The buggers are legal now, what more are they after?

Richard Goode's picture
Submitted by Richard Goode on Fri, 2012-10-19 05:50

"Legalising" gay "marriage" is not the solution to the problem of "marriage inequality".

The solution to the problem is for the government to get out of the business of issuing "marriage licences" to opposite-sex couples, not for it to get into the business of issuing "marriage licences" to same-sex couples.

Why should anyone require a licence from the government to get married, anyway? Libertarians should be concerned with abolishing such governmental intrusions, not clamouring for "intrusion equality", or insisting that the State "should recognise everybody’s right to be equally miserable."

The solution has a precedent in the abolition of titular Knighthood and Damehood honours by Helen Clark. (They were restored by John Key in 2009.) Wikipedia says

In April 2000 the new Labour Prime Minister Helen Clark announced that knighthoods and damehoods were abolished, and the order's statutes were amended accordingly. Between 2000 and 2009, the two highest awards were called Principal Companion (PCNZM) and Distinguished Companion (DCNZM), and recipients did not receive the title "Sir" or "Dame". Their award was recognised solely by the use of post-nominal letters, as for the lower levels of the order.

The government simply needs to set a date after which marriage licences will no longer be issued. Civil unions will be the only option available for gay and non-gay couples wanting governmental endorsement of their love lives and living arrangements. Existing marriage licences issued by the government, and those issued by other governments, would continue to be recognised, but the government would cease to issue new marriage licences after the set date.

After much time spent considering my co-bloggers' excellent arguments both for (Tim) and against (Reed) Louisa Wall's "marriage equality" bill, I'm off the fence now and picking the splinters out of my scrotum. I'm for marriage equality and against Wall's bill.

[Cross-posted from Eternal Vigilance.]


( categories: )

Michael

reed's picture

I want an answer to my question before going off into the weeds with your latest set of questions. Rest assured, I will answer them.

I'm resting assured.

Cheers

Reed

Rosie

Michael Moeller's picture

You are correct that my formulation is broader than Linz's, including not just the use of force/fraud, but also legitimate property disputes that do not involve force or fraud by either party. This, of course, happens all the time, and the state has to have a standard for settling the dispute. For instance, there is ambiguity in the terms of the contract, and the two parties cannot agree on the meaning of the terms. Ergo, neither party has committed force or fraud, but there is a legitimate dispute about the obligations of the parties under the contract. I doubt Linz disagrees that it is legitimate for the state to adjudicate such property disputes, but he can speak for himself.

Rand herself recognized this possibility, but did not make it part of her justification for the government's use of force. She said the state could only use reliatory force in response to the initiation of force, which is not quite correct. There are legitimate property disputes in which neither party has used force, but the dispute needs to be adjudicated, and the judgment enforced.

As to your civil union solution, it would simply be marriage by another name. You would still need to define what constitutes a civil union, i.e. is it at the discretion of the parties or is it defined by statue? Linz says the former, I say the latter. I'll untie the Gordian knot, don't worry. Eye

Michael

There is a problem...but maybe a solution

Rosie's picture

"The state has no place in relationships. ........ In the protection of the individual from force or fraud, the state has a place everywhere. That is the state's "default position." Force and fraud are violations of individual rights, and the securing of individual rights is the reason "governments are instituted among men."

Linz, are you saying that you consider that resolution of property issues upon a marriage terminating where there is no force or fraud or violation of individual rights - but simply a disagreement between the two parties over what is considered joint property and/or its division - should not be a matter for the Gummint via legislation?

If so, how would you propose resolution outside government/judicial intervention and, following resolution, its enforcement (if necessary)?

As I read it, Michael is pointing out a problem with Richard's solution on a practical level, applying a legal analysis given the legislative function of the Government (in accordance with the Commonwealth and US Constitutions).

As I read it, (a) Michael is pointing out why there currently needs to be a legal or legislative definition of marriage; and (b) Michael goes a little further than the libertarian pronouncement by Linz that the Government's role is only to provide "default rules" in cases where there is force or fraud - to include the more common situation of parties terminating marriage contracts and unable to agree on the terms of separate or joint property and/or its division. I.e., disagreements without violation of individual rights. Possibly, in this case, disagreements to uphold and preserve individual rights.

As you know, the Separation of Powers instituted under the Commonwealth and US Constitutions provide three functions of Government:
legislative - function of Government
judicial - function of Judiciary/Courts
executive - function of Queen or her representative(Commonwealth) or President (USA).

The Constitution of the USA also adopted the Bill of Rights to protect "personal liberties" not included in the Constitution. These personal liberties include non-discrimination on the grounds of sex, race, religion and other characteristics.

I believe that Michael is trying to explain how the legislative function of Government currently works in relation to contracts (including marriage contracts) and why definitions are necessary for the interpretation and application of legislation by the Judiciary.

A Government can only perform in accordance with the Constitution and it performs its function using legislation. Legislation is like software (and amendments, the development thereof) and the Judiciary's function is to interpret this legislation or software where there are disagreements in its interpretation and therefore its application (as in the case of a disagreement over matrimonial property in the event of a marriage contract terminating without pre or post agreed terms*). As he says, these are prescribed by legislative "default rules" (50:50 with exceptions) over the 'what' and 'how so' of the property but, in order to apply these rules properly, there must necessarily include provision that the rules are being applied to the persons for whom they are applicable. i.e., the parties to the marriage or the 'who'.

*It is NOT necessary to employ the Judiciary to apply the legislation each time. The parties are always free to agree their own terms outside the prescribed 50:50 terms of the "default position" contained in the legislation either before the marriage OR after the marriage takes place OR after separation. For the Agreement to be valid, however, a lawyer for each party needs to certify that he has explained the effects and consequences of the Agreement and is satisfied that the party fully understands the position. This is supposed to be in the interests of efficiency so that people can not later go to the Courts and say they didn't understand what they were signing and thus declare it an illegal contract and invalid. (A few still do, of course, and challenge the lawyer's certification!)

This legislation is necessary in order to be able to do what libertarians want it to do in cases of force and fraud. Michael is also trying to explain that the legislative default position also includes the more common, ordinary cases of marriage contracts terminating where there has been no pre-nuptial contract signed and no force or fraud involved. I.e., where there is merely disagreement between the parties (the 'who') over the alleged property (the 'what') and/or its division (the 'how so') or the custody and access arrangements of their children.

A possible solution may be do what Richard proposes and, for the purposes of Gummint and the resolving of disputes, have what is currently called "marriage" under the Acts redefined as "civil unions". All people joining together in what is now called marriage and what is now called civil unions are together lumped as one, for administrative, legislative purposes as "Civil Unions" and registered as such with the Gummint. Anyone wishing to be married in a church or special ceremony may do so privately without need for registration. I believe this situation is the case already in France.

This would leave the historic institution of "marriage" to be outside the ambit of government (including its anti-discrimination laws) and retain its original definition as between a man and a woman (and, for Christians and Jews and any other who believes it to be so, God).

