Gay "Marriage" - A Good Argument That It Is Epistemologically Invalid

Doug Bandler's picture
Submitted by Doug Bandler on Wed, 2013-04-24 22:06

I just discovered this:

http://ronpisaturo.com/blog/20...

Ron Pisaturo, an Objectivist who has an EXCELLENT epistemology (better than mine for sure), makes a great argument that homosexual "marriage" is epistemologically invalid.

The issue is not about religion but rather good epistemology—common sense, really—and the proper role of government regarding the meaning of concepts.

And he offers a quote from Rand I never saw:

[T]he concept “marriage” denotes a certain moral-legal relationship between a man and a woman, which entails a certain pattern of behavior, based on a mutual agreement and sanctioned by law.
— Ayn Rand (an atheist) (1966,1967), Introduction to Objectivist Epistemology, New York: The Objectivist, p. 37 (Chapter 4).

But Ron is not saying that gays can't have a romantic union. He says this:

Nothing in my original post suggested that homosexuals should not have their own word for their analogue to marriage; in fact, I wrote that they should choose their own word. And nothing I wrote suggested that there should not be a wider concept to subsume both marriage and homosexual unions. I am not advocating any inequality in availability of concepts. I’m simply saying, don’t destroy the concept that heterosexuals need and have been using out of cognitive necessity. And I must say that I have been shocked to receive blowback on a point that should have been obvious once I mentioned it.

Memo to homosexuals: It’s not all about you. The fundamental purpose of incorporating the concepts of ‘man’ and ‘woman’ in the concept of ‘marriage’ is not to distinguish heterosexual relationships from homosexual ones; the fundamental purpose is to remind heterosexuals—and anyone who wants to understand them—of the differences between heterosexual men and heterosexual women. That is why the definition of marriage already mentions man and woman, even before discussion of homosexuals. If all homosexuals went away, we heterosexuals would still need the concept of marriage. The presence of homosexuals does not eliminate that need. Don’t take our concept. It’s inconsiderate, disrespectful, and insulting.

I am very curious as to Lindsay's view of this. Ron does not have a rosy view of homosexuality. He's skeptical about whether homosexuals would make good parents for one thing. Put it this way, he and Ditzhead Hsieh are on opposite sides of the Objectivist universe. My view is that homosexuality is genetic, but Ron is not sold on that idea. That being said, his is the best epistemological treatment of the subject I've seen. And the comments are interesting too.

For the record, as much as I love Ed Cline, I disagree with his view of homosexuality as a consequence of childhood trauma. Homosexuality is wired. But this is exactly what Objectivism needs more of. We need more Pisaturos, more Clines, more Robbservations, more Perigos, more like me, and far fucking fewer Hsiehs and seemingly every nitwit that works for the ARI or TOS.

I know I'm incendiary, but I am drawing your attention to good shit.


Linz

Michael Moeller's picture

Did you catch frostbite?

You previously stated that if two people disputed whether they were married, the court should "repair to their contract". Now you say that such a contract on its own does not constitute a marriage.

Ok, well, clarify for me.

Two people want a property division, but dispute whether they are married. They go to Judge Linz to ascertain whether they are married, and whether property division under marriage applies. What would constitute a marriage in the court of Judge Linz?

Michael

Linz

Michael Moeller's picture

Don't want clarify your position? Gonna bail on me again?

Ah well, at least you didn't end by calling me a "nanny-statist" this time. I guess that's an improvement.

Michael

Cool

Doug Bandler's picture

Remind me later if I forget to address the issue.

Cool.

You really need to write that treatise. You'll save future generations of Objectivists from this epistemelogical chaos. As you see, we're all over the place.

Doug

Michael Moeller's picture

I'll have more to say on that. I don't want to get sidetracked by a discussion on the nature of corporations. For now, just note that, like a marriage, a corporation is established by taking some formal actions defined by the state; namely, filing the Articles of Incorporation with the state and paying a fee.

First, I want to find out how a marriage is established under Linz's system because his statements are all over the map.

Remind me later if I forget to address the issue.

Michael

Corporations - Creatures of Contract?

