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A Bizarre Argument on Marriage Equality

Jay Richards is branching out from his advocacy of intelligent design and jumping into the same-sex marriage controversy with a really dumb argument about why marriage equality is supposedly incompatible with limited government and individual rights. Right Wing Watch reports:

Richards: We argue that there are other pre-political realities besides just the individual that a limited government has to recognize and marriage is one of those realities, it’s a universal human institution, we find it in every time and place, in every culture, every religious tradition has this basic concept of marriage as between one man and one woman with a special connection to children. So a limited government is going to recognize that institution rather than try to redefine it, so that’s why we think, in fact, if you believe in limited government you need to believe in laws that protect marriage as it actually is historically. The institution of marriage is one of those things that is outside the jurisdiction of the state, so quite apart from the consequences, we think, if you believe that government should recognize individual rights, then you need to believe that the government is also going to recognize the rights and realities of this institution which it can’t dictate.

If marriage is outside the jurisdiction of the state, then let’s get rid of the need for a government license to do it. Let’s get rid of the hundreds of ways the government privileges marriages, from legal protections to tax advantages. After all, it’s outside the state’s jurisdiction, right? Oh wait, it’s only outside the state’s jurisdiction when it comes to same-sex marriage. How convenient.

Comments

  1. Reginald Selkirk says

    it’s a universal human institution, we find it in every time and place, in every culture, every religious tradition has this basic concept of marriage as between one man and one woman with a special connection to children.

    Except for those cultures that recognize other forms of marriage. Most Islamic cultures, for instance. 19th century Mormonism. Old Testament Judaism. Etc. etc. etc.

  2. Chiroptera says

    …we find it in every time and place, in every culture, every religious tradition has this basic concept of marriage as between one man and one woman with a special connection to children.

    To add to Reginald Selkirk’s point, what other culture besides European Christianity has had this concept?

  3. d cwilson says

    Richards is liable to seriously pull a muscle trying to stretch the meaning of “limited government” that far.

  4. says

    “Jay Richards is branching out from his advocacy of intelligent design and jumping into the same-sex marriage controversy…”

    Well, of course he is. I mean what the heck, ReiKKKwing moronity and entrepeneurship go hand in hand. It’s what’s known as marketing a “Family Values added product”.

  5. jasmyn says

    “…with special connection to children.”

    That part really irks me. While many, and indeed most, married couples opt in favor of having children, marriage is an independent institution of child-rearing. They just frequently overlap. If marriage were only about procreation, old couples marriages would be null & void and infertile people wouldn’t be allowed to get married.
    Marriage is just a government institution with lots of benefits. That’s it.

  6. says

    So a limited government is going to recognize that institution rather than try to redefine it, so that’s why we think, in fact, if you believe in limited government you need to believe in laws that protect marriage as it actually is historically.

    So to encourage “small” government, the government should pass new, unnecessary laws restricting certain people’s rights, thereby protecting individual rights. Gotcha.

    Limited government equals more laws. Individual rights equal denying certain people rights. War is peace. Up is down. Black is white. Dogs and cats living together. Mass hysteria.

  7. matty1 says

    To pile on it isn’t only past cultures that failed to recognise the ‘one woman’ requirement. The president of South Africa Jacob Zuma recently announced plans to marry again, bringing his number of current wives up to four.

  8. plutosdad says

    That is great! Let’s stop the state from passing laws restricting who you can marry, who you can leave your estate to, etc.

    I fully agree.

  9. Gregory in Seattle says

    Are there any arguments against marriage equality that are not really dumb.

    If they were really serious about “recognizing” the institution of marriage, then Richards and his ilk would have no problem with polygamy, polyandry, incest and same-sex shacking up. Right? I mean, if the government cannot define what is and is not marriage….

  10. cptdoom says

    …it’s a universal human institution, we find it in every time and place, in every culture, every religious tradition has this basic concept of marriage as between one man and one woman with a special connection to children.

    And every culture, AFAIK, has also recognized the larger family – grandparents, cousins, aunts, uncles, etc. – and it has fallen to the larger family, typically, to step in when the basic marital relationship has failed or ended, whether due to incompatibility or death, or when the people in that marriage have lacked the ability to function effectively as parents. Same-sex couples, as well as individual gays and lesbians, are very effective at this family role and are often willing to serve the same function even when they are not biologically related to the children. Seems like a good thing for society to me, but then again I have the power of reason and logic.

