by Doctor Science
Yesterday President Obama ordered the Justice Department to stop defending the Defense of Marriage Act. In honor of the occasion, I decided to read the copy of What Is Marriage? by Robert George (and two male grad students) I'd downloaded when I saw various people talking about it as a serious, intellectual defense of the DOMA position. Robert George is a Princeton politics full professor who is supposed to bring the big guns in conservative thought, a guy who can argue for natural law like a latter-day Aquinas. Or so they tell me.
Now I've read it, and if this is the best they've got, no wonder the Traditional Marriage people are in trouble. No wonder the defense in the trial against California's Proposition 8 was unable to field a single witness the Judge found "expert". This paper is, technically speaking, bunk.
Here's what I mean by "bunk". George et al. define defined "the conjugal view" as
Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit.They then argue that marriage must necessarily conform to this "conjugal view":
Real Marriage Is—And Is Only—The Union of Husband and WifeThe "many people" who they cite as acknowledging this definition are contemporary political figures or gay rights activists. There are no historians or anthropologists, nor does George appear to have reflected, even for a moment, upon the works of, say, Jane Austen. Or the Bible.As many people acknowledge, marriage involves: first, a comprehensive union of spouses; second, a special link to children; and third, norms of permanence, monogamy, and exclusivity. All three elements point to the conjugal understanding of marriage.
The Biblical story of the patriarch Jacob is a particularly clear test case for a truly old-time definition of marriage. As you may recall, the Bible is quite clear that Jacob had legitimate children by four women (Leah, Rachel, Bilhah, and Zilpah), was married to two of them (Leah and Rachel), but loved only one, Rachel. So what made only the relationships with Leah and Rachel "marriages"? It wasn't children, and it wasn't love. Indeed, his marriage to Leah was a deceptive trick that didn't even pass the basic test of consent -- he thought he was marrying Rachel, but Leah was switched in, instead.
The defining factor, what makes some of Jacob's relationships "marriage" and others not, is, anthropologically speaking, "affine relationships" -- in-laws. Leah and Rachel were Jacob's wives because he paid a bride-price to Laban (his uncle and also employer) for them. Indeed, the fact that Laban could switch Leah for Rachel and have the marriage still count proves that Jacob's relationship to Laban was the crux -- it was more important than Laban be Jacob's father-in-law than that Jacob marry a particular woman, at least legally.
Now, let's go back to George et al's definition, which has three parts.
1. A comprehensive union of spouses, which they explain means "a sharing of lives and resources, and a union of minds and wills". This is very pretty, but it doesn't match up to the knowledge available to anyone who's read the basic canon of Western literature (which can be a fairly good anthropological study of upper-class European marriage patterns for the past thousand years). In that culture, as in many others, a wife *never* had total or comprehensive rights to her husband's property while he was alive, and rarely had the automatic right to control it when he was dead. The idea that marriage was "a union of minds and wills" could only make a present-day Jane Austen say LOLWHUT. Psychic soul-bonds are *fiction*, dude, while the very best fiction is often about the inevitable disunion of minds and wills in marriage.
2. A special link to children for George et al. involves "bearing and rearing children together." Imagine this being said by a man from Shakespeare's day and you will see how absurd it is: he would point out that child-bearing is perforce the task of woman alone (a fact that seems to have escape Professor George), and child-rearing is hers by both custom and nature. The legitimacy of a marriage and a child thereof is completely undisturbed if events such as shipwreck or war separate a man from his wife from the time the child is conceived until its adulthood. For the nobility -- and even more for royalty -- child-rearing was not a task for either parent, and the idea that their marriage was organized around doing it *together* would have seemed patently ridiculous.
Obviously, most people were not royalty nor nobility. But royal and noble marriages are *extremely* well -documented, and I'm going to assume that any educated person -- even Professor George's wet-behind-the-ears colleagues -- will be familiar with the basics of how they worked. At the upper levels, marriage was *all* about kinship, property, and their intersection, inheritance. Yes, there was "a special link to children": marriage determined children's *status*, their place in the kinship networks that are central to every human society. And all this was bound up inextricably in property.
For instance, in Boswell's Life of Johnson:
I talked of legitimation by subsequent marriage, which obtained in the Roman law, and still obtains in the law of Scotland. JOHNSON. 'I think it a bad thing; because the chastity of women being of the utmost importance, as all property depends upon it, they who forfeit it should not have any possibility of being restored to good character; nor should the children, by an illicit connection, attain the full right of lawful children, by the posteriour consent of the offending parties.In other words, to Johnson marriage was important not because it was good for children, but because children conceived in marriage were good for property, which was good for society.
At another point, Boswell is feeling doubtful about the double standard -- that is, that married women had to be faithful, while married men did not. Johnson
talked of the heinousness of the crime of adultery, by which the peace of families was destroyed. He said, 'Confusion of progeny constitutes the essence of the crime; and therefore a woman who breaks her marriage vows is much more criminal than a man who does it. A man, to be sure, is criminal in the sight of God: but he does not do his wife a very material injury, if he does not insult her; if, for instance, from mere wantonness of appetite, he steals privately to her chambermaid. Sir, a wife ought not greatly to resent this. I would not receive home a daughter who had run away from her husband on that account.
Which brings us to
3. permanence, monogamy, and exclusivity. I hate to break it to Prof. George, but permanence and exclusivity are not part of the social or even legal definition for marriage in the US today. Monogamy (= only one per customer) is, but there are plenty of marriage systems in which that is not the case -- the one in which Jacob, Leah and Rachel lived, for example. To claim that marriages in our system are "more real" than ones in polygamous societies shows IMO a really poor understanding of the term "real".
Contemporary American marriages usually aspire to exclusivity, but that is a recent cultural development compared to the thousands of years over which the institution as we know it has been developing. I'm not referring to exclusivity on the part of the wife, of course, but that of the husband. I don't think male infidelity was considered a devastating blow to a marriage or grounds for divorce in any Western society before the 20th century -- as long as the husband didn't support his other women (and their children) at the same level as his wife or acknowledge them in public, he could dally with whomever he wanted, as Doctor Johnson says above.
