I would like not to say anything about Kim Davis

[drwex]

...but it appears there might one iota of good coming from this idiotic fiasco.(*)

A proposal is being bruited around to change the law, and thereby fundamentally change the amount of governmental involvement in marriage. The proposal is to eliminate the need for the government to issue a license for marriage and instead to have the government act as a registrar of marriages.

In effect, this would make marriage licenses like property deeds and estate wills - you have one, there are laws around what makes one a binding legal document, and the government preserves its and the public interest in knowing what happens with them. But it takes away the governmental role of sanctioning marriages. For some time - at least since equal marriage became a widespread topic of discussion - people have wondered whether it wouldn't be better if government got out of the marriage business altogether.

I think the answer to that is a qualified "no" in that I believe government has a role in protecting people from coerced marriage and fraudulent marriage. I also believe it's important that there be a persistent documentation that is either fully transparent or that can be brought into court under the right authority. Civil records seem to me to be the best place to hold this information. I'm extremely uncomfortable with - but don't have a better idea than - having government involved in regulating certain kinds of marriage, such as marriage to underage persons, marriage to close blood relatives, and marriages to non-citizens. All of these situations have a high potential to create a social cost and if the population as a whole is going to be asked to bear that cost then I think regulation is appropriate. I'm just unhappy with the idea that some government might get to continue defining some kinds of marriage as "dangerous" or similar.

So to the extent that the Davis situation might produce a movement toward lessening the role government plays in marriage I'm willing to consider that the silver lining of this particular dark cloud.

(*) Just in case there was any doubt, I'm of the opinion that Ms Davis has a right to her religious beliefs but she does not have a right to hold governmental office. When the two are in conflict she has to choose and that's NOT an infringement on her religious rights.

Comments

[vvalkyri.livejournal.com]

Niiiice

[dpolicar]

WRT getting government out of the marriage business, I guess my thoughts are still what they were back in June. What you say here about regulating activities with a high potential for social cost seems aligned with that.

WRT back-loading rather than front-loading that role (registering and validating, rather than issuing licenses) -- I guess I don't see what good that does for anyone. If I'm understanding correctly, it puts the government in the position of telling me the marriage I just had is invalid, rather than telling me the marriage I want to have is invalid.

And then... what?

[drwex]

It's a burden of proof/burden of effort shift. Roughly you can have regimes of "Anything not forbidden is permitted" or "Anything not permitted is forbidden." Many (most) things in America follow the first regime, but requiring a license up front shifts things to the second regime. I'd like marriage to be in the first regime.

An example is US vs European rules on naming children. In the US you can name your children anything but if you name your child "fuckthepolice" or something like that you'll be required to change it when you go to file the birth certificate. By contrast many countries in Europe have lists of permitted names and you have to check that list in order to pick an accepted name.

[dpolicar]

I... am not sure I get it.

Consider the following cases:

Case 1: Paulo and I go to a clerk's desk for a marriage license. They go down a list of conditions that must apply if a license is to be issued. They issue the license if all of those conditions are met, and refuse it otherwise.

Case 2: Paulo and I go to a clerk's desk for a marriage license. They go down a list of conditions that cannot apply if a license to be issued. They issue the license if none of those conditions are met, and refuse it otherwise.

Case 3: Paulo and I get married, and go to the clerk's desk to register our marriage. They go down a list of conditions that cannot apply if a marriage is to be registered. They register the marriage if none of those conditions are met, and refuse it otherwise.

Case 4: Paulo and I get married, and go to the clerk's desk to register our marriage. They go down a list of conditions that must apply if a marriage is to be registered. They register the marriage if all of those conditions are met, and refuse it otherwise.


It seems to me that cases 1 and 2 involve licensing marriage, while cases 3 and 4 involve registering marriage, which is what I understood you as initially talking about.

It seems to me that cases 1 and 4 involve "anything not permitted is forbidden," while cases 2 and 3 involve "anything not forbidden is permitted."

So it kind of seems to me that you just changed the subject.

But, regardless: with respect to licensing (1 and 2) vs registering (3 and 4), my uncertainty remains the same as earlier... I don't really see what this helps. The same judgments are being made, they're just being made after the fact.

With respect to default-forbidden (1 and 4) vs default-permitted (2 and 3), I see how this helps marriage... we do less input-testing, so more marriages get through. Awesome, I guess.

My problem with this, as I wrote back in June, is that there's this whole body of additional law that governs how we interact with married people. If we agree to reduce our input-testing of marriages, we have to be prepared for a much higher level of unexpected results as those additional laws start interacting with the marriages that get through.

(I would have a similar concern with names if there were a lot of laws that said things like "people with names starting with consonants get treated this way, people with names starting with vowels get treated that way" and I just registered a birth certificate for little baby 441231.)

And, hey, that's fine, if that's what we want to do. Let's deal with those exceptions, either by front-loading (amending the relevant laws now based on general principles) or back-loading (waiting until confusing cases come up, judging those cases on their individual merits, and building up a system of precedents). I have a preference for front-loading, but they both work.

I just don't want us to adopt 2/3 and then be surprised when the system starts throwing exceptions downstream.

[drwex]

Sorry this took me a while to get back to. I agree that if you reduce things to logical equivalences there is no semantic difference when you process all cases fully. But that's not how humans or our system works. In the extreme case (and I know you hate slippery slope arguments but here goes) you'd have to go to the government to get permission for EVERY action because whatever you do might violate some law. Clearly that's silly, so we draw a line somewhere else.

