What’s Wrong with the World

Marriages, not the state, are the foundation of society. You are very close to making Ron Paul's point for him Lydia... don't you see it? We are all already losing this battle. Ask the federal government to assume authority to define what a marriage is, especially in the current political environment, and all you do is make it so much easier for someone else to come along and by fiat undefine that which the state has always assumed by tradition and simple sanity. This is how conservatives are going to build their own gibbet in an already bleak environment. The analogy that comes to mind to me is of us all half sunk in quicksand. Struggling is not the right way to go about addressing the problem.

Perhaps RP's slogan is too broad, as this issue is too important for slogans, but the specific idea behind it - that to the extent we can keep the federal government out of this entirely, we are much better off - is more wise than you give it credit for.

As I've said before here, philoshopically I have Murray Rothbard-esque anarchist tendencies. To justify exactly what I think and why would go far beyond the scope of this comment, because I know that you disagree with me and I know why, but for now suffice it to say that I believe the real foundation of society would have its best chance to recover its rightful place of dignity and sovereignty if we could gut a number of facets of the federal welfare state. Feminism and postmodernism are against nature, and I do not think they can thrive indefinitely without being subsidized.

I'm all for not funding feminism and post-modernism. If the state does not _recognize_ marriages (which, by the way, it already does, and cannot avoid doing), then the state does not recognize parents and the state will interfere more, not less. It is astonishing to me how libertarians cannot recognize this. To the extent that it is possible, we need to get the state to admit some sort of sphere sovereignty for the family--the family which _is_ the foundation of society. Recognizing marriage has always been an irreducible part of this. It is now an irreducible part of that, and we should not advocate destroying that small bit of recognized sphere sovereignty for the foundational unit of society.

What Matt is suggesting is like a partnership where one partner has to constantly apply to the other spouse and the state for an equal share of the business.

Or at least apply once, after the kids exist. And I don't know if he's supporting it so much as saying that, if I don't have an objection to having to get a marriage license _now_, I should also have no objection to that by the same token. Which is definitely not true.

To bring the child into that space and then require either married parent to "apply" to have his parental rights recognized is to imply that the child is the creature and property of the state, which gives out custody to the parent or parents as a privilege.

But this is incorrect, of course, as we were talking about paternity specifically, rather than parental in general. Obviously, there is never any doubt about who the mother is. Therefore, the situation would be women being assumed to have all the legal rights prior to the father's petition. Mike T is right that this is not very fair to men, and no one is seriously suggesting it.

It's also wrong though because of what the parallel is, which is between two recognitions of a pre-existing state of affairs. If state marriage means that marriage is not created by the state but simply recognized by it, then by the same tack paternity rights under our dystopia are not created by the state but merely recognized by it. My argument the entire time was that this is not at all how it works in practice in either case, and you seem to agree with respect to parental rights but curiously demur regarding the marriage itself. It was a comment on conservatives and the strange ways they think, rather than a serious proposal (i.e. a reductio).

Here is the situation. The state currently creates marriages. None of this 'recognition' business, because the state's approval comes prior to the marriage and the marriage's creation is wholly contingent upon that approval, and if you don't feel like involving any archaic religious entities then the state can go on and make it official anyway. Because of this, marriage is a convention of the state, and the state can change the convention if it so pleases. So, Christian conservatives simply have no grounds to stand on when opposing gay marriage. The single argument is because christianity is true, marriage is as the Bible defines it--a man and a woman. However, marriage is not currently in the domain of the Christian church, and we can't very well expect the state, which is anti-christian, to have any love for a tradition it despises.

Now, if someone were to say that the status quo on marriage is worth marrying gays to keep, then I have no objections. I only want everyone to admit what is really going on, and bite the bullet with full knowledge of what it entails.

Actually, Matt, the whole recognition thing can go in more than one order. For example, if you are married in a foreign country, you come here and get your marriage recognized. It would also be entirely possible (though I don't know if a clergyman would agree to do it) to have your wedding ceremony in a church prior to getting your license, going and getting the license, and then bringing it to the clergyman who married you to sign subsequently. I don't know why you would do this, but it certainly isn't illegal or impossible. If the clergyman is the officiating person, his signature is required, but as far as I know there is no law that says he has to sign it on the day that he marries you in church.

Moreover, please remember that the traditional position is that technically the ministers of the sacrament are the members of the couple--the man and woman. If they have exchanged private vows they may be sacramentally married prior even to their coming before a priest, much less getting a marriage license.

But if you want to insist that the state is creating the marriage (and of course the state is creating the _civil_ marriage, that being the point of the word "civil"), that's tangential to my point here. My point here is that it is *far more objectionable* to have to apply in any way, shape, or form for parental rights over existing children than to have to apply for a civil marriage license. And it certainly doesn't make it any better if the parental rights in question are the father's rights rather than the mother's rights. The problem there that I am emphasizing is vis a vis the child. The heck with fairness. The child deserves to be born to a married mother _and_ father.

It's that asymmetry concerning married parents, children, and all that I say in the post that I'm not at all sure you recognize. Certainly your comments in the other post seemed to deny it.

The state only creates marriages when it coerces them into existence. It's just like how there mere existence of a state license doesn't mean that a business was created by the state rather than recognized and given legal form by the state.

though I don't know if a clergyman would agree to do it

They won't*, and it is possible only in theory. The surrender is total.

I don't think it's really objectionable at all that an unmarried father has to go through a process to adopt his children. It might be objectionable to have a child out of wedlock, and of course it is better if children are born into married households, but they often aren't, and the legal fictions have to be managed somehow. But that's all they are, legal fictions, and they carry no importance in and of themselves. From the point of view of a child it is better to have two unmarried parents who live together, whose father had to go through a formal adoption process, and who maintain some kind of family life, than two married parents who are separated.

Over time, the situation could and probably would be corrupted into something like what you describe in the post (and like what has happened with marriage), where fatherhood status is seen as something granted by the state. In that sense, it would be worse than marriage licensing, but in degree rather than kind.

*Clergy sometimes marry gay people without licenses, but only because of legal realities.

Over time, the situation could and probably would be corrupted into something like what you describe in the post (and like what has happened with marriage), where fatherhood status is seen as something granted by the state. In that sense, it would be worse than marriage licensing, but in degree rather than kind.

That's a foregone conclusion and when it happens, men will be responsible for children regardless of whether the state magnanimously grants them the privilege of fatherhood.

On the positive side, once the contradictions in our modern mess that passes for civilization come to a head, society will have to become a lot less statist and more conservative because the state will simply be too weak to be of much good to the average person. Societies without strong states are inherently more socially conservative because liberalism is unnatural. In a state of nature, there is no daddy big government to fall back on if a woman is irresponsible. It means she either wins the affections of the father or starves.

I don't think it's really objectionable at all that an unmarried father has to go through a process to adopt his children.

Ask the federal government to assume authority to define what a marriage is, especially in the current political environment,...

But that's just it, Eli: an amendment to the federal Constitution is, more than anything, an action BY THE STATES to limit the federal capacity to make laws and administer policies.

The state currently creates marriages. None of this 'recognition' business, because the state's approval comes prior to the marriage and the marriage's creation is wholly contingent upon that approval,

You're just wrong, Matt.

Let me illustrate first in terms of a non-marital association. Suppose you form a group to play chess, and rake laws altruistically for old people. You can write a charter and elect officers without any involvement of the state. The charter is a contract, of course, and if there is any disagreement it may fall to the state to decide between the opposing parties, but that may never come up. I am a member of at least one such voluntary organization that has no official state recognition. If you want certain state privileges, such as taking advantage of tax breaks, you have may have to register the entity with the state as an entity: corporation registration isn't expensive, can be as little as $25, and that isn't a "license" in any sense, it merely tells the state that you exist. You automatically have a license to do what you were doing before you registered.

Now, in some countries, until quite recently anyway, the state accepts that the Church to regulates marriages, and just tell the state about them after the fact. The state didn't act beforehand to "permit" the marriage to come into being.

If two people are married in a foreign country, they are (normally) married when they visit here in the US, they don't have to "apply for" recognition or get a license from the state to be considered by the state as married. The state may ask for some sort of proof (should the issue come up) from the foreign country, but getting _proof of_ isn't _granting_ the right to be be married. And if both of these parties claim they are married, normally the state will accept this testimony to treat them as married, to grant them recognition of the married status, even without such proof.

When you get a license to marry from a state, and take that license to a minister, you are not yet married. The state doesn't recognize you as married until one of two things happens: either the state gets the forms from the minister, with signatures, saying that you exchanged vows suitably, or a state officer (like a JoP) himself witnesses you exchange vows and then he signs the forms. In other words, the marriage isn't considered a statutory entity until there is a witnessed exchange of promises. It is the promises that actually constitute the essential reality. The state's license is a required (legal) pre-requisite to those vows meaning what the state considers marriage, but the pre-requisites are not the reality of the marriage. (Going to med school is a pre-requisite for getting a medical license, but it isn't the same thing as getting the license.)

marriage is a convention of the state, and the state can change the convention if it so pleases. So, Christian conservatives simply have no grounds to stand on when opposing gay marriage.

Matt, that's illogical. Marriage is BOTH a convention of society AND an ontological reality: that is to say, being an ontological reality, marriage as practiced always develops coordinate customs and mores. These customs belong to society as a whole before they become something that the law speaks to. Insofar as law begins to regulate what is _already_ a custom, it makes no sense to talk about the practice as if it were a creation of the state ex nihilo. The state has the proper authority to modify customs to the extent such modifications are clearly and definitely needed for the common good, and
there are 2 limitations on that authority: (1) obviously, the common good itself limits that - the state has no authority to eradicate a deep-seated social custom for the mere private gain of the legislators; (2) custom has the force of law, and the "law-giver" is the people themselves, with a higher authority in principle than the legislature. The state is supposed to respect the force of custom and not upset them for anything other than clear need, because damaging custom ALSO damages respect and obedience to law itself.

The state (like Massachusetts) may arrogate to itself the power to re-state what marriage is in contradiction to the customs and the ontological reality that is marriage outside of law, but this exercise of power is a tyranny beyond its proper authority. If the state were to construct a new notional association, that of bullfrump, and grant to bullfrump all the statutory rights and privileges it has before granted to marriage, it would theoretically be within the state's proper authority to re-make bullfrump something else, if only there was a reason (for the common good) to do such a thing. Re-making marriage into a different thing is not.

"It means she either wins the affections of the father or starves."

Bitter, bitter. How about we just stone her?

"From the point of view of a child it is better to have two unmarried parents who live together..."

"I don't think it's really objectionable at all that an unmarried father has to go through a process to adopt his children."

Which, if the the man voluntarily acknowledges that he is the father while the woman is still in hospital or if he accepts the child into his home and openly acknowledges the child as his, that is enough to establish a parent child relationship.

And, of course,

"7540. Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage."

Every society that I'm aware of has rules, often very strict, as to who can marry whom and how children are parceled out.. This is the case regardless of the level of organization. As it has been pointed out it is obvious who the mother is; conventions have to be established for fatherhood.

As it has been pointed out it is obvious who the mother is;

Yes, of course it is. Until it isn't. Al, you have used descriptions almost exactly like Matt's above, to describe the state's control of the meaning of marriage. Since the state has equal control over what rights and privileges it chooses to grant to mothers and to fathers, there is nothing in principle (once we accept your theory of what the state is OK to do) from saying no way when the state re-defines motherhood for legal purposes: the "mother" is one of the persons the state vests with custodial care, after a hearing before a judge that includes all applicants. Including institutional applicants that receive money from the state and other parties.

Oh, and as long as we are being open-minded, let's allow applicants to include libertarian businesses, including ones that think that a person can sell the rights to their own body.

conventions have to be established for fatherhood.

And I plump for the convention that gives preference to the man married to the mother.

By the way: I don't remember the name of the court case, but it was a pretty landmark one. There was a dissent (I think it may have been by Scalia). Once DNA testing was available, there was a case where a woman had committed adultery, IIRC, and the biological father of the child wanted visitation rights to the child. At first it was ruled that he had no paternal rights, because he wasn't married to the mother, and that was that. The man married to the mother was the presumed father under law, never mind the DNA. This was the law, and the reason for the law was to maintain the integrity of the family against outside interventions of _exactly_ this sort--that is, the outside male who first cuckolded the husband and then further interfered by demanding a place in the life of the child, thus disrupting the family.