I could analyze the rest of this paper in comparable detail, but I don't see the point. Their definition of marriage "points to the conjugal understanding" because it is based on it: it's a nicely circular argument without reference to history, anthropology, or reality. When you choose your premises so badly, your logic train has no where to go but down. Rob Tish at Waking Up Now is heroically going through the whole thing and I can only salute his sacrifice, which I admire but do not seek to emulate.
And yet, Robert George is the best they've got, the guy the New York Times calls this country’s most influential conservative Christian thinker. No wonder, as Fred Clark puts it, that their arguments in the courts sound like [cricket. … cricket. … tumbleweed.].
What's really astounding is that, when I was a youngling, *conservatives* were the ones you could count on to know history and the canon of Western lit; liberals were the ones who said "hey, dude, don't be square." Now it seems as though it's conservatives, the supposed followers of tradition and the wisdom of the past, who know nothing about history. What are they teaching them in these schools?
Some recommended reading for Robert George and his associates:
Thomas Mann's Joseph and His Brothers is a wonderful midrash or fanfic about Jacob, his marriages, and the way his family developed.
I knew to look for quotes in Boswell because of The Family, Sex, and Marriage in England, 1500-1800 by Lawrence Stone.
Project Gutenberg has the complete works of Jane Austen.
In place of 'true', I would insert either 'right' or 'fair'.
We're both right. The former part is not true; the latter part is not fair.
[Polyamory is] a really bad paradigm which, outside a grossly patriarchal and anachronistic model, you won't find anywhere in a successful society throughout history.
Wait, how are we determining "successful societies" here? Because this seems to be a major case of question-begging.
Posted by: Phil | February 28, 2011 at 11:19 AM
Is there quibbling in the water today? ;)
Seems so. It's what I do for a living. You'd think I'd be better at it.
isn't it just as easy to get a deed with joint tenancy and right of survivorship as it is to get married? It should be!
Sure, if you know that's what you are supposed to do when you buy the house, but the problem with life is that people do so many things so many different ways that you can't write a statutory scheme that covers everything. If A moves in with B and they live together for 10 years and B fails to deed over the house, then what are A's rights? Zero. Also, if B deeds over the house, there are gift tax issues.
Not to mention the fact that a statutory scheme could easily be set up where a person could designate (and record in a courthouse) unrelated parties who could be considered next-of-kin.
Of course, and what rights would those be? Unplug the ventilator, sign on the checking account, sell the stock portfolio? Like I said upthread, if they have a bunch of money, I and my fellow lawyers do well. Everyone else, not so much.
Just curious - doesn't Texas's common law marriage system promote the "imposter" problem that you describe, or the problem of people denying a marital relationship when there's a disability?
Yes, happens all the time in wrongful death cases. We get bereaved widows coming in from everywhere. Fortunately, my clients have the $$$ to pay me to sort it out.
Wait, how are we determining "successful societies" here? Because this seems to be a major case of question-begging.
I don't think so. My criteria for a successful society is one that lasted long enough to make it into recorded history. Polygamy is not unheard of, obviously, and many polygamous societies were successful by my loose criteria. But the underpinning to those societies was a level of patriarchal dominance that is repugnant by contemporary standards.
Posted by: McKinneyTexas | February 28, 2011 at 11:35 AM
"Of course, and what rights would those be? Unplug the ventilator, sign on the checking account, sell the stock portfolio?" Same as enjoyed by next-of-kin now. Except that that people could override the default person. (In my state, by the way, nobody can sign somebody's individual checking account except for the named individual. It's not a marital prerogative.)
Posted by: sapient | February 28, 2011 at 11:39 AM
Sapient, your alternatives are simply a much less efficient way of doing what marriage already does. Among other things, marriage is a partnership. It does for the parties in a fairly coherent, well understood fashion what you would spend decades litigating and drafting for no better reason that you have issues with the institution. Simply because there is another way in theory doesn't make supplanting an existing and viable system with a universe of unknowns a good idea.
For the most part, people get married for a reason. Usually, they think they love each other and want to spend the rest of their lives together. They intend, for the most part, all the stuff the conjugalists stand for. The practice often falls short. Neither the conjugalists' concept of marriage nor human fallibility argue against SSM. As best I can tell, gay people want to marry for pretty much the same reason straight people do: love, commitment, exclusivity, stability, etc. Where I part company with the conjugalists is their insistence that marriage is the exclusive province of a man and a woman. The paradigm fits two men or two women who are in love just fine, even if procreation is nonstandard. As an aside, my sense is that gay couples seem to adopt where others will not, which is all to the good, not that adoption preferences or patterns impact the argument either way.
Posted by: McKinneyTexas | February 28, 2011 at 11:58 AM
As a spiritual commitment, marriage works very well for some people, and no one should be deprived of engaging in it. There are many wonderful marriages (as well as life partnerships sans marriage).
As an arrangement favored by the law, it doesn't work as well. It's discriminatory. It creates stigmas. It tends to protect domestic abusers. It is isolating. It imposes rights and duties that aren't always fully understood or chosen by the parties. It creates an expectation that the government should regulate sexual conduct between consenting adults. Where I part company with the conjugalists is that it imposes a Christian model on people who may prefer to think more expansively about their relationships.
Posted by: sapient | February 28, 2011 at 12:14 PM
As an arrangement favored by the law, it doesn't work as well. It's discriminatory. It creates stigmas. It tends to protect domestic abusers. It is isolating. It imposes rights and duties that aren't always fully understood or chosen by the parties. It creates an expectation that the government should regulate sexual conduct between consenting adults.
