It's Fine, But It's Not Marriage

Dr. Althouse cites a subject of interest to that genuine philosopher Bertrand Russell, which she follows him in calling "Companionate Marriage." The setup is whether it can be right for a man who has no sexual interest in a woman to marry her, simply because she will be a good life companion, but with the clear understanding that there will be no sex.

There is no reason why you shouldn't form a relationship with someone that is life-long, companionable, and sex-free. If you also should elect to live together, and hold property in common, and pursue a life together... well, none of that is wrong either. In fact there are many societies of this type, often with very many partners (for example, some religious orders operate with common property and an understanding that you will be a companion to your brothers or sisters and take care of them if they get sick or old).

Indeed, it's Aristotle's description of true friendship -- common interests, so that the friend is like 'another self,' so much so that you live together and share property. Aristotle assumed this state both could and often would co-exist with marriages, so that families united by common purposes might come to hold property in common (something like a proto-corporate body built on family ties). There's certainly no moral reason you shouldn't do this if it is acceptable to all parties. Obviously if you form such a society with unmarried people, it would require the consent of all parties also for them to marry insofar as that would entitle their spouse to an interest in the common property; but if it is handled as a kind of corporation, the common property of the society of friendship might not be touched by the marriage at all.

You can both marry and form a corporation with a business partner, even one whose sole purpose is to provide for lifelong companionship. If you should not marry otherwise, that's fine too. But if you should happen to produce a child with some third party, your business partner is not on the hook for it unless she chooses to be. The mother (or father) of that child has the responsibilities and duties that would have gone with any other out-of-wedlock birth.

Or you could construct such a society with a vow of celibacy, and a pledge not to marry. That's even more like a religious order.

All of this is fine. What isn't moral is to confuse it with marriage. That is immoral because destroying the legal distinction between non-marital forms and marriage means that courts will have to treat both kinds of unions as the same under the law. That means that precedents in marriage law -- which are of the utmost importance especially to children -- will begin to be distorted by the non-marital unions that are legally treated as if they were marriages.

The same issue applies to same-sex unions, as far as I am concerned. You can form a society of friendship if you want; it can have whatever by-laws you want it to have. That's an exercise of freedom that of course no one ought to deny you. Just remember that a same-sex union is not exactly the same as marriage, and collapsing the distinction is going to have harmful effects by forcing the courts to treat them as if they were. That will create precedents that will distort the marriage law, which will harm especially the children of traditional marriages.

Do what you want. Just maintain the distinctions.

24 comments:

Texan99 said...

Nobody's business.

Grim said...

It isn't if they don't make it so. Changing the law is everyone's business, but they can do what they want here without changing a thing. The purposes for which they want to 'incorporate' are perfectly moral. There's really no reason anyone should object to it, as long as it's understood as a private society and doesn't require legal changes.

(In defense of Dr. Althouse, the guy did write for public advice; that's another way of making it people's business, in a limited way. If you ask what someone thinks about something, it's not intrusive for them to give an opinion.)

Cass said...

It isn't nobody's business when the state formally recognizes marriage and accords it different treatment from other partnerships.

That alone makes it everybody's business.

Anonymous said...

IIRC the Catholic Church at one point recognized a "Josephite Marriage" where both partners agree to marry and remain celibate for spiritual reasons. Which does not describe what Althouse seems to be talking about. Not being Catholic or familiar with that tradition, anything more along that line is beyond my ken.

LittleRed1

Texan99 said...

If we have to inquire into whether adults are having sex with each other under their own roof, we're off on the wrong track. The only legitimate reason I can see for worrying about who's having sex with whom is to work out which adults have parental responsibilities toward offspring. If there are people who, by design, are not producing children, that removes every excuse I can see for the rest of us peering into their bedrooms or taking any official notice of their public pronouncements on what's likely to take place in their bedrooms.

If that means the IRS should quit treated married and unmarried people differently, fine. I'd be content to see the government treat all people the same who elect to hold themselves out as "married" for legal reasons--or for the government to ignore the question entirely, as none of its business. Households, however they happen to be run internally, ought to be almost entirely opaque to the government unless there are compelling grounds to intervene for the immediate physical protection of an occupant, especially a minor.

Grim said...

Does that mean the government should have no role in dividing property in the case of divorce? The real issue I see with it is the precedents that will come out of family court. Those precedents have arisen over time to respond to unions of a particular type, largely for the protection of those most vulnerable in such arrangements.

