Wednesday, March 27, 2013

They Go Together Like a Horse and Carriage

It seems like all voluntary domestic living arrangements should also be euvoluntary. It seems like the only EE condition we might butt up against is ex post regret, and it also seems like the way around regret is to preserve no-fault divorce as the default common law dissolution arrangement. It seems like the role of the state should extend no further than ensuring folks aren't being coerced or defrauded into entering into a marriage contract. It seems like as far as the government is concerned, there isn't ten cents' difference between a nuptial contract and, say, an insurance policy.

It seems like it should be that way, but that way it sure ain't.

I make a big deal out of political kayfabe, but I don't mean by this to claim that there isn't religious and corporate kayfabe as well. The reason I focus so closely on the bloviations of elected officials is that they enjoy an unchecked monopoly not found in either the pulpit or the boardroom. Well, at least in the US. Here though is an interesting example where religious kayfabe may well mask an underlying aesthetic objection to alternative forms of marriage. I think there's pretty good Biblical evidence to allow Christians to support a clear division between the roles of Leviathan and Pontiff (Matthew 22:21, eg.). I see no necessary tension between believing that (a) Leviticus 20:13 has something interesting to say and (b) the state should act as an impersonal arbiter of contract terms. When this division goes unobserved, when folks strive to resurrect collusion between the first and second estates, I find myself puzzled about the moral intuitions underpinning this urge. It seems possible that the moral dimension is Haidt's sanctity/degradation, which always struck me as girded by atavistic aesthetics rather than deliberate moral or ethical calculus.

If there's an issue of fiscal externalities, where a baker or a photographer can be sued in court for refusing to provide wedding services for a ceremony they find offensive, this highlights a flaw in civil law. If the problem is with children being raised in unorthodox households, we've got a reasonable empirical question that must be answered with good empirical analysis (instead of evidence-free appeals to imagination as seems commonplace). If the problem is a weakening of the national moral fiber or something, I think I'd like to see a better explanation of how it is that the boundaries of an optimal moral zone are simultaneously determined with political borders. In what sense did the Louisiana Purchase extend the particular sphere in which the median American voter was granted legitimate authority to impose moral calculus on others?

Look, there are reasons to debate the form and function of the relationship between contract arrangements and state enforcement. But let's not kid ourselves when it comes to the source of our disagreements. De gustibus non est disputandum, sed de gubernum fortitori est*. The scope of government is applied inappropriately when it's granted the authority to determine winners and losers in the game of matrimony just as surely as it's misapplied when determining winners and losers in mineral exploration or agricultural production. I can sort of understand some sort of (extremely cautious) state intervention in non-euvoluntary exchange, but intervention when the arrangement is, but for other existing public policy, entirely euvoluntary seems an untoward usurpation of the common presumption of liberty.

* My Latin is terrible, so that's probably grammatically incorrect. Apologies.

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Do you have suggestions on where we could find more examples of this phenomenon?