Doug Bandler's picture

One question you have never answered -- and I've asked multiple times and waited patiently for you to answer -- is does your same logic apply to the government defining a corporation? The government defines the act of becoming a corporation by filing the Articles of Incorporation and paying a fee, just as it defines the act of marrying by standing up in front of an authority permitted to administer the oath and the two people taking an oath that they are married.

Do you consider both invalid? If valid for the corporation, why?

This was going to be my next question. Yaron Brook has argued that corporations are creatures of contract. I used to think they were but then I used to think that marriage was a creature of contract too. I see I was wrong about the latter. The Left is adamant that corporations are illegitimate. Anarchists too, see Sandy for instance. Corporations aren't dealing with romantic love so I think they are contractual. But the legal theory behind all this is not immediately obvious.

Please Clarify For Me, Linz

Michael Moeller's picture

You wrote here:

"It isn't, necessarily. But it ought to be, as *part* of the act of getting married, and I submit will be routinely in a free society where people take full responsibility for their consensual arrangements. Such a contract does not on its own *constitute* marriage, however, and upholding it does not require the government to *define* marriage."

But when I asked you (on the previous thread) what if two people disputed whether they were married, here is how you answered:

"I assume the question to which you await my answer is, what happens under my system, where the state has not defined marriage, when two dizzy bitches disagree as to whether they are or have been married or not. My answer is: shoot them. Failing that, repair to their contract. If they don't have one, repair to the default positions we both agree ought to exist for the resolution of disputes. There is nothing in your scenario that I can see that requires the state to define marriage."

Clearly, you are saying that marriage CAN be sealed by contract. That is, if two dispute whether they are married, you look at the contract to see if they are married. You also explicitly state so here:

"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."

Well, which is it?

It's either-or, Linz. Either the act of marriage is established by contract, or it is not. This leaves you with two choices:

(1) If it is established by contract, then you've got the enormous problems I've already laid out.

(2) If it is not established by contract, which seems to be your position now, then **what acts** constitute a marriage?

You cannot have it both ways. You must pick one. If (2), then you must answer the question given in (2)..

And this bit quoted above does not rescue you:

"If they don't have one [a contract], repair to the default positions we both agree ought to exist for the resolution of disputes."

I don't know what you are talking about. What "default positions" for the "resolution of disputes"?

If we disagree that we are friends, there are no "default positions" for the resolution of that dispute, and the state has no business resolving that dispute.

Michael

Linz

Michael Moeller's picture

You're mixing up two entirely different things. A prenuptial agreement is with respect to property, and contingent upon the couple getting married. The act of marriage is an entirely separate act.

For the sake of simplicity, let's call the prenuptial agreement a contract, although technically it is not one. If the two don't get married, the contract is void. Marriage is a separate act and does NOT constitute a valid contract by itself.

Again, for argument's sake, let's say the contract also includes and defines marriage, as you say "ought" to be done. In the contract, Bill and Erin agree to be married. They promise all love and affection till death do they part. If one of them should no longer love the other, then the property division is executed according to the terms they specify.

Any such terms with regard to marriage are -- and ought to be -- stricken. Love and affection are NOT the subject matter of contract. Let me repeat this because you still don't seem to be grasping it -- romantic love is not and ought not be the subject matter of a contract.

Even though I have already done so multiple times, do I need to spell out again why having the court arbitrating and enforcing emotions -- like romantic love -- would be an unmitigated disaster?

Employment, by contrast, is a contractual relationship. Unlike marriage, it IS the strictly the exchange of material values. My labor for the company's money. No, the government does not specify the terms, assuming it fits the requirements of a contract, but it IS the valid subject matter of contract. Romantic love is not.

The reason it is valid for the government to define and distinguish an employment contract is to clarify it from other types of contracts, like the contract of an independent contractor. It is entirely proper because it clarifies the property interests, namely liability.

Romantic love is not, and should not, be the basis for a contract in the first place.

One question you have never answered -- and I've asked multiple times and waited patiently for you to answer -- is does your same logic apply to the government defining a corporation? The government defines the act of becoming a corporation by filing the Articles of Incorporation and paying a fee, just as it defines the act of marrying by standing up in front of an authority permitted to administer the oath and the two people taking an oath that they are married.