If you introduce a substantially different type of relationship under the same label, then by the rule of equal protection, we must apply the same rules to it. Now very likely new kinds of relationships will produce new precedents when they dissolve; and that is going to cause the existing protections within the common law to become diluted and weakened because very different precedents will exist now.

The reason it is so important to maintain the distinctions is so we can treat the cases as completely different should they come to court. If everything goes well, it won't be an issue for this "marriage"; just as the family court won't get involved in a marriage that works wonderfully well. In those cases, I like the idea of opacity.

Texan99 said...

It's worked out remarkably badly, this business of dragging the government into how to split up property when people ditch their marriages. Still, at least in that context a couple is affirmatively asking the government to step in and mediate a property (or child custody) dispute that they can't seem to handle decently on their own. That's a far cry from the rest of us taking it on ourselves to worry about whose marriage qualifies as a marriage, and whether the sex meets our standards.

Grim said...

The problem is that it happens often enough that we need a stable system -- whether it is the government or some other entity -- to adjudicate it. Stability in a precedent-based system comes from clarity, which means that the categories have to have something to do with the facts of the case.

We can't figure out how to get the government out of it so far, and the American system at least is utterly committed to the idea of appeal to precedents and 'equality under the law' as guarantors that some sort of just outcome has been reached.

Given that setup, the law has to be involved on the front-end too. The law has to keep the categories distinct on the front-end, so that unlike precedents don't run together on the back-end. That kind of conceptual confusion causes a great deal of harm, especially to the most vulnerable parties caught up in divorces.

Texan99 said...

Can we agree that it won't help that much, in our inevitable need to muck around in people's divorce settlements, for us to have detailed knowledge of their sexual arrangements, or to have had the opportunity to approve or disapprove of them?

Grim said...

"Detailed" is probably not necessary; but the terms on which the partnership was organized is important.

We should probably make it less opaque to ordinary people how to form corporate bodies in any case. A clear set of bylaws would be helpful (as I'm sure you know) in dissolving such a relationship, should it fail to work out. It sounds like this is one in which "adultery" wouldn't necessarily rise to the level of a violation of the form of the company; whereas of course in marriage it very much would, for a host of good reasons.

Similarly, in many such unions "converting to another religion" is of no significance to the form of the company; but if you were putting together a religious order with a particular denomination as focus, you'd want to write that in.

Texan99 said...

I'd prefer not to be dragged into the division of property of people who can't figure out how to stay together, or how to sort out their own property if they can't stay together--but I decline absolutely to hear about their sexual arrangements in any case. I can't see how the sexual terms on which the partnership was organized are important to the task of helping the couple part ways, or to any other task I'm qualified to undertake regarding their household. I'm prepared to listen politely to their public statements about who agrees to support whom financially for life, particularly after they split up, because those obligations are of the sort that I see a public role in enforcing. If they are unhappy in their sexual expectations, I neither need nor want to know.

There's already a great deal too much Jerry-Springer-ish publicity about things people ought to be dealing with in private. The last thing I want to see is the government getting further involved.

There's a trend here that I deplore: we worry about the mess created when private behavior goes wrong, and we imagine we can short-circuit problems by intervening early on in the private behavior. Hence movements to control people's diets for fear they'll burden the taxpayer with their health problems, for instance, and ditto for anti-smoking regs or laws to control salt or sugar in restaurants and vending machines. I think it's entirely the wrong approach. The time for the public to get involved is when the effect of private behavior becomes a threat to public order or safety. Otherwise there will be no nook or cranny the meddlers don't crawl into; they can't help themselves. If the public doesn't relish cleaning up the resulting mess, I'd prefer we decided not to clean it up but instead to leave it to the individuals involved.

Grim said...

This isn't a "trend," it's common law -- a centuries-old way of dealing with matters, which has (in a very conservative way, from Burke's perspective) sorted out best practices for a particular kind of union.

What I'm opposed to is what really is a trend: saying, "Well, why don't we call this a marriage too?" Now you're importing stuff into the front-end that is going to cause problems on the back-end.

That's not to say that people can't live how they want. It's just to say that if you want an institution that isn't quite the one called "marriage," you should feel free to set one up. However you like! Then, even if it doesn't work out, your front end innovations won't cause trouble for any unions besides your own on the back end.

Texan99 said...

There are many things people have tended to do from time immemorial that are terrible ideas. The restless urge to inquire needlessly into the most private areas of other people's lives is a habit I'd put squarely into that category. That it's sometimes unavoidable I grant you, but I give the notion strict scrutiny whenever it comes up, especially if there's any question of the government being involved, as opposed to the members of one's intimate society, or one's church.