If the people advocating a change in the definition of marriage to include homosexual couples is simply to provide them the same rights as married heterosexual couples, this could be done by replacing the legislative definition of "marriage" to call them "Civil Unions" and include homosexual couples - and it can continue to be redefined possibly to include polygamous relationships and any other contortion of the current institution if this is considered by the people and its Gummint to be "an individual's right". Smiling

Doug

Michael Moeller's picture

You are welcome.

Linz's position and mine do have a very crucial distinction, and it is the one Linz named. And the problem with Linz's position is the problem that you named, which comes with negative consequences.

Michael

Sorry Reed

Michael Moeller's picture

Reed wrote:

"No. If a contract involves a criminal act I'd see the criminal behavior punished, the contract not enforced and I'd see the wronged party compensated for any loss caused by the criminal act. None of this would be dictating the terms of a contract."

Nope.

If I trade my watch for $200, those are the terms. Right? Yes, Reed.

Now, I trade my fake rolex for $200 that I represent as a real rolex. Those are the terms, but the state says I cannot set terms in which I make a misrepresentation of fact.

And when the other party uses the state to come after me and have his money returned, I tell them to buzz off with the following: "From my perspective the state is an uninvited third party to my contracts."

Indeed, we did set the terms of the trade, I just falsely represented one of the terms (i.e. that it was a real Rolex). Now, I tell the state to bud out, they are an "uninvited guest". Sound good?

Second problem here, Reed. You apparently dispute that contracts are the part of a broader legal framework, the "nub" you quoted from me. So why should criminal law interfere with contract law?

(Hint: they are both part of the same legal foundation implemented by the government.)

Michael

Michael

reed's picture

Is the state "dictating the terms" of a contract when they do not allow for you to sell a fake watch, to hire a contract killer, when a contract is obtained under duress, or when somebody tries to sell something they do not own?

No. If a contract involves a criminal act I'd see the criminal behavior punished, the contract not enforced and I'd see the wronged party compensated for any loss caused by the criminal act. None of this would be dictating the terms of a contract.

Michael

Doug Bandler's picture

Thanks for the reply. My take is that marriage law is probably not as bad as the Conservatives make it out to be. But, I'm sure egalitarian notions of fairness and justice have seeped in there like they have everywhere else.

Linz,

As I understand Michael's position, he is rejecting the libertarian argument that "marriage should be privatized" and that the gov't has no role in marriage. The government MUST set default rules in ALL of contract law and its derivatives (ie, bankruptcy, real estate, wills and trusts, etc). What Michael is doing, in essence, is rejecting libertarian subjectivism, something he excels at. I don't think your position is really different than his. He is just dotting the i's and crossing the t's for the government's proper role in dealing with romantic contracts.

My 2 cents.

Linz

Michael Moeller's picture

You wrote:

"I imagined that would cover all of Michael's "default" contingencies, but he was not satisfied with that, going so far as to say it's the state's role to define what marriage is, just as it's the state's role to define what murder is (!)."

That's correct, and this remains a huge problem with your position.

How does the state adjudicate the property/custody within the rules of marriage unless they first define what constitutes a valid marriage?

I take your answer is: whatever the two parties say it is. Correct?

Here's the problem: what if they two parties dispute they are married? Indeed, this was one of the very problems with common law marriage.

Michael

The state and relationships

Lindsay Perigo's picture

I'm not sure how this thread became so noisy, since I'd have thought we were all after the same outcome on this matter.

The state has no place in relationships.

The state has no place in the bedrooms of the nation.

The state has no place in the boardrooms of the nation.

The state has no place in the dining rooms of the nation.

The state has no place in the reading rooms of the nation.

Etc.

With all of the above nostrums, and all others like them, there is, for libertarians, a caveat: "except where there is an issue of force or fraud."

In the protection of the individual from force or fraud, the state has a place everywhere. That is the state's "default position." Force and fraud are violations of individual rights, and the securing of individual rights is the reason "governments are instituted among men."

What, then, of marriage in particular? This argument began with my saying government's role (government being the agency of the state) should be to enforce contracts, period. Michael responded by saying government had a much bigger legitimate role than that. I stated that, of course, the usual caveat, as above, applied. I imagined that would cover all of Michael's "default" contingencies, but he was not satisfied with that, going so far as to say it's the state's role to define what marriage is, just as it's the state's role to define what murder is (!). Thus, presumably, the Defense of Marriage Act, which says marriage can only be between a man and a woman, is an expression of the state's legitimate function, and it is proper that same-sex couples cannot marry and enjoy all the benefits that supposedly flow from legal status. If the state changes its mind on that, then gay marriage becomes legitimate by dint of that reversal.

I beg to differ. It is not the state's function to say, "There shall be marriage" and dictate what constitutes marriage. Marriage, and any other kind of union, should be a matter for individuals and private institutions. It's legitimate for the state to register marriages as it does other kinds of contracts; it's not legitimate for the state to say who (among adults—here I agree with Michael) may and may not marry. (Michael's "default rules" re the rights of children and the property rights of parties to marriage are, or ought to be, always a given.)

Marriage, properly speaking, arises not from a state decree that people shall marry, but from the desire of individuals to make a special, formalised, uncoerced romantic commitment to each other—and in that fundamental sense, absent any force or fraud, the fucking state can fuck the fuck off. Right now, of course, we don't have "properly speaking," just a morass of Nanny State intrusions driven by shrieking feminazis. Why anyone would want to marry under those circumstances baffles me, but of course, even de factos are not safe.

Reed

Michael Moeller's picture

You are skirting the question. You previously stated this:

"The problem is that the government presumes the authority to dictate the terms of contracts that can be made between adults."

Is the state "dictating the terms" of a contract when they do not allow for you to sell a fake watch, to hire a contract killer, when a contract is obtained under duress, or when somebody tries to sell something they do not own?

I want an answer to my question before going off into the weeds with your latest set of questions. Rest assured, I will answer them.

Thanks,
Michael

Michael

reed's picture

This is the problem. Many libertarians understand contracts improperly, as if they are something wholly apart from a legal framework, i.e. the state.

I agree that this is the nub of the problem. From my perspective the state is an uninvited third party to my contracts.

Your questions all involve criminal acts. The courts shouldn't enforce criminal contracts.

Which of the following do you think should have its own legal framework?

  • Lending
  • Building
  • Food production
  • Insurance
  • Medicine
  • Renting houses
  • Retail
  • Employment

Is there any area of life that shouldn't have the "ground rules" legislated?

Your justification (whatever it is) is a justification for all regulations, isn't it?

Unreal

Michael Moeller's picture

Of course Marcus will not repeat it again, because he has no argument. His attempt to lay it out with church "council" and such was downright pathetic. Let's face facts: Marcus won't answer the questions because he can't answer the questions. Period. If anybody doubts it, go back and read where Marcus answered my questions. I'll be damned if I can find the answers.

If he has answers, then why not just requote them? It is abundantly clear now Marcus is evading. If Marcus was honest, he would simply provide his answers to my two questions.

Marcus wrote:

"I made an argument for no state involvement in Marriage to contrast your position of "no state role outside the enforcement of a contract being inadequate"."

A misstatement of my position, totally. But hey, as long as Marcus gets in a point! (i.e. a strawman of his own making). Good for you, Marcus.