Do you consider both invalid? If valid for the corporation, why?

Michael

Michael

Lindsay Perigo's picture

In a post on this thread before you and Rosie started sending each other love notes you claimed it was my position that marriage is a contract, period, even though my actual position throughout has been that people getting married *ought* to draw up a contract which it would then be government's job to uphold, as opposed to defining the very term "marriage." As I put it in my very first post on the Dick Baade thread: "Government does have a role: to enforce contracts, if a contract is involved. That's it." (Italics added.)

Now you say:

Again, you wrote:

"Mr Moeller and I differ on whether it's the government's job to define "marriage" as well as to uphold the contract."

What contract? Of course I support upholding a contract **IF** an actual contract is formed.

Well, of course of course you do. I already said that, and said we agreed on that while disagreeing as to whether the government should define marriage. Wot's the problem exactly?

How is a contract formed during the act of getting married?

It isn't, necessarily. But it ought to be, as *part* of the act of getting married, and I submit will be routinely in a free society where people take full responsibility for their consensual arrangements. Such a contract does not on its own *constitute* marriage, however, and upholding it does not require the government to *define* marriage.

May I ask again: Is it the government's role in your view to define "employment"? Note, I am not asking does the government define employment now; I'm asking, should it?

Too Cognitively Deep For The Common Man

Doug Bandler's picture

That's my conclusion. Its too epistemologically deep for average people to reach. I'm going back and forth with this. I don't fault any Conservative for just thinking that its a romantic union between a man and a woman.

That being said. I understand better Michael's position. Marriage is a realm of law that deals with property rights and child custody concerns for people who have entered into a romantic union. The union is not the fundamental. Its the other two things that are. And those two things can be associated with both heterosexual and homosexual unions. OK.

But, I still don't see that there shouldn't be a specific term for heterosexual unions as distinct from homosexual unions which was Pisaturo's point. Why couldn't the big term be "unions" and the term "marriage" reserved for heterosexuals? Let homosexuals come up with their own term (as Pisaturo argues). I am also uncertain as to the extent of the government's involvement. Should they give licenses? They set the defaults but what else?

And I do think understanding the Left's intentions are important. The Left wants to destroy. Always. In this case, they want to undermine masculinity and the traditional nuclear family. I wish more Objectivists understood just how destructive the Left is even when they are acting "socially liberal".

But this conversation is proving fruitful even if frustrating.

Linz??

Michael Moeller's picture

Again, you wrote:

"Mr Moeller and I differ on whether it's the government's job to define "marriage" as well as to uphold the contract."

What contract? Of course I support upholding a contract **IF** an actual contract is formed.

How is a contract formed during the act of getting married?

Michael

Greg

Michael Moeller's picture

Don't worry, Rosie will have her new telepathy converter up and running soon, so just transmit payment with happy thoughts.

Rosie

gregster's picture

Please send $19.95+shipping&handling to 1 Witch Doctor Drive, Crackpot, New Zealand.

Can you do it through Paypal, my aromatherapist flatmate wants some of your witchy action.

Lol

Jules Troy's picture

Thank you sir can I have another?!

 

lol can't find the link ATM.

Rosie

Michael Moeller's picture

If you are not going to address the substance -- and offer me some more side-splitters -- the least you could do is make your insults original. One might even be funny.

I would say that you are a testament to the modern educational system, but even that doesn't do you justice. Faith has obviously become the grinder mill to your peppercorn-for-a-brain.

Michael

Memo from Fails Legal Office to State Psychiatric Institution

Rosie's picture

In response to your patient Michael Moeller's cry for help to his secretary, Viola, the partners of the Firm Fails have held an urgent meeting and have agreed to provide the necessary costs required for this patient's continued internment in the padded cell of the State Psychiatric Institution and all medication for his sedation.

We are regretful that our sacks of peppercorns which are ordinarily locked up in reserve for our clients' use and benefit were left unattended and the patient, upon his escape from your Institution and returning to our offices, broke in to the supply and consumed the entire quantity thus bringing on a repeat of the episode that originally precipitated his disorder.

