Conservatives vs. Right to Contract
Thursday, October 06, 2022
I know I am not the only pro-freedom voter who -- concerned that Biden might pack the Supreme Court -- voted for Trump. Nor am I the only such voter to have gone for a long time thinking that conservative justices generally understood individual rights and the Constitution better than leftist ones -- until the twisted reasoning of Dobbs showed me that was far from the case.
But, for anyone who might be inclined to think something along the lines of Yeah, but they see the fetus as having rights or hope that conservatives might be weirdly compartmentalized about abortion, take a gander at how upset conservatives are getting about the prospect of legalized polygamy, which a court case in New York has raised.
Take the following excerpt from a prominent conservative blog:
God forbid two or more adults enter a contractual agreement by mutual consent!If you take biology out of the mix, "two" is an arbitrary and irrational number. And in the short time that has gone by since Obergefell [sic] [which legalized gay marriage --ed], the concept of biology itself has come under widespread attack. If things continue on their present course -- and they will, absent a vastly invigorated conservative movement -- the "right" to polygamy will soon be established. Which is to say that the rest of us will have polygamy jammed down our throats.
Image by State Library of Queensland, Australia, via Wikimedia Commons, no known copyright restrictions.
Yes, because leftists feel the need to rub the noses of most Americans in anything they might disapprove of or just not be all that wild about, we can expect a 24-7 surround-sound media blitz extolling all manner of group marriages as an unchallengeable virtue, especially directed towards children.
I don't look forward to this, either, but that is a separate issue from whether contractual arrangements among consenting adults deserve legal protection. On that score, polygamy should certainly be legal for the same reason that men and women can get married: They are adults and want to enter a long-term contract with each other.
The likes of John Hinderaker might be surprised to learn that -- yes -- even men and women often get married because they are in love. Sit down, Hindy, but many of these same people marry without any intention of producing offspring.
Grab the smelling salts!
As with "heartbeat" arguments against legalized abortion, this "biological" argument is a pathetic attempt -- akin to nature-worshipping totalitarians invoking The Science as reason enough to criminalize fossil fuels -- to make it look like theirs is a reasonable position.
But the fact that a man and a woman are necessary to reproduce implies that the government should criminalize all marriage contracts except those sanctioned by Christianity no more than the existence of global warming means we should all be forced to quit using the fossil fuels we need, much less absent a competitive, viable replacement.
I personally think group marriage is a Bad Idea for many reasons I don't care to discuss, but I think it should be legal, and this is America: Your living arrangements and sex lives neither pick my pocket nor break my leg.
Have at them, but don't expect me to spend an inordinate amount of time thinking about them. I, too, have a life of my own.
-- CAV
Updates
10-7-22: (1) Corrected first link. (2) Edited title to remove Again since I did not make that clear enough in the body of the post.
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3 comments:
Yo, Gus, your first link (on the reasoning in Dobbs) goes to the post on polygamy, in case that wasn't your intention.
Also, you write, "I don't look forward to this, either, but that is a separate issue from whether contractual arrangements among consenting adults deserve legal protection. On that score, polygamy should certainly be legal for the same reason that men and women can get married: They are adults and want to enter a long-term contract with each other."
However, as I've mentioned here before, the basic legal problem's that marriage isn't primarily a contractual agreement but a change in legal status, like the change from minor to legal adult, and that entails issues that contract law can't address: A contract only holds between parties that consent to it, not third parties. And there are some obvious problems that might arise in the case of polygamy. What if you're incapacitated and decisions on medical treatment need to be made? Currently the spouse decides that, but what if two or more spouses disagree on treatment? What about issues arising in divorce? What about issues arising in parenthood--for example, do all other spouses have the same say over a child's affairs, even the ones who are not biologically the parents? (Which is similar but not identical to the problems arising in second marriages with children, adoption, and so on--so a solution MIGHT follow lines set by the considerations in those cases...) And so on: All issues involving legal status, and thus not ones that can be easily addressed by contract law.
In the past, polygamy didn't raise those problems because it allowed one man to have several wives, who were always placed in a legally subordinate position. That "solution," if you will, won't work in the modern world (and rightly so!). Basically, the case in question, from what I have read, might bring in the legality of polygamy through the back door, without a serious consideration of all these issues. I don't have the quoted commentor's rabid fear of further abandoning "Christian" marriage, which even in Christian thought (well, mainstream Christian thought of the more legally informed sort, heh) is a natural-law institution with a Christian gloss, but I do boggle at the thought of this whole can of worms being opened fortuitously through a distantly related legal matter--and you can imagine these issues being decided very badly in our current legal climate.
Snedcat,
Thanks for pointing out the incorrect link. I fixed it.
You are correct that multiple marriage will introduce lots of legal problems we don't currently have. (And the welfare state will add many more, although multiple marriage will get the blame.)
Making such marriages legal is that not something that can be taken lightly -- either in the process of making it fully legal or by those contemplating entering such unions in the early days, should that occur.
Of course, we can count on conservatives to make great hay of that -- and leftists to pretend everything is all sunshine and unicorns throughout whatever cultural ... debate ... (or would processing be a better word?) occurs.
Gus
Ooh, cool, my original comment didn't disappear into the ether like the message seemed to indicate! I like it better than my watered-down-because-irritated-at-Blogger-and-pressed-for-time second attempt.
I'll add that it's common for people to talk about marriage as contractual because it does share the important characteristic of being a voluntary undertaking requiring full consent. It's useful shorthand that captures an important aspect of marriage. However, it's wrong to consider marriage just a contract and then argue--as certain libertarian types and the stupider sort of pseudo-Objectivists do (though once they get off their duff and finally publish that groundbreaking work of philosophy that will reform all the problems of Objectivism they've been so astute as to identify they'll cut the cord, but until then they'll ride on her coattails like second-handers)--that the state has no business regulating it then, since verbal contracts are binding. The state has a reason for registering marriages, and for the same reason it registers births and deaths, the establishment of corporations, partnerships, and other legal entities, and similar acts that fundamentally affect the parties' legal status (and basic details of contracts for that matter) in some realm of life.
Or to put it in Southern terms, sure, you can just jump the broom, but brooms don't leave a documentary record in case of legal disputes. Heh.
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