But look at the bolded portion. Compare that to what Marcus just wrote:

"As if we had said the state should have no legal power to judicate over marriage contracts at all."

Well, which is it?

He doesn't bother to rectify the contradictions of the two statements. So be it, but I would not advise him to promote this opinion to others.

He quoted Linz's agreement with me that the state should have "default rules". Yet, he mocked that same position earlier:

"So if I marry, I must be bound by Michael's state mandated rules unless I have a prenupial agreement?"

Apparently, if I say it, Marcus disagrees with it. If Linz says it (in the process of agreeing with ME), then Marcus is ok with it. Contradiction much?

Marcus wrote:

"This means you endorse the status quo of restrictions placed upon marriage by the state."

I have said no such thing.

This doesn't bother Marcus, though. He wants to be right, so he sets up strawmen and knocks them down. Way to go, Marcus!

I find this particularly appalling after all his obnoxious mocking and empty assertions like me "sounding like a socialist".

Michael

You started this by contrasting...

Marcus's picture

...your position with that of Linz, Richard and the Libertarians.

I've told you what I assume their argument to be and I will not repeat it again.

I made an argument for no state involvement in Marriage to contrast your position of "no state role outside the enforcement of a contract being inadequate".

This means you endorse the status quo of restrictions placed upon marriage by the state.

At least that's what I thought. I mean why else would you object to a minimum intrusion by the state into marriage contract law?

I'm not really interested in bashing this dead horse any further because I'm tired of repeating myself.

Backpedal Much??

Michael Moeller's picture

You are changing your position now.

You just got down mocking me for saying the state should have "default rules", AND for treating it like a contract. Need I remind you? Hmmm, let's see:

"Why not let them opt for religion or tradition without a contract?

Blank out.

No, no. A contract with terms spelt out by the state must be made to keep cutodial and property rights."

Blank out, indeed.

How about some more:

"So if I marry, I must be bound by Michael's state mandated rules unless I have a prenupial agreement?"

Well, then how do you settle the property dispute absent the default rules, Marcus? You have conspicuously avoided this question.

Marcus wrote:

""Either state involvement is "essential" or it isn't.

If it is not required you have no argument."

If it is required, then YOU have no argument. And you just conceded the case by trying to backpedal your way in.

Michael

Doug

Michael Moeller's picture

Remember that divorces are about as bitter and acrimonious as it gets, and one side always feels like they got screwed, so you have to look at the stories from that perspective.

For instance, I had a friend who got divorced, and she reached a settlement with her former husband. At the time, he was practicing law in Japan, and went back there. They had agreements about the house etc. Well, while he was in Japan, the housing market here collapsed, and his income was not growing like it was before the recession.

As a result, he refused to comply with the initial terms of the divorce, which cost her money from the settlement. She had to make due for a couple of years until it could get settled in court again. He thought he was getting screwed because he now had to cover the loss on the house, etc. But the reality is that he agreed to the terms of the divorce, and wanted to change the agreement because of what later happened in the recession. He probably thinks he got screwed by the court when they made him live up to the original agreement.

From my perspective, I think it is simply wise to have a prenuptial agreement. You know your property interests up-front, which makes the dissolution of the marriage based on money/property less of an issue. Financial reasons are far and away the #1 reason marriages are dissolved. I believe the terms are generally honored by the courts, and they should be. I am not aware of ways in which the terms are rewritten to favor women, as I do not practice in this area, but they should not be.

As far as default rules for alimony and custody, I think the door should swing both ways. In my state, it does, i.e. either party can receive alimony. As far as custody, it should be governed by the best interests of the child, including weighing such factors as where each spouse lives, the relative financial circumstances of each spouse, the child's preference, how mentally stable the spouse is, etc. etc.

I really don't know about abuse claims. I would assume the woman cannot just assert it, but has to carry the burden of proving it.

"No-fault" divorces are fine. Basically, "no-fault" means is that a party can leave the divorce for whatever reason. In that case, either spouse would saying their grounds for divorce is NOT adultery, abuse, the other spouse becoming a drunk, etc., i.e. one of the "fault" categories. All it means is that they have reached irreconciliable differences, and the marriage cannot rehabilitated.

Michael

Linz wrote...

Marcus's picture

"Have your default rules by all means."

Richard wrote:

"Civil unions will be the only option available for gay and non-gay couples wanting governmental endorsement of their love lives and living arrangements."

So I assumed their positions are the same as mine, ie bare minimum of state judicial intervention to govern the legality of contracts.

But let them speak for themselves.

No I don't see.

Robert's picture

"If not married you have opted out of the state-mandated property rules."

No. You opt ~in~ by marrying. And the 'property rules' govern only how shared property is to be taxed or divided upon dissolution of the agreement.

And were it not for property taxes and other social engineering crap - the only time the government would step in would be if the couple parted ways and wanted a fair division of the property/child custody.

And in Michael's replies to me, it is clear that he wants that social engineering crap abolished. It is also apparent in his replies to me that he is not in favor of restricting the availability of those contracts to paired off heterosexual adults.

What he appears to be pointing out then is that the government, by way of its role as neutral arbiter in disputes, has to set minimum standards for defining a valid property/custody-sharing contract (drop the word marriage from the title if you wish). That is self evident and non controversial to me. I want the legal system to work efficiently by applying the century or more of institutional knowledge it has acquired in deciding these issues.

Robert

Michael Moeller's picture

No, thank you! I'm glad one person on thread gets it, if only one.

Michael

Marcus...

Michael Moeller's picture

I don't see the answers to my questions. Can you quote them for me? Thanks.

Michael

Need I remind you, Marcus...

Michael Moeller's picture

Richard says above:

"Why should anyone require a licence from the government to get married, anyway? Libertarians should be concerned with abolishing such governmental intrusions, not clamouring for "intrusion equality", or insisting that the State "should recognise everybody’s right to be equally miserable."

To which you and Linz apparently agree. In fact, the argument on that side has been "no government involvement". Linz wrote:

"I am concerned to get the state out of relationships."

My response was that the state should only be involved with marriage to settle property and custody disputes, that his position was "incomplete". And it is.

Then you followed up with:

"Either state involvement is "essential" or it isn't.

If it is not required you have no argument."

Here, you are plainly stating that state involvement is not "essential".

Hence, the two questions.

Michael

Michael...

Marcus's picture

I already answered your questions.

You asked how disputes could be settled without a contract and I answered your question.

Why the special pleading for special ground rules for marriage when you have now admitted all contracts should be under the same constraints?

Frustrating, Absolutely Frustrating

Michael Moeller's picture

Marcus wrote:

"Michael: 'As I stated before, and about twenty times at that, that is all the government should be concerned with when it comes to marriage.'

Marcus: Linz, I and Richard said marriage should be limited to contract law with the state stipulations on the morality of relationships removed and you balked at that. As if we had said the state should have no legal power to judicate over marriage contracts at all.

I don't know why you wish to misrepresent our argument this way."

In the quote you supplied, I am stating my own position, NOT yours. I am still trying to get you to explain your position, and you are refusing to answer the questions.

You have plainly disputed that the state should have default rules to settle these disputes, right? And then you offered a meandering explanation for how the disputes get settled.