The court ruled (though not unanimously) that the biological father, since he could prove that he was the father, had the right to demand visitation rights with the child. Thus setting aside the very long-standing presumption that a man not married to the mother could not intervene in the raising of a child of the marriage if this was not according to the wishes of the married, custodial father.

I agree with the dissent and disagree with the ruling. It was just one blow against the legal integrity of marriage and the family. Some men may think it was a downside that this father was being asked to raise "a cuckoo in the nest." Apparently he thought it was a downside that this lowlife who had had an affair with his wife could also interfere with the child, a child legally presumed to be his and who was in his custody as the mother's husband, instead of being told to take a hike. (I forget what the mother wanted to do, but evidently she was quite willing to go on being married to her husband.)

Oh, jeepers. First of all, the guy should have been prosecuted for adultery. (The woman too. I don't care about whether the husband _wanted_ her prosecuted, he is not in charge of criminal law, and the evidence became uncontrovertible.)

Secondly, Lydia is right, the jerk should have no rights for visitation whatsoever: that's what marriage is supposed to mean. You sleep with someone else's wife, that child ISN'T yours before the law. But I would be fine with the guy be handed a levy for child support anyway - what if the family (i.e. _husband_and_wife had not planned for another child and had not the additional resources.) Besides, you are not supposed to benefit from a crime by getting privileges or state-granted benefits because of a crime. But I would grant this special provision: if the husband and wife ever divorce and the former husband doesn't request any custodial rights, the biological father can THEN request sharing of rights for the child he fathered. There, isn't that fair? The bio father can have a role if the family splits up and Daddy isn't interested in taking care of a cuckoo kid. The bio father's rights are still respected - after the moral rights of the husband, and the moral and human rights of the child are first taken care of. The child has the right to be raised as the daughter of the man her mother was married to, as a NORMAL child in the family. The family has a right to integrity. To have some outsider retain visitation rights to her, to single her out that way and disrupt the family, to COMPOUND the initial disruption with ongoing involvement, is insane. The guy should have had a 5-mile restraining order, not visitation rights. Husband's rights should come first, by a light year.

Unless there are extenuating circumstances that gravely alter the picture (was the husband already abandoning the mother before the technical adultery?), it seems incredible that high court judges can be this stupid. Or was this a deliberate attack on the family?

"The court ruled (though not unanimously) that the biological father, since he could prove that he was the father, had the right to demand visitation rights with the child. Thus setting aside the very long-standing presumption that a man not married to the mother could not intervene in the raising of a child of the marriage if this was not according to the wishes of the married, custodial father."

Pace Tony, Lydia seems to have misremembered the case.

Scalia wrote the majority, not minority, opinion which affirmed the California Court of Appeals denial of the natural father's case (turns out that the couple lived rather near me back then). It was a blood test not a DNA test and the circumstances were interesting. As I pointed out above, the presumption remains a part of California law.

The confusion may have occurred because O'Connor and Kennedy concurred with the exception of footnote 6 in Scalia's opinion which involves Scalia using a historical mode of analysis involving liberty interests and due process with which they have some problems.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=491&invol=110om9

"Or was this a deliberate attack on the family?"

As with the "War on Christmas" there is no "attack on the family". Why are you so willing to go there?

Anyway, the opinion is interesting,

"The facts of this case are, we must hope, extraordinary. On May 9, 1976, in Las Vegas, Nevada, Carole D., an international model, and Gerald D., a top executive in a French oil company, were married. The couple established a home in Playa del Rey, California, in which they resided as husband and wife when one or the other was not out of the country on business. In the summer of 1978, Carole became involved in an adulterous affair with a neighbor, Michael H. In September 1980, she conceived a child, Victoria D., who was born on May 11, 1981. Gerald was listed as father on the birth certificate and has always held Victoria out to the world as his daughter. Soon after delivery of the child, however, Carole informed Michael that she believed he might be the father."

"In the first three years of her life, Victoria remained always with Carole, but found herself within a variety of quasifamily units. In October 1981, Gerald moved to New York City to pursue his business interests, but Carole chose to remain in California. At the end of that month, Carole and Michael had blood tests of themselves and Victoria, which showed a 98.07% probability that Michael was Victoria's father. In January 1982, Carole visited Michael in St. Thomas, where his primary business interests were based. There Michael held Victoria out as his child. In March, however, Carole left Michael and returned to California, where she took up residence with yet another man, Scott K. Later that spring, and again in the summer, Carole and Victoria spent time with Gerald in New York City, as well as on vacation in Europe. In the fall, they returned to Scott in California..."

Bitter, bitter. How about we just stone her?

I think the reason is pretty self-explanatory. If you need me to spell it out for you, just let me know and I'll lay it out for you in a way that even an appalachian elementary school student could understand.

Oh, and as long as we are being open-minded, let's allow applicants to include libertarian businesses, including ones that think that a person can sell the rights to their own body.

Al isn't open-minded. That's what makes him so much less fun. He's selectively post-modern, like most liberals. You don't get into the real fun until you drink all of the Kool Aid and put everything up on the table. Boundaries are for pansies and religious folks.

~~there is no "attack on the family"~~

Au contraire, there's been an attack on the family mentality present in modernity since at least the French Revolution. Where out-and-out frontal attacks haven't worked, the tack has been to subvert and dilute the term in order to make the concept behind it meaningless. If any group of two or more people living together constitute a family, does the word really mean anything?

I thank Al for his correction. However, though I erred in thinking that the court upheld the claims of the biological father, the indications of the decision for the future legal situation were more in that direction than the outcome of the specific case might seem to indicate. (That does happen in Supreme Court rulings.) Here is an interesting analysis of the case I brought up: "Michael H. v. Gerald D." by a person who favors allowing a paternity hearing to an adulterous biological father. It's a very interesting analysis that shows just how messy these things can get:

http://www.oddlaw.net/The-Good-the-Bad-and-the-Ugly.shtml

A few quotations:

Justice Brennan and Justice White penned opinions that signal the future direction of the Court and for lower courts when this issue, in similar cases, calls for judicial determination again. Justices Brennan, White, Marshall, and Blackmun all found Michael's claims worthy of constitutional protection. In an unusual opinion, discussed in greater detail below, Justice Stevens also determined Michael's claims warranted constitutional protection, yet, almost inexplicably, found that Michael's claims had been afforded such protection.

Five justices held that an individual in Michael's position is constitutionally entitled to a hearing on the issue of paternity. Thus, Justice Brennan's and Justice White's opinions provide a more reliable road-map for determining future directions than does the plurality opinion. While Michael H. lost his personal battle, his case portends victory for those who may follow a similar path in the future. Indeed, in California, evidence code section 621 was amended in response to the Michael H. decision. Effective January 1, 1991, California's "conclusive presumption" can be challenged by a presumed father, and the issue of paternity will be determined by blood tests. [48] As in California, this issue is likely to be resolved by other states and other courts along the lines of Justice Brennan's dissent.

Unmarried fathers have been given more and more paternity rights over the past decades, though they have to apply for them to a court if the mother contests them. For example, an unmarried father can often block an unmarried mother from placing a child for adoption. Some men use the threat of "I won't let you adopt" (even if it's unlikely that a court would grant them custodial rights) to pressure an unwed mother to get an abortion.

It never ceases to amaze me how glibly people can talk about "rights" like how it's an increase in liberty to allow a consenting wife to have sex (and become pregnant by) a consenting man outside of the marriage, while ignoring the fact that this not only effectively destroys the rights of the husband but abolishes the case for why men should marry. It is this sort of thing which is starting to make me truly loathe mainstream libertarianism and to wish the movement realize its absolute worst nightmares at the hands of the state it will create.

As with the "War on Christmas" there is no "attack on the family". Why are you so willing to go there?

Al, if Lydia's memory of the data had been wholly accurate, it would have been a de facto attack on the family. But that aside, you will notice that I mentioned the possibility that there might be additional details that could color the situation:

Unless there are extenuating circumstances that gravely alter the picture (was the husband already abandoning the mother before the technical adultery?)

I had been thinking that if a woman is abandoned by her husband, and she (before legal divorce) conceives a child by another man, this might not create the same moral and legal context, because the "family" unit is already disrupted. And it just so turns out that what makes this case something that came up to the Supreme Court is JUST THAT: Carole and her husband were living separate lives without reference to each other when the baby was conceived and born, and the biological father was, also, the ONLY effective male presence at first. So, my caveat is exactly on target.

While I might not have chosen to parse the law in quite the manner the majority did in this decision, I have to say that whatever oddities exist in the arguments for their decision rest at least as much in the idiotic culture that allows a married woman to vacillate between her husband, a second man, a third, back to her husband, and then back to the second, all while bearing a child, without any legal drawbacks, and a state law trying to keep up with that kind of idiotic culture without just saying to slap them all in prison and put the child with her aunt and uncle. You CAN'T expect that we will have good logical, consistent judgments when the culture and the laws you are trying to judge around are so contradictory and stupid. Once you decide that adultery is something that the state can simply overlook, what makes you think that the rest of state laws about marriage and family and paternity are going to remain internally consistent?

I will note finally that this whole line of cases started in 1972 with Stanley, where the Court decided that an Illinois statute - that conclusively presumed that all putative fathers were unfit parents - was unconstitutional, and this may have been a bad starting point of the whole legal problem. If that earlier court established the wrong line of reasoning, that could have distorted all the later stuff, including this one. I haven't read it yet, though. Titus, where are you?

I have to say that whatever oddities exist in the arguments for their decision rest at least as much in the idiotic culture that allows a married woman to vacillate between her husband, a second man, a third, back to her husband, and then back to the second, all while bearing a child, without any legal drawbacks, and a state law trying to keep up with that kind of idiotic culture without just saying to slap them all in prison and put the child with her aunt and uncle.

And on this, the liberals show themselves to be truly destructive. Libertarians at least simply don't believe the state should get involved for better or for worse--including at the point where all of the men abandon her pregnant self to the cruelties of the world. Liberals, however, believe the state should stay out until such time as she needs a helping hand which means that once again, they combine the worst of both worlds.

Ironically, I am probably more "tolerant" than al when it comes to "tolerating" deviant behavior, yet he calls me "bitter" because while I am "tolerant," I simply do not believe in a social policy of protecting people from the consequences of such behavior even if means certain death.

Again--While I was wrong in my memory on the outcome of the case, it is no small matter that five justices held that there was a substantive due process right of a man who had impregnated a married woman to a hearing on having visitation rights with his child. For the SCOTUS definitely to declare that a due process right is a big deal, and really (as far as I can see) could have also applied to a situation where the woman was repentant and where husband and wife had been living together the whole time. A substantive due process right for an adult is what it is and does not turn on the best interests of the child.

It doesn't matter whether the requirements for a marriage license are onerous or lenient, if "marriage" is a license granted by the state rather than a basic right it is something other than true marriage, and is something other than Christian marriage. Christians who get "marriage licenses" are compromising by participating in tyranny and participating in an attack on the institution of the family.

You are equivocating when you talk about the state recognizing marriage and arguing that it is in our best interest that the state recognize our marriages. There are clearly two very different things being called "marriage:"

1. A primordial institution more fundamental than and prior to the state that the state has no authority to grant as a privilege.

2. A privilege granted by the state, a license to do that which the couple may not otherwise do.

When the state grants a marriage license it is recognizing a marriage 2 but it is not recognizing a marriage 1. This is necessarily true by the very definition of "license." If you have a marriage 1, a real marriage, the state apparently doesn't recognize it (it's not as simple as that since some laws and statutes do seem to be recognizing a marriage 1 but that whole "license" thing is tainting even these laws). If you have gained state recognition you are better off in many ways than you would be if the state wasn't recognizing your phony marriage 2, but you still haven't gotten the state to recognize your marriage (your real marriage which is a marriage 1).

As long as the state is recognizing marriage 2's and granting special privileges to those to whom it has granted marriage 2's--while refusing to consistently recognize marriage 1's--we are in an already gravely intolerable situation that "gay marriage" laws only mildly aggravate.