    Marriage is just a government institution with lots of benefits. That’s it.

    Actually, it’s simply a way of recognizing when new, legal family relationships are created. There are only three ways to be “family” under the law – by birth, adoption and marriage. By denying marriage rights to same-sex couples, the ultimate impact is to refuse to recognize specific families that people like Richards find icky, and all his tortured arguments can’t hide that.

  11. says

    If marriage is outside the jurisdiction of the state, then let’s get rid of the need for a government license to do it. Let’s get rid of the hundreds of ways the government privileges marriages, from legal protections to tax advantages.

    I favor this. Simply because the current rules are going to be unfair as long as marriage is privileged. So gays can marry (yay!) but what about polys? Or any other combination you can think of? All of the “benefits” of marriage can be pushed into contractual law and/or customer agreements. Why can’t I give my medical insurer a list of who’s allowed to turn my heart machine off or visit me? this is just a simple technical problem that would be much easier and cheaper to solve than all this wrangling about “marriage” has turned out to be. If we made marriage legally meaningless, then the religious could regulate
    their version(s) to their hearts’ content.

  12. says

    So, yeah, I’m one of those horrible liberals who wants to “destroy marriage” by making it completely irrelevant and valueless. Let’s take off and nuke it from orbit.

  13. MikeMa says

    Any marriage outside the jurisdiction of the state should accrue no benefit from the state. Cool. I’m down with that.

  14. Michael Heath says

    What’s obvious here is the conservative Christian dilemma of arguing is U.S. is a nation of free people while falsely claiming themselves as the defender of that liberty and the Constitution which buttresses it. So mental gyrations which defy the laws of logic are needed as a reaction to the cognitive dissonance of holding both views, while also dishonestly projecting their bigotry and attraction to fascist policies onto liberals.

    Gregory in Seattle:

    Are there any arguments against marriage equality that are not really dumb.

    Given the intellectual cowardice of creationists and anti-gay bigots, I’ve always looked forward to trials involving their cause. That would be to see if any cogent argument existed, which would be presented by their attorneys. The set of arguments I’d encountered previous to such trials were idiotic, they couldn’t pass remedial logic.

    So the primary revelation for me when reading the Prop. 8 trial results were that no such cogent arguments were presented, instead we got the same obviously defective arguments. Defective not in the sense I disagree with their conclusions though I did, but instead that the quality of the argument was fatally defective.

    Therefore, I’d love to see a trial making a case that the Bible is inerrant word of God for the same reason I looked forward to the Dover and Prop. 8 trials. I wouldn’t want their worst effort, but instead the best possible effort they could make. I’m increasingly coming to conclude no solid argument exists, or that one exists which isn’t laughably absurd.

  15. matty1 says

    Marcus Ranum,

    I’m sympathetic but wonder about some of the implications. For instance immigration, suppose a man wants to live in the same country as his husband* despite being a foreign citizen with marriage their relationship is a reason to allow it without he has to take the same route as any other immigrant and can be denied residency and separated from his family.

    *Yes I deliberately chose a same sex example it makes the point that these are not gender specific benefits.

  16. says

    @#11 Marcus Ranum

    Exactly what I’ve been saying years. Any legal relationships between adults should be based on contract law.

  17. says

    So because the “institution of marriage is one of those things that is outside the jurisdiction of the state” you need to “to believe in laws that protect marriage as it actually is historically”.

    Yup, makes perfect sense to me.

  18. timberwoof says

    Contracts between corporations are not the same as marriage contracts. It is possible to create a generic marriage contract, but there’s no such thing as a generic business contract aside from sales transactions.

    You need at least two lawyers to draw up a business contract because you want to make sure that the purpose of the contract is clearly defined and all contingencies are covered. General Motors contracting with a parts supplier did not sign the same contract as Ridley Scott contracting with Hans Zimmer (and they’re not married).