Anyway, I want you to clarify your position from mine by answering the following questions:

(1) What happens if they cannot agree on settlement of property in a divorce? Who decides the dispute?

(2) What if they did not have a prenuptial agreement, as most people don't, what do you use to settle the dispute if they cannot agree on who owns what property?

Answer them please. In the interest of fairness, you can ask me any two questions on marriage that you want and I will answer them.

Michael

Then what the hell are we arguing about?

Marcus's picture

"As I stated before, and about twenty times at that, that is all the government should be concerned with when it comes to marriage."

Linz, I and Richard said marriage should be limited to contract law with the state stipulations on the morality of relationships removed and you balked at that. As if we had said the state should have no legal power to judicate over marriage contracts at all.

I don't know why you wish to misrepresent our argument this way.

Marcus

Michael Moeller's picture

You wrote:

"You now seem to be saying the state should oversee a marriage contract as if it were any other contract.

Well if that is your position, you must concede that it is over-extending its authority at present."

Yes, Marcus, I am, and I concede no such thing. Settling property rights disputes and custody disputes is within the legitimate powers of government. As I stated before, and about twenty times at that, that is all the government should be concerned with when it comes to marriage.

If you think otherwise, then please answer the questions, because I want people to see your position full-blown, and I've laid out my position about a dozen times.

(1) What happens if they cannot agree on settlement of property in a divorce? Who decides the dispute?

(2) What if they did not have a prenuptial agreement, as most people don't, what do you use to settle the dispute if they cannot agree on who owns what property?

Michael

Micheal...

Marcus's picture

...why don't you answer my questions first?

Clarify how you think it makes sense to set those rules in the first place with regard to all the exemptions I have written below.

Do you think those rules governing marriage are not an abuse of this power?

Because your argument changes every five seconds, I'm not clear.

You now seem to be saying the state should oversee a marriage contract as if it were any other contract.

Well if that is your position, you must concede that it is over-extending its authority at present.

Marcus

Michael Moeller's picture

So let's get your position clear.

(1) What happens if they cannot agree on settlement of property in a divorce? Who decides the dispute?

(2) What if they did not have a prenuptial agreement, as most people don't, what do you use to settle the dispute if they cannot agree on who owns what property?

Michael

I already answered that question...

Marcus's picture

"What does the church do if they cannot settle the property and custody dispute?"

I said "to council". That's what a lawyer does too, it does not mean it is legally binding.

A state court system would only hear the claim if it were a matter of law.

A civil case takes two to tango if you hadn't noticed and is at the claimant's expense.

If they want to go they way, then let them pay.

Which they often do anyway, state or no state involvement.

More and More Bizarre

Michael Moeller's picture

Marcus writes:

"If they had a church wedding they might seek council from the church."

You now have the church with their own legal framework to settle property rights and custody rights disputes? Holy smokes!!

And if they cannot come to an agreement, and divorce is well-known as one of the most acrimonious areas of legal disputes, does the church have a set of rules and an ability to enforce those rules?

What does the church do if they cannot settle the property and custody dispute?

Michael

Stand corrected!

Marcus's picture

"From what he writes I can impute no desire in his heart to have the government treat the breakup of formal married couples different from 'de facto' married couples."

How many times to do I have to quote it Robert?

"This legal relationship has a particular set of property rules that people might want to take advantage of. They can maintain regular, separate ownership of property by not marrying, or the co-ownership rules under the legal relationship (or a prenuptial contract they set in advance)."

You see? If not married you have opted out of the state-mandated property rules.

Michael is not arguing that Defacto is the same here.

I think you are imputing

Robert's picture

Michael's words with motive where none exists.

The first paragraph he points out that without a comprehnsive prenuptial agreement, the plaintiffs put their fate in the hands of the state ~if~ he partnership fails. That is self evident. And it is the case in states with same sex marriage laws. It is also the case if one partner dies and doesn't have a will, or other instruments that instruct those charged with impartially sorting out property and custody issues (the government) what you wish to happen if the unthinkable happens.

What Michael is describing AFAIK, is that their must be a minimum standard acceptable for a contract that the government can enforce without putting undue burden on the system & the taxpayer. So I have no problem with procedural stipulations that reduce frivolous court cases. Remember, in addition to being just, the system also has to be efficient if justice is to be done.

From what he writes I can impute no desire in his heart to have the government treat the breakup of formal married couples different from 'de facto' married couples. As far as I can see he is merely pointing out one of the key cogs in a functioning legal system. Point me to the post where he says "I think that xyz should be the implemented" or something close to that and I'll stand corrected.

How do you settle the dispute?

Marcus's picture

The same way you solve any civil dispute.

If neither party has a valid legal claim on the other, then there is no dispute for the state legal system to concern itself with.

If they had a church wedding they might seek council from the church.

If they had a civil wedding they might seek council from the organization that wed them.

It seems that Michael thinks the wishes of the state with regard to marriage are soverieign, unless otherwise stated.

(He does not seem to address the thorny problem of what should be done if the pre-nuptial agreement disagreed with state mandated laws on custody and property rights either. Would he have the state judicial system over-rule them? Based on his argument from necessity of protecting those rights within marriage, the answer should be yes.)

Why does the state not allow people to marry in threes or fours?

Why does the state not allow people to marry close relatives?

Why did/does the state give blood tests before marriage to see if they were compatible? (I think they might still do this in US).

Why does the state not allow people to marry more than once without first divorce or death?

I guess you must approve of this state involvement?

If not, why not?

So why are justifying state involvement in drafting the rules of marriage?

Failing to Recognize Reality

Michael Moeller's picture

Let's try Marcus's stipulations on for size:

"So if I marry, I must be bound by Michael's state mandated rules unless I have a prenupial agreement?"

Ok, Marcus.

Let's say two people do not have a prenuptial contact, and they get married. They now dispute who owns what property, and who should have custody of the children.

How do you settle the dispute?

Michael

Not true Robert...

Marcus's picture

He originally wrote about Marriage being different to all other contracts,

"But the point is that most people do not set these terms forth when entering into marriage, and cannot agree on terms during divorce. There has to be a neutral arbiter and there have to be default rules."

So why does this not then not apply to unmarried couples too?

Why does Marriage have such a special place in his heart?

On the one hand he is saying that they did not set terms and therefore need the state to do this.

On the other hand without the state doing this no contract would be legally valid.

So why force someone getting married to have a contract in the first place?

Why not let them opt for religion or tradition without a contract?

Blank out.

No, no. A contract with terms spelt out by the state must be made to keep cutodial and property rights.

But then how does Michael justify this:

"This legal relationship has a particular set of property rules that people might want to take advantage of. They can maintain regular, separate ownership of property by not marrying, or the co-ownership rules under the legal relationship (or a prenuptial contract they set in advance)."

So if I marry, I must be bound by Michael's state mandated rules unless I have a prenupial agreement?

Even though the concept of marriage predates the state validated kind by thousands of years and managed to survive without state interference for thousands of years.

No, no. Naughty children. You can't get married without the state!

Reed

Michael Moeller's picture

You wrote:

"The problem is that the government presumes the authority to dictate the terms of contracts that can be made between adults."