We are most obliged to your medical support team for their prompt collection of the patient and also for their advice and warnings to the secretaries of the insurgence of this latest disorder upon the professional class and the insidious early signs where the patient exhibits delusions so that he may perceive that his computer screen is a television camera, his hallucinatory, Disney-like opinions are of sound mind and his address to a wide, international audience, as though being interviewed on Fox News. We understand that this unfortunate disorder is labelled "Hollywood Complex" due to the recent turnings of Airhead America from the professional classes to the televised opinions of film stars on Matters of Most Importance.

With this note we attach three volumes of Contract Law for his instruction in the rare event that any lucid moments should prevail in the patient longer than a few seconds in which he may wish to unravel the contractual nature of this Memo.

With kind regards and many thanks for your co-operation and immediate ambulance service.

Viola Moeller
on behalf of
Fails, Fails and More-Fails

Rosie's Magic Peppercorns

Michael Moeller's picture

You dazzle me, Rosie. You dazzle me like a fat man attending a blacktie affair wedged in a blue leisure suit that's four sizes too small. I hope your law school has a refund policy so you can get your boxtops back.

For those not following the intricacies of contracts here, it is real easy to explain what a numbskull Rosie is. When somebody gives a another a thing of substantial value, like a diamond ring, some courts will consider it a contract if something of nominal value is exchanged in return, like a peppercorn (i.e. "nominal consideration"). Without the peppercorn, all you have is a gift, not a contract.

But poor Rosie takes it one step further and treats peppercorns like magic beads by declaring that BOTH parties exchanging peppercorns will make promises -- no matter how illusory -- a contract. No contract? No problem! Just add peppercorns!!

I promise to become the King of Swaziland if you fly to Pluto and back in 5 seconds. No contract? No problem! Let's toss a few peppercorns back-and-forth and now we have an enforceable contract!

Well, not just any peppercorns, but Rosie's Magic Peppercorns. Because, you see, if you went to court trying to enforce illusory promises with the exchange of peppercorns, not only would you get laughed at, but you would get sued for malpractice. But Rosie is an entrepeneur, and she has discovered magic peppercorns that can transform any and all promises into contracts. Please send $19.95+shipping&handling to 1 Witch Doctor Drive, Crackpot, New Zealand.

Actually, according to Rosie, we don't even need her Magic Peppercorns. Since Rosie tells us that all forbearance is valid to form a contract, all we have to do is promise NOT to swap peppercorns and we have a contract.

I promise to show at 3PM at the Boston Commons with my fingers crossed, if Rosie also promises to show up and let a horse kick her in the head in attempt to knock some sense into her. Not a contract? No problem! We also promise not to exchange peppercorns. Viola!

Apparently, any piece of knowledge, like "nominal consideration", in the hands of Rosie is like giving a 5-year old a set of steak knives and telling him to juggle them on a tightrope over a fire pit.

I am sure Rosie could formulate a contract out of that somewhere if you throw in some of her Magic Peppercorns. Or not.

Michael

Sorry, Michael, but...

Rosie's picture

The law courts - even in the USA - and legal texts contradict your view and instead (modest cough) support mine. Smiling

Illusory promise?! Since divorce is the event which kicks the agreement in to action, and divorce doesn't require a great deal of "honest judgment in determining whether or not it [the event] has in fact occurred" (Corban on Contracts), a relationship property agreement could hardly be described as an illusory promise!

The Peppercorn Rule is very much alive and valid. The position you are thinking of is only where it is a one-sided contract. Only in this case, for the contract to still be valid and binding, will it be written so that one side has to give up something of value, while the other side gives a token sum such as one pound, one dollar, or—literally—one peppercorn.

Forbearance is equally valid for the purpose of consideration in US Contract law as it is in Commonwealth countries - I thought I better verify that point since there may have been a possibility that things are different in the US. I found that this case (where it was held " The surrender or forbearance of a legal right is sufficient consideration to support a binding contract.") and this case (where it was held " Forbearance from asserting a good faith legal claim can be valid consideration.") and this case (where it was held " When the parties attempt to make a contract where promises are exchanged as the consideration, the promises must be mutual in obligation." and which also deals with what actually is an illusory promise as well, funnily enough) and even this case (where it was held "An implied promise to use best efforts in contract performance can be considered valuable consideration. " and "The duty of good faith can compensate for vagueness in an agreement to avoid invalidation of a contract clearly intended by the parties.") all confirm that forbearance is valid consideration. All these cases relied on this 1861 precedent.