    Marriages are routine. The benefits and responsibilities to the partners and their offspring; their roles in legal contracts; whether they can be required to testify against one another in criminal court; and how and under what circumstances to dissolve the contract have all pretty much been worked out. So there’s a very good reason to have laws and regulations governing marriage.

    The alternative is that everyone who wants to get married has to hire at least two lawyers to work out the contract. If one of them is a dunce, then one of the partners gets screwed.

    There needs to be governmental recognition of marriage and it should be up to the informed, consenting adults involved. (Whether churches want to perform such a religious ritual is entirely up to them and, as far as I’m concerned, irrelevant.)

  19. says

    I’m more or less fine with either route. Either:

    A) Make marriage a state issue, and give everyone equal access to the benefits, or
    B) Make it a religious issue, remove all government acknowledgement of marriage from the law, and stop complaining if someone else’s religion uses a non-chattel based definition.

    The fundies want to have their cake and eat it, too. They want the state benefits and they want their specific religion to be superior to the state, controlling who get those state benefits.

  20. eric says

    Marcus @11:

    All of the “benefits” of marriage can be pushed into contractual law and/or customer agreements. Why can’t I give my medical insurer a list of who’s allowed to turn my heart machine off or visit me?

    I think your first sentence is a bad idea, but only because I agree with your second. :)

    Right now, marriage essentially gives its participants a bunch of automatic legal/contract things practically for free. To have a lawyer draw up the correct forms for the contract agreements that marriage includes would be much more expensive. A good, solid Will can costs $hundreds on its own – and that’s probably the simplest of the many documents one would have to reproduce.

    I think, frankly, we should be making it easier and cheaper for people to designate heirs and medical decision-makers (and so on), not harder. I’d rather see a system where anyone can go down to the courthouse, pay their $20, and get “the whole package” for a designated partner, rather than a system where no one does that.

    Heck, it doesn’t even have to be a sexual partner. Best friends, siblings, etc…, there’s no reason most of the legal benefits of marriage couldn’t apply to them. Even though many of the benefits ‘default’ back to family, I think many single people would find it extremely useful to have a cheap and effective way of designating which individual family member gets priority in a disagreement (over them or their resources). The current legal marriage system could be revised to let you make sure Uncle Bob makes your medical decisions and distributes your stuff rather than your crazy mother (or whatever).

  21. MartinM says

    So a limited government is going to recognize that institution rather than try to redefine it, so that’s why we think, in fact, if you believe in limited government you need to believe in laws that protect marriage as it actually is historically.

    ‘Marriage as it actually is historically’ meaning, of course, a contract transferring possession of a woman from father to husband.

  22. says

    @#20 Eric

    I don’t see why that “package” you propose needs to be supplied by the government. There are will kits available from private businesses and non-profits right now that are relatively cheap. Why not follow a similar model for contracts between two adults? Keep it simple. If someone has complex requests…then they can pay for a lawyer. There need not be government involvement at all.

  23. bcreason says

    “the government is also going to recognize the rights and realities of this institution which it can’t dictate.”

    Institutions don’t have rights, people do.

  24. says

    It’s amusing to watch the religious right tie themselves into knots trying to rationalize the “limited government” rhetoric they borrowed from libertarians in terms of their repressive sexual mores. Now, apparently, “limited government” means telling people they can’t marry.

    It’s almost as if “limited government” means “get rid of rules that impede the interests of rich people, but keep the masses under your thumb and punish the deviant”.

  25. matty1 says

    “Limited government” in this context means limited in its ability to make peoples lives better.

  26. baal says

    The rights and privileges of marriage include the default behaviour of 3rd parties. As such, bilateral contract for marriage rights would totally and utterly fail.

    I’m all in favor of gay marriage on its own terms. I would be in favor of gay marriage even if I didn’t care about the issue since it looks like the anti-gay-marriage people are taking that position solely to export their social views on issues that don’t negatively impact others.

  27. dingojack says

    MarkNS – “I don’t see why that “package” you propose needs to be supplied by the government. There are will kits available from private businesses and non-profits right now that are relatively cheap. Why not follow a similar model for contracts between two adults?”

    And when the ‘package’ fails, what then? You can’t take it to the police or the courts (‘justice’ is a function of government) and, in this scenario, government has nothing to do with marriage remember, so you’ll have to do a private mediation and hope that the parties abide by the (non-binding) decision. (‘Might makes right’ comes to mind).