Russell is over on another thread arguing that problems Brett attributes to government per se are really “problems” with the human condition. I would make a similar argument here. Or, because I’m lazy, I’ll just copy what I wrote the last time we went ‘round these circles.
And
Just to take one of sapient's examples, marriage doesn't "create an expectation that the government should regulate sexual conduct," it's the outcome of societies' urge to regulate sexual conduct. Etc.
And just to forestall the apparently inevitable, this doesn't mean I think there are no problems with the institution of marriage as it currently exists. I would still like to see an example of where I or anyone else ever wrote such a thing on this blog.
Posted by: JanieM | February 28, 2011 at 12:44 PM
I started to write something about half as insightful as Janie's post. Marriage exists because people, for centuries, if not millenia, want it so. We are only just starting to get it right and we still aren't there yet. Close, relatively speaking, but still not there.
Posted by: McKinneyTexas | February 28, 2011 at 12:57 PM
I have been following this thread with interest, and I find that I have some scattered reactions:
Dr. Science was absolutely right in the first place in pointing out the intellectual bankruptcy of the Robert George article. It only goes to show what happens when you let political scientists and philosophers wander about without adult supervision (i.e., historians and anthropologists)!
All societies have, and have always had, some version of "families." They were there first, and they provide some of the most basic needs of any society: care of children and socialization (turning infants into actual people takes effort), economic sharing at the household level, property and inheritance, first-instance health care and old-age insurance (in the absence of "Insurance"), etc.
Virtually all religions and states, therefore, have attempted to co-opt the family, regulate it, formalize it (by "marriage," etc.), and - in the case of religions - claim that it was their idea (GOD's idea) all along. The exact manner in which they do this has varied from place to place and time to time.
The few religions (cults) and states that have attempted to eliminate or significantly downgrade the family have so far failed badly. Collective responsibility for the raising of all children and the welfare of all individuals may work in science fiction, and conceivably in some faraway future, but doesn't seem to work for human society as it is presently constituted. (In China, ca. 1950, schoolchildren were taught to chant: "I don't love my father, I don't love my mother, I only love my country." A generation later came the Cultural Revolution.)
OTOH, it is common (and functional) to have a fair amount of day-to-day flexibility in defining what a family is and allowing other institutions to substitute for it, at least on a voluntary basis. Case in point: monastic religious orders, which although they do not generally replace families in caring for very young children, have often replaced them in all "familial" functions from mid-childhood to death. And there are also all manner of "workarounds" for monogamy, even where it is the formal ideal: concubinage, official recognition of "bastards," etc.
I believe, therefore, that it remains in the interest of the state to encourage and strengthen the family in general through the recognition of "marriage" and the continuation of legislation that in general treats the relationship of married couples as distinct from those of unmarried peoples. If we were designing human society from scratch, we might or might not choose to go that way, but we're not, so we work - at least we begin - with what we've inherited. McKT at 12:57pm has it quite right (including his praise of Janie's previous post).
But what we've got, as I said, also includes a long tradition of flexibility and workarounds, and in my view we should continue and expand these. Gays should have the right to marry because - simply - why not?
I'm dubious about polygamous marriage primarily because of the math (noted by McKT earlier): we've had centuries of tweaking marriage systems based on "couples," and that is still imperfect. With two people you have one binary relationship: A + B. With three you suddenly have three binaries - A + B, B + C, A + C - and a trifecta. With four or more: you do the math. Our laws and customs are simply not up to handling that without a lot of forethought and careful planning. I can just imagine an entire "crime family" officially "marrying" each other and then all claiming spousal immunity vis-a-vis one another!
But even that may in time become workable, and when it does: why not? Clever contracts defining relationships (for those who can afford to have clever contracts drafted): why not? Various civil unions, by all means: why not? (The article on the prevalence of heterosexual civil unions in France was fascinating!) The only real objection to civil unions, at this point, is to their deployment as a pretext for denying LGBT's the right to marry, which is simply unfair. Otherwise, whatever encourages "families" to flourish should probably be encouraged by the state.
All of these are ways of making the institution of "marriage" work better, which - I repeat - is in the general interest of society, as I see it. Attempts to abolish marriage, or to delete it completely from civil society and state recognition, are not conducive to the common weal and are in any event doomed to fail.
The question of single-parent (usually single-mother) families is an intriguing one, and one of much longer standing than most people realize, given how many widows with children were created in past times when morality was higher. It is obviously more difficult to raise children by yourself than with a partner. (I am not a Believer, but if there is anything that would incline me to credence in Divine Providence it is the fact that it takes two adults to create one child. This - it occurred to my wife and me many years ago - is just about the right ratio.)
It is not, then, necessarily in society's interest to encourage one-parent families, which can, on the average, be expected to struggle more. OTOH, since one-parent families do exist, and will continue to do so for the foreseeable future, it *is* in our (general) interest to make them as functional as possible, for the sake of the next generation. I'm not quite sure how to resolve this paradox, but I seriously doubt that abolishing marriage is the answer, or even a significant component of the answer.
And them's my thoughts, at least for today.
PS, FWIW: Ideas should be able to stand or fall on their own, not based upon who put them forward. Nevertheless, for those who care about such things: I have been married to the same woman for more than forty years.
Posted by: dr ngo | February 28, 2011 at 02:03 PM
dr ngo: given how many widows with children were created in past times when morality was higher.
I have nothing to add to this, just loved the typo.
Posted by: Ugh | February 28, 2011 at 02:10 PM
We aym to please.
Posted by: dr ngo | February 28, 2011 at 02:54 PM
I stole this from Sullivan's blog:
"'I think it's clear that something like same-sex marriage - indeed, almost exactly what we would envision by that - is going to become normalized, legalized, and recognized in the culture. It's time for Christians to start thinking about how we're going to deal with that,' - Albert Mohler, president of the Southern Baptist Theological Seminary, speaking with Focus on the Family's Jim Daly about Obama's DOMA decision."
