property" but now we need to split it, they will have a contractual relationship that establishes the conditions of shared property ownership in term. Anything that islegal would be prepared this way, and in that sense would be open to either civil courts or arbitration courts - per the contract.
Per what contract?
If you went to a typical married couple and said "can I read your marriage contract" I think they'd give you a blank look. Unless they had a pre-nup, which AFAIK is fairly uncommon.
Most people just get a marriage license, sign it, and file it with the county clerk. But you are proposing to eliminate that step, correct?
Oct '12
Re: Social Conservatives, Gay Marriage, and The Future
Great Goldwater's Ghost!
I didn't read the link because, even though a happen to be on my one vacation of the year this week, I don't have time to read a 43-page academic paper, which is what the link appeared to be. (I'm open to correction if I'm mistaken)
I'm familiar with it. It makes one of the stronger conservative arguments against same-sex marriage by pointing to a positive definition of marriage as conjugal, that is the union of a man and woman for conjugal procreation to sustain the welfare of children.
However, it relies on assumptions concerning the basic relationship of organic union as superior to spiritual union in justifying child welfare; it would require an expansive change to other marriage laws dealing with divorce and child-rearing to be fully born out; and it ultimately begs the question by arguing that because marriage formed out of procreation, marriage is limited to those capable of directly procreating in the abstract (even if physically unable).
I would define marriage as a union with the intent of forming a family, and would recognize advances in social institutions as not limiting this to procreation.
Oct '12
Re: Social Conservatives, Gay Marriage, and The Future
Joseph Stanko
Per what contract?
If you went to a typical married couple and said "can I read your marriage contract" I think they'd give you a blank look. Unless they had a pre-nup, which AFAIK is fairly uncommon.
Most people just get a marriage license, sign it, and file it with the county clerk. But you are proposing to eliminate that step, correct?
Yes, the point is that people do not freely create contracts for shared legal rights because they rely on a marriage license. In this hypothetical, they would not give a blank stare because it would be expected that to share legal rights, you must form a contractual relationship. This hypothetical would change the way people shared legal rights from state license to private contract.
I think it's fair to say this is politically impractical right now, but I don't think it's difficult to imagine how it works - the challenge is recognizing that the previous system of state licensing is replaced with a system of civil agreements. In theory, these contracts could be identical to the licenses issued now, but their force is mutual agreement rather than state consent.
Oct '12
Re: Social Conservatives, Gay Marriage, and The Future
I should also add that anyone who supports this system of alternative marriage (contractual and cultural over licensed) should feel a symbiotic relationship with the social conservatives who feel that marriage should be defined as one man and one woman.
If social conservatives were asked to abdicate their values, there would be no turning back (at least not anytime soon) from the conditions established by the rights-movement in regards to same-sex marriage. The legitimization of same-sex marriage would be determined solely by political means, rather than actual moral debate. I hope it's clear that people like me who argue from this perspective are not hoping those who have moral convictions simply drop them, either for electoral or political purposes.
The very idea of separating marriage from the political realm is that our communities, churches, and families should have final say over the moral and cultural institutions it wants to welcome into them.
Jun '10
Re: Social Conservatives, Gay Marriage, and The Future
William McClain
I would define marriage as a union with the intent of forming a family, and would recognize advances in social institutions as not limiting this to procreation. · 16 minutes ago
That would include polygamy, correct?
Oct '12
Re: Social Conservatives, Gay Marriage, and The Future
Joseph Stanko
That would include polygamy, correct?
Well, strictly speaking that argument extends to the conjugal theory as well - given that a marriage that results in procreation can be polygamous. It also goes towards the argument of marriage as tradition, given that polygamy is certainly, in some cases, even older than the tradition of one man and one women.
Myself? I have no moral qualms with arguing that a family relies on symmetrical balance of parental power, and I have no moral qualms with saying that polygamy does not meet that line, while arguing that a same-sex couple can exercise this balance. I also have no moral qualms about distinguishing between the inherent nature of duality over multiplicity in this balance, which separates polygamy and polyamorous relationships from relationships based on sex.
Aug '10
Re: Social Conservatives, Gay Marriage, and The Future
Joseph Stanko
Misthiocracy
If that is true, then how did marriage have any socially agreed meaning prior to 1837, when the state did not regulate the definition of marriage? · 16 minutes ago
You cannot mean to suggest that same sex marriage was legal prior to the introduction of marriage licensing laws?
