"It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do." ~ Edmund Burke
Column by Jim Davies.
Exclusive to STR
The nation is breathless, as I write, awaiting news from the Supreme Court about what marriage is. Crowds attend its building, working themselves up into a tizzy and a froth, for inside its lobby is engraved the arrogant and outrageous claim:
IT IS EMPHATICALLY THE PROVINCE AND DUTY OF
THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS
~ directly quoted from Marbury vs. Madison, an historic power grab. Gee, if only I could give myself such power, merely by saying so.
“Marriage is a fundamental right,” they all solemnly assert with one accord. Then they get back to the work of defining what it is. Some “fundament,” when we have to wait on the verdict of nine aging people in black robes, to find out what fundamental right we have.
Marriage is of course in no way a fundamental right in practice, in this government-soaked society. Try marrying two or more wives (or husbands) at once, with their full agreement, and see how far you get. Or try marrying off your 12-year-old daughter to that handsome and wealthy 14-year old heir up the road, again with the full agreement of both of them and his parents, and discover how fundamental is this right in the Land of the Free. So the judges and politicians are lying absolutely; what else is new?
I must first declare an interest; I'm married. Thanks to my wife's enduring sweetness and astonishing patience, we have been for 50 years and counting. We have two super children and six grandchildren to brighten our dotage. So count me conventional, a traditionalist.
What will marriage be like in the coming free society?
Answer, of course: exactly what the contracting parties desire, neither more nor less. Marriage is a contract, governing relationships between two or more people. Its traditional terms are usually spelled out orally before witnesses, and involve forsaking all other and keeping thee only unto her, and plighting her thy troth, and promising to love, cherish, honor and sometimes to obey. It gets a bit tricky to remember all that some years later, even if the rusty words were understood at the time – but there it is, a contract. After government has vanished and anyone can marry anyone, I expect the contracts will be more usually written, and more explicit. Who will win the bread, shall it be exclusive or open and swinging, what will obtain under terms of cancellation, who will then take what and (if there are children) whom. But all that will be optional, and there will be an industry of contract drafters so that engaged people can browse through the alternatives and say to each other, “Honey, let's use that one.”
As to how many parties and of what kind, all that too will be whatever the contractors wish. Nature will determine that opposite-sex marriages will be by far the most common, but where nature causes gentlemen to prefer gentlemen and ladies, ladies, so be it. There won't be any government benefits or restrictions to argue about, because there won't be any government, so it will all be done purely on the basis of personal preference.
If the contractors wish to have three, four or N parties to the marriage, so be that also. The contract in such cases could, however, get a bit hairy--especially the bits about who takes the children in the case of subsequent separation. Factors like whose biological children they are anyway could arise, for example. Complexities would abound, which will be very good for the lawyer trade – which, alas, will no doubt survive the transition to liberty, though quite possibly with a change of name since “laws” will no longer exist. The contracts for such plural marriages will, I think, follow a new Parkinson's Law: that the number of words (and price) will expand in proportion to the square of the number of participants.
But (as the Pols just love to ask) what about the children? Meaning, first, will kids under 16 get married? My answer is yes, but. The “but” will apply to all contracts about any subject; there is an age below which a child cannot be considered responsible. Hence, if a dispute arises a few years later, a free-market court may resolve it by declaring that when marrying, one or both of the youngsters didn't know what they were doing. That could get complicated and expensive, so parents will counsel caution and patience.
That age of responsibility varies with the individual, and is pretty hard to pin down. There are some thoughts on it in the “Children” page of The Anarchist Alternative. One thing's for sure: the present law-based provision that 16, or 18, or 21 is fixed for everyone is absurd--and obscene, when one law requires a boy of 18 to kill the government's enemies but another forbids him to drink beer until he is 21. Mohandas Gandhi married his wife Kasturbai when he was 13 and she was 14, and according to the movie, it worked out pretty well, though he made her clean latrines in the ashram, which she probably didn't anticipate when marrying the son of a rich man with plans to educate him in London for a prosperous career as a barrister.
What about the children, also, in the matter of adoption by same-sex couples or groups? There's a common view, which may be correct, that children grow up best when raised by both a mother and a father. Supposing that more evidence shows that to be so, adoption agents will prefer to place children with traditional couples. The adoption industry will, however, be diverse and its development hard to predict. Often they will be founded by religious folk with strong views against abortion, who will reinforce that preference, but I've no doubt that some will be supported by gays and lesbians eager to sponsor a supply of babies for same-sex marriages. Money will surely play a part, though it will flow not to bureaucrats who administer laws that furnish them with work, as today, but to entrepreneurs whose success will follow wise placements and satisfied customers. Phrases like “trading babies” will lose their ugly connotations. Whatever the details, the happy result of such a free market will be that children end up where they are most wanted. And that is very, very good.
The state currently has its knickers in a twist over marriage, for whatever it rules the term to mean, a large minority of voters will be dissatisfied; and the state's fate is well deserved. The state (and the church, for that matter) has no business intruding into such private contracts; according to Ryan McMaken, it began intervening to gain a basis for taxing and controlling inheritances. It would best solve its present dilemma by getting out of them – declaring a kind of separation between state and marriage. There is zero probability of any such sensible outcome, so we'll have to wait for the state to evaporate altogether. It won't be long.