Now you are right to say that it might be imprudent for someone, in order to avoid participating in the tyranny, to stay out of the marriage "license" system. In particular, refusal could be dangerous to the children as you correctly point out. However, you are very wrong and are part of the problem if your prudent caveat isn't accompanied by an acknowledgement of the problem. Furthermore, If we could count on sufficiently large numbers of Christians joining us in refusing to participate it would not be imprudent at all, it would be an action consistent with our beliefs rather than a compromise with evil and would be the catalyst for change for the better.

Steve P., I completely disagree. For one thing, what exactly is the couple being given a license *to do* by the state? Say what you will about the word "license," what a marriage "license" amounts to is a green light to a justice of the peace or a minister acting as a civil agent to formalize the legal status of the marriage. In the vast majority of states and municipalities, it's not as though the couple is, say, legally forbidden to live together absent the "license."

The state certainly does have legitimate authority to say what shall and what shall not have the _status_ of marriage for legal purposes. There is nothing wrong with that. A man claiming to be "married" to five women, a boy, and a dog doesn't get all those relationships called "marriages" by the state with the attendant rights and privileges (e.g., if he dies intestate, that all his goods are divided evenly among the five women, boy, and dog). If an American citizen claims to have "married" several women abroad and asks that they all be given fast-track status as his "wives" for being brought to the U.S., they aren't (or shouldn't be) all recognized in that way. And if a man claims to have "married" a twelve-year-old girl, he can be arrested for consummating said "marriage." There are all kinds of ways in which the state does a good thing, not a bad thing, by treating some things as marriages and some things not as marriages. This is not some evil tyranny in which we are cooperating that has been in effect in America since its inception.

And by the way, it is nothing but blinkered fanaticism to say that somehow the very existence of state marriage licenses creates a horrible situation which is only "mildly aggravated" by sodomite pseudo-marriage. When your children are being routinely taught that two men can marry one another and you find yourself having to cope with this, when they grow up in a world in which they can be fired from their entry-level job if they do not participate in the disgusting farce of referring to two men as "married," come back to me again and tell me about this "mild aggravation."

But I do find your rant a bit odd. You seem to think that the state _could_ legitimately recognize what you call "marriage 1." What would that even look like, without what you consider to be tyranny? I have a mild curiosity about that.

Steve P.: Furthermore, If we could count on sufficiently large numbers of Christians joining us in refusing to participate it would not be imprudent at all [...]

Good luck with that.

My state does not recognize common law marriage. So if I marry a woman, we don't get a state marriage license, and later have children with whom she subsequently runs away, then I'll have an even more difficult time in court getting custody or partial custody, because the state will consider me little more than a live-in boyfriend. Or perhaps she'll stick around but accuse me of assault when I spank our children; a court will consider them to be her children and not mine and, suddenly, I'll find myself in jail.

So yeah, it'd be "imprudent" of me not to get a marriage license.

I used to think that I would stay out of the system altogether. But when I considered the possibilities, I convinced myself that such a decision would be imprudent in the extreme.

it is no small matter that five justices held that there was a substantive due process right of a man who had impregnated a married woman to a hearing on having visitation rights with his child. For the SCOTUS definitely to declare that a due process right is a big deal,

I am no lawyer, so I might have this wrong, but I think that the "right" that the 5 justices found was stated in their opinions, not in the court's holding. Opinions carry little or no precedential weight by themselves, alone. The _argument_ in the opinion carries weight when the argument is in support of the the majority's holding, and it carries even more weight when the majority themselves sign off on that opinion. In this case, the 5 justices that opined in favor of the due process right were arguing that in minority opinions. Almost by definition, these opinions do not carry much weight.

The commentators rightly find hope for future cases in the fact that 5 justices thought there was a substantive due process right. If the right case with the right fact pattern came along, those 5 probably would have teemed up for a majority decision. But now some of those justices aren't there any more, so it's all a guessing game. The actual holding of the court is NOT in favor of that due process right, and that holding carries more precedential force (if only liberals believed in worrying about precedent. I don't think they worry about it as much as the conservatives do, anyhow.)

Steve, you are not using the word "privilege" properly. A privilege is (taking from the roots of the word) a sort of "private law", a special act by government on your behalf. As a special act, the government is not obliged to grant it to you, it is an act of gift, grace, favor. That's not what happens. Every person in the state can get a marriage license, if he meets 3 or 4 simple, objective criteria that almost ALL adults can meet. Certainly 99% can do so, easily. The state is obliged to furnish the license in that case. There is no favoritism, no special pleading going on. There is no special governmental decision-making capacity to deliberate and choose whether to grant you the license: the criteria are objective, and the governmental clerk carries out a purely administrative function of simply observing the sheer fact of your meeting the criteria. It's not a "privilege".

Before you go off into some wild blue theorizing, skip that and simply tell us how the state is going to "recognize" church-led marriages, without the state granting recognition to man-man "marriages, man-to-47 of his best friends "marriages", woman "marrying" her Limited Partnership (not the people in it, the partnership entity itself (which cannot die, you know), and so on? Oh, let's not forget the woman who thinks she is married to the Eiffel Tower. (You can get a church to formalize anything, and if you can't you can start your own church, too.)

The commentators rightly find hope for future cases in the fact that 5 justices thought there was a substantive due process right.

I presume that this is why the state law was eventually rewritten. Sad to say. It's not as though the court has gotten more conservative since then.

Lydia:

"The state certainly does have legitimate authority to say what shall and what shall not have the _status_ of marriage for legal purposes."

The state has the legitimate authority to say what shall and shall not have the status of true food (for food safety regulations for example). That doesn't mean that eating is a privilege granted by the state. Eating is a right and an eating license would be also be tyrannical.

" There are all kinds of ways in which the state does a good thing, not a bad thing, by treating some things as marriages and some things not as marriages. This is not some evil tyranny..."

Indeed there are all kinds of ways that the state does a good thing by treating real marriages as real marriages and doing so is no evil tyranny.

That fact, which the two of us agree on, does not Imply that marriage is a privilege granted by the state that the state has the legitimate power to grant a license to commit. You haven't addressed my point that marriage "licenses" are tyrannical.

J.W.

"My state does not recognize common law marriage. So if I marry a woman, we don't get a state marriage license, and later have children with whom she subsequently runs away, then I'll have an even more difficult time in court getting custody or partial custody,..."

Indeed, and you are coming up with a good example of why in this world prudence dictates that we mus participate at times in evil. When you applied for the license you participated in the fraudulent fiction that marriage is a privilege that the state has the authority to grant you a license to commit, rather than the fundamental institution of human society, prior to and more fundamental than the state. It is because the state presumes not to recognize _true_ marriage that it has further presumed to steal children from their parents, give special privileges to sodomites, etc.

I hardly know what to say, Steve P. This can't just be terminological. I don't suppose you'd like it any better if we just changed the name "marriage license" to "marriage-related document allowing you to have state recognition status for your union for purposes of law." But that's what it is. Hence, not tyrannical.

Lydia,

You are right that this isn't about something just terminological. There is a very real connection between the fact that marriage is legally considered a privilege granted by the state and the fact that the state does things like taking children from parents it deems unfit, coercively sterilizing people so they will not have families, teaching sex education to kids without their parents' permission or knowledge, declaring that homosexual couples are legally "parents" together, etc.

"But that's what it is."

That is not what it is. It legally is what it purports to be, a license to marry. Óf course things are not quite that simple and laws regarding marriage vary from state to state, but we accurately describe what marriage licenses really legally are when we say they are licenses to marry.

I wonder what led you to the conclusion that marriage licenses are not really licenses, in law.

A license permits a thing that would not otherwise be legal--keeping livestock in city limits, for example, carrying a concealed weapon, or marriage for that matter between first cousins where those marriages are illegal.

James Bond had a license to kill. He had to have such a license to avoid being prosecuted for murder.

I'm not promoting the idea that states should grant licenses to kill, per se, I'm just trying to think of examples of licenses.

The state may not presume to give people licenses to assemble, to earn a living, to marry (in general), to rear their own children as they see fit, or to live, since those are things people have a right to do simply by being people.

I hardly know what to say, Steve P. This can't just be terminological. I don't suppose you'd like it any better if we just changed the name "marriage license" to "marriage-related document allowing you to have state recognition status for your union for purposes of law." But that's what it is. Hence, not tyrannical.

Steve is actually closer to the truth than you probably want to admit. Marriage licenses are currently like shall-issue concealed weapon permits. The state cannot block law-abiding people from getting one except where the law carves out exceptions. What Steve is pointing out is that when this country was founded, literally any adult that wasn't in prison could carry a concealed weapon without having a license at all. The state never claimed an authority to "license" this perfectly natural activity. Similarly, marriage licensing is a fairly recent thing in a historic context so the idea that marriage is something the state grants a license to engage in is a modern innovation. At the time of our founding, it'd be laughable to suggest that the state needed marriage licenses to recognize a marriage or handle issues arising from it.

Realistically, the state doesn't need marriage licenses at all. There are good alternatives that are far less statist in their outlook on the state's authority over marriage.

I don't know whether or not we have a right to conceal weapons (handguns) on our persons, but carrying unconcealed weapons is a different matter. Ordinary people need to do that in their ordinary day-to-day lives and therefore have a right to do it.

And I think marriage licenses developed during colonial times, so the idea wasn't laughable at the time of the revolution.

It's amazing to see y'all hunting pigeons with bazookas.

There is no connection at all between the existence of the piece of paper called a "marriage license" and the state's taking your children except in the sense that being legally married and having this made official by a marriage license makes it _less_ likely that the state will take your children.

Libertarians definitely need to straighten out their priorities. This is not the time to be going for more anarchic marriage practices and letting courts make up on a case-by-case basis whether people are or aren't married. This is the time to be defending marriage as an institution against an entirely different set of attacks. In that battle, the mere, orderly process by which marriage licenses are issued to one man and one women, not blocked from receiving such a piece of paper by consanguinity, etc., is a benefit not an enemy.

Lydia,

"There is no connection at all between the existence of the piece of paper called a "marriage license" and the state's taking your children..."

Maybe saying that there is a "connection" is not the best way to put it. What I meant was that thinking that the state has the power to sterilize unfit parents, take away their children, declare sodomite lovers to be parents together is similar to thinking that marriage is a privilege the state has the power to license.

I don't know what you mean by "anarchic marriage practices" but I agree that this is not the time to be forcing courts to make up on a case-by-case basis whether people are or aren't married. It does not seem to me that there ever would be a good time for that. If Mike T. thinks that makes sense I do want to distance myself from that idea. A complex society needs to be governed by statutes, not ad hoc court decisions.

"This is the time to be defending marriage as an institution against an entirely different set of attacks."

I think you are exaggerating when you call them "entirely different sets of attacks." They are the same sorts of attacks, it's just that some of them are more sexually perverted and obscene than others. Don't be so quick to think, however, that the people who were in charge of deciding when or when not to grant marriage licenses back in the day when states took their marriage licensing power more seriously (google it if you don't know what I mean) weren't the very sorts of people who now gleefully welcome the idea that the traditional family is being attacked by "gay marriage" and the other evils you mentioned and will gleefully enforce these evils against the rest of us poor unenlightened yokels who are still so naive to believe in right and wrong.

As I understand you, Steve P., what I mean by your advocating "anarchic marriage practices" is that it would be best, if possible, for very large numbers of Christians to stop being legally married and to be married only sacramentally. As I understand you, the only reason you don't actually advocate this right now is because not enough people would get on board with it.

I believe Mike T's position is that we should return to the use of common-law marriage recognitions in various states that have them.

There is no connection at all between the existence of the piece of paper called a "marriage license" and the state's taking your children except in the sense that being legally married and having this made official by a marriage license makes it _less_ likely that the state will take your children.

I disagree. Consider the difference in mentality between states which license handgun ownership and the states that don't do that toward handguns. In Virginia, it's a legal right of all mentally balanced adults who aren't convicted felons or have current serious action being taken against them to buy a handgun once a month. There is also no license involved in open carrying. If you lived in Virginia, you could drive over to a gun dealer, buy a gun in cash and leave the store carrying it and there's not a thing a cop could do to stop you. New York or New Jersey? Fuggedaboutit! You'd be lucky to even buy a gun, let alone not end up with a patrolman's sidearm on the back of your head for thinking you could carry it in public without getting a "by your leave, your majesty" from some bureaucrat.