This is the problem. Many libertarians understand contracts improperly, as if they are something wholly apart from a legal framework, i.e. the state.

Let me give you a few quick examples, Reed, and let's see how you fair:

1. Is it valid for two people to have a contract to kill somebody else?

2. Is it valid to have a contract for one person to sell a house to another, but the person does not own the house?

3. Is it valid for me to sell you my Rolex watch that I attest is a genuine Rolex, yet the watch is a fake I bought it in Chinatown?

4. Is it valid to have a contract that two people sign on the dotted line, but it was formed by one of the parties threatening the family of the other party?

I could go on endlessly, but I think you get the point.

Is the state invalidly "dictating terms" of contracts between adults, Reed?

Michael

Marcus

Michael Moeller's picture

No, Marcus, I haven't changed my position. You are just not paying attention and/or do not understand the points being made.

You wrote:

"'First you said the state needed to set the ground rules and who the participants are for marriage.'

Now you say: '...the state's role is only to settle property and custody disputes arising from the marriage.'"

Marcus, are you able to distinguish *who* the law covers from *what* the law covers? Apparently not.

Let me make this real simple. The *substance* of a law and *who* it applies to are two different issues.

Consider a murder law. The "who" is all adults, the substance -- the "what" it covers -- is the conduct amounting to murder.

Consider register a deed. The "who" is any person wanting to buy a house, the substance is how you establish ownership of the house.

Consider the registration requirements of a business. The "who" is all people desiring to register a business, the substance is the formalities of registering that business (eg. issuing stock, naming owners, etc.).

Same for marriage. The who should be all adults, the substance of what it covers is the property rights of the spouses and custody of the children.

This is what I mean, Marcus. Instead of making an attempt to understand what I am saying, you are desperately grasping to make points, even without understanding basic law.

You also wrote:

"Anyway, excluding a certain category of people from entering a contract is not the same as saying the state has therefore necessarily to set specific ground rules and set the specific eligibility for the institution of marriage."

Marcus, you just validated the point that the state can say who is and is not covered by the law (within the confines of equal protection, I would add). The state would be excluding persons minors and persons of mental incapacity. And that is the point I was making on the "who", so thanks for validating it.

So let's try this again. What is your problem with the state saying that all adults of mental capacity may enter into marriage. The substance of the marriage law covering what happens to the property of the spouses and the custody of the children in the event of a divorce. The individuals can have a prenuptial contract for it, or the state provides default rules for what happens to the property/custody in the event they do not have a prenuptial arrangement, which the vast majority of people don't.

Now what is your problem with this?

Michael

Unfettered

Robert's picture

... Provided those contracts are consistent with the Bill of Rights, provisions made to protect those who cannot consent and the jurisdiction of the entity charged with enforcing that contract. The way I read Michael's posts his objections consisted of merely pointing that out.

Which is to say that a government cannot enforce a contract nor preside over the breakup of a partnership formed with a contract whose terms violate the constitutional and jurisdictional restraints placed upon that government by the civil society that formed it.

It ~is~ a valid point. It ~is~ a trip-step that you Reed will stumble upon if you argue with an opponent with a better grasp of the law than you or I. Need I remind you that the bulk of politicians have legal training?

By my accounting Michael has done me a favor, he sharpened my argument by correcting this misconception.

Stop it now, Reed....

Ross Elliot's picture

...you'll put the lawyers out of business.

Legalise Unfettered Contracts

reed's picture

The problem is that the government presumes the authority to dictate the terms of contracts that can be made between adults.

Correct, Marcus

Ross Elliot's picture

"Anyway, excluding a certain category of people from entering a contract is not the same as saying the state has therefore necessarily set specific ground rules for the institution of marriage."

You can't impute the age of consent to mean that the state must further entail itself. Or, actually, that it should have the power to do so.

Doug

Jules Troy's picture

http://www.ejfi.org/family/fam...

 

Some cases for you to chew on...

Sigh Michael...

Marcus's picture

Every new post you change your definition of what the state involvement in marriage is.

First you said the state needed to set the ground rules and who the participants are for marriage.

Now you say: "...the state's role is only to settle property and custody disputes arising from the marriage."

And with regard to the question of minors it is you who failed to grasp the point.

OK, so what if it is illegal for a minor to enter any contract in the US?

(Although that seems improbable because minors can be employed at least part time and surely that involves a contract. As a minor I had a paper round by verbal contract so I must have been breaking the law.)

Anyway, excluding a certain category of people from entering a contract is not the same as saying the state has therefore necessarily to set specific ground rules and set the specific eligibility for the institution of marriage.

Can you grasp this point, I wonder?

In Canada

Jules Troy's picture

There was a case in B.C. where a man who was paying a large amount of child support got injured on the job and became disabled.  He went to court for an adjustment as he owed over 100k that he had no hope of ever repaying.

He did not qualify for any social assistance of any kind due to his debt to child maintenance.

He had 37 cents in his bank account and could not even get food stamps.

The judge ruled against him.

He hung himself outside the courtroom.

Yes doug there are many horror stories.

The Conservative Arguments Against Modern Marriage

Doug Bandler's picture

Michael,

If you read any Conservative commentary on marriage you encounter the same thing over and over. They complain about:

1) no-fault divorce - they say that this has allowed women to treat marriage as an "at-will" contract and to walk away at any point with no consequences. And since women initiate 70-80 % of divorces, this has benefited women at the expense of men.

2) child custody - the argument here is that the courts under egalitarian conceptions of "fairness" are awarding custody to mothers. There are absolute horror stories all over the Conservative blogoshpere of men denied access to their children and who are devastated by this.

3) alimony - the complaint here is that under egalitarianism the courts are killing men in this department and that alimony is an outdated concept that doesn't take into account women's careerism.

4) bogus abuse claims - The stories here are nightmarish. Women initiate divorce, claim abuse where there is none and then get awarded alimony, the kids, the house, basically everything.

5) prenuptial contracts - From what I understand, many courts will rewrite these contracts or ignore provisions that are not in line with egalitarian/feminist views of "justice".

Bottom line, there are absolute horror stories out there. So much so that the entire Manosphere is recommending that men NOT get married as the current laws are TERRIBLY discriminatory against men. They call it "divorce rape" and advise men only to get married if they want children. Otherwise, they say there is no point as the entire legal system is against you.

Do you agree with this? Or is this Conservative hyperbole? I really hate feminism (to the depth of my soul), and I hate the Left. BUT I do not trust the Conservatives on ANYTHING. Their epistemology sucks meatloaf.

Michael

Robert's picture

Thanks for that. We are not in disagreement here, but your argument is more precise than the one I've used previously and I wanted to understand it fully.

The other problem is that I have no legal training and I often trip over terminology or focus too hard on the insignificant. Thank you for expertise and patience.

Robert

Michael Moeller's picture

First, I think you are correct on any special state entitlements that come with marriage. Get rid of the social engineering.

On a wider constitutional scale, this isn't an issue of federal law because it does not fall within the enumerated powers of Congress, so it is the province of state. As far as common law marriage is concerned, remember that some areas of law -- particularly state law -- were remnants from old English common law, which includes many areas of contracts. Much has been replaced by statutory law, as it should be, but that is a topic for another time. I think common law marriage has been largely replaced in most states.