Where you are going astray, I think, is that you are not treating any agreement that has all the elements of a contract, including the legally recognised forms of consideration just as I described, like a contract. Not all agreements are contracts. A contract is a very specific kind of agreement. Eye

So Yes and Yes. In either case, by the simple addition of the passing of peppercorns or the forbearance of acts, a relationship property agreement can become a contract - something which Linz fictitiously proposed that we draw up if we got married (on the other thread about Gay Marriage if you recall)!

And my point?!

To portray and prove that your pukey pomposity presided over puerile promises and peppercorns! Nothing more! Laughing out loud

PS
(On re-reading your post, perhaps you have been mixing and muddling the ideas of a supposed 'contract of marriage' with what I am actually talking about - a simple relationship property agreement becoming a contract.)

PS

Michael Moeller's picture

You shouldn't ask questions you don't know the answer to.

Well

Michael Moeller's picture

Then you're out of luck.

You're misrepresented the peppercorn scenario, which is very old (it is usually involves something of much greater value on one side in exchange for the peppercorn on the other). Be that as it may, an exchange of peppercorns does not turn otherwise unenforceable promises into enforceable promises. I think you can do the rest of the logic there.

Secondly, I don't consider any an all forbearance as a valid basis for consideration (again, you've messed up the common scenario).

I'm not much interested in debating the finer points of consideration.

Even if I had said yes, you still would have been shit out of luck because neither mechanism is valid for enforcing what amounts to illusory promises.

Michael

No and no?!

Rosie's picture

Why No and No, Michael? What else do you consider is missing from the relationship property agreement for it not to become a contract upon the passing of consideration?

I can't see where I called it a "relationship property contract" - where did I write that?

You are quite correct, however, that my opinion is that upon the passing of consideration the agreement would become a contract. All the other elements of a contract are present. I think you are incorrect with your No and No answer but I am interested to know what you think would be still missing.

Consideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act, when one is privileged to do so, like refraining from smoking and you will be familiar with the peppercorn rule, of course, being nominal consideration.

(My point relies upon your saying Yes and Yes so I can't make it unless I am correct about this!)

Rosie

Michael Moeller's picture

Rosie,

You've already called it a "relationship property contract", so I guess that already makes it a contract in your mind.

Because I'm just so excited to see where this nonsense is leading, my answers are no and no under a valid view of consideration, assuming a normal prenuptial agreement.

Michael

Michael

Rosie's picture

Just answer the question please.

(a)
(b)

Yes or No.

I will then tell you the point of my question. Smiling

Rosie

Michael Moeller's picture

What difference does it make? Pre and post nuptial agreements are legally enforceable, so why would you even need nominal consideration (a) or consideration (b)?

In any event, it would be the same as if two strangers struck a contract with
respect to each other's property. The agreement only pertains to the property involved, not to any non-material promises (for good reason!!) they will make during the upcoming marriage, or when they previously got married.

That is, it does not make the act of getting married itself an instance of contract formation.

Is there a purpose to another one of your tangents?

Michael

Michael

Rosie's picture

Rosie:If the couple either: (a) gave a peppercorn each to the other; or (b) agreed one to refrain from smoking, the other to refrain from drinking beer at the time they signed their relationship property agreement, would you be satisfied that the agreement was a contract?

Michael: This may come as news to you, but people often exchange wedding rings. You might want to look up how the court treats wedding rings.

In this country it is customary to exchange wedding rings during the wedding ceremony and tend not to sign any relationship property agreement at the ceremony itself upon the exchange of rings - the only signing that occurs on the wedding day that I know about, at least, is the register. The signing of any relationship property agreement customarily occurs either before or after the wedding.

So I repeat my serious question to you, in either of the circumstances provided for your consideration (no pun intended!) would you be satisfied that the agreement was a contract?

I look forward to your serious reply.