    In that sort of scenario what’s the betting that these religious champions of ‘smaller government’ will be the ones shouting: -
    ‘OMG! CREEPING SHARIA!!!’

    Dingo

  28. matty1 says

    Dingo,

    In fairness private business contracts get enforced in courts all the time so Marcus may not be advocating the state withdraw quite as far as you think.

    The enforcement issue is a big problem though, with marriage we *know* that the spouse is next of kin for all purposes. What happens if you have a private contract for same sex marriage and a bigoted relative declares that you didn’t mean it to include the specific medical decisions needed in your case (no contract can cover every eventuality in detail)?

    The answer is either what you suggest, go for private mediation and hope it sticks or if it’s still allowed you go to court. Either way to the original two party contract you have added, the hospital, the relative challenging the contract and a judge or arbitrator.

    This is why Jason Kuzinicki has argued that privatising marriage ironically invites more rather than less outside and probably government involvement in peoples private lives.

  29. John Hinkle says

    …if you believe that government should recognize individual rights, then you need to believe that the government is also going to recognize the rights and realities of this institution which it can’t dictate.

    Marriage, a logical construct, does not have rights. Individuals have rights.

    But let’s say the government can’t change the “rights and realities” of marriage. When a democratically elected Congress legislates marriage equality, is that the government doing it, or the people? Or otherwise known as the “will of the majority.”

    Dear Wingnut Christians: consistency, you’re doing it wrong.

  30. dingojack says

    Matty1 – So suppose I go to J C Penny (as an example) and buy a marriage licence and my partner and I sign it, if J C Penny goes bankrupt the following year is it still valid?
    If I stick the licence in a draw and my house burns down destroying it, am I still married on not?
    If I register it with the government what’s the difference from signing a marriage certificate after whatever ceremony (or not) we want? (It’s this that is the marriage, the rest is mere ceremony).
    How does this make it any easier or more practical?
    Dingo

  31. eric says

    Marcus:

    I don’t see why that “package” you propose needs to be supplied by the government.

    In principle, it doesn’t have to be. In practice, I doubt the free market would ever produce a legal packet of child guardianship, estate, living will/health decision etc… documents for 1 signature (each) and $20-$30. I think this is one case where government involvement is having the economically equivalent effect of keeping prices down or even subsidizing the real cost. Again, just look at wills. To match the cost of a marriage certificate, the private sector would have to offer a will plus 3 or 4 additional, equally or more complicated documents for a combined price of $20-30. That cost would have to include the (flat) fee for keeping a copy of the record, forever, since the government also does that at the moment. Do you honestly think the private sector would do that? I, for one, can’t see them passing up the opportunity to charge an annual fee for record-keeping, given that they already do that for electronic files.

  32. matty1 says

    I think I should clarify what I am arguing in favour of.

    1. There should be a ‘package’ of legal rights that applies between those who make a commitment similar to what we call marriage. This package should be pretty much what eric at 31 describes.

    2. The government should enforce rights under this legal package even against third parties in cases like medical decisions.

    3. So that 2 is possible, the government should have some record of when a legal marriage of this type is contracted and when one ends.

    Beyond that I am all in favour of allowing people any ceremony or lack of ceremony they want and involving or not JC Penny, the Pope or whoever. About the only near ceremonial aspect I could be persuaded to keep as a legal requirement is having the agreement witnessed by someone else but even that I’m not sure on.

  33. says

    matty1: I would think having the contract notarized or witnessed by a third party would be a must, otherwise you open it up to possible claims of coercion or forgery.

    I get where you are coming from but I think you are making it more complicated than it needs to be. Marriage is a way to form a new family, as has already been stated, and the legal benefits are pretty important and it’s good to have them streamlined in some way. Open marriage up to all adults, in any combination, who wish to form a new legal family that supersedes childhood family unless it is dissolved and I think that solves a lot of the problems. Have in the paperwork for the marriage license who should be designated for things like medical decisions if the marriage involves multiple people or when a new adult member is added to the family. I don’t think it’s necessary to scrap the entire legal framework we currently have,

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