Whatever the state licenses, it believes it can muck with at will.

I believe Mike T's position is that we should return to the use of common-law marriage recognitions in various states that have them.

That's mostly correct. I favor statutory law only as a means of adapting common law where needed. For example, I'd make common law marriages start at only 2-4 years (I believe 7 is where it was) of cohabitation. In general, I favor a regime where common law marriage is the norm and couples have extreme latitude to define legally-binding marriage contracts that are not subject to a judge's personal tastes.

For example, I'd make common law marriages start at only 2-4 years (I believe 7 is where it was) of cohabitation.

So if a baby is born after one year...?

By the way, you just illustrate why the handgun license is a bad analogy. Again, *nobody* thinks of you as literally doing something illegal if you go through a private marriage ceremony without a license, as though, "Ooh, you broke the law by standing there in front of that man and saying those words without having a license first! You could get in trouble." Nor is there any penalty for doing so. This, among many other things, is why the word "license" is so different as applied to a marriage license.

By the way, you just illustrate why the handgun license is a bad analogy. Again, *nobody* thinks of you as literally doing something illegal if you go through a private marriage ceremony without a license, as though, "Ooh, you broke the law by standing there in front of that man and saying those words without having a license first!

Try claiming a right to see your spouse in a hospital without the license. It'll go over only slightly better than claiming a right to conceal your handgun without a concealed carry permit. States like Virginia allow you to do some things without a license. Others, you need one. You can't exercise your full rights without one.

So if a baby is born after one year...?

The father would have presumed paternity, but have neither full legal rights to it nor any duties toward it until, by their own behavior, they showed themselves to be married before society. The combination of no rights and duties would give good men incentive to let their investment mature and give most women incentive to not try to move on if they find him a little boring.

Try claiming a right to see your spouse in a hospital without the license.

Well, sure, there are rights _attendant_ on being legally married, but that's not the same thing as really needing a license _to_ get married. Surely you can see the distinction.

The father would have presumed paternity, but have neither full legal rights to it nor any duties toward it

Well, see, that's a problem. I would by the way ask that anyone who wants to relate this to sacramental marriage take note. A sacramental view of marriage actually doesn't accord with this well at all. In the eyes of God, the two people either are or aren't married. They don't gradually become married over a period of years! And _if_ they are married, then the state _should_ recognize both the rights and duties of the father to the child even if the child was born "only" a year into the marriage (which is actually a pretty normal time). Moreover, to get back to the main post, the situation you there describe is _exactly_ what the main post is speaking against. If a neighbor with a grudge tells a lie to CPS about the father (say), there won't even be any paternal rights for the state to have to try to terminate! Because he won't have any. Just like a guy living with his girlfriend, in fact. So a family will not have been created as a space into which a baby can be born.

Lydia:

"...that it would be best, if possible, for very large numbers of Christians to stop being legally married and to be married only sacramentally."

I was suggesting it as a form a protest movement might take, if all else fails. I am hopeful that it wouldn't have to come to that.

Now I understand your comment. Sure, if there was such a movement, there probably would be court cases, but the point of those court cases would be to challenge the constitutionality of gay marriages and marriage licenses (among other things) and to lead to a change in the laws, not to lead to a permanent state of affairs where every marriage would require a court decision in addition to the wedding.

Lydia:

"I believe Mike T's position is that we should return to the use of common-law marriage recognitions in various states that have them."

I am no lawyer but my understanding was that this was the normal state of affairs in the first hundred years of the union. People did not usually get marriage licenses (although marriage licenses did exist even in the colonies). That did not lead to a superfluity of court cases. Something more formal would seem to be necessary in contemporary society.

I think what you may be hinting at is the false dilemma: "If marriage is not a privilege granted by the state, there will be no way for states to recognize or register marriages or determine (without a court case) whether couples are really married."

I trust that merely describing what you seem to be hinting would dispel any notions that what you seem to be hinting makes any sense? If you haven't thought of this, let me point out that many countries do recognize and register marriages without requiring that couples get a license from the state to engage in the otherwise illegal activity of matrimony.

Let me also remind you that states used to use the power of license to prohibit interracial marriages and the marriage of mentally handicapped people. I don't think the overtly racist thing will happen again but the power of license is real power, and inherently tyrannical when the object is a right rather than a privilege that the state has the legitimate power to grant.

Lydia,

It seems to me that eugenics, marriage licenses, gay marriage, legal abortion, the denial of medical treatment to the unfit, family court, social work, cps departments, and many other things are what I would call "connected" or "related." Your inability to see anything like a connection makes me think that "connected" is not the correct adjective to use.

I know I am not the first person to think "eugenics" is really something more general than its dictionary definition, but more specific than "modernism," "liberalism," or "socialism."

Try claiming a right to see your spouse in a hospital without the license. It'll go over only slightly better than claiming a right to conceal your handgun without a concealed carry permit.

But that's silly. I HAVE claimed a right to see my spouse in the hospital, any number of times. I was "granted" that right, and not once did the hospital ask to see the marriage license or certificate. At most, they just asked "are you the husband" and accepted my word. More than that, with the birth of every one of my children, the hospital accepted my word and my wife's that the child was my child, and I had a right to visit / make decisions about him or her (like the child's name), without ever once asking to see a marriage license.

Which doesn't really prove anything one way or the other, except that the marriage certificate itself is pretty little used. People go by what people say an awful lot.

I am no lawyer but my understanding was that this was the normal state of affairs in the first hundred years of the union. People did not usually get marriage licenses (although marriage licenses did exist even in the colonies). That did not lead to a superfluity of court cases. Something more formal would seem to be necessary in contemporary society.

During the first hundred years virtually everyone believed in, and accepted, that the Church had a role to play in validating marriages, and almost everyone practiced within that: nearly everyone got married in front of a minister, and when they weren't around a justice of the peace would fill in sufficiently. But the practice was to have a publicly accepted figure prescribe the ritual and attest to the vows being vows of marriage, attest to the couple actually consenting to the union. In those customs, a license or other strictly legal formality was less necessary. In TODAY's situation, those practices would be laughed at by 90% of the people who are causing the whole problem anyway.

let me point out that many countries do recognize and register marriages without requiring that couples get a license from the state to engage in the otherwise illegal activity of matrimony.

This is all nice and vague. Name them, and describe WHAT THEY DO that enables the state to even know that a marriage occurs, and what the state does to "recognize" it, and what happens when there is a dispute about it.

I don't care whether we use licenses before hand, or some mechanism afterwards, in order for the state to use to sort out the real from the unreal in terms of who is married. But whatever it is, it better be something that enables the state to say 2 gay guys are not married to each other. Steve, tell us how you want the state to be able to manage that, and stop fussing over the semantic issue of licenses.

Mike, as far as I know, "common law" determinations of marriage for legal purposes was quite rare. By and large, for most of our history, marriages were contracted in ceremonies in front of a person considered to hold authority to hear vows (both a minister and a JoP is considered to have authority to hear vows), and this event was what the law went by most of the time. The "common law" criteria were rarely invoked. 13 states never provided for common law marriages at all. We have never had a situation in our history where most marriages were contracted without the benefit of a public authority to attest to them (and incidentally regulate them in some fashion, even if not applying civil law to regulate them). To assume that we could switch to such an arrangement - given our current conditions - without major problems stretches credulity, but I am willing to see some proposals. HOW would we ascertain who gets "surviving spouse" rights on a pension, for a person who lives with 3 women (one at a time), and for whom it is unclear whether he met the requirements for common law marriage with any of the 3? Especially since the information may be decades old by the time the pension rights kick in? HOW will we have the state tell 2 gay people "your union isn't a marriage before the law"?

During the first hundred years virtually everyone believed in, and accepted, that the Church had a role to play in validating marriages, and almost everyone practiced within that: nearly everyone got married in front of a minister, and when they weren't around a justice of the peace would fill in sufficiently. But the practice was to have a publicly accepted figure prescribe the ritual and attest to the vows being vows of marriage, attest to the couple actually consenting to the union. In those customs, a license or other strictly legal formality was less necessary. In TODAY's situation, those practices would be laughed at by 90% of the people who are causing the whole problem anyway.

I think you can solve this by putting more teeth into common law marriage and making common law marriage automatic in monogamous cohabitation that reaches a certain threshold. Formally recognizing consent is not always necessary. For cohabitation, the mere act of cohabitating should be considered implied consent until proved otherwise.

Mike T, I can't help wondering: The Christian position is that sexual intercourse between a man and a woman who are not married is a sin. If it's okay for two people just to move in together, and that sort of "turns into" marriage after a certain number of years, and you are their pastor (say), how do you tell them that they are living in sin? How do you even tell *what it means* for them to be living in sin? See, the traditional view of marriage in Christianity is that you either _are_ married or you _aren't_. And if you _aren't_, you aren't supposed to be doing baby-making things. Say what you will about bringing together church weddings and state marriage licenses, at least it is firmly on the side of that crucial clarity--both moral and legal.

Not to mention, how do you define (and prove) "cohabitation"? What about the guy who moves in with a woman, then moves out, then moves back in, etc? What about the pair who maintain separate homes, but who are usually always found together in one or the other? What about the couple who cohabit but for whom there is little proof?

There is a reason things changed from the pre-Christian informal arrangements, in which civil law was little concerned, to the medieval Christian arrangement, where the couple had to vow before a priest: the consent that constitutes the heart of the marital union is not just any old consent to share conjugal relations. Just as with other forms of contract, it is a huge benefit to the community to ensure that the consenting parties all understand and agree to the same things, which more or less implies some kind of formality. Given the near universality in Christendom of the scope of the Church's medieval marriage law (had to be before a priest), I suspect that later common law marriage rules were put in place as a response to later developments throwing off or ignoring some kinds of authority, civil or religious: the state maybe was playing catch-up after the fact of a few too many people ignoring the law to make it worth throwing them all in prison. It is not clear to me that there has been an unbroken tradition of common law marriage since pre-Christian times, and if there hasn't - if common law rules were initiated relatively recently like in the modern era explicitly as a kind of exceptional practice - then I don't see any particular reason to think that the practice could be universalized to be the normative manner in which marriage occurs and is then recognized by the state.

Lydia,

What does that have to do with the civil side of marriage? Civil marriage is all but irrelevant to the religious side of marriage. There's absolutely nothing wrong with a priest or pastor presiding over a religious marriage and the state refusing to recognize it as a formal marriage with rights and obligations until the couple has lived together for a few years.

What does it have to do with the civil side of marriage? Well, first of all, it's highly undesirable for the state to be considering a man and woman _not_ married for some significant period of time after you have had your marriage carefully solemnized by a pastor or priest. That's definitely setting state _against_ church. Why would we want to do that? Far better to set up our civil arrangements so that as much as possible they track the underlying reality of things--in this case, presumably, that the couple really is married.

Similarly, for the umpteenth time, what this has to do with civil marriage is that children should be born into a family--a known, unambiguous, recognized family. One of the reasons that we tell people not to have sex until they are married is that children should be born into a family! We're telling people not to do baby-making things until and unless any baby conceived can be born into a stable situation where his father and mother are admitted by society to be his father and mother. That is, until they are unambiguously married. That's part of a man's taking responsibility *in advance* for the sexual acts he intends to engage in. Civil marriage achieves this, but if we were marrying people sacrmentally while having them remain in civil limbo for several years thereafter, then we would be encouraging them to go and do baby-making things while the father of any child born of the union would not have full parental rights. This is not a good thing.

If the civil situation is that a couple is considered to be married under common law only after a period of living together as united, and if this civil approach is widely followed for a couple generations, then as a natural consequence, psychologically a man and a woman who have just begun to live together won't consider their bond to BE that of marriage until they have spent some time living together, and thus they will not operate as married from the start. So a kid born within the first year will not be, psychologically, the fruit of a marriage, but rather the fruit of a sexual union that may or may not ever "become" a marriage. Bad idea. Very, VERY bad idea.