Rosie

Michael Moeller's picture

I have two questions for you:

(1). Are those serious questions?

(2). If so, is contracts not a required course in NZ law schools?

This may come as news to you, but people often exchange wedding rings. You might want to look up how the court treats wedding rings.

Michael

Michael

Rosie's picture

If the couple either:

(a) gave a peppercorn each to the other;

or

(b) agreed one to refrain from smoking, the other to refrain from drinking beer

at the time they signed their relationship property agreement, would you be satisfied that the agreement was a contract?

Linz

Michael Moeller's picture

You wrote:

"It's not my view, btw, contrary to Michael's claim, that marriage *is* a contract; rather, that it might well, and ought to, *involve* a contract, which would be called a *marriage* contract. Mr Moeller and I differ on whether it's the government's job to define "marriage" as well as to uphold the contract."

Putting aside the definitional issue (no need to rehash that), you plainly stated that marriage was a contract in previous posts.

What exactly do you mean that it ought to "involve" a contract? A marriage could involve, say, a prenuptial agreement, which, technically speaking, is not a contract either. Rather, it is a legally enforceable agreement that sets the terms for the disposition of property upon divorce.

Where you are going astray, I think, is that you are treating any agreement like a contract. Not all agreements are contracts. A contract is a very specific kind of a agreement.

If we go with your essential characteristic of a romantic union, the very nature of the union precludes it from being a contract. Under the law, romantic love is not -- and ought not -- be the subject matter of a contract. And I just pointed out the absurdity of treating it like one.

If you were to write a "marriage contract", what would be contained in it? What would the terms of the contract be?

Michael

Doug

Lindsay Perigo's picture

Pisaturo is arguing that "marriage" is inextricably linked to the inherent, immutable sex differences; something which exists and is definite. It strikes me as logical that there should be a term for heterosexual romantic unions and homosexual romantic unions.

There is. It's "marriage" - genus: union; differentia, romantic. There's no a priori dictum to say the concept can apply to opposite-sex unions only. Mr Pisaturo's tacit insistence that there is is intrinsicist, and his claim that the concept rests on the differences between men and women is entirely arbitrary. Note that there's nothing in what Rand says:

[T]he concept “marriage” denotes a certain moral-legal relationship between a man and a woman, which entails a certain pattern of behavior, based on a mutual agreement and sanctioned by law.

that explains why the "certain moral-legal relationship" cannot exist between a man and a man or a woman and a woman and still be called "marriage."

A rationalist Objectivist I knew once claimed that homosexuals don't really have sex at all because "sex" necessarily *means* "between a man and a woman." Says who?! Mr Pisaturo's argument is similar.

It's not my view, btw, contrary to Michael's claim, that marriage *is* a contract; rather, that it might well, and ought to, *involve* a contract, which would be called a *marriage* contract. Mr Moeller and I differ on whether it's the government's job to define "marriage" as well as to uphold the contract.

Doug

Michael Moeller's picture

Did you read the post?

I just said that it should be recognized because the relationship DOES involve property (and potentially custodial rights), which is the reason it is codified in law.

Since it does involve individual property and custodial rights, the relationship should be recognized in law. Not all legal relationships are contractual, such as a parent-child relationship. In that case, it is a legal relationship because of custody, not because of contract. Same of the Excutor of a will, etc etc. All these are under the broader concept of 'legal relationships', which can be further distinguished by contract, custodial, etc.

The act of marrying itself is NOT a bargained-for exchange of physical property, ie. "consideration", which is a requirement for the transaction to be a contract. And I pointed out the absurdity of treating it as such.

No, Doug, I am not denying that a man and woman getting married is different than two men getting married. What I am saying, in terms of epistemology, is that it is not fundamentally different. Both can stand up in front of an authority and pledge an oath to be married -- the act of getting married in both cases is the same, even though the sexes performing that same act are different. Get it?

Do you get confused about what actions two gay men took when they say they "got married"? I hope not, Doug.

Pisaturo recognizing the evil of the left is irrelevant.

Michael

Michael

Doug Bandler's picture

If its not a contract, then what the FUCK is it? And why should the government be involved at all if it doesn't involve material concerns?