Now, with that in mind, you have to ask yourself if the legislated law affords equal protection. Putting aside the warped modern notion of equal protection, the legitimate question would be whether the law applies selectively -- to some individuals, but not to others. (This, of course, excludes those of insufficient mental capacity, like minors. We're talking mentally capable adults because consent presupposes the ability to comprehend what you are consenting to.)

So, does the law apply selectively to some individuals, but not to others? The answer is yes, the law does not apply equally to heterosexual individuals entering marriage, as it does to homosexual individuals entering marriage. Or individuals desiring a polygamous relationship, for that matter.

Michael

"What specific usurpation"

Robert's picture

I've got my wires crossed because I had other things on my mind. Specifically how in the F**K did I get a transient 4-fold increase in sensitivity in my Mass Spectrometer early into a 95-hr long run of injections... It's enough to make one believe in gremlins, but I digress.

Let me restate the issue how I see it and see whether there is any cause for disagreement.

There are State laws that define a legal marriage as between being between adults of opposite sex (plus other stipulations about not being previously married, etc).

Now I accept that marriage is a voluntary act and that consenting adults can freely associate/consort in whatever number and manner they so choose without getting married. Some states offer equivalent 'common law' statues that are equivalent to marriage, but not all.

Those who support gay-marriage contend that in denying same-sex marriage, those States are denying those individuals the benefits and protections of specific federal & state statutes, regulations, and rulings that are applicable to married people, including the ability to jointly file tax returns and apply for certain tax-deductions. I've seen one estimate that states that those Federal benefits, rulings and protections number ~1,100.

In addition, I'd argue that married couples have an advantage in negotiating the government/private bureaucratic thickets that surround property transactions (credit scores, loan applications etc.)

So as I understand it, there ~are~ legal benefits/protections extended to married couples that are not available to non-married couples.

Now I've obviously answered my previous question: get rid of all of that social engineering crap and the attendant reductions in the regulations governing lending institutions etc will resolve 99% of the discrimination that does exist. At that point marriage, in a legal sense, becomes nothing more than a noun.

But is the fact that legislation (in these States) includes a stipulation covering the the sex of applicants/plaintiffs not questionable in terms of being an affront to the concept of equality before the law?

This is the bone I was gnawing on when I posed that question relating to where/when/how did this practice originate and why does it persist in law to the point that the proposed 'fix' requires doubling down on w.r.t recognizing the sex of applicants when it would be neater, simpler and more just to drop the stipulation altogether.

Robert

Michael Moeller's picture

Marriage is a state law issue. I am not sure what you mean by infringing freedom of association, but all that needs to be maintained is that it is a voluntary act, and the state's role is only to settle property and custody disputes arising from the marriage.

What specific usurpation are you worried about? If it is a voluntary act, it does not infringe freedom of association.

Michael

Marcus

Michael Moeller's picture

I think part of the problem is that you do not understand contracts.

The reason a minor cannot enter into a contract is because they do not have sufficient mental capacity to understand what they are obligating themselves to in a contract. That's why, in the US, minor cannot enter into contract -- for good reason!!

Tell me why the same should not be true for marriage?

The same is true for marriage. Put aside the sexual issue, are you telling me that an adult should be allowed to marry a minor who has no clue about the property issues at stake?

Or how about somebody who is so mentally ill they cannot grasp what property even is? Should they be legally permitted to enter a marriage relationship?

C'mon Marcus, you're tumbling into the absurd.

Michael

"limiting the state's role in marriage to"

Robert's picture

A concise statement of what I believe.

So in your legal opinion, what changes to the US mechanism (Federal law or Constitution or whatever) need to be made to limit the state's role in this matter? (This is what I was driving at previously).

How would I go about figuring out when the Feds/States began to usurp the freedom of association in this way or even what legislative/constitutional precedent underpins their power (to prevent gay-marriage)? One commentator on PJ-media contends that this mess is the residue of the (now defunct) miscegenation laws. I don't even know how quickly check his assertion.

Strawman...

Marcus's picture

Wedding a minor is not a mater of law. Having sexual relations or abduction or many other things are against the law. But the marriage per se is not necessarily against the law. Even if we make it against the law (as it probably is in the west) that does not automatically make the state liable to determine the pre-conditions of all marriages.

"Indeed, that is true for any contract. The person has to be of legal age, has to be legally competent, etc etc. Those are the rules. Call them "parameters" if you like, but this is not difficult to grasp."

I think this is untrue. Why cannot a minor enter into a contract and that contract still be legal.

The terms of contracts can breach specific laws or be regulated by statute. However that does not mean they must now specifically define the rules for all contracts in advance.

Those Quotes Aren't Contradictory

Michael Moeller's picture

Ok, you've supplied quotes from me. Now tell me how one of them contradicts the other. Place the statements side-by-side.

You're just not piecing it together properly.

Consider that Robert got the point about the state saying *who* can enter a contract.

Indeed, that is true for any contract. The person has to be of legal age, has to be legally competent, etc etc. Those are the rules. Call them "parameters" if you like, but this is not difficult to grasp.

Contrast that with *terms* of a contract, eg. How many widgets I will sell you, at what price, etc etc. The state does not specify those, but if a valid contract is formed according to the rules -- the legal standard -- the state may have default rules for settling the terms when not specified.

And just as for a contract, the state formulates rules for forming a valid marriage relationship, including who may form such a relationship. If the parties fail to establish the terms of a divorce in advance, then the state has rules for specifying the terms, eg 50-50 rule.

Let's try this another way. You believe the state should not be involved with establishing the marriage relationship, correct?

Then I have one simple question for you: should an adult be allowed establish a marriage relationship with a minor, or an adult with another adult who does not understand the consequences of entering the relationship ( I.e. does not possess mental capacity)?

Michael

Michael you've changed your position so often...

Marcus's picture

...that it's hard to keep up.

"It has to be defined by the state because it involves the co-mingling of property and the custody of children, which is the legitimate province of the state."

"They retain their personal property as always, and out-of-wedlock custody follows the same rules as marriage."

"Marcus, what you are discounting is that people want to enter this arrangement voluntarily for any number of reasons."

And then this,

"This legal relationship has a particular set of property rules that people might want to take advantage of. They can maintain regular, separate ownership of property by not marrying, or the co-ownership rules under the legal relationship (or a prenuptial contract they set in advance)."

That's fine and dandy. Still does not give a case for why the state must be responsible for setting the rules of marriage. I never knew the state defined the rules for business contract partners and terms of the business, simply they enforced legal obligations via the judicial system. That's not the same as setting the parameters of the contract in advance for a specific kind of contract, ie marriage.

Robert

Michael Moeller's picture

This is protected by limiting the state's role in marriage to, and only to, protecting the property rights of the spouses and settling custody of any children.

Other than that, it is a voluntary agreement, like any contract. The prerequisite is that it is a free association, like any contract, and the state cannot force you into this relationship.