I don't know the context, but this is still pretty damn interesting.
Posted by: McKinneyTexas | February 28, 2011 at 03:07 PM
More from the link McK's quote came from (not the Dish, but here):
I agree with McKinney that this is interesting. I also find it a little ambiguous -- maybe Mohler doesn't totally know his own mind yet, or is hedging what he really wants to say, but in which direction I have no idea.
That is, "where we stand as Christians" seems to relate to the outer world, to the place that the larger culture gives to Christians, maybe with implications of some kind of response to that. But a lot of the rest sounds like a call to hold steady in faith no matter what everyone else is doing.
*****
And just to lighten up the day a bit, another Dish quote, this time from The Onion:
Heh.
Posted by: JanieM | February 28, 2011 at 03:28 PM
Double heh.
Posted by: McKinneyTexas | February 28, 2011 at 03:33 PM
" I have been married to the same woman for more than forty years."
Congrats, dr ngo. Although I would have preferred that your relationship be unofficial : ), it's awfully heartening to see people grow together for such a long time. Lovely.
Posted by: sapient | February 28, 2011 at 07:36 PM
With two people you have one binary relationship: A + B. With three you suddenly have three binaries - A + B, B + C, A + C - and a trifecta. With four or more: you do the math.
2^n - n - 1.
You're welcome.
Posted by: Anarch | March 01, 2011 at 09:32 PM
There are innumerable cases. One is particularly close to home for me.
Posted by: Gary Farber | March 02, 2011 at 03:22 AM
Quite belatedly, I'd like to say that Turbulence's February 25, 2011 at 12:01 PM is also where I stand.
It's also all I meant by "It's not an illogical progression of thought" and when Doctor Science resonded that:
And I'll go back to Turbulence's February 25, 2011 at 10:25 PM and link and description of architecture astronauts. It's not illogical; it's simply unrealistic and insulting, and a substitution of abstract theory over the lives of actual human beings.Which is also my view of the more unreasonable ideologists of most sorts, including unreasonable libertarians and communists. Fine in theory in some magic land, but we don't live in magic land and aren't getting there any time soon.
Posted by: Gary Farber | March 02, 2011 at 03:51 AM
From Gary:
quoting McKinney: "If two people cohabit and are unmarried, one owning the home and the other not, and if the home owner dies, the survivor has no rights"
"Quite belatedly, I'd like to say that Turbulence's February 25, 2011 at 12:01 PM is also where I stand."
"it's simply unrealistic and insulting, and a substitution of abstract theory over the lives of actual human beings."
Honestly, Gary, I find these views insulting, or written by people who haven't read anything about what I've said (and what other people have said, not to mention the statutory structures that already exist in some jurisdictions).
First of all, McKinney is mistaken. If you register a domestic partnership in the local courthouse, designating a specific person as next-of-kin, and the statute allows "next-of-kin" to share property in a certain way, why would that not work? What would be better about it would be that if two people lived together in a situation like the one you cited - say brothers taking care of each other - they would be protected as well as two lovers. People don't always choose to live with a lover; sometimes people don't even have one, but still have to share their lives with others.
What Turbulence said? Really? That "some people" don't know anything about public policy? How long has Turbulence or have you practiced domestic relations law, or seen the ill effects of divorce on "the lives of real people". There are still plenty of people (mostly women) who fall into a position of financial dependency based on the false comfort of marriage (giving up their job to take care of kids, usually), and finding out the hard way that "marriage" didn't protect them. Marriage is an institution that is built-in with certain assumptions by people, assumptions that are often incorrect.
I find that incredibly insulting, not to be too thin skinned about it, that you and Turbulence believe yourselves to be masters of "knowing something about public policy" as opposed to other people who might have thought about domestic issues from a more gritty perspective. Why are American heterosexual couples are less frequently get married? One theory is that many believe that they need more money to start a family. Yet, if marriage protects people's economic situation, why are economically vulnerable people less likely to engage in it until they're financially stable? Why do you say that people who want to address these things are trying to "live in a magic land"?
Posted by: sapient | March 02, 2011 at 07:50 AM
First of all, McKinney is mistaken. If you register a domestic partnership in the local courthouse, designating a specific person as next-of-kin, and the statute allows "next-of-kin" to share property in a certain way, why would that not work? What would be better about it would be that if two people lived together in a situation like the one you cited - say brothers taking care of each other - they would be protected as well as two lovers.
Sapient--you are introducing a new element to the conversation: a "domestic partnership" by which I infer you mean a device among any two adults that confers the same advantages/rights as marriage but is indifferent to whether the partners are sexually involved. Sure, in theory, that could be done, but very few people are lobbying for that. But, if you wanted to do something like right now, you could pull it off through adoption. I suspect state law varies widely in this regard, but it is not uncommon in Texas for one adult to adopt another adult.
But many/most people unite for reasons different than property. The emotional bond is the primary goal. Property is ancillary for most people. Not kings and the nobility of times past, not people with dynastic issues, but ordinary people. Spouses provide for each other and try their best, ideally, to ensure that when one checks out, the other is looked after. Ditto for the kids.
Gay people want in on this deal. I'm not gay and can't speak from that perspective, I can only draw conclusions. My conclusion is that gay people are like everyone else, by and large, and want the same chance at a lifetime relationship, security etc.
Posted by: McKinneyTexas | March 02, 2011 at 08:44 AM
Well, sapient, I'm insulted that you are insulted that Gary and Turbulence are insulted. (/levity)
I've been watching the thread play out, and it might be a good time to go back and not only state original principles but also recount the background and anecdotage that leads you to your opinions. I'm not trying to weigh in on one side or the other at this point, but in your last comment, you mentioned domestic relations law and seeing the bad effects of divorce, so it might help if you recounted your background. You are not obliged to do this, but I think it would help get the conversation back on track. Thanks.