Wherever we draw that line it creates the "downstream" situation you wrote about, which I vastly prefer. I prefer it because in a logical sense people are very bad at nuance and predicting complex interactions. Those need to be worked out in media res. In addition, downstream exceptions most often get to the courts first, who are in a position to examine the relevant facts and judge how the law should apply. Often they get it wrong, but that's why we have appeals processes and the ability of the legislature to go back and fix things. And sometimes they get it right - right-er than the population. Gay marriage being just one prominent recent example. Conversely, legislation that is over-written or over-broad in an attempt to deal with all possible situations up front lead to ridiculous outcomes.

So if we're going to draw a line somewhere other than "ask the government first about everything you're thinking of doing" then I prefer to draw that line a great deal farther upstream. To wit, I think there are a set of things that almost all people would agree are unambiguous and those things are what we write legislation to prohibit. The more grey an area gets the more I want it left to be worked out case by case.

Relatedly, the less necessary it is to have governmental involvement the more I want decisions made downstream. As I originally wrote I think it's important to have government available to protect people from coercion and fraud, both of which are concerns in the marriage area. I think minors also ought to be able to get governmental protection in situations where their families are failing to protect (or may actively be endangering) them. But since these are (I expect) minority cases, I want the rest resolved downstream.

Part 1 of 2: Courts vs. legislators

[dpolicar]

"downstream exceptions most often get to the courts first..."

Yes.

"...who are in a position to examine the relevant facts and judge how the law should apply."

...to this specific case, involving these particular defendants and plaintiffs. Yes.

And sometimes that works in ways we endorse, either because the specific case and ruling is consistent with how we view the general case, or because the specific case or judge is biased in the direction we endorse.

And sometimes it works in ways we reject, for the inverse reasons.

"Conversely, legislation that is over-written or over-broad in an attempt to deal with all possible situations up front lead to ridiculous outcomes."

Yes. Legislators have much broader scope, which means that it's easier for them to fuck it up (because they're solving a more complex problem) and that when they fuck it up the consequences are significant. Courts have narrower scope, which means it's easier for them to get that case right, and when they fuck it up the consequences are less significant.

Of course, the existence of precedent-based law means that the actual scope of a court case is often broader than the court is officially permitted to take into account, and that causes some trouble sometimes.

And the broader scope of legislators also means that when they get it right the benefit is broader.

Part 2 of 2: Upstream vs downstream

[dpolicar]

The more grey an area gets the more I want it left to be worked out case by case.

I understand, and this makes sense to me as far as it goes.

That said... well, for my own part, I value the ability to make plans. I prefer that systems that significantly affect my life to be predictable.

So being told that the law won't stop me from getting married, but whether my family gets the same legal protections other families do in various downstream situations is still up in the air, is problematic... it leaves me with very little ability to predict the consequences of getting married.

And, I mean, it was never illegal for me to say "we're married", as long as I didn't try to claim any of the downstream benefits that conventionally come along with that status. If we don't care about the downstream stuff, then there was never a legal question to be resolved in the first place.

But I do care about the downstream stuff. So I prefer that the government precommit to handling the downstream situations in particular ways, so I can make reliable plans. And I can understand why the government is reluctant to make that precommitment in the absence of precertification (licensing), so I'm willing to pay the price of being required to get precertification.

All of that said... sure, in cases where the government doesn't have to be (significantly) involved downstream, there's no (significant) precommitment for the government to make, and in those cases precertification makes less sense.

I think it's important to have government available to protect people from coercion and fraud [..&minors..] But since these are (I expect) minority cases, I want the rest resolved downstream

Fair enough. As above, if the government's involvement is solely for edge cases, then it makes sense for the typical case to be resolved downstream... that is, to not require licensing.

For my own part, though: I would (for example) add protection of marginalized adults from social and institutional discrimination to the list of cases I want government involved in.

And I don't consider this a minority/edge case... it comes up often enough when it comes to (among other things) marriage that I'd prefer it to be resolved upstream.

For example, one of the things I'd want to include in a discussion of legal protection for poly families is a discussion of whether employers and hospitals and service providers and government offices are legally required to extend poly families the same benefits and services they extend to other families.

Saying "the law doesn't prevent the three of you from getting married, if you wish, and we'll worry about whether you get anti-discrimination protection case-by-case as it comes up" doesn't get me what I want there.

"In the extreme case (and I know you hate slippery slope arguments but here goes) you'd have to go to the government to get permission for EVERY action because whatever you do might violate some law. Clearly that's silly, so we draw a line somewhere else."

So, to articulate the very general case here: my inclination in most slippery-slope cases is to draw a line on that slope based on how likely the negative consequence is and how much I care about it.

In the case of families being denied equal treatment, I think that consequence is likely and I care about it a lot, so the idea of getting permission from the government to get married in exchange for getting a statement from the government that my family deserves equal treatment before the law is OK with me.

In other cases, I might draw the line somewhere else, and accept the downstream consequences as acceptable.

And I accept that other people can legitimately draw their lines elsewhere, and thereby be OK with different consequences, and there's nothing incoherent or immoral about that... though in some contexts that might make them my political opponents, just the same.