Who, if not the government, do you expect to do the enforcing?
Okay, thanks for clearing that up.
How does one go about compelling a third party to treat all parties to the contract as legitimately covered by it? F’rinstance, a hospital to grant family visitation rights; or an insurance company to offer family coverage to all declared members of the family. Just the seal of a notary?
Some of the lawyers on here will give better answers, but generally a contract is not binding on parties who didn’t sign it.
Suppose you have a contract with an insurance company to offer family coverage, and you have a contract with Fred to declare him a member of your family. The insurance company isn’t party to your contract with Fred, so they can ignore it. What counts is your contract with them: what definition of “family member” does that insurance document contain? If your insurance company doesn’t think the contract they signed covers Fred, your method of compelling them is to take them to court and obtain a judgment.
What’s all this guff about “court”?! That’s government stuff!
More seriously, doesn’t some formal version already exist? Party A and Party B agree that disputes within their marriage (including its possible dissolution) will be arbitrated by a non governmental authority, typically a holy man of the couple’s religion? My vague understanding is that this is done by some forms of Islam and Judaism.
Yes, that’s my broad understanding of the situation, and that’s one reason why I’m just as happy to keep state-sanctioned family law as a viable and useful function of government.
I disagree with your premise that the government has no compelling interest in having marriage laws. Issues including inheritance or the division of community property when a relationship is dissolved are compelling enough reasons.
Why do these two sentences belong together? People are already free to enter into private contracts if they don’t want to get married. Just hire a lawyer and hammer out a contract of some sort.
Identifying a set of defaults so that the courts aren’t constantly bombarded with contract cases that could be cleared up with a few laws that set out definitions and which are, for the most part, purely voluntary.
These defaults exist so that the particular wheel isn’t reinvented every 10 seconds.
Those are legitimate compelling interests, of course. But is government marriage narrowly tailored? And is it the least restrictive means?
For everyone else, I’m not arguing against marriage, for Christ’s sake. Marriage is an institution with a long history and tradition, and it predates governments.
But is tradition enough for a government to get involved when there are better means of addressing concerns?
You still haven’t come up with this “better way.”
How is legal marriage restrictive by ANY means? Once no-fault divorce became available, it’s not even restrictive on the people IN the marriage.
I haven’t seen a better means of addressing the concerns that our marriage laws don’t already cover.
Hmm. A question meriting some consideration, I suppose.
Could I trouble you to define “better” for the purposes of this question, and to list some of the salient features that would make an alternative system “better”?
Also, could you (as others have also asked) provide details of the “better means” you mention?
There’s a whole field of legal theory where people debate analyzing legal institutions, like marriage, as default contracts. And in one way, you can think of marriage as a default contract: between you, your spouse, the state and everyone else. So, you know, people have spent hundreds of years debating how to deal with issues like marriage and how they relate to contract law. But, of course, someone who doesn’t really know anything about how marriage works or how contracts work is obviously who we should listen to on these issues.
I think what annoys me about this argument the most is this:
So, this couple, who had prepared living wills and power-of-attorney documents had them ignored by a third-party (the hospital). That’s heartbreaking. And instead of coming up with actual real-world solutions that would help a similar couple, the “get government out of marriage” proponents insist on theoretical solutions that rely on a fault understanding of how legal institutions and contracts work. And when you point out that their understanding is faulty, they hand-wave it away as if they know some secret formula that nobody has ever thought of that would fix this.
It’s narcissistic and it’s callous. Even if it’s not homophobic, it’s a disgusting and immoral way to approach life.
“Better” means offering more flexibility. Current marriage laws are rigid. Some places require blood tests. Some won’t let gay men or lesbians get married. Some won’t some degrees of cousins get married. Divorce laws are all over the place. Sometimes pre-nuptial contracts are valid, sometimes they’re not. None of them allow plural (e.g., old-timey LDS) marriages.