No, a union doesn't grow into a marriage by reason of added time, it is a marriage by reason of the consent of gift of self by the two. That should occur at the beginning of the union, and the state ought to support the social status of that ontological reality with explicit recognition. The social REALITY of two who have contracted for and made such a whole gift is different than that of a couple who live together without such gift of self, and society needs to deal with such a unity differently than with a couple who have not consented to that kind of gift.

If the civil situation is that a couple is considered to be married under common law only after a period of living together as united, and if this civil approach is widely followed for a couple generations, then as a natural consequence, psychologically a man and a woman who have just begun to live together won't consider their bond to BE that of marriage until they have spent some time living together, and thus they will not operate as married from the start.

I also think that people who are not Christians or even who are irreligious altogether can be married, and for that purpose there should be some sort of official, even if non-church, ceremony for them to go through. In this scenario, it looks like there wouldn't be. So the entire secular population just gets marriage devalued to this kind of "becoming" state, which is teaching a falsehood.

Tony,

I don't know the details of how it works, but the couples simply register their marriages with the government, (after the ceremony I think) and the government records them.

"But whatever it is, it better be something that enables the state to say 2 gay guys are not married to each other. Steve, tell us how you want the state to be able to manage that,"

The contrast I made was between the understanding that marriage is a primordial institution prior to and more fundamental than the state and the understanding that marriage is a privilege that the state has control over and grants to those who meet its requirements. To me it seems that only the latter understanding makes it possible for the state to radically alter the definition of "marriage" so that it refers to two people of the same sex living together and sodomizing each other. The former understanding does not seem to me to allow any creativity, it only seems to allow the state to examine the primordial institution, historically and anthropologically, and write legal definitions that describe what it finds.

I do recognize that the laws could be based on other understandings of what marriage is (in fact they sometimes are), but I was contrasting those two because I see one as the problem and the other as the best remedy.

".... stop fussing over the semantic issue of licenses."

I don't know what you mean, and I think you must have misunderstood something I said. I don't know to which "semantic issue of licenses" you are referring. I was talking about real issues of marriage licenses not semantic ones. Are you referring to cases where the marriage license was used to prevent interracial marriages? Are you saying that the difficulties those couples encountered were mere semantic difficulties that did not affect their lives in any but semantic ways?

Tony,

Here's a couple of hypothetical examples that I will use to show why I have problems with your view of the world:

Let's say I own land on a cold clean river with abundant trout, and behind my house is the best fly fishing spot in hundreds of miles. In one case, I grant people who ask the privilege of tramping through my yard to fish. Occasionally I send them away, and I constantly have problems of various kinds with trespassers in my garden. Often a deputy sheriff is called. My yard is a mess and the neighbors complain. In another case, people have a right to access the prime fishing spot. There is a permanent easement on my land in recognition of that right and there is a paved path that people are supposed to use to get to the river. In this case The fishermen also affect my life and cause problems of various sorts, but in many ways they are different sorts of problems. They aren't just semantically different they are materially different. Different people end up using the river as well, and I suppose different numbers of people. They aren't just semantically differen they are materially (and actually and really) different.

In the case of the fishing spot, it is easy to see the difference because we are dealing with something relatively simple. It's not as easy to see the difference when we are talking about real marriage vs. the marriage license, but I am convinced that the difference is very real and furthermore that the current "gay marriage" abomination is actually an example of a material and more-than-semantic result of the states treating marriage as a privilege they have control over. Furthermore, I think many of the other modern disfunctions in regards to the decline of the family as an institution are related to the fact that the state does not recognize it as a (fundamental and independent) institution.

Of course their are other factors leading to the decline of the family. But the "totalitarian" tendency of the state to consider other institutions subordinate to it has got to be a major factor.

Steve P., I see a direct connection between what I now understand to be your suggestion--a mere "registration with the government" after the couple is married in some other way--and Tony's question about "two guys living together." The government has to decide *which couples* it will "register" as married. Suppose we call it registration of marriage, and it could be after the fact of a wedding before a clergyman or before your Uncle Joe or private vows or whatever. Okay, now, two homosexual men show up at the registration place, whereever this may be, and say that _they_ are married. The state has to refuse to register them, right? Or a man and a woman show up, and there's good reason to think they are brother and sister or brother and half-sister. Do we register them? Do we check to make sure they aren't brother and sister (or, heck, mother and son!) before registering their claim that they are married? A man wants to register a marriage, but he just registered a marriage to a different woman last year. Do we let him register as many marriages to as many women as he wants? What sort of a mess does that make of the various social and legal relationships related to marriage? ("If married filing jointly, check here. If you need more lines for more spouses, use supplemental spouse listing form 1040b.c.d.")

So even in a registration (possibly after the fact) system, the state has to deal with claims of "marriage" in homosexual relationships, incestuous relationships, and polygamous relationships. (Or with minors.) And, I believe, should deny them.

Which ends up being _awfully_ similar to the situation we have right now in states with normal marriage laws (not Massachusetts!).

Similarly, for the umpteenth time, what this has to do with civil marriage is that children should be born into a family--a known, unambiguous, recognized family. One of the reasons that we tell people not to have sex until they are married is that children should be born into a family! We're telling people not to do baby-making things until and unless any baby conceived can be born into a stable situation where his father and mother are admitted by society to be his father and mother. That is, until they are unambiguously married. That's part of a man's taking responsibility *in advance* for the sexual acts he intends to engage in. Civil marriage achieves this, but if we were marrying people sacrmentally while having them remain in civil limbo for several years thereafter, then we would be encouraging them to go and do baby-making things while the father of any child born of the union would not have full parental rights. This is not a good thing.

I am approaching this the same way I would being told to design something that has to take into account an incredibly nasty, existing legacy system. To me, the American courts in their current form are precisely that. They are that rogue, nasty legacy system that never performed at all according to the designers' (founding fathers) intent and are accordingly an absolute menace to anyone attempting to make a solution. Therefore, my approach is to try to minimize the intersection of the average family with them, and make it as specific as possible. That's why I threw out the idea of the state simply not even formally recognizing at all the idea of a civil marriage existing until the couple demonstrated that they took their vows seriously by their behavior over a trial period.

Maybe this approach is wrong, but you seem unwilling to deal with the actual nature of the courts and how they limit legislative solutions. Were it up to me, I'd abolish judicial review for the courts and formally codify jury nullification as a plenary power for the jury as a compromise. But it's not up to me, and I am always cognizant of how a single asshat in a black robe can put the lie to the idea that we are different from Iran's "democracy" where the clergy get to veto anything the Parliament passes that displeases them.

Mike, you're webbing again. I'm critiquing a specific proposal of yours on specific grounds. General comments about the evils of our current court system really don't make a difference to that.

Lydia,

"The state has to refuse to register them, right?"

Gosh I hope so. I'm afraid we cannot count on that though. Many states already have "gay marriage" and I'm afraid things are going to get worse.

One of the reasons it has been so easy for states to redefine marriage as something unrecognizable to you and me is that "marriage" legally is a privilege that the state has authority and control over and has the authority to license. If the state had instead treated marriage as, for example, a primordial institution separate from, more ancient, and more fundamental than the state such perverted creativity would have been much more difficult.

"So even in a registration (possibly after the fact) system, the state has to deal with claims of "marriage" in homosexual relationships, incestuous relationships, and polygamous relationships. (Or with minors.)"

Marriage of teenagers is normal, historically and anthropologically (not that I think it's a good idea today!) Polygamy is not normal at all in Christian culture, but it is normal in some sense and it is at least not the perversion that sodomy and bestiality are. As for polygamy, specifically and other more unmentionable and abominable things, one of the more important reasons they have become something that "has to be dealt with" by the state is because the state deals with marriage as a special privilege that it has the authority to license and therefore, nowadays, the authority to arbitrarily redefine.

In short, I cannot see how you can honestly phrase your point as "EVEN IN a registration system..." The fact that we have a "license system" is one of the most important reasons there is a problem! Furthermore, we are not talking about "systems" we are talking about something far more significant and substantial. The thing that the state defines as "marriage" is not a true marriage and at least in the act of licensing and registering marriages the state does not currently recognize true marriages (I have admitted that there are many laws dealing with marriage and some of them are good ones but right now I am talking about the marriage license per se).

As for polygamy, specifically and other more unmentionable and abominable things, one of the more important reasons they have become something that "has to be dealt with" by the state is because the state deals with marriage as a special privilege that it has the authority to license and therefore, nowadays, the authority to arbitrarily redefine.

To me that just seems to be evading my point. You propose a polity in which the state "registers" marriages (apparently preferrably after the two people involved believe themselves to be married, perhaps by some other ceremony) rather than "licensing" them prior to a ceremony. My point is that in a well-ordered public polity, the state will have to make rules to refuse to register such marriages as we have discussed. (And, yes, I think there should be an age limitation as well, as you presumably do, too, though we might not agree on the exact age.) You seem to agree that the state will have to refuse some registrations and allow others but _somehow_ think this has only become a problem with such things as polygamy, etc., because of the concept of a marriage license. I don't know how you can think this. You don't think some Muslim or FLDS man is going to want to register four wives? You don't think if we went with your registration idea there would ever be two men who would try it or even a pair of siblings? Why not? People are very creative, especially for evil. And polygamy is as old as the hills. I don't see how just by changing to registration as you propose the state somehow doesn't have to make decisions and rules about whether or not to accept these as marriages when people try to get the state to do so.

Lydia,

I think I understand how you feel because you seem to me to be evading my point.

I'll start by objecting to the word polity for the same reason I objected to the word system. You appear to be implying that the marriage license is some kind of legal fiction and is not really a license at all and to be using language to support the proposition without actually defending it. Naturally, I won't go along with your loaded language. I am curious as to how you came up with this idea, should you someday care to explain yourself more explicitly. I have no doubt that there are good reasons behind it.

First your point: if you have a problem with the state refusing to register "gay marriages," etc., I can see why you would be happier believing that marriage is a privilege that the state has authority over. If it has the authority to license marriage of course it has the authority to redefine marriage to be a sexual perversion. I really don't believe you do want "gay marriage" though, and I suspect you don't have a problem with the state refusing (regularly) to register things which it doesn't recognize to be true marriages. If that's the case, I don't know why you bring it up as if it is a problem. Do you honestly believe or even suspect that I have a problem with it?

"somehow_ think this has only become a problem with such things as polygamy, etc., because of the concept of a marriage license."

Let's not leave any "somehows" hanging. I have no choice but to be repetitive because I can't think of a better way to say it: If marriage is a special privilege that the state has the authority to give licenses to commit, it has the authority to redefine marriage to include polygamy. You may not agree with me but don't call that a "somehow." Don't imply that I haven't explained myself.

"You don't think some Muslim or FLDS man is going to want to register four wives?"

Sure I do. Do you think that telling them that marriage is a special privilege granted by the state instead of the primordial basic institution they thought it was will change their minds and make them not desire to register four wives? They'll think your theory is B.S., and more importantly totalitarian as i do but theyll still probably desire to register four wives. So what? let them have unfulfilled desires. It won't kill them.

"People are very creative, especially for evil." Exactly, which is why the state marriage "license" has led to "gay marriage." If marriage is not a primordial and basic institution prior to and more fundamental than the state, but merely a privilege that the state grants, the state has the authority to redefine marriage in creative ways, which tyrannical authority was likely all along to eventually lead to evil.

As for the question of registering marriages before vs after they are entered into, Tony brought it up and I wanted to be responsive to him. I reasoned "given that it is not unheard for the guests to show up only to find the embarrassed parents of the bride sending them home with their presents it would be easier to register marriages afterwards to avoid extra paperwork from those who change their mind at the last minute."

No one should think that I otherwise see the question as significant or important.

Well, Steve, you're just baffling me. _You're_ the one who uses this language of a "privilege granted." As far as I'm concerned, the only "privilege" _just is_ the recognition/registration/legal label by the state. I _agree_ with you that in the eyes of God you can be married even if the state won't agree. For example, we can imagine some religious state that says that if you were born Muslim you can never be legally married to a Christian. Some man grows up, converts to Christianity, and wants to marry a fellow Christian woman. The state will (in this imaginary scenario) _never_ give legal status to his marriage to a Christian woman, but of course that doesn't mean that he literally can't really, in the eyes of God, be married to a Christian woman. (It does raise all sorts of questions about what he should do, though. I suggest trying like the dickens to leave the country, and not risking having any babies until you have gotten out!)