Michael

"the state necessarily has to

Robert's picture

"the state necessarily has to define * who* can form this relationship/agreement and under what circumstances"

That's a given (as far as I'm concerned).

So then how does one prevent the government from rigging this 'definition' so that the freedom to associate with whom so ever you choose (provided you both are consenting adults) is not abridged.

I suspect your answer has something to do with upholding the First Amendment - as written. But I like to see ~how~ you make that argument.

Marcus

Michael Moeller's picture

You're not accurately stating my position. Where did I say the state was unnecessary for property rights and custody for unmarried couples? Quote me please, because this is the second time you've misstated my position. In fact, I've stated the opposite multiple times now. The state's regular role in personal property still pertains.

What I DID say is that marriage is a particular *legal* relationship that people voluntarily enter into, and the state necessarily has to define * who* can form this relationship/agreement and under what circumstances, as it does for regular contracts.

This legal relationship has a particular set of property rules that people might want to take advantage of. They can maintain regular, separate ownership of property by not marrying, or the co-ownership rules under the legal relationship (or a prenuptial contract they set in advance).

Call me crazy, but I think that is pretty straightforward. Even if you disagree, I don't think you are making much of an effort to grasp my position because you have now twice in a row misstated my position.

Michael

Your stance is full of internal contradictions...

Marcus's picture

On the one hand you say the state is needed to set the rules for marriage due to custody of children and property.

On the other hand you say it is voluntary.

If it is voluntary and does not apply to unmarried couples, then how does it follow that state involvement is essential in the first case but not the second?

Either state involvement is "essential" or it isn't.

If it is not required you have no argument.

Reed

Michael Moeller's picture

Any if the couple splits the state has no involvement? There is no default rule (already in place at the time they take custody) governing custody should they split? And the adoption process itself has no legal rules establishing custody in the first place? I highly doubt that is true.

Your second statement is pure assertion, besides being a muddled distinction.

Michael

Michael

reed's picture

Homosexuals can raise children here without any state involvement.

I think there is a connection between being a lawyer and wanting more prescriptive legislation.

Marcus

Michael Moeller's picture

Where did I say the property rules are the same for marriage as non-marriage? Quote me please.

I said the default rule for *custody* is the same as for unmarried couples, to my knowledge. It may not be in some states. The point is that it could be altered by a marriage agreement that people voluntarily consent to.

The contradiction?

Michael

Reed

Michael Moeller's picture

I love your cleverness, except that homosexual couples in the US can adopt children.

I haven't looked at the NZ rules, but we're talking about the role of government in marriage, which, in the US (and presumably NZ, as Linz stated you have a 50-50 rule), follow a distinct set of property and custody rules in the event of a divorce.

I must say, I always like your (un)enlightened analyses.

Michael

Michael you did it again...

Marcus's picture

Why do you say it is voluntary?

In your last response you said the rules defining marriage will apply to all those who have children or property disputes and are not married.

So why do you say now it is voluntary?

By your own admission it is not.

FYI

reed's picture

Neither the Marriage Act nor the Civil Union Act refer to children or property at all.

Homosexual acts do not produce children.

Marcus

Michael Moeller's picture

Because people want to voluntarily enter into this relationship. And it is not "regulation", but a specific set of rules governing the property rights, which are *voluntary*. You do not have to comply with any government rules if you do not want to, i.e. you simply don't enter into marriage. Ergo, it is not "regulation".

Marcus, what you are discounting is that people want to enter this arrangement voluntarily for any number of reasons .

For instance, a couple may want to enter marriage because they want the property rules. The wife will stay at home and take care of the kids, so they see it as advantageous to establish co-ownership of what the husband earns. Without marriage, she would be left with whatever personal property she currently has.

That's just one scenario people enter into marriage, and it is completely voluntary agreement.

And to enter such a legal relationship and to form such an agreement, you need to first define who can make such an agreement and under what circumstances -- *like any other contract*.

Michael

I hadn't finished the post...

Marcus's picture

...yet, see below.

Due to some difficult iPod texting.

Marcus

Michael Moeller's picture

Explain the contradiction.

Michael you are contradicting yourself...

Marcus's picture

"It has to be defined by the state because it involves the co-mingling of property and the custody of children, which is the legitimate province of the state."

"They retain their personal property as always, and out-of-wedlock custody follows the same rules as marriage."

So why regulate marriage if marriage is not required for the "rules" to apply?

The only conclusion can be that you don't want the state to regulate marriage but you want the state to regulate all relationships that involve either property or children.

Robert

Michael Moeller's picture

You are essentially saying the same thing. You are establishing a legal relationship, and therefore you would need to say who can enter these prenuptial arrangements and how they enter it.

I think you have simply *added* prenuptial requirements with respect to property/custody, and sanction by a judge. In other words, instead of default rules about the property in the event of a divorce, you have simply required them to answer those questions up front. Again, you still need to specify *who* can make such an agreement and how they go about making it.

As an aside, I would not leave it up to a judge because you would vague or loose standards about what constitutes marriage, as happened with common law marriage. Statutory law sets out, in advance, the clear requirements needed to establish the legal relationship. Plus, legislation is the province of the legislative branch.

Michael

Marcus

Michael Moeller's picture

Not at all to your questions. They retain their personal property as always, and out-of-wedlock custody follows the same rules as marriage.

But people, for religious or practical reasons, want to enter this thing called marriage, which is a *legal* relationship that they voluntarily entered into. The reasons they entered into marriage do not matter, but the state still needs to define what this relationship is and how it is established.

For instance, the first step in getting a divorce is determining whether they validly entered into this legal relationship called marriage. It has to be defined by the state because it involves the co-mingling of property and the custody of children, which is the legitimate province of the state.

Ergo, since it is a specific legal relationship involving property and custody, the state needs to define exactly how one enters that relationship, i.e. who and under what circumstances.

Michael'

What is the difference

Robert's picture

in legal terms, between a licence and the minimum requirements to meet the definition of a contract?

Please correct me if I'm wrong, but I thought that most of the 'components' considered to be essential in commercial contracts were 'discovered' by a common-law style trial and error process (ring-fenced by the Bill of Rights etc.) as opposed to legislative writs and Constitutional amendments invented by elected officials.

In this context, I do not see why the minimum marriage contract cannot have the option of pre-nuptual conditions that specify who gets the kids and what property belongs to whom. And for those who do not specify that - the judge gets to play King Solomon with this particular 'baby.' And if there are inequalities in the division of property, then Caveat Emptor applies.

What I seek is to banish the Legislative and Executive from the role of defining marriage. The Judicial arm of government is obviously going to play a role because they are the ones tasked with sorting out bankruptcy and protecting the Supreme Law of the land (the Constitution and its Bill of Rights), which IMHO is what divorce boils down to: a romantic bankruptcy.

The only unique thing about marriage is that it may result in the production of a child - whose rights are held in trust by the parents until it is of an age to assume responsibility for its actions as a citizen. But again, that is a Constitutional issue and not fodder for political campaigning.

Please point out the errors in my logic. The legal philosophy behind this issue is interesting to me & I want to get it right.

Michael

Richard Goode's picture

the state defines what is a valid marriage.

The solution to the problem is for the government to get out of the lexicography business.