Posted by: liberal japonicus | March 02, 2011 at 09:13 AM
lj, as far as I can tell, the conversation isn't off track. If you're not following it clearly (perhaps because of jet lag?), and you need sapient to provide some anecdotes and original principles to bring you up to speed, then maybe you should ask for that directly as a favor to yourself instead of framing it as an attempt to shepherd the rest of us along. (Or maybe I should say cat-herd? ;=)
Posted by: JanieM | March 02, 2011 at 10:04 AM
sapient: There are still plenty of people (mostly women) who fall into a position of financial dependency based on the false comfort of marriage (giving up their job to take care of kids, usually), and finding out the hard way that "marriage" didn't protect them.
Refining my previous comment: though I don't see the conversation as off track, I do feel that there’s a ships passing in the night quality to it. Sapient keeps citing problems (single mothers have problems, brothers who want to live together can't have the rights of married people living together, soon-to-be-divorced mothers didn't understand what they were getting into when they got married), ascribing the problems to marriage, and alleging that the abolition of civil marriage will go a long way toward solving all these problems.
Most of the rest of us have disagreed explicitly and at length with some or all of that reasoning. Speaking for myself, I think it
-- ignores the possibility that the abolition of civil marriage will create a lot of new problems that sapient hasn't thought of (here's a place where the architecture astronaut quality comes in) or declines to acknowledge;
-- misunderstands the extent to which these problems are "caused" by marriage in the first place (what, people will magically stop being ignorant of the law if we call marriage partnerships something else, and allow more people to enter into them?);
-- writes off the complexity and pace of social change that it would take for such a transformation of the culture.
Among other things.
Oh, also, those of us who don’t agree with that line of reasoning are hard-hearted people who don’t care about the plight of single mothers and are willing to throw everyone else under the bus as long as LGBT people can get married. Speaking of insults.
People have repeatedly suggested that sapient has the causation arrow for the problems person keeps citing pointing the wrong way, and person’s response has been to just keep citing more problems and suggesting that abolishing civil marriage will solve them.
Far from wanting sapient to offer yet more anecdotes, list yet more problems allegedly caused by marriage, or restate per original principles, I would like to see person address some of the objections to per line of reasoning that other commenters have raised.
(Hat tip to Marge Piercy. It’s been a long time since I read Woman on the Edge of Time, so maybe I’m getting the pronouns wrong. But sapient has historically been reticent about revealing per gender, which is fine with me but which makes pronouns difficult. Tired of trying to circumlocute around them, I remembered per and person, which I liked when I read the book long ago. Onward)
Posted by: JanieM | March 02, 2011 at 10:29 AM
What Turbulence said? Really? That "some people" don't know anything about public policy? How long has Turbulence or have you practiced domestic relations law, or seen the ill effects of divorce on "the lives of real people".
I trust that you are an outstanding attorney Sapient.
However, one component of public policy involves the institutional structure of government and the feasability of large scale policy changes. I think students of American government can all agree that any attempt to deemphasize civil marriage in the US is doomed for the foreseeable future. There is just no constituency clamoring for such changes and there is a huge constituency that will fight it with their dying breath.
Given that the position of civil marriage is not going anywhere, all your talk about how, in a perfect world, we might construct better institutions serves no purpose at all.
On these questions, I think your experience as an attorney, no matter how excellent, is not very helpful.
There are still plenty of people (mostly women) who fall into a position of financial dependency based on the false comfort of marriage (giving up their job to take care of kids, usually), and finding out the hard way that "marriage" didn't protect them. Marriage is an institution that is built-in with certain assumptions by people, assumptions that are often incorrect.
Absolutely. I am very much aware of all sorts of problems that manifest in modern marriage, including this one. But replacing civil marriage with some other institution is not going to happen. That is a project no more feasible than replacing the constitution with Sharia law: it is completely and totally absurd.
I find that incredibly insulting, not to be too thin skinned about it, that you and Turbulence believe yourselves to be masters of "knowing something about public policy" as opposed to other people who might have thought about domestic issues from a more gritty perspective.
Your gritty thinking does not seem to include any notion of political feasability. As such, I don't find it very gritty.
Posted by: Turbulence | March 02, 2011 at 10:29 AM
"Sapient--you are introducing a new element to the conversation: a "domestic partnership" by which I infer you mean a device among any two adults that confers the same advantages/rights as marriage but is indifferent to whether the partners are sexually involved."
I have carefully avoided commenting here, for reasons some will understand. But this is not new to Sapient point, it is fundamental.
I have spent a few days soaking this in, listening as it were and I am struck that in many ways most everyone here i on the same "side".
That side is the protection of the definition of marriage as a formalization of the emotional attachment. The legal framework is fine, but whether religious or not, the emotional tie of being "married" is almost universally protected in these comments as a requirement.
So the exploration of conferring the rights of "married" people to those who chose not to be married gets a very negative reaction.
For those who believe that some of us piggyback discussions of conferring marital rights to nonmarried people in other domestic relationships, oddly, I for one have been having those discussionss for many years before same sex marriage was a front of mind issue, so the discussion just seems to naturally go together.
Posted by: CCDG | March 02, 2011 at 10:33 AM
Absolutely. I am very much aware of all sorts of problems that manifest in modern marriage, including this one. But replacing civil marriage with some other institution is not going to happen. That is a project no more feasible than replacing the constitution with Sharia law: it is completely and totally absurd.
I would add to this that there isn't any plausible replacement that would fix human nature and hence fix the plight of abandoned/mistreated women. Indeed, it would likely make it worse.
Posted by: McKinneyTexas | March 02, 2011 at 11:06 AM
Thanks Janie, I didn't mean to dismiss what anyone had said, it was just specifically this
How long has Turbulence or have you practiced domestic relations law, or seen the ill effects of divorce on "the lives of real people".