So the state there has the power to withhold the privilege which _just is_ their calling his union with a Christian woman a marriage.

Now, no matter what, the state is going to _call_ some things marriages and not call other things marriages.

I cannot see how anything you have proposed mitigates the need for this, and in fact, I gather you agree with that proposition.

Well, once that proposition is in place, _regardless_ of the details of how the state goes about doing this "calling" or labeling, the state can do it _wrong_. The state can label some things "marriages" that aren't and, alternatively, can refuse to label some things marriages that are.

If we agree about all of that, then it seems like the only thing we're disagreeing about is that you think the present situation in which the state does the "calling" by means of a marriage license is wicked and invidious and simply *amounts to* treating marriage in every possible sense of the word as being a privilege granted by the state.

I don't agree that it does that any more than any method you have proposed whereby the state tells us which things it will call marriages and which it won't. Insofar as having one's union labeled a marriage by the state is a desirable situation for the couple in question, getting the state to agree to that labeling will be in some sense a privilege. And one might argue that the very existence of that privilege might convey the notion that marriage in every sense is a privilege granted by the state. But there's no way around that possible danger (if it is a danger) unless you want to try utterly to abolish the very notion that the state registers some things as marriages and won't register other things. Which I gather you don't. And a good thing too, as it would be impossible to do and harful to try.

So I'm really quite baffled.

Lydia, the reason Steve is being baffling is that he isn't arguing in good faith - or, at least that's the very, very strong impression he manages to give.

(1) We have asked him 6 times so far in what way he envisions the state managing to decide to NOT treat 2 gays as married after they get a church 'wedding', and he refuses to do so. Probably because he cannot think of a way to do it that does not force him into admitting that when the state crafts a mechanism to refuse to call that marriage, the state thereby has control of some OTHER goods that hinge on the married condition (like, just for example, allocated inheritance of the goods of one or the other). That control of other matters, though it isn't a privilege properly speaking, is enough to undermine his theory.

(2) He makes a pretense of not understanding you, and does so quite offensively:

You appear to be implying that the marriage license is some kind of legal fiction and is not really a license at all and to be using language to support the proposition without actually defending it. Naturally, I won't go along with your loaded language. I am curious as to how you came up with this idea, should you someday care to explain yourself more explicitly. I have no doubt that there are good reasons behind it.

Steve, you are the interlocutor here, it behooves you to behave with respect in addressing Lydia. That wasn't respect, it was a mailed fist inside a velvet glove. The trappings were decent, the content was not.

Sure I do. Do you think that telling them that marriage is a special privilege granted by the state instead of the primordial basic institution they thought it was will change their minds and make them not desire to register four wives? They'll think your theory is B.S., and more importantly totalitarian as i do but theyll still probably desire to register four wives. So what? let them have unfulfilled desires. It won't kill them.

HOW? Tell them they can't have 4 registered marriages HOW? By what mechanism? Under what authority? By what definition shall the state judge these NOT marriages so far as the state considers it? On which basis shall the state promote THAT definition of marriage and not the gay definition? And doesn't that authority to distinguish and designate and declare END UP giving the state a back-door mechanism to also have a hand in (just for example) inheritance, child custody, and other matters? Why is THIS not also "totalitarianism"?

Steve, just answer these questions and stop wasting our time with your games.

Lydia,

"You're_ the one who uses this language of a 'privilege granted.'"

No. It isn't me. That is how marriage is legally defined, at least at its outset when the state grants a license for a couple to commit marriage.

"As far as I'm concerned, the only "privilege" _just is_ the recognition/registration/legal label by the state."

I cannot think of any reason to think that is true. When the state grants a license, as far as I know it it is legally doing what it says it is doing. If I am right about that (and look, I'm no lawyer so it wouldn't surprise me at all to find out I am wrong), the state is treating marriage itself and all the legal privileges that go along with it as a privilege that it has the authority to grant and treating the family as something subordinate to it, as a thing it owns. It seems to me that to think the state is doing nothing more significant than handing out labels that no one takes seriously anyway is like putting one's head in the sand. Laws relating to marriage profoundly affect the lives of real people, in very real concrete ways.

"Well, once that proposition is in place, _regardless_ of the details of how the state goes about doing this "calling" or labeling, the state can do it _wrong_. "

Thank you for saying it explicitely. You don't think the marriage license is really a license at all, beyond the the license to carry a label. You think it is merely a convenient legal fiction that the state uses to enable it to label things.

I am no lawyer, but I don't believe you are right for many reasons. One example is that the marriage license was used to prevent interracial marriages. The inconveniences and indignities that those couples were forced to endure were real and material. They were far more significant than just not having a label to brag about. Another example is "gay marriage," which exists precisely because the state treats the institution of the family as something it owns, as something it can license and redefine, You say that the only privilege that the state grants when it gives a couple the license to marry is the privilege of a label. I think any tax account could show us in monetary terms that the license goes far beyond a label.

Tony,

I will only answer your questions if you will promise me that you won't respond to my answers by saying things about me such as that I am offensive, disrespectful, or that I do things in bad faith. If you cannot do that, it's OK because I know you would get better answers if you asked people who were experts on the subjects you are inquiring about.

In the meantime, I will ask you to try to believe that I am not the monster I appear to you to be. Let me suggest something to you that you probably would agree with if you thought about it. If the two of us were to meet in person we would probably like each other and you probably wouldn't believe any of those awful things about me.

The inconveniences and indignities that those couples were forced to endure were real and material.

That was true for three reasons. First is the reason that we have already discussed: That there are always going to be attendant benefits to having one's marriage stamped as such by the state. You can't get around that any more than I can unless you want total anarchy in this area, which you don't appear to want. That's why your position is so frustrating and hard to pin down.

Second, many localities (possibly states, but I think localities especially) had laws on the books at that time against cohabitation without legal marriage. These were actually enforced. So of course if you put together a) the state won't consider you to be married if you're in x situation (such as being an interracial couple) with b) it's against the law for you to live together if the state doesn't consider you to be married, yep, you're going to have problems if you're in x situation.

In our own day and age, reason #2 is moot, because nobody enforces any such laws, even where they are on the books. (I believe they may still be on the books in Utah. I don't know where else.) In fact, even private people are _forbidden_ to refuse to rent to you because you aren't married. (See reason #3.)

If you don't like the situation in reason #2, you don't need to worry about it anymore.

Reason #3: Private people were allowed to "discriminate on the basis of marital status," which is now largely forbidden by various nondiscrimination laws. I think these nondiscrimination laws are wrong. If I don't want to rent an apartment to a guy living with his girlfriend, I shouldn't have to. But obviously, if people are allowed to discriminate on the basis of a couple's not being married, and if people do discriminate in this way (as I think Christians often should, actually, against couples who are actually living in sin), then not being discriminated against by private individuals will be one of the attendant benefits of having one's marriage officially recognized (see #1). Of course, if the state sets up some truly unreasonable block to recognizing some marriage, then the private party in question renting the property or selling the property might be convinced of that and convinced that the couple really _is_ married. But that would be a matter for working out between the individuals in question, as it should be.

Of course, most of this could be solved by adopting the system Israel uses which is to recognize religious authorities from each major group (several Christian, Jewish, Muslim and Druze) and deputize them to each become a de facto "law unto themselves" within Israel as far as marriage regulations are concerned. For the non-religious, outright abolish civil marriage and its attendant institutions.

"there are always going to be attendant benefits to having one's marriage stamped as such by the state."

Even though that is true, it does not prove that the marriage license is not legally a license to marry but a kind of pseudo-license whose only actual object is to merely hand out official labels. In fact, your observation seems to me to be evidence that the marriage license really is just what it pretends to be--not definite proof, but evidence.

In any event, it's wrong and anti-American and antifamily even if it's just a pseudo-license. A law that, so to speak, only pretends with a metaphorical wink to subsume the institution of the family into the state is pretending with a wink to be totalitarian. That kind of pretense in something as serious as marriage law iwould still be an attack on freedom, it just wouldn't be as extreme.

"Second, many localities (possibly states, but I think localities especially) had laws on the books at that time against cohabitation without legal marriage. These were actually enforced."

That's a good point. If the marriage license were merely a license to display a label it wouldnt make any sense that localities could arrest people for living together without a license. All you are doing here is giving me more reasons to think your theory is wrong.

"In our own day and age, reason #2 is moot, because nobody enforces any such laws,"

That's just an accident. Such laws or others even more egregious, perhaps laws that you and I haven't thought of but would be horrified by if we thought about them, could be enacted and enforced in the future. It seems irresponsible to me for a citizen to be so cavalier about it.

Let me tell you that even though I am generally pessimistic, even though I fear that before long gay marriage will be normal and everywhere allowed and encouraged, and that even you and others who think like you will be thinking about "getting out" of gay marriage and looking for other legal arrangements to protect your rights as best as you can--I don't think that it is unrealistic to hope that, in a more socially conservative state, a constitutional amendment could be enacted, or at least a statute, defining marriage explicitly to not be subordinate to the state but a primordial institution more basic and more fundamental than the state, consisting of a man and a woman in a contractual or covenental union, etc.--and that, in order that the laws do not conflict with the amendment, the license might be eliminated and it's registration aspect be taken over by an explicit marriage registration. I suspect that there must still be some states or regions of the Union where that could be possible.

Mike t., I do not like that idea.
In fact the original reason, as far as I know, that marriage licenses exist at all is that in a confessional state the only marriage ordinarily recognized was a marriage recognized by the established church. The license was a license for religious nonconformist to violate the law by marrying outside the state church and still have their marriage recognized by the state. Since we no longer have established churches, marriage licenses are unnecessary. Marriage registrars could literally tell engaged couples when they turn in their registration forms that they are free to and have a right, without license from the state, to marry in any church and by any ceremony they choose.

Yes, I am aware that that would create the possibility that a couple could "marry" in a perverse ceremony where they explicitly renounce some basic and necessary provision of the civil marriage contract but that could happen even today. The marriage "license" does not necessarily prevent that from happening. I'm sure the solution to that potential problem is already obvious to lawyers and is already enshrined in law--the signed marriage registration would explicitly be considered by the courts (as the marriage "license" is undoubtedly considered today) as proof that the necessary provisions of the civil marriage contract were agreed to.

OK this opens up a can of worms I suppose, but I forgot in my original comment to say that, since the manifest obvious primary purpose of marriage is to procreate and form families, it's a lot harder to argue against the parent license if you say that you accept the marriage license.

If marriage is subsumed by the state, the family as an institution thus baby-making is subsumed by the state.

I do have strong feelings and a specific personal interest in this and related subjects, i will admit. To understand why, you could look into a book called _America's 'Worst' Family._ The people against whom the infamous Indiana eugenics laws were designed to commit genocide were literally my cousins.

Steve P., here we go again: Suppose that we have what you want. I don't know exactly what you want, but let's suppose we have it. And then after that suppose some state passes a law that says if your marriage hasn't been registered, you can't live together. Does that make your registration into an evil, totalitarian regime? Suppose that we have what you want. And suppose that subsequently some state passes a law saying that they won't register marriages between people of different races? Waiving the fact that it would be struck down by the courts as unconstitutional, does that very _possibility_ make your proposal an evil, totalitarian one?

I just don't get it. In fact, I'm getting so tired of repeating myself that I should really just stop. For the umpteenth time: There is *no way* for the state to register marriages without this opening the _possibility_ of their doing something wrong with that--either enacting additional laws that block certain marriages from the benefits of registration when they are real marriages or, on the other hand, registering as marriages things that manifestly are not.

Steve P,

You still have to solve the issues of divorce, remarriage, custody, asset distribution and support obligations. The state cannot get out of those things unless it either deputizes another authority (such as something similar to the Israeli/Ottoman millet system) or simply throws up its hands and refuses to arbitrate them. So, what is your solution for those with or without a license?

Personally, I'm in favor of the millet system over the current system. I'd rather be judged by an ecclesiastic court from a similar denomination--heck, I'd rather be under the RCC or Orthodoxy--than under the current system.