Grim said...

You keep using words like "needlessly" and "detailed," which are unspecified here. It's not needless if it's necessary to avoid significant harm; and just how "detailed" isn't clear either.

I might be willing, in the next iteration after America, to adopt a non-governmental system for handling family matters. That would avoid the question that bothers you, although at some cost in other areas. You could also avoid it by abandoning the principle of appeal to precedents, so that you could avoid appeals to how your court had handled similar cases in the past. Then each case could be handled on its individual merits as it arose (i.e., only in cases of failure of the union where they are -- as you say -- affirmatively asking for help in dividing the property).

There are problems with each of these approaches, but our current system lives at the nexus of them.

Grim said...

It may be, though, that our instincts about the problem differ.

I also think it's wonderful when people can keep their sexuality out of the public space. When that fails to happen, though, I suspect it is more often other people insisting on bringing their sexuality into public than the public prying into it. The fault in those cases lies with the people who want society to take note of their sexual preferences and change to suit them. They're the ones forcing the conversation. If they could keep it quiet and live out their sexual preferences privately, it'd be better for everyone.

Texan99 said...

When people drag their sexuality into public, I usually try to ignore it and change the subject back to something that actually involves me. Why get dragged in?

Grim said...

Because the law is everyone's business -- point #1, above. If they want to change the law, it's a citizen's duty to think about the issue and be prepared to advise his or her legislators accordingly.

Believe me, I agree that it's often a painful duty. I'd be glad not to think about a lot of the crap that people are raising these days. But until the revolution comes, we are where we are.

Texan99 said...

Not if there's an less intrusive alternative.

Grim said...

There is none this side of the revolution. Precedent isn't limited to the courts; there is also the precedent of how our bureaucracies are accustomed to function. They will not cease to intrude in the family, and anything we do to lessen their intrusiveness in good cases will increase it in marginal or bad ones. "Marginal or bad" is determined by the bureaucracy itself; perhaps, as with the IRS audits, because you expressed a sense of not trusting them very much.

Texan99 said...

We're not likely to rid ourselves of intrusive bureaucracies anytime soon, but there's nothing that requires us to help them get more intrusive.

Grim said...

No; the concept is to make them less intrusive, by giving the standards up front. It's the back end where you get discovery.

Cass said...

It's worked out remarkably badly, this business of dragging the government into how to split up property when people ditch their marriages.

Compared to what? How can anyone say "it's worked out badly" without a baseline?

FWIW, I don't claim to know the answer to this because our society hasn't had a baseline of complete nonintervention (or if you prefer, non-protection of marital rights).

But before anyone says "it hasn't worked", they ought to be able to point to some other outcome or method of resolving such disputes that would be preferable. Or at least state why refusing to resolve them at all is preferable to the status quo.

Grim said...

You could get a baseline of a sort by looking at other ways it has been done historically, or currently in other cultures; but there are a lot of variables that keep you from anything like statistical accuracy.

Religious courts lacking state authority are an option, for example; and they've been employed, in different places and times. (Especially for non-marriage arrangements like religious orders, and questions about whether a given party has kept their vows, or how to adjudicate the failure to do so. Sometimes marriage too, though.)

But that's either been long ago, in the West; or in a very different culture (and religion) where it is being done today.

douglas said...

"The time for the public to get involved is when the effect of private behavior becomes a threat to public order or safety."

Is the formation of the traditional family (or lack thereof) in the public interest as a critical element to public order and thereby public safety? There are many thins that would incline me to say 'yes'- the negative effects of segments of society where the traditional family has broken down, the psychological health of those having the support of a traditional family, declining birthrates in places where society has deemed marriage and family as open to wide interpretation, the centrality to the leftist movement of disrupting the family (they've identified their enemies well, I think).

If we accept that the familial unit is important to social stability and sustainability, then we as a people have it within our right to support that institution (if we're going to support anything, and it seems we will always be supporting something with our government and laws). I posit that the real argument against same-sex marriage is purely secular in it's (immediate) basis. This is partly connected to the view that sexuality isn't hard wired, but is highly fungible and affected by environmental factors, and the sexual drive is a strong one, so alternative sources of quenching that thirst are not unusual, humans being left to their own devices and need or opportunity arising. If you support non-judgmental sexual culture, you'll get a great deal more deviance, and less adherence to the traditional formula that helps traditional families grow and prosper, and that's a negative to the society