That seems to imply that Sapient has practiced domestic relations law, as well as seeing some ill effects (I think anyone who is over 30 has seen these, so I'm not suggesting that he has some special insight, but anecdotes what he thinks are the main 'ill effects' might help move things along and perhaps anecdotes are not the right word, something more like 'here is the background I am coming from'. ).
I don't have a strong memory of sapient out and out saying he was a lawyer (or even, as Janie notes, revealing his/her gender), but Turb does, or at least takes his statement as such. However, I do think that understanding sapient's experiences will help us understand each other, which I view as perhaps more important (if only from a local viewpoint) and certainly more feasible.
Posted by: liberal japonicus | March 02, 2011 at 11:07 AM
So the exploration of conferring the rights of "married" people to those who chose not to be married gets a very negative reaction.
At least in my case, that's not really true. We are never going to live in a world where civil marriage goes away or is deemphasized. That is always going to be premier institution, socially and legally. Given that reality, all other institutions are going to be weaker. "Those who choose not to get married" ARE NEVER GOING TO HAVE all the rights of "married people". Because it would be political suicide. Talking about the policy unicorn that shows up right after every politician in DC commits political suicide is absurd.
If it was just a nonsense discussion, that would be one thing. But this talk has real consequences. There are millions of people in the US who are on the fence regarding gay marriage. The absolute last thing they want to hear is talk of ending or sanctioning traditional marriage. That makes them less likely to support gay marriage. It provokes every anxiety they have about the evolution of our society. Sapient's fantasy unicorn talk hurts the cause of people who are already suffering. It is, in a very real way, unethical.
Posted by: Turbulence | March 02, 2011 at 11:37 AM
lj, I don't know if sapient has ever explicitly said person is a lawyer. In the November 2009 thread that I linked to earlier, Jes raised the question of sapient's gender and some observations and guesses were made by several people, but sapient never responded to the implied question.
My impression is that sapient has been careful to keep the personal out of per side of this conversation. I can see good reasons for it, in terms of wanting one's thought trains and policy positions to be taken in general terms rather than as responses to specific personal experiences. I don't have a problem with that, if that’s per choice. I would just point out that you're asking for something entirely different from what has gone before.
Posted by: JanieM | March 02, 2011 at 11:39 AM
There are millions of people in the US who are on the fence regarding gay marriage. The absolute last thing they want to hear is talk of ending or sanctioning traditional marriage. That makes them less likely to support gay marriage. It provokes every anxiety they have about the evolution of our society. Sapient's fantasy unicorn talk hurts the cause of people who are already suffering. It is, in a very real way, unethical.
Turb, I agree with everything you say here except the last sentence. I detect no desire on Sapient's part to injure anyone. Free and open discussion is not unethical. A number of arguments advanced in support of gay marriage put fence-sitters off. That doesn't make the argument unethical. Unwise, perhaps, but not unethical.
Posted by: McKinneyTexas | March 02, 2011 at 11:45 AM
I don't have a strong memory of sapient out and out saying he was a lawyer
Sapient did write in an earlier comment on this very thread: "As someone who has practiced family law..."
I detect no desire on Sapient's part to injure anyone.
I'm sure he doesn't. I said as much in my first comment to him upthread.
Free and open discussion is not unethical.
I disagree. Actions have costs and benefits. Discussing how awesome it would be to eliminate civil marriage in the context of a discussion about same sex marriage has no benefits: it is never going to happen. But it does have costs: it makes it harder for those on the fence to support SSM.
Now, people do all sorts of bad things all the time and those actions are not necessarily unethical. But when you've been doing the same damn thing for years and have had lots of people patiently explain to you the harm that your actions are causing...well, at some point, you become responsible.
Posted by: Turbulence | March 02, 2011 at 12:05 PM
Thanks for prodding me to look at that thread, Janie. There are several things I draw from it, but I'll hold off on stating those except to note that I don't really know who sapient is. I don't think there is anything wrong with that, I'm not accusing him or her of sock-puppeting, and like you, I respect if s/he doesn't want to give personal background for precisely the reasons you suggest.
But I think things have reached a point where I would like to know, if only to help me understand. I realize we don't do a lot of asking for this kind of info, but with the part I quoted above, it had me wondering about the background, so I thought I would ask. I realize that asking automatically creates a presumption that someone should answer or provide a reason why they don't, which is a problem, but I thought it more polite to ask than to simply wonder. I understand completely if this just gets ignored, and I'm not proposing any new kind of policy, except for the fact that I, as a general rule, think it is better to draw people out than to avoid doing so.
Posted by: liberal japonicus | March 02, 2011 at 12:07 PM
Thanks, Turb, I missed that.
I'd also point out it's me on your first quote, but McT on the second quote. I only note that because it's easy to start putting points together in a way that is problematic. McT just wrote in another thread here about an unfair conflation of him and others in discussing government oppression.
Posted by: liberal japonicus | March 02, 2011 at 12:14 PM
lj -- thanks for accepting being prodded, and for the clarification of where you were coming from. I'm much more comfortable knowing that you wanted something (and knowing what exactly it was), in place of my original impression that you were telling us how we should converse. That's a hot button of mine and I'm aware that I need to be careful about assuming that's what's going on. Which is why I asked, but tried to ask calmly. :)
And while we're on the meta, as a general rule I prefer to have a sense of who commenters are personally, although it varies a lot in relation to both the commenter and the topic, and the downside is that it feeds the illusion that this community can stand in for community in the "real" world. (An eternal dilemma of mine, and why I left for several months and am ambivalent about coming back.)
I always come straight out of the personal perspective -- that's a shortcoming in some ways, but it feels less artificial (not meaning to imply that other approaches are artificial, just to say what's comfortable for me in relation to my own participation). Hearing that other commenters sometimes want to say enough already wouldn't surprise me at all.
Posted by: JanieM | March 02, 2011 at 12:22 PM
JanieM, not trying to stifle your clarification, but the history here with confidentiality of identity (and other things, not limited to gender) goes back as far as the blog itself does, if not further.