Can we agree that (1) there can be more room for flexibility between consenting adults? People being in agreement is critical here (no children, animals, etc.) After all, everything mentioned above is completely flexible if you simply ignore the government and don’t get married, common law statutes aside.
Point 1 alone is the beginnings of a pretty good reason to get the government out of marriage. After all, if we can be flexible without getting married, why does government marriage have to exist?
Well, there are compelling interests that a society has to maintain. The thing is, we seem to think that these compelling interests have to be tied to the marriage institution. Things like inheritance, alimony if divorce, property division if divorce, hospital visitation rights, etc.
Can we agree (2) that there’s no reason any of those compelling interests must be tied to marriage? I don’t mean “convenient to do so,” I mean must. After all, a lot of those things can be and currently are being addressed via other means. Will/testaments, prenuptials, progressive hospital rules, etc.
“Marriage” in the United States has taken to mean “government recognized” marriage. This leaves a lot of people out of the deal. People are hesitant to tell people that they’re married if there’s no government recognition, even if they are recognized by a social or religious institution. These social institutions should be enough if you want to call yourself married. Or leave the social out of it – if you and other consenting adult(s) agree to be married, why not simply be married?
Can we agree (3) that the vast majority of the population tend not to recognize “married” unless a government recognizes it?
So better, in my mind, is simply removing the government from the equation. If you want to be married, be married.
No, I don’t believe we can agree to that.
Read the post immediately above yours. How could the couples at issue have addressed the problem differently? It would be great if every hospital had and enforced these nifty “progressive hospital rules,” but if they don’t, then what?
More, are we going to expect everyone to read everyone else’s “marriage contract” to see what the parties have agreed to? Are we going to make everyone go to an attorney? Or are we going to see default rules and templates established that the majority of people use? Because if it’s the latter, the special, flexible tweaks a particular couple would make would still get lost and they would be in a de facto default marriage.
To repeat something that’s been said (and ignored) repeatedly. Most of the time? Third parties are not obligated to give a damn about your contracts. What obligates third parties in the US to give a damn is that we have laws tied in to the marriage institution. That recognition has a price: you have to conform to what society as a whole has decided is the appropriate way to be married. Just as if you want recognition of your driver’s license, you have to conform to what society has a whole has decided is the appropriate way to license someone to drive.
This is just getting tiresome. You don’t even understand the terms you are using and the concepts you are dealing with, and even though you’ve repeatedly been shown that you have a faulty understanding, you keep coming back with the same stuff over and over. Yawn.
Examples? Please explain. What specific term or terms do I not seem to use correctly? What concepts do you feel that I am too stupid to understand?
I have no idea if you are stupid or not. But you keep ignoring the arguments against your position and repeating yourself. But I’ll try this one more time. Let’s go through that post, line by line. I’m going to start with the first sentence, and then when I have time, go through more.
This to me indicates that you do not understand that the government regulates all private contracts. It regulates them through laws passed by the legislature, by court rulings and by administrative regulations. The government can be limited by constitutional limitations, but in general, the amount of flexibility you have in a contract is determined by the government.
Which means, that private contracts aren’t necessarily more flexible than legal institutions (like marriage). Some legal institutions (like LLCs) are very flexible. And some private contracts (like in most states, insurance contracts) are very inflexible. The flexibility or inflexibility of either contracts or a legal institution (like marriage) is determined by the government. There’s nothing magical about contracts that make them flexible. If the legislature wanted to regulate marriage-like private contracts and make them inflexible, they could (unless there’s a constitutional limitation). And similarly, if the government wanted to regulate a legal institution (like marriage) and make it inflexible, it could (unless there’s a constitutional limitation).
Based on your posts in this thread, I believe that you think that private contracts are somehow subject to less regulation. But that’s simply not the case.
So, do you see? It took me paragraphs just to refute the faulty understanding of just one sentence of your post. I’ll keep trying to come back to the others. But, if you keep ignoring the rebuttals, there’s really not much incentive for me to do so.