Tuesday, April 5, 2016

Marriage and the state

There is a presumption against the state imposing or enforcing restrictions on people's behavior. That's why, for instance, the state does not enforce private promises where money doesn't change hands. Now, marriage has two primary normative effects:

  1. Make sexual union permissible;
  2. Impose a rich tapestry of duties that the spouses owe to one another.
Most Western jurisdictions do not have a legal prohibition of fornication, however, which makes the first of the two primary normative effects moot with respect to the state (though of course marriage still is needed for sexual union to be morally permissible, as I argue in One Body). In those jurisdictions that do not legally prohibit fornication, the primary legal effect of marriage is entirely restrictive. Hence, in those jurisdictions, there is a presumption against the state's recognition of any marriages at all. (One might argue that the state needs to license marriages in order to render sex morally permissible; but marriage in the moral sense does not require state involvement.)

In those jurisdictions where fornication is not a crime, I think it is helpful to start debate about things like same-sex marriage or polygamy with a presumption against state involvement in any marriages whatsoever, and then ask in what cases, if any, that default negative judgment can be overcome.

(For the record, I do think the presumption can be overcome in opposite-sex cases, because of the connection with procreation. But I am not arguing for this here.)

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8 comments:

  1. Heath WhiteApril 6, 2016 at 12:13 PM

    I think it is helpful to start debate about things like same-sex marriage or polygamy with a presumption against state involvement in any marriages whatsoever, and then ask in what cases, if any, that default negative judgment can be overcome.

    I agree with this direction of inquiry, and it is a little surprising that discussions of SSM so rarely have the form, "the social function of state-sanctioned marriage is X; same-sex marriage serves X; therefore same-sex marriage is a good idea." Rather, the usual pattern of argument is "state-sanctioned marriage is useful to individuals because Y; it would also be useful to homosexual individuals because Y; therefore same-sex marriage is a good idea."

    In the arguments I've seen in favor of SSM, typically the appeal is to (1) the tapestry of permissions/rights that comes with marriage (to support one's spouse with one's health insurance, have presumptive visiting rights at hospitals, etc.) and (2) the expressive function of state-sanctioned marriage as making a public statement about the equal worth of homosexual relationships to heterosexual ones. I'm dubious about the second as an appropriate use of state power but the first has something going for it.

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  2. Alexander R PrussApril 6, 2016 at 2:06 PM

    The tapestry of permissions and rights is merely contingently connected with the state recognition of marriage. Most of these rights weren't present in centuries past, even though marriage was recognized by the state. It also seems to me to be overkill to require vows of lifelong commitment to get these benefits, with the possible exception of health insurance, given how expensive that is in the US.

    I am not sure that state recognition of a commitment is actually a statement about the worth of that commitment. When I tell my friend: "You can always count on me, no matter what", the state does not enforce or recognize that commitment. When I tell my friend: "If you give me a dollar, you can have this old soccer ball that my kids no longer play with", the state enforce or recognize that commitment. This difference in enforcement and recognition does not, however, communicate a difference in worth.

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  3. Walter Van den AckerApril 7, 2016 at 7:18 AM

    I think it is quite simple, actually. Either state-sanctioned marriage serves a (social) function or it doesn't. The fact that lots of people want a state-sanctioned marriage seems to indicate that, at least for those people, it does serve a function and in that case, the state, should not impose or enforce restrictions on people's behaviour, in this case their marrying a person of their choice, whether of the same or opposite sex.
    Now, perhaps state-sanctioned marriage serves no social function at all, it's just some kind of free offer by the state, in which case it is not really anybody's business what kind of marriages the state should or should not sanction.

    Also, the fact that most of these rights were not present in centuries past does not mean those rights should not have been present in centuries past.
    Lastly, state-sanctioned marriage does not require vows of lifelong commitment (at least not always), so were exactly is the "overkill"?

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  4. Alexander R PrussApril 8, 2016 at 9:47 AM

    1. Merely serving a social function is not sufficient for the government to enforce a restriction. That would be a recipe for a centralization contrary to any reasonable principle of subsidiarity.

    2. Many of the subsidiary rights are contingent on social arrangements, and are moot in other social arrangements. For instance, if there is universal state-sponsored healthcare or medicine has not yet been developed, the question of health insurance coverage for spouses is moot. Marriage predates the social arrangements involved in a number of these subsidiary rights.

    3. At least in the US, the state doesn't require *unconditional* lifelong commitment. But the legal commitment is lifelong, albeit on the condition that the state does not release one from the commitment.

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  5. Walter Van den AckerApril 9, 2016 at 5:10 AM

    If enforcing a restriction is the best way to serve a social function, then that's what the government does. Sometimes restrictions are necessary for a society to function properly.
    It is, however, obvious that restricting marriage to people of opposite sex is not necessary for society to function, so there is no need for that restriction.
    Maybe other kinds of marriage restrictions aren't necessary either and in that case, they should be up for debate.

    I am glad that in your last paragraph you seem to admit that the "overkill" is nowhere near as obvious as you claimed it was. But maybe whatever remains of this overkill should be up for debate too. Maybe there should be temporal marriage contracts.

    i agree that many subsidiary rights are contingent on social arrangements, but those social arrangements are, I hope, not just arbitralily chosen but instead designed to make society better for everybody.
    Which brings me back to my first point.

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  6. Alexander R PrussApril 9, 2016 at 7:30 AM

    I think we have a misunderstanding in the first point. The recognition of marriage is itself a restriction of people's behavior in jurisdictions where there are no laws against premarital sex. Restricting a restriction does not need special justification: we want to restrict restrictions as much as reasonable, in the name of freedom.

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  7. Walter Van den AckerApril 9, 2016 at 9:39 AM

    No, we don't have a misunderstanding. The recognition of marriage can serve other functions and may be necessary for those other functions. Sure it is a restriction, but since nobody is forced to marry, this restriction is ultimately the choice of the people who want to marry. So, the reason why this restriction is in place is because for whatever reason, there are people who feel fine with this restriction and that on its own is enough justification for the government to give them what they want(in the name of freedom). After all, nobody except the married couple is harmed by this restriction and, since it's possible to get out of this restriction by divorcing, there is no permanent harm with the married couple either.
    If on the other hand, a government wants to restrict marriage to people of the opposite sex, it is denying other people something they want and I fully agree with you that restricting the restriction that marriage is only for people of opposite sexes does not need special justification.
    We want to restrict restrictions on who can marry whom as much as reasonable, in the name of freedom.

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  8. UnknownApril 9, 2016 at 2:19 PM

    Hi Alex, I've wondered before if when two people commit to be married, their commitment is not only to one another but to some other parties as well. For instance, to God, to their families, to the friends assembled at the wedding celebration, and to the human society as a whole. If this is so, then divorce involves a breach of many commitments, and not just a breach of one's commitment to one's spouse. (There may be exceptions in cases where divorce takes place in response to infidelity, since perhaps the marriage contract should be construed as committing the relationship to permanence only conditional upon both partners' faithfulness. Maybe faithfulness isn'the the only condition of this kind; for instance, staying alive may also be a condition on the permanence of the contract.)

    On this sort of view, the state may have a legitimate vested interest in taking positive action to recognize marriages publicly and sanction them, since the state is the legal representative of society and society is one of the parties to whom the marriage commitment is made in the first place. If I am a benefitted party in an important commitment, I'd (in many cases) like a public record of that commitment to exist so as to make it more difficult for the other parties to reneg on the commitment. If society is a benefitted party in a marriage commitment, it may want there to exist a public record of that commitment (hence, sanctioning of the marriage by the state) for much the same reason.

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