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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Friday, May 16, 2008

Get Leviathan out of the marriage business

The Supreme Court of California has struck down marriage laws that limit marriage to people of opposite sexes, thus making same-sex marriage legal in America's richest state. I can't say whether the legal reasoning is sound until I actually find time to read the judgment. From what I've heard so far, it may turn on an expansive reading of constitutional "equal protection" provisions. This is an approach that I've never had a lot of time for from a strictly legal viewpoint, but such reasoning is now a feature of American constitutional law. In any event, the legal doctrines involved probably have little application outside of the US, which has built up a unique and massively history-dependent body of constitutional jurisprudence.

In all the circumstances, it's a good result for gays and for modern concepts of sexual liberty, but a better long-term outcome would be for Leviathan - the state - to get out of the marriage business entirely.

If people want to be married according to some religious or traditional idea of "marriage", fine. If they want to have some kind of ceremony to mark the occasion, great. If they invent some sort of non-traditional arrangement and want to call it a marriage (with a nice ceremony thrown in), I wish them well. I don't care whether they're the same sex, or different sexes, or how many of them there are, or whether the arrangement includes an intelligent squid from Alpha Centauri (as long as the squid understands and is willing). However they want to live their lives, I'll argue for their legal right to do so and I'll hope that they receive much love and support from their families, friends, and communities.

But the state should not be deciding what will or will not be given the social prestige that goes with "marriage". As long as all concerned are of appropriate maturity, let people simply engage in whatever sexual relationships and means of family formation they want. If they want to mingle financial assets and other contributions, or if they have kids, there needs to be a body of law to sort out disputes when relationships break down - but that's all perfectly practical. It doesn't even require a lot of additional regulation: if necessary, the courts are quite capable of applying well-established legal and equitable principles to get fair results.

What may be needed, especially in the US, is legal reform to ensure that people don't lose valuable quasi-public benefits, such as health insurance, by no longer being regarded by the state as in the privileged status of "married". Such issues might delay the practicality of what I'm advocating, but in principle the state should leave the entire marriage business to the individuals immediately concerned.


Brian said...

Hobbes would be pleased. (He did write Leviathan, didn't he?)

I like the idea of marriage being out of the states hands, but I guess, like most people, I don't see it happening soon....

Anonymous said...

I live in California the most populous state (38,000,000). I think the vote was 6 out 7 justices to strike down the law banning same sex marriages. Only two states (Massachusetts) have legal same sex marriages, and only California allows non-residents to marry in Cal. The status of the Cal. marriage in other states which which still prohibit same sex marriages remains in doubt.

Anonymous said...

I heard later that the vote was four to three, which seems more likely.
California may try to change the Cal constitution to prohibit gay marriage, but the governor, who is a Republican, said he would veto such a change.

Larry Hamelin said...

I'm not sure what you mean by getting the government out of the marriage business.

It seems valuable to create a body of law that sets various legal defaults as well as inalienable rights (i.e. contractual provisions that cannot be waived) in the area of family formation. I don't think it's a good idea to simply jettison this body of law and simply say, "Create whatever contractual obligations you feel like."

More precisely, most Western countries do let people create whatever contractual obligations they please (adultery, fornication and sodomy being typically legally permissible), but they single out contractual obligations that conform to a particular standard as privileged. I don't see anything philosophically or legally problematic about privileging a particular standard; that's precisely what we do with incorporation (i.e. only particular kinds of business contracts are privileged to be considered corporations).

I would agree that the government has no business restricting access to some privileged contractual standard; it would be equally objectionable to say that a legal corporation must include a man, or could not be formed between people of different races. In this sense, the Equal Protection doctrine is extremely valuable, since it explicitly declares that the right to enter into all contractual agreements is a fundamental Constitutional right, and cannot be arbitrarily restricted, even by the will of the majority.

Russell Blackford said...

Corporations have a different basis in public policy - it is thought that there are economic advantages for all concerned if we allow for the creation of fictional entities that have the rights and responsibilities entailed in the combination of limited liability, perpetual succession, corporate responsibility (the ability to sue and be sued etc.). Conversely, once such entities are created they can wield great power, which needs to be reined in by the state.

Notably, apart from allowing for the existence of corporate trading and financial bodies and taking steps to regulate their power (such as labour law, consumer law, shareholder law, etc.), the state does not tell you such things as what otherwise legal product a corporation may produce or sell, what kinds of people may be shareholders, or how many there must be, or how they will live their private lives. Company law provides an economic framework for innumerable arrangements and projects about which the state is neutral, once the formal requirements for incorporation are met.

None of this is even remotely analogous to the state giving special prestige to one specific form of how people arrange their private lives. There's nothing obviously illiberal about having a regime for corporate capitalism to operate - most societies have found an economic need to do this. But there is something essentially illiberal about the state saying that a particular kind of private, personal arrangement is eligible to be given special, officially-sanctioned prestige (while others are not).

Also, BB, sigh, I do wish people would stop bringing up contract law (not so much on this thread as elsewhere in the debate). When people mingle their lives by living together, sharing certain assets, engaging in highly-personal joint projects such as having babies and rearing children, and so on, contract law, which is primarily designed for purely commercial relationships, is a horribly inapt body of law to try to adapt. Although marriage has been thought of in the past as a contract, that's not a useful way to think about sexual relationships, close personal (non-sexual) relationships, or forming/rearing families.