Oh and the millet system, which Israel uses, is actually based on the exact opposite of an established religion. It originated in the Ottoman Empire as a way to allow the Peoples of the Book to govern their own affairs in compliance with dhimmitude under Sharia. It evolved in modern Israel into a direct delegation by the secular authority to religious authorities.

Well, no, I'm not going to endorse letting sharia courts make marital decisions. There are many ways in which sharia notions of marriage diverge from what should be recognized. To name just one, women can be forced into marriages quite easily in a sharia court, because actual consent is not even close to being a priority. Child marriage is also endorsed by sharia.

And since non-religious people can marry in reality, there should be a mechanism for their marriages to be acknowledged.

Mike, your proposals are always good and clear, though they jump around a bit. I just disagree with them.

Lydia,

"Suppose that we have what you want. I don't know exactly what you want, but let's suppose we have it. And then after that suppose some state passes a law that says if your marriage hasn't been registered, you can't live together. Does that make your registration into an evil, totalitarian regime?"

I don't understand your question. I think the problem may be that I don't know what you mean by "totalitarian regime." If you said the Obama administration were a totalitarian regime, I would have some idea what you meant. If you said the government were a totalitarian regime, I would have an idea what you meant, bit if you said that registration were a totalitarian regime, I don't know what you would mean.

That you asked the question makes me think you might not have any idea what I meant by suggesting that it is totalitarian to subsume the institution of marriage to the state. I found this sentence on the internet, purporting to be from the Roman Catholic document "Centesimus Annus:"

" A totalitarian State tends to absorb within itself the nation, society, the family, religious groups and individuals them selves."

That sentence briefly and succinctly defines what I mean by "totalitarian." I would not be surprised to learn that my understanding of the meaning of the term is not the most common definition. In particular I noticed just now that my understanding of the term does not exactly match up with the definition on Dictionary.com.

I hope that it tells you what I mean, however.

I have said repeatedly what I want and it is really what I don't want. I don't want licenses or other laws that are totalitarian, that in some way absorb the family, the church, or other institutions into the state. If we don't see licenses the same way or dont agree that is one thing, but if it is really true that you literally have absolutely no idea whatsoever what I mean when I say that the marriage license is totalitarian I don't understand how your mind works and further discussion is probably useless. If you do have some idea what I might mean I suspect that the best thing you could do at this point to contribute to a meaningful discussion is to tell me what you think I mean and let me respond to that.

"There is *no way* for the state to register marriages without this opening the _possibility_ of their doing something wrong with that"

Of course that is true. Who could doubt it? Why do you mention it? Do you reckon that I hate the marriage license because I am afraid of the possibility of something wrong being done with it or do you reckon that I hate the marriage license in se?

You're the one who keeps bringing up the (now non-existent) prohibition of interracial marriage as an argument for the evilness of the state's issuing marriage licenses.

Mike t. "You still have to solve the issues of divorce, remarriage, custody, asset distribution and support obligations. The state cannot get out of those things unless it either deputizes another authority (such as something similar to the Israeli/Ottoman millet system) or simply throws up its hands and refuses to arbitrate them. So, what is your solution for those with or without a license?"

I'm afraid that unless you define more specifically what problems you want me to solve I cannot help you. I will try to help if you really want me to, but first I would suggest to you that I don't think I've represented myself as someone qualified to solve all the problems of the world nor have you shown that I have said anything or done anything that places upon my shoulders a special responsibility to solve them. All I did, if you remember, is argue that the state does not have the authority to grant a license to marry and that marriage is in fact a right. If you are saying all these issues will never be solved by the state unless the state has a totalitarian authority over the family my response is "show me. Prove it to me."

I will say up front that Like Lydia, I am "not going to endorse letting sharia courts make marital decisions. "

That idea seems quite frightening to me.

I will ask you to try to believe that I am not the monster I appear to you to be.

Steve, you are thoroughly mistaken. I do not believe you are a monster. I believe that you hold many good opinions, and I am prepared for the possibility that in person I would enjoy your company.

However, you owe Lydia an apology for your offensive comment @ 5:33 pm on Jan 23. I will not retract the statement that it was offensive. I will accept that you may not have deliberately meant it to be abrasive, but you did mean to use phrasing that objectively is condescending.

If you can't be self-critical enough to admit that your comment was inappropriate, then I am not interested in even attempting to discuss the rest with you.

Lydia,

"You're the one who keeps bringing up the (now non-existent) prohibition of interracial marriage as an argument for the evilness of the state's issuing marriage licenses."

Oh, I see. I guess I did not make myself clear. I intended that as an example to show that the marriage license really is, legally, a license to marry--a substantial concern--rather than simply a license to receive a label, something no one need be worried about since it has to do with nothing more important than labels. I was trying to show YOU that the marriage license is very objectionable, using an example that I thought would be concrete for you, that you could not mistake for "mere semantics." There really would be no reason for anyone to think that just because I brought up the interracial marriage thing I must not actually believe my repeated assertion that the marriage license is objectionable in se.

Tony,

"However, you owe Lydia an apology for your offensive comment @ 5:33 pm on Jan 23. I will not retract the statement that it was offensive."

That's good. If it's a statement you can retract, it is a statement you never should have made.

"If you can't be self-critical enough to admit that your comment was inappropriate, then I am not interested in even attempting to discuss the rest with you."

That seems like a good idea to me.

I'm afraid that unless you define more specifically what problems you want me to solve I cannot help you.

I enumerated them specifically by name in the section you quoted.

Mike, I noticed that too.

I think I'll just shake my head and leave it, as far as your position is concerned, Steve P. For whatever reason, you're not getting the argument that the rest of us are making and the questions we're asking.

Well, no, I'm not going to endorse letting sharia courts make marital decisions. There are many ways in which sharia notions of marriage diverge from what should be recognized. To name just one, women can be forced into marriages quite easily in a sharia court, because actual consent is not even close to being a priority. Child marriage is also endorsed by sharia.

If we were to adopt the millet system for this country, it would be like Israel where the religious courts still have certain ground rules such as no coercion (that the secular state can identify) or child marriages.

And since non-religious people can marry in reality, there should be a mechanism for their marriages to be acknowledged.

Marriage as a purely secular, civil institution strikes me as "having the form, but denying the power" so to speak.

Mike T.

Thank you! That's good and helpful that you've enumerated these issues, but in every case as far as I can tell I need more than a name for the issue to understand in what ways you think the issue has problems that I can solve. I could ramble on with my thoughts on each issue as they occur to me but I am sure that cannot be what you are looking for. For example: "the issue of divorce:" Can you tell me more specifically what about the issue of divorce is a problem that you think I might have a solution for? I can think of several problems regarding divorce (not the least of which is simply that divorce is wrong!) but if you can tell me how you want me to approach the issue in a more specific way I would know at least where to begin.

You did mention the Millet system of Islamic law after asking me the question (questions?) If you want me to tell you what I think of how Islamic law deals with divorce, custody, remarriage, etc. I wouldn't have much to say and I am sure you know a lot more about it than I do. My immediate gut-reaction is to be very skeptical of Islamic law, but if there are some particular aspects of Islamic law that you like, you can describe and explain them to me and I'll be glad to tell you what I think of them.

Mike T.

Your question was phrased: "There is no way the state can get out of those issues unless it..." does this or that, mentioning a couple of possible alternatives to the state not being "in" those issues, not legislate regarding them.

My answer to the question is simply that I don't think the state should get out of those issues.

I take it you do think the state should get out of those issues and propose something like the Millet system of Islamic Law as a way for the state to do that. OK, I see that you are thinking this through and that is a good thing but as far as I am concerned thinking of "alternatives" to the state legislating in regards to marriage is not something I see a pressing need for since I don't have a problem with the state legislating regarding marriage.

You did mention the Millet system of Islamic law after asking me the question (questions?) If you want me to tell you what I think of how Islamic law deals with divorce, custody, remarriage, etc. I wouldn't have much to say and I am sure you know a lot more about it than I do. My immediate gut-reaction is to be very skeptical of Islamic law, but if there are some particular aspects of Islamic law that you like, you can describe and explain them to me and I'll be glad to tell you what I think of them.

The Millet system is actually an Ottoman creation, not an Islamic one. It was created as a way for them to effectively govern a huge empire that was very religiously and ethnically diverse. The point of it was specifically to make it so that in key domestic matters, the Jews and Christians would be a law unto themselves in their regions of the empire. For example, it is my understanding that the Sharia courts did not have jurisdiction over a Christian couple's marriage because the Millet system made the Christian courts coequal to the Sharia courts.

that is a good thing but as far as I am concerned thinking of "alternatives" to the state legislating in regards to marriage is not something I see a pressing need for since I don't have a problem with the state legislating regarding marriage

Yet you see a pressing need to get rid of the marriage license, which is the least onerous aspect of the entire system. That's like getting rid of a handgun license law in a city that all but bans private gun ownership and claiming it is a victory for individual rights.

"Yet you see a pressing need to get rid of the marriage license, which is the least onerous aspect of the entire system."

Yes, that's right. By "the system" do you mean American marriage laws considered collectively? I assume you simply know a lot more than I do about how marriage law works in a general sense and are aware of onerous and terrible laws or legal principles that I am not aware of.

I certainly do see a pressing need to get rid of the marriage license, which is literally totalitarian in principle even though if Lydia is right it has not been onerous in practice in recent decades. That is a good summing up of my comment to Lydia's article.

I certainly have no objection in to states legislating in regards to marriage and think it is practically necessary for them to do so. Surely there is no doubt that statutes related to marriage are flawed in various ways and could be improved. My comment was specifically about the marriage license, which is the only tyrrannical basic fundamental legal principle in terms of marriage law that I am familiar with. Of course I am also very concerned about one of the things that the marriage license principle has contributed to bringing about--gay marriage.

My comment was specifically about the marriage license, which is the only tyrrannical basic fundamental legal principle in terms of marriage law that I am familiar with.

So, you admit that you know nothing of how marriage law actually works or is enforced in practice, but think that a license--which you don't even need to cohabitate, raise children, etc.--is the only tyrannical basic principle at work here? Steve, spend some time researching it on Google. Marriage cases in many states aren't even decided in real courts, but "family law courts" which are about as about as IRS tax courts. That's a starting point.

Me thinks you strain gnats and swallow camels on this one.

Mike T.

That's right. I am not a lawyer, as I have said.

"think that a license--which you don't even need to cohabitate, raise children, etc.--is the only tyrannical basic principle at work here?"

It's the only really egregious overt one that comes to mind. Sometimes I fail but I try to be careful about saying "all," "never," etc., since in order to know for sure that no swans are black you would have to look at every swan in the world, or know of a natural principle by which black swans are impossible.

It's the only really egregious overt one that comes to mind.

And yet, aside from symbolism, you mentioned nothing tyrannical about it. No state in the union requires you to have one to put a ring on your girlfriend's finger, exchange vows and start a family. The only thing that has to be done is make sure you claim paternity with every pregnancy of hers. Heck, if you go that route the security you lose from no more presumed paternity is mitigated by the fact that she has no claim except child support on you. Alimony? Bah. You're not married. Your joint assets are presumed to be those of whoever has legal title until she proves how much she contributed materially to any given piece of property. In short, for most men, there are no advantages to getting a licensed marriage that outweigh the sheer ability to keep your wife honest by having the option to just walk out on her with little legal recourse if she violates her vows. Without a marriage license--which the state is more than happy to let you not have--"divorce" consists of throwing down your ring and saying "here's lookin at you, kid" as you walk out the door.

You seem incredibly obsessed about the symbolism instead of the real substance of the abuse. The tyranny comes from what can happen to you after you (quite often pointlessly) get the marriage license.

Mark T.

First of all, thank you for the discussion of how unmarried cohabitation is in some ways easier and less risky than marriage. You make some very good points about that. I think it shows that the right thing is not necessarily the easy thing.

"And yet, aside from symbolism, you mentioned nothing tyrannical about it."

All laws are symbolic, so I cannot guess what you mean by "aside from symbolism."