No I don't get it Michael...

Marcus's picture

Why does the state have to set the rules of marriage in order to protect property rights or the rights of children?

Does that mean if I have children out if wedlock their rights are not protected?

If I am not married, but have a girlfriend, that her property rights are not protected?

You make no sense to me. You're sounding like a socialist.

Marcus...

Michael Moeller's picture

Yes, I understand that, but you're not following the argument.

The government is not involved because of religious history or any tradition, but rather to protect the *property* rights and custodial rights of any children in the event of the divorce.

Who is normally the arbiter in a property/contract dispute?

I'm assuming you're not an anarchist, Marcus, so to settle out property rights in a divorce and the custody of children is the proper province of government. Check out the whole back-and-forth with Linz. It's all laid out there.

Michael

Michael...

Marcus's picture

...I think of this issue from the other end (pardon the pun).

A marriage is something that is between a couple and an institution.

Throughout most of history that institution has been a religious one.

The religious organisation sets the terms (and perhaps the contract terms). The state should only be involved in the case of legal disputes that arise from this arrangement.

However, these days, we also have state sanctioned marriages (both religious and non-religious versions).

So, therefore, what we are saying is that the state should NOT be in the business of administrating these marriages, anymore than it administrates a baptism.

Only religious or non-religious organizations should be.

That's how marriages functioned up until the 17th century for most European countries, before the state started setting the rules.

Was the world such a terrible place before the state got itself involved?

It's a bit like saying that companies only became efficient at doing business once the state introduced some sort of "companies act" thereby defining the ground rules for starting up your own business.

And this brings us full circle

Michael Moeller's picture

Just as the state defines murder before a murder is committed, or what constitutes a valid contract, the state defines what is a valid marriage.

This includes who (age of legal consent, of sound mind, etc.) may enter into such a contract and under what circumstances (before a justice of the peace, with a witness, etc.). So the *who* still needs to be defined by the state. The libertarian argument does not get around that fact if you want a proper role for the state.

Any two adults? Two or more adults? This obviously preempts the guy who wants to marry his dog argument because dogs do not have legal rights or enter valid contracts.

Michael

Linz...

Michael Moeller's picture

Below you stated: "Government's does have a role: to enforce contracts, if a contract is involved. That's it."

That's incomplete and inaccurate for the aforementioned reasons.

And so was the last formulation. It is not when intervention is needed, that is the *remedy*.

The state defines the rules *a priori*, just as it defines murder before a murder is committed. It *intervenes* based on the rules previously proscribed, and only in those instances of which every person has notice.

Ergo, the standard libertarian stance that the state should be out of marriage absent a contract is incomplete and inadequate.

The state's proper role for marriage is define what constitutes a valid marriage, and to proscribe rules governing a divorce, including the property rights of the spouses and the custody of the children (absent premarital contract).

In fact, that is all the state does NOW, so railing against the state being involved at all -- without providing a properly defined role for the state -- isn't much of an argument. That's what I am trying to get across. It is too simplistic (and incomplete), yet I hear it repeated in libertarian quarters over and over again.

Michael

Michael

Lindsay Perigo's picture

If you agree that the state should have rules for property and custody of the children, then the state is NOT out of relationships. That is the point. THAT is the state's role.

It is out of relationships until its intervention is required consistent with its obligations to uphold the rights to life, liberty and the pursuit of property and happiness. I have never said anything different. Michael, if you have a superior formulation, by all means proffer it. Naively, perhaps, I always imagine that the part of my formulation beginning with the word "until" is a given in any discussion among Objectivists. For instance, if I say, "The state has no place in labour relations," I assume, if I'm speaking to an Objectivist, I don't have to qualify that with "except to stop employers and employees killing each other, and uphold any contract they've entered into."

Well, Linz...

Michael Moeller's picture

If you agree that the state should have rules for property and custody of the children, then the state is NOT out of relationships. That is the point. THAT is the state's role.

To put it another way, it's like saying get the state out of commercial contracts, except for prescribing who can enter a valid contract, having default rules for a valid contract, and default terms should terms be ill-defined. Other than that, get the state out of contracts.

Problem? That is what contract law IS. Same for family relations law.

You need to refine how you state the position.

Michael

Michael

Lindsay Perigo's picture

Now what, since the state is not involved in marriage and there is no contract to enforce?

Status quo ante I should think. Have your default rules by all means. Except that in NZ those rules as you describe them are annihilated by current matrimonial property law. But I don't know what I have to do to make clear that this is not my point. Have your fucking gay marriage, as I say to the career gays. I am concerned to get the state out of relationships.

Linz

Michael Moeller's picture

I think you may have misunderstood me. The state is not entering the bedroom, but setting the rules for who can enter a contract (as they do for *any* contract), and the terms of the contract.

It has a default set of rules (in the absence of a contract) to protect the property rights of the spouses and determine custody of the children. That's all the state is involved with.

Getting out of marriage means getting out of those things. Do you agree with that?

To put it another way, say a couple runs off to Vegas, gets married, and has children. They had no contract before marriage, and later get divorced.

Now what, since the state is not involved in marriage and there is no contract to enforce?

Michael

Michael

Lindsay Perigo's picture

In NZ the rule is that a de facto marriage or a gay relationship gets treated as a marriage after three years, and it's 50-50 split of property regardless of who contributed what. Gold-diggers rule. But that isn't the point. I'm half-happy to support gay marriage just for the sake of equality before the law. But the more important thing is to change the law. Get the state out of relationships.

Linz

Michael Moeller's picture

I disagree.

Just as in a contract, there are default rules governing contracts. Is the person of legal age and sound mind, for instance?

Do you disagree with that?

And much more comes into play with marriage. What happens to property acquired before marriage? What happens to property acquired during marriage? What if one spouse worked, and one stayed at home to take care of the kids? Etc. etc.

Who gets custody of the children?

These are huge issues that most people entering into marriage do not contemplate. If there is a contract, then the contract terms should govern; unless, say, they agreed to joint custody of the children and one of the spouses later became abusive.

But the point is that most people do not set these terms forth when entering into marriage, and cannot agree on terms during divorce. There has to be a neutral arbiter and there have to be default rules.

I do not know how it works in NZ, but that is all that is proscribed in family relations in the US, which is perfectly valid.

So if you asked me about gay marriage, or even polygamy, I would permit it is a valid basis for marriage. But to say that the state has no role outside of enforcing the contract is inadequate for protecting the property rights of the spouses and the rights of the children.

Michael

Holy christ on toast with Baade sauce!

Jules Troy's picture

Never thought i'd see the day!!

For once ...

Lindsay Perigo's picture

... I'm in agreement with Baade. The professional gays are pushing gay marriage only because it extends Nanny's tentacles. The last thing they want is freedom. What do the buggers want? Baade asks. In spirit, if not explicitly, they won't be satisfied till heterosexuality is banned. Even gay I, who believe there is no cure for women known to men, would, reluctantly, refrain from advocating that. Career queens are like career Mordi—filth.

Government's does have a role: to enforce contracts, if a contract is involved. That's it.

Let's Play This Out...

Michael Moeller's picture

Is a marriage license a valid contract in your view?

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