Besides, Pisaturo is arguing that "marriage" is inextricably linked to the inherent, immutable sex differences; something which exists and is definite. It strikes me as logical that there should be a term for heterosexual romantic unions and homosexual romantic unions. You're denying that and trying to lump them in the same context. What about the terms "husband" and "wife"? How on earth could they be applied to gays?

Plus Pisaturo get the evil of the Left. That gives him credibility right there. If I were a married man, I would resent having to say "heterosexual marriage". And I would never ever use the term "partner" which is exactly what the Left want's.

A Word on the Law and Marriage

Michael Moeller's picture

Doug,

You seemed surprised earlier that I rejected marriage as a contract, so let me say a little about how it should be treated legally.

I assume you agree with me that this is a relationship that should be recognized by law for the purposes of settling the property disputes among spouses and custody of the children (and only those purposes), correct?

Ok, so the question becomes: should it fall under a current area of law, or is marriage its own branch of law?

Linz, and many others, have stipulated that it is a "contract". No it is not.

A contact is an exhange of material values. A contract must have what is called "consideration" -- i.e. a bargained-for exchange of material values, of physical property. I give you $300, you give me your watch. I give the store $3, they give me a gallon of milk. etc etc.

When people take vows, those promises are not material, which separates them from contract. For instance, each spouse promises to love the other "till death do us part". IF this was a contract, those promises would be enforced by the law under ordinary contract law, and the person is obligated to fulfill them, or pay damages.

For instance, could Erin plead the court for damages because she thought Bill no longer loved her? If so, what would those damages be? Could Bill counter that he really does love her, and therefore the court should force them to stay married?

All of that is, of course, totally absurd.

Hence the reason that "Domestic Relations" is its own area of law. Yes, it draws on property principles and principles of equity because property is involved, but not JUST property, which is why it is not a subdivision of property or contract law.

Besides having to settle issues of child custody, it also has to come to grips of questions like: the wife gives up her job to take care of the children with the expectation that they will both share in the husband's earnings, now who gets what in a divorce? Or one of them drops out of school and helps to pay for the other to go to med school, who gets what in the divorce?

Hope that clears it up.

Michael

Doug

Michael Moeller's picture

No, his arguments are not "good epistemology". Everybody understands what is meant by "gay marriage" (i.e. two gay people standing in front of somebody authorized to adminster the oath, and declaring themselves married). Furthermore, contrary to his claim that marriage of a man and woman will "cease to exist", one still knows what is meant by "married" when Bill and Erin say they are married.

And one is not confused by "polgyamy" or that act of marrying multiple people. All the act of marrying is, as I just specified, is standing in front of a person authorized to administer the oath, and for the people to declare themselves married. And that is all that is required of a (proper) legal definition.

Pisaturo's problem is that he spots "man and woman" in the definition, and takes that as an essential characteristic. But he is not looking at reality. There is nothing metaphysically impossible about two people of the same sex, or more than two people, entering into a "moral-legal relationship"; hence the reason nobody is confused when two gay people say they got "married".

Two people do not have to be of opposite sexes to take the actions of becoming married. End of the epistemological story.

My own dictionary definition would not have been unlike Rand's, as I would have defined marriage as a social-spiritual union between two or more people recognized by law.

Michael

Well,

Kyle Jacob Biodrowski's picture

He definitely isn't vying for the popular vote. That lends some idea as to his character; the man isn't afraid to say what he thinks.

Many Objectivists shy away from this issue (as with race) for many reasons. They don't want to offend. They don't exactly have a position on it. Etc. etc.

I do see the benefits of using the word "marriage" to distinguish between heterosexual couples and homosexual couples in formal unions. It's good epistemological practice. Otherwise, if homosexual unions were to be grouped under the word "marriage" as well, it would be necessary to distinguish between what kind of marriage. I think the word "marriage" (to mean heterosexual unions) in this case would cut down the work load when it comes to using it in a certain situation.

Also, what is it with some gays wanting to use the word "marriage" to describe their own formal union? Is it because they want to be equated with heterosexual unions? Is it because they want their unions to be recognized as valid as heterosexual unions? I don't get it...

To me, it's much ado over nothing critically important.

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