If a personal relationship between two or more adults and involving children breaks down (and I'm not necessarily thinking of sexual relationships - it could be two sisters who got together to share finances and pool their abilities to look after their respective kids), the situation is nothing like the situation with breach of contract, where we look to the commercial expectation interests of the wronged party. No one (well, almost no one) goes into these relationships with the kind of arms'-length commercial thinking of people contracting for goods, services, or property interests, and when a personal relationship breaks down it's unhelpful thinking of it in terms of breach of contract, as if one party has reneged on negotiated (or widely-known and imputed) commercial terms.

When looking at what happens to the kids, the court should, as a matter of overriding social policy, be looking at the best interests of the kids, not at any pre-relationship expectation interests of the adults. As for financial matters, the appropriate body of law to adapt and develop is not contract law but the law of trusts. To produce a fair result, a court needs to look at such things as the actual financial and other contributions, detrimental reliances, etc., of the parties over the life of the relationship.

This is, in fact, more or less how divorce law and de facto law work already - at least in Australia.

In some cases it's not even all that complicated. Usually it makes sense to think that everyone was (psychologically) getting something out of the relationship and that it is impossible to quantify who got more from it (A may have obtained financial supprt but B had A's love, company, sexual partnership, etc.) Accordingly, a simple equal division of the assets made possible by the relationship is often the way to go.

Of course, complications can arise. In many cases, courts will need to take other things into account, such as whatever pre-existing assets were brought to the relationship by the parties, independent of the relationship itself. It may not always be fairest for these to be split equally. But having a privileged category of "marriage" doesn't help much here, if at all, because judges in divorce cases need to look at such issues, too (as do judges in a case such as the two sisters whom I described, where any legal action would probably need to rely on equitable principles to do with, say, resulting or constructive trusts).

All in all, I am not at all convinced that there is any good argument from legal expediency for a privileged category of "marriage". Nor is there much of an argument for using contract law or anything like it. The latter may have a limited role in giving certainty about what happens to particular pre-existing assets. But for many ordinary people, perhaps for most of us who are not Hollywood stars or wealthy heiresses or business folk, etc., that's not terribly relevant.

Larry Hamelin said...

None of this is even remotely analogous to the state giving special prestige to one specific form of how people arrange their private lives.

Not even remotely analogous?

I composed a longer reply, but your response is so completely stupid that it's no more useful arguing against you than it would be against a Christian fundamentalist or an objectivist.

Russell Blackford said...

Well, what a fine response, Barefoot Bum. I gave you a detailed, reasoned response based on my (not vast but certainly not insubstantial) knowledge of developing legal doctrine and policy in the areas of corporations law and the law governing personal relationships ... and all you can manage to do is call my reply "completely stupid" and make comparisons with religious fundamentalists.

So, somebody who disagrees with you on the basis of their understanding of the law and the developing policy behind it is now to be labeled a fundamentalist (much as so many people label Richard Dawkins, for example, as a fundamentalist because he holds views that they disagree with, and because he argues for them with some confidence based on what he knows).

Before we go any further, the record will show that I have consistently supported reforms to introduce same-sex marriage in current circumstances. At the same time, I think that the ongoing state-recognition of certain categories of relationships as "marriages" is a less than ideal option. That's quite consistent with it being the best realistic option available in the political debates right now, which I think it is (particularly in the US, where more legal rights are tied up in marital status than is the case in Australia).

But I am not going to back away from discussing the deeper legal and political concepts just because somebody doesn't want me to or considers my arguments "stupid". I am, among other things, a lawyer and a philosopher of law, and philosophising about legal doctrine is one of the things that I do.

Barefoot Bum, I am genuinely surprised at your comment. If you had given me an analysis of the respective merits of trust law and contract law in settling disputes over the breakdown of personal relationships, I'd have appreciated it, even if I'd disagreed with it. But the attitude you've taken shocks me, coming from someone who's seemed rational and reasonable in the past.

Unless you apologise to me swiftly and without reservation, you will no longer be welcome in this forum. And any future posts from you will be deleted. It's entirely up to you.

Anonymous said...

i would start by saying marriage .... the true history of it!! http://marriage.about.com/od/historyofmarriage/Learning_About_the_History_of_Marriage.htm

to me personally i feel that marriage is just one of those bits of paper that once again we need to committ to in order to have what it is in life and on earth that we want.... thus said i have observed relationships a many that have survived without that piece of paper and too many that have fallen after siging it...
should we now bring that shit..excuse me.... into the gay community? when that has been primarily(marriage) a breaker!!!!!
i personally fell marriage (go to the website i threw in at the start)....well....look why do we need that piece of paper...why do we need that ceremony.why?

Russell Blackford said...

@Tricky Bruce: Hmmm, many people do care about getting married, though, because of religion, or cultural tradition, or family tradition, or because they wish to celebrate a mutual commitment in the company of their loved ones.

I don't see anything at all wrong with that at all! But none of it requires that the agencies of the state should register the relationship, or, as you say, that there be an official piece of paper.