Jesurgislac herself had no gender known to the commentariat at large until she herself told us, outright. So, I think that asking is itself not intrinsically rude, but demanding is, as is implying that the other person has something damaging to hide if they don't. Gracefully accepting a refusal to divulge personal information is, as always, considered to be good blog-citizenship here. According to my values, anyway.
Posted by: Slartibartfast | March 02, 2011 at 12:29 PM
But when you've been doing the same damn thing for years and have had lots of people patiently explain to you the harm that your actions are causing...well, at some point, you become responsible.
If you agree with others' assessment that you are causing harm, then yes. If you are simply putting forth a belief that others believe is harmful, that just the marketplace of ideas. IMO, the argument that marriage should be replaced with something else is such an outlier that no one really listens to it. A few cranks on the anti-marriage side try to wave it around from time to time, but they have the same small audience that Sapient's argument does.
Posted by: McKinneyTexas | March 02, 2011 at 12:30 PM
Here's where Jesurgislac came out. I doubt that absolutely everyone was surprised, but I've always been a little slow on the uptake.
Posted by: Slartibartfast | March 02, 2011 at 01:01 PM
Slarti, are you suggesting that I have not gracefully accepted sapient's preference to keep the personal out of the discussion? My statement that I find knowing more about commenters congenial hardly seems like “demanding” anything from anyone.
It was lj who suggested that knowing more of sapient's experiences would help him (and the rest of us) understand where person was coming from. I thought perhaps lj didn't remember, or hadn't participated in, the earlier thread, and therefore hadn't picked up on sapient's preference to keep per personal life out of the discussion. lj was very gentle and undemanding, but maybe you and he should have a conversation about what's fair and what's rude in terms of asking commenters to elaborate.
But I think I will stop there, since this is now getting into the realm of fruitless at several levels of abstraction.
Posted by: JanieM | March 02, 2011 at 01:04 PM
Off-topic, on the matter of pronouns: The effect on me of reading Woman on the Edge of Time was that for a while afterwards I found myself wanting to use per/person in daily life, except it was only in situations where gender wasn't known, i.e. mostly when talking in generalities. I had no instinct to use it when I was talking about a specific person whose gender I already knew.
Simplistic, yeah. It was a long time ago, but my habits would be pretty similar now.
This is an interesting topic that spills over, for me, into material Ursula Le Guin dealt with in an essay called "Is Gender Necessary? Redux" in Dancing at the Edge of the World. The essay was written at least in part in response to criticism of her use of male pronouns for the dual-gender (? not sure that's the best way to characterize them) characters in The Left Hand of Darkness.
/OT
Posted by: JanieM | March 02, 2011 at 01:28 PM
No! I'm simply agreeing with lj that asking is not inherently rude, but that we tend to graciously settle for not knowing if more information is not forthcoming.
If that's the point lj was making. If not, I'm simply agreeing with myself :)
Posted by: Slartibartfast | March 02, 2011 at 01:30 PM
Slarti --
:)
Thanks.
Posted by: JanieM | March 02, 2011 at 01:35 PM
"At least in my case, that's not really true. We are never going to live in a world where civil marriage goes away or is deemphasized. That is always going to be premier institution, socially and legally."
I am not sure I disagree with this Turb, although societal and cultural norms do change over time. The discussion we ARE having proves that.
Posted by: CCDG | March 02, 2011 at 01:35 PM
As to revealing my identity, I prefer not to be publicly outspoken about my various beliefs, not because I'm ashamed of them, or because they aren't heartfelt. For a variety of reasons, including the face I have to wear professionally, it's more comfortable for me to be anonymous.
My interest in marriage comes both from my experience as a divorce lawyer, and my belief in feminism. Marriage is a huge topic that doesn't lend itself to a thorough discussion in blog comments.
Marriage means a lot of different things. It's a personal commitment, a sacrament, a secular cultural institution, a lifetime project, a legal set of rights and responsibilities, a kinship-forming mechanism (as Doctor Science emphasized), a convenient way to refer to a common relationship pattern, etc. It's a wonderful support system for some people and a disaster for others. I certainly agree that "it" will never disappear.
As a legal institution, it should be replaced with something that is not so bound up with such varying emotionally and religiously charged ideas. People who change their legal status should be able to do so knowing what it means, and they shouldn't have to depend on Cupid to determine their legal relationships.
What marriage "means" has changed dramatically over time, and many people are abandoning it altogether. I disagree that it's ridiculous to reconsider whether it's an effective legal institution. I've mentioned anecdotal evidence that it's not. There are growing numbers of people who are opting out of it. There are governments coming up with alternatives. I believe those efforts are worthwhile.
Posted by: sapient | March 02, 2011 at 01:40 PM
Thanks sapient, and apologies for any discomfort that I may have caused in asking you about this. I'm still trying to negotiate this transition from being a commentator to being a front pager, so I do appreciate any and all suggestions (from anyone!) if something I said is coloring outside the lines. And, not to make this too meta, Slarti is in a rather unique position on the blog imo, as I think all the regulars realize. And if you don't, drop in Friday's open thread and say so :^)
Rereading the thread that janie pointed to, she's right, I wasn't in there. I'm not sure why, but I tend not to participate in these threads, but I think there are two reasons. The first is that the conflict between the ideal and the practical tends to play out here more than on other topics and it becomes hard to figure out which one is which. I'm happy to talk about either, but when they get confused, I tend to back out.
The second is that here in Japan, there is this all purpose document, called a koseki or family register, that fulfills all the functions of a birth certificate, a death certificate, a marriage certificate, a floor wax, a dessert topping. And while there are benefits, the problems of the koseki system suggest that totally scrapping the system would be better for all involved, which is similar to the point that sapient seems to be making. I would probably be as dogged as sapient is with people telling me that I'm asking for too much when I say the system should be scrapped. However, to me, the telling difference is that the marriage system is not simply a single system but over 50 systems (and that doesn't include marriages from nations or groups outside of the US) that are pieced together, so arguing that one can overturn the 'system' of marriage when it actually is a huge number of different systems with a similar aim and history makes me side with Janie and Turb in these discussions.