However, Leaving the "symbol" thing aside, I think I can guess what's prompting that thought. I thought that simply describing what the marriage license is would show immediately that it is totalitarian. I learned yesterday, however, that the word "totalitarian" some different meanings. This is the sense of "totalitarian" that the marriage license most closely exhibits:

A totalitarian state, by my understanding (not an idiosyncratic understanding--one that many people have, including, seemingly, one of the Popes of Rome), is a state that attempts to subsume other institutions into itself, that cannot allow the existence of separate institutions. Thus, since the family is a separate institution and one that is in fact the most fundamental and primordial of institutions, a totalitarian marriage law is one that makes the institution of marriage a mere department of the state, that subsumes marriage under state authority. The marriage license is such a law since it puts marriage per se under the authority of the state and treats marriage as a privilege that the state can grant a license for people to commit.

"No state in the union requires you to have one to put a ring on your girlfriend's finger, exchange vows and start a family."

No. In fact they forbid it, and require you to get a license from the state to do it.

"You seem incredibly obsessed about the symbolism..."

I don't know what you mean by that. The way in which laws are symbolic is that they are written in human language; and that is unavoidable. You seem to be talking about some other kind of symbolism but I don't know what that is. Can you tell me what the particular symbol is that you are talking about, and what its referent is? I am not obsessed with it now, I don't even know what it is, but if it is very interesting perhaps I could become obsessed with it!

No. In fact they forbid it, and require you to get a license from the state to do it.

Cohabitation is legal in 46 states and almost never prosecuted in the remaining four (one of which is my home state). Under the Lawrence ruling, it's practically unthinkable that those laws would stand up anyway. As cohabitation is legal, knocking up your girlfriend (how the government sees her) is legal and agreeing to form a family together afterward are all individually legal, you are quite wrong. You would have learned that you are wrong on cohabitation just with a single google search for the legal status.

At this point, I think you are just refusing to go out and do any of your own homework and are trying to avoid admitting that marriage licenses are just a small piece of a much larger apparatus.

"...marriage licenses are just a small piece of a much larger apparatus."

Well put! I have no doubt that you are right about that. That is one of the reasons that I am so strongly opposed to the marriage license. If it were really true that the marriage license were something completely isolated, that had absolutely nothing to do with any other laws or other things the state does, I think I might find it plausible to think of them as pseudo-licenses that aren't really what they claim to be. But given the notorious cps abuses, the Indiana euthanasia laws, the arbitrary redefinition of marriage as sodomy, It is clearly a part of a wider issue, which I would describe as the totalitarian subsuming of the primordial institution of the family into the state.

No. In fact they forbid it, and require you to get a license from the state to do it.

Seriously? Steve P., you seriously think that if you put a ring on your girlfriend's finger and start a family and exchange private vows without having a marriage license, you are breaking a law in any state that gives a marriage license? I mean, that's just plain not true.

But given the notorious cps abuses, the Indiana euthanasia laws, the arbitrary redefinition of marriage as sodomy, It is clearly a part of a wider issue, which I would describe as the totalitarian subsuming of the primordial institution of the family into the state.

Totalitarianism is, as Mussolini said, simply this: everything in the state, nothing outside the state, nothing against the state. Modern marriage doesn't come even close to that. If it did, cohabitating couples would have SWAT units breaking them in spectacular make-an-example-out-of-them raids with crying children, flashbangs going off, dogs getting shot and mom and dad (or mom's current live-in boyfriend) getting hauled away by scary looking men carrying very "scary" (personally, I find hunting rifles and shotguns scarier than most automatic weapons but that's due to the caliber difference) looking rifles.

Lydia,

I'm surprised that you would ask me those questions, given some things you've said right here in this comment page.

Here are my answers, I hope you find them helpful:

There is nothing illegal about putting a ring on your girlfriend's finger. I am no expert but I understand that in most states it is not illegal to have premarital sex or children. It is not illegal to exchange vows without a marriage license, but in that case those vows do not create a legal marriage contract and are legally meaningless.

It is illegal to get married without a license, as far as I know, in every state except those that recognize "common law" marriages. And although the common law marriage recognition mitigates the problem it is problematic, as you have pointed out.

But you already know those things so I wonder why you asked me about them. Maybe the essence of your question was nothing but the word "seriously?" in which case my response is "yes, I am serious", although I am not excited or upset the way that the defenders of the marriage license seem to be upset by my challenging it.

I do want everyone here who have asked me various questions to know that I am a relatively honest, sincere, conscientious person who merely made a comment (not a personal comment) many days ago about Lydia's post that apparently stimulated a lot of hard feelings. I have nothing but feelings of good will for all of you and I am sure that you are wrong if you think you have reason to believe that I deserve your stern reprobation or that you cannot trust what I am saying in response to your questions is my genuine honest reaction or that that I am trying to rhetorically trick you in any way. I wish I could tell you how frustrating it is for me when people get angry at me when I am trying so hard to be amiable and agreeable. I am sometimes tempted to insincerely just say "you are 100% right, I don't know how I could have been so stupid!" and I have given in to the temptation on occasion. But when I do give in to that temptation I feel worse, I feel I haven't respected you the way I should. You deserve sincerity from me, not white lies in the interest of keeping the peace.

It is illegal to get married without a license, as far as I know, in every state except those that recognize "common law" marriages. And although the common law marriage recognition mitigates the problem it is problematic, as you have pointed out.

You're conflating two separate things. The state does not stop you from getting and living a sacramental marriage. It says that you may not have a civil marriage without a license. Any couple willing to forego the pittance of tax benefits, security and ability to force a hospital to let you see your loved one (so long as Beyonce is not in labor at the hospital) will get no quarrel from the states.

If you cannot see that marriage has dual naturals, religious and civil, in America, you can't understand why you're coming off as incoherent to us. So again, the state doesn't stop you from having a sacramental marriage or establishing a series of marital contracts which approximate marriage in terms of defined duties and certain rights. You don't need a license for that. A license merely makes that automatic, under one boilerplate civil regime. You are free, if you have an attorney, to draft your own version of civil marriage in most areas it covers.

A benefit of not doing the license is that if your wife cheats on you and you own the house, you can simply serve her with an eviction notice and kick her out. Worst she can do is get child support from you. Alimony doesn't exist for cohabitating women who are just girlfriends as far as the law is concerned. That more than makes up for any security presumed paternity in marriage provides.

Mike T.

"Totalitarianism is, as Mussolini said, simply this: everything in the state, nothing outside the state, nothing against the state. Modern marriage doesn't come even close to that. If it did, cohabitating couples would have SWAT units..."

I like your definition but there are two flaws in your reasoning

1. You assume the people who run the modern state and thus control modern legal marriage see it as in their best interest to persecute cohabitating couples. In fact it is certain that they do not see it that way. If they did, perhaps the scenario you describe would not be entirely realistic but some other kind of persecution would undoubtedly occur. Political power is not a joke or a symbol, it is a hard reality for all of us.

2. I think there may be the assumption in your argument (I would have to give it more thought and question you further to be sure this assumption necessarily in there) that applying the adjective "totalitarian" to the noun "marriage law" is tantamount to saying that a state that has a marriage law to which the word "totalitarian" can be applied is a full-blown totalitarian regime. If you are making that assumption you are being very unreasonable. That is not how English grammar works nor is it how normal people talk.

Again, I like your definition (Mussolini's), though mine is consistent with yours and is better at least in the sense that it further calls attention to the concept of an institution and how ordinarily and normally in human history the government is one independent institution among many, and that the family is primordial and the most fundamental unit of society. A government that violates that anthropological fact is already behaving in a totalitarian fashion in that particular sense even if it hasn't become a full-blown totalitarian regime in every sense.

I want to remind you that the state of Indiana attempted to commit literal genocide with its eugenics laws. I want to further remind you or tell you if you don't know that the young elite, the people who will control politics, mass culture, education, bureaucracy, and using the marriage license among other legal and regulatory mechanisms, marriage itself, mostly buy into the idea that the human race is a cancer upon the earth that ought to be severely controlled if not eliminated. I talk to these kids and I know it is true.

When faced with genocide itself it is irresponsible to be cavalier about this and say "well, no states seem in any obvious way to currently be using the marriage license as a means of social control."

Mike T.

"You're conflating two separate things. The state does not stop you from getting and living a sacramental marriage."

I don't know about "sacramental" and I don't blame you that you haven't read everything I've said here in response to the various questions and challenges the defenders of the marriage license have had.

One of the things I did early on is contrast marriage in law with a real marriage per se ("sacramental" or not). They really are two different things. You and I both understand that they really are two different things; you and I have both said they are two different things; and nothing I have said has been an assertion that they are the same thing and I assure you I am not "conflating" them. I have used the adjective "legal" when talking about marriage as defined by law except when the context made that unnecessary, so there must be some other reason I am coming off as incoherent to you. Perhaps it is my atrocious grammar and spelling :-)

The problem is if you are trying to use that distinction either to defend the idea that the state has the power to treat marriage as a privilege it can license people to commit ("if it didn't do that it otherwise it couldn't legislate in regards to marriage") or to cavalierly say that since legal marriage is a farce we can simply not participate--"no problem."

The problem with approach one is that it is based on an untrue assumption. That assumption is that the only way a secular pluralistic state can define legal marriage is the totalitarian way (the license). Right now states really define marriage in multiple inconsistent ways. Some laws are very good in regards to the way they implicitly define marriage. That inconsistency is a fortunate inconsistency, but a better option is to eliminate and/or reform those marriage laws (the license laws and gay laws primarily but I suppose there must be others) that treat marriage as a state-granted privilege that it can license and arbitrarily define.

The problem with approach two is that it does not take seriously the real concrete difficulties a married couple with have if they don't participate in the system and get the license. Those problems have already been well-described by Lydia and I'll let you look at what they've said rather than be repetitive. I fear that we may come to a place where Christians in general will be morally forced into non-participation with "gay marriage," but all of who take our responsibility as parents seriously should understand that the safety of our own families is of critical importance. We should prefer that protest and nonparticipation and the persecution it would entail be avoided and the marriage license (among other abuses in modern society) to be fixed.

In short, there is another option. The marriage license is not doing you or your family any good; it is only hurting you and could be used to hurt you in far worse ways than it is now. Supporting it is a very bad idea. Being attached to it the way some of you seem to be is absurd and masochistic. It is analogous to how some abused wives apologize for and protect their husbands. Please be strong and assert and defend your rights.

Mike T.

"A benefit of not doing the license is that if your wife cheats on you and you own the house, you can simply serve her with an eviction notice and kick her out...Alimony doesn't exist for cohabitating women who are just girlfriends as far as the law is concerned..."

It's only a benefit to those who feel that way about their women--and those irresponsible and childish men could refuse to participate in the system in order to be able to treat their legal girlfriends that way even if state recognition was done explicitly with a registration process rather than as a side-effect of the marriage license.

Steve,

The sine qua non of totalitarianism is that there is no alternative to the state and any opposition to the state is treated as a crime. Since cohabitation is legal, having children without a marriage license is legal and presenting yourself as married in ways that do no confuse you for having a marriage license is legal--and you can share property ownership with anyone--marriage outside the state is legal. There is no historically accurate definition of totalitarianism that is compatible with that reality. In fact, ironically, the modern regime is not as far reaching as it used to be. The difference is that it is often bat crap crazy in how it treats men.

It's only a benefit to those who feel that way about their women--and those irresponsible and childish men could refuse to participate in the system in order to be able to treat their legal girlfriends that way even if state recognition was done explicitly with a registration process rather than as a side-effect of the marriage license.

It's a benefit to all men who aren't blessed with a wife who takes a serious, religious view of marriage.

Whoohoo!

I suspect al is celebrating because the 9th circuit ruled that California's ban on gay marriage is unconstitutional. It remains to be seen whether the Supremes will take up the case. In any case, it appears that this issue is coming to a head.

"it appears that this issue is coming to a head."

Bad choice of words, considering the subject.

"the 9th circuit ruled that California's ban on gay marriage is unconstitutional."

Anyone care to start a pool on which will be taken up as the next step on the march towards total sexual liberation -- polygamy or incest?

Liberalism has succeeded here by using incrementalism to slowly heat up the pot while no one notices. If we simply throw out all of the laws governing this behavior, we'll raise the temperature so fast that either we'll shock people back into their senses or come as close to immanentizing the eschaton as humans are capable of doing.

Ah, another important issue which will be decided by what quality of bacon Tony Kennedy munched the morning of the opinion. Blessed democracy, we bow to thee.