If there was no statutory definition, than the meaning of marriage under the common law was surely understood as a union of husband and wife, one man and one woman. It would require a positive intervention by the state, an exercise of legislative authority, to overturn that and replace it with "a union of any two (and no more) people regardless of sex." · 1 hour ago
Well, clearly it would have been a moot question at the time because homosexuality was a criminal offense.
However, in some parallel universe where homosexuality had been legalized prior to the state takeover of marriage, then I can easily imagine gay weddings being performed by some churches.
If the state doesn't make something illegal, then by definition that thing is legal.
Aug '10
Re: Social Conservatives, Gay Marriage, and The Future
Joseph Stanko
Please explain to me how #4 works in absence of #1. Jack and Jill fall in love and decide to get married. Neither is religious, so they don't want a church wedding, just a simple ceremony on the beach with some close friends.
Do they need to file some paperwork? Fill out any forms?
I would imagine that if they don't take the time to negotiate and sign some form of marriage contract, they would have no legal recourse and no legal rights later on should the partnership collapse, just like any other non-married couple.
As such, it would clearly be in their best interest to negotiate and sign a legal marriage contract.
Presumably, they would not have to write one up from scratch. Just as each church has its own template for marriage vows, there would presumably be plenty of template contracts a non-religious couple could choose from.
Aug '10
Re: Social Conservatives, Gay Marriage, and The Future
Joseph Stanko
William McClain
I would define marriage as a union with the intent of forming a family, and would recognize advances in social institutions as not limiting this to procreation.
That would include polygamy, correct?
Ah, but today we HAVE polygamy. We simply do not have state-recognized polygamy.
In most states, there is no legal prohibition against a man entering into procreative relationships with multiple women in the same household and calling it "marriage". It's simply that the state will only recognize one of those women as his "legal" wife. It only becomes a criminal matter if the man attempts to register multiple marriages with the state. At that point he becomes a criminal bigamist.
Ironically, if one were to attempt this sort of arrangement in Utah one can be charged with bigamy. That state assumes for itself the legal authority to declare that the man has attempted to enter into multiple legal marriages at once, even when the man has filed no paperwork to the state to that effect.
This is why some US polygamists have moved to British Columbia. If the man doesn't register the marriage with the government, it's not illegal.
Aug '10
Re: Social Conservatives, Gay Marriage, and The Future
This is all, of course, entirely theoretical.
I am under no illusions that any of this can ever actually be achieved.
Progressives are far too enamoured with the possibility of expanding government entitlements via the institutions of marriage and divorce.
I am certain the greatest opposition to any serious, non-theoretical discussion of this idea would come from the Left.
Edited on November 10, 2012 at 12:35amAug '12
Re: Social Conservatives, Gay Marriage, and The Future
I've been at work, and thus unable to comment since I saw this in the morning.
1.) Katievs, I appreciate your weighing in. I don't have anything to add except pedanticness, but I appreciate it.
2.) Astonishing, it is a strange feeling to have your puckishness aimed away from me. I'm feeling very uncomfortable. But in a good way.
3.) As Molly pointed out, we're not getting the state out of marriage, so it's moot. The state is going to be there when the marriage ends (inheritance, taxes, divorce, alimony), when children are born (paternity, which is a prerequisite for inheritance), and therefore, the state is going to be there when the marriage starts (to have the necessary records). Licensing was a revenue raising measure -and on that grounds, I suppose we should be shocked it's taken so long to get here. But the records were kept by county clerks and churches going back several centuries here and in Europe.
Henry I of England felt compelled to legislate on marriage laws in the Charter of Liberties. State has been involved for a long time.
Aug '12
Re: Social Conservatives, Gay Marriage, and The Future
Nonetheless, I think there is some value in considering another aspect of this. Katievs mentioned far up-stream that the value of her marriage doesn't derrive from the state. I agree. But as marriage becomes weaker and weaker, and the state -trying to support the people clamoring for more and more of the honors they desire -meddles with it more and more, the time will come when the state will destroy marriage. Oh, we'll still have the word, but the station, honors, and commitments will be so ravaged it won't matter. No one will marry, because what's the point?
There is a chance -albeit a small one -that a marriage exempt from the state's decrees of what is and is not honorable might survive. They state may claim that any two people who are together are enough -but everyone will know that real marriages are something different.
But only if the state is not involved. I propose an analog to Gresham's Law: bad marriages drive out good.
Marriage is sick. The state may wel be a cancer on the institution. Maybe we should consider amputation. The left hand now or the whole arm later.