Finally, another question for sapient and others. Sapient, you mention that your belief in feminism is important in this. However, it's my feeling that the notion of 'feminism' in this case covers such a wide range of opinions. So I'm curious as to what texts you would refer to about feminism that would convey your views and others. I know that early, first wave feminist writing often took issue with marriage as an institution (Germaine Greer in The Female Eunuch is the work I'm specifically thinking of), but my impression of second wave feminism is less that emphasis and more on restructuring current institutions. So, when you talk about 'your belief in feminism', I wonder what are the specific points. And for others, any pointers to works within feminism tohelp me is appreciated
Posted by: liberal japonicus | March 02, 2011 at 02:43 PM
I disagree that it's ridiculous to reconsider whether it's an effective legal institution.
In my day job, I program computers. As such, I spend a lot of time making and receiving criticism. And I've found that there's a big difference between criticism of the form "this thing sucks and needs to be replaced" and "this thing has problem X, which I think we can work around if we do Y". Conversations of the first form are not productive because the boss has made it clear that scapping "that thing" is not going to happen, ever.
If you want to have a discussion about what sorts of problems exist in civil marriage and what sort of small legal changes we might make to address them, I'm up for that. It seems far off topic for discussions of SSM, which are the only places I've seen you raise the issue, but I'll let the front-pagers deal with that. But we should be very clear: that is a totally different discussion that one in which you advocate the absurd impossible dream of getting rid of civil marriage in the US. That discussion is simply insane.
I've mentioned anecdotal evidence that it's not.
Not really. You've mentioned some well known problems with marriage. You haven't really explained why they'd disappear if we got rid of civil marriage. I mean, ignorance of the law and power differentials in relationships are not going to go away. An abuser who can beat his spouse near to death will have no trouble "convincing" her to sign off any contracts that he wants in a world without civil marriage. And people in the US are still going to look down on unmarried single mothers even if civil marriage disappears completely.
There are governments coming up with alternatives. I believe those efforts are worthwhile.
If by governments, you mean state and municipal governments, then: no. There are no such governments that have produced an institution that provides as many priviliges as civil marriage does for heterosexuals. Not even close.
If you mean non-US national governments, I don't see why that's relevant. Other countries do many interesting and innovative things that simply cannot be done in the US. That is unfortunate. But that does not change the fact that aboloshing civil marriage in the US is as likely as having a new Communist Party or Muslim Brotherhood party win 30% of the Senate.
Posted by: Turbulence | March 02, 2011 at 03:37 PM
But I think I will stop there, since this is now getting into the realm of fruitless at several levels of abstraction.
I think I've been looking for this very useful sentence (and possible variations of it) for many years. Eureka, and thanks, Janie.
(I can't wait to stop a useless meeting in its tracks with it.)
Posted by: hairshirthedonist | March 02, 2011 at 04:08 PM
Thanks, lj, for seriously and respectfully engaging on this issue.
You say: "However, to me, the telling difference is that the marriage system is not simply a single system but over 50 systems (and that doesn't include marriages from nations or groups outside of the US) that are pieced together, so arguing that one can overturn the 'system' of marriage when it actually is a huge number of different systems with a similar aim and history makes me side with Janie and Turb in these discussions."
I believe that the variety of marriage systems that exist in the United States is, in fact, an argument against the institution's fairness. The fact a couple who marries in California, in the belief that they have certain legal rights and responsibilities, can move to Louisiana, where their rights and responsibilities are different (and the consequences of divorce are different), is an unpleasant surprise to many people. If people enter into a contract, they can provide which state's laws will govern disputes, and have some control over the consequences of their actions and failures. Not so in marriage.
Feminism is a vague term - I'm sorry I used it. Many of the early concerns of feminism were abandoned, not because they weren't legitimate, but because varying smaller interests within the feminists community seemed at odds. The "mommy wars" is an example of this, and an interesting set of articles recently appeared in the Boston Review on the subject. Reading the articles reveals how women still don't have a uniform view as to what things need to change. Most people agree, in theory, that we all want responsible and loving relationships, with choices available for personal fulfillment and economic security, as well as equal rights in the workplace and equitable distribution of labor at home. How to achieve that is still very up in the air.
There's no question that family life is important to most people. People love other people, and often have complicated and difficult relationships because of their desire to do their best in specific situations with regards to spouse, children and others. Marriage doesn't always accommodate the problems associated with those sometimes conflicting duties, and it shouldn't be foisted on people for whom it doesn't work well.
In the end, of course, if people are educated and well-informed, they have a better chance making marriage laws work for them, or using other laws to design their own protections. So I'll refrain from commenting further.
Posted by: sapient | March 02, 2011 at 04:20 PM
dr ngo:
It only goes to show what happens when you let political scientists and philosophers wander about without adult supervision (i.e., historians and anthropologists)!
heeee. Yes. I think the fact that the person who is by acclamation the best living mind of American conservatism makes these kind of mistakes is both sign and symptom of conservatism's weakness in the academy. History and anthropology are the core social studies, and they are extremely left-wing, especially anthro.
I don't mean that the fields themselves necessarily are liberal, but the people studying them *are*. Actually, I'm not sure about that -- anthro may be the most liberal of fields, because it is premised on rejecting the idea that "our culture is the only right culture". I don't see that it's psychologically possible to go into cultural anthro and be conservative, because it's Diversity Studies par excellance.
So what I'm saying is that George and the choir he's preaching to are likely to be especially weak in the adult areas of history & anthro. I don't think that excuses the anthro-historical weakness of many people who argue against him, though.
Posted by: Doctor Science | March 03, 2011 at 12:43 AM