Divorcing marriage?
skepticlawyer.com.au
skepticlawyer.com.au
This article does a good job explaining it's hardly that trivial. It reminded me of Steve Yegge's blog post about legalizing marijuana[0], and a simple concept becomes impossibly complicated when you consider all the practical scenarios and edge cases. Hopefully, you'll never be in a situation where the government has to rule on something like a disputed inheritance, but it has and will do so, often basing its decision on previously established precedent.
What struck me was the logical step that this is a good defense against the slippery slope arguments, because gay marriage is ultimately an incremental step. We have laws and legal precedent for marriage between two people, and we're effectively just saying those laws can apply to a marriage of two people of the same gender. A typical Republican counterargument to the legalization of gay marriage is that you open the door for marriage to be between multiple partners, or between children, or animals, or whatever absurdity. It's impossible for gay marriage to trivially lead to say, marriage to an animal, because the state will have to define and rule on an entire cohort of new edge cases. If you're gay and married and have a child and you die, it's pretty uncontroversial that your partner would maintain custody of the child. But if you are married to your dog and adopt a child and die, does your dog get custody of the child? That's basically absurd.
So, I feel this essay gives me a good answer the next time a right-winger asks me if the government allows gay marriage, what's to stop them from allowing other sorts of bizarre marriage scenarios: the government would have to come up with a bunch of different rules that are way more complex than gay marriage, and we probably won't want to do that.
[0] http://steve-yegge.blogspot.com/2009/04/have-you-ever-legali...
The linked article is actually an expansion of an aside in a brief she wrote for the Reason Foundation about how actually gay marriage is a quite small step compared to stuff like no-fault divorce.
But what do you think about this?
I think there's something interesting in there, though. In some ways, this argument really acknowledges that laws really are tethered to reality. It's not so much a matter that we can simply will a legal situation into reality. What's fascinating, though, is that this idea that things are sort of stuck in the realities of the past-- that people really do like to be monogamous, that kids really are something that people do, that inheritance issues are going to be there--is a very conservative position relative the progressive approach, which really does sort of say 'we can decide how to structure society'. I mean when was the last time you heard someone say that 'we can educate this demographic because there's 200,000 years of historical precedent'.
I don't care either way. But I'm just noting that there is a profound conservatism within the push to state-defined marriage. Why now want to respect historical precedent as more or less permanent and yet disregard tradition elsewhere?
The basic problem is that the law is complex because human relations are irreducibly complex; and that the law takes human relations as its problem domain.
This is essential and not accidental complexity.
Those of us in STEM professions are good at reducing complexity, but a lot of the time we deal with complexity by simply discarding details in favour of abstractions that cover enough of reality that the cost of the mismatch is below the cost of building a more accurate model.
Lawyers are rarely able to exercise such discretion. The courts are obliged to give definitive answers.
Point for point:
1."the presumption against intention to create legal relations when the parties are in an intimate relationship. ... That presumption would need to be statutorily reversed, with, of course, unknown consequences."
Marriage is already the exception, it doesn't follow that a revision of marriage law would reverse that convention universally.
2. Non-libertarians (or even, non-strawman libertarians) also want marriage decoupled from the state.
3. "Even without duress, the ordinary law of contract would take a good long look at some of the family structures tolerated in Sharia and may well find find undue influence (England and Rome), facility and circumvention (Rome) and unconscionable dealing (England and the Commonwealth)."
Marriage laws preventing abuse are redundant and can be cut.. what's the problem?
4. "a mass of new law will have to be enacted, worked through and litigated; it will cost a fortune and clog the courts for years."
That's a salient point. I think we'll have to decide if equality is worth it.
5. Interesting points to consider for a revision of current law.
6. Irrelevant to the merits of state sponsored marriage.
Interesting perspective all around! I'd like to know more about ancient Roman law.
You'd have to legislate to abolish the presumption, otherwise it will continue to be applied. That's how the common law works. And having abolished the presumption, all the law that flows from it is now thrown out and you start from scratch. Actually, worse: some will get thrown out and you will need to make two decisions in all the early cases -- what still applies, and if it doesn't, what is the new rule?
> Marriage laws preventing abuse are redundant and can be cut.. what's the problem?
Her point here is addressed to religious libertarians, who want the state out of marriage so they can impose more onerous terms. She says that they wouldn't get what they want anyhow; if you make it into a contract, then contract laws will come along and void a bunch of religious practices.
The complexity is always going to be there. Moving it from the "family law" heading to the "contract law" doesn't make the complexity go away. It will just jam up the courts while everything is rehashed from scratch.
She often discusses contrasts between Roman and Common law, if that interests you.
No, what would happen is that you would get a series of contracts that are universally used by a subset or group.
Essentially what it boils down to is this: Do I have the right to make an agreement with an uncoerced, sober adult?
"Oh but she is a woman and didn't know better than to sign the pre-nup" -> shouldn't matter, unless she was coerced.
"Oh but giving all your inheritance to male heirs is icky and doesn't give with our values" -> shouldn't matter. Don't let them in the country if you don't like the practices of their consenting adults.
As for the tax code stuff: That is what you get for taxing stupid things like investments and income at different rates depending on the amount invested or earned. Fix that.
This means that courts must decide on the content and meaning of contracts. This is easy for stuff that has been seen before. It is much harder when you blow away hundreds of years of precedents and start from scratch.
2) Sobriety is not necessary to enter into a contract, but it is a factor that could be examined to determine if a person actually intended to enter into a contract. Coercion generally voids contracts.
3) Fraud is considered a form of coercion. Pre-nups are largely invalidated not by the failure to sign a pre-nup but because the wealthier spouse (usally the husband) has failed to diclose all their assets, which the courts generally deem fraud because the party represents that they have made a full and complete disclosure.
4) That's perfectly acceptable if you choose to do it in your will. It's just not acceptable for the state to mandate that only males may receive inheritances.
5) Agreed, but that's what you get when you let millionaires draft the tax code.
I submitted it because Helen Dale is an excellent thinker and writer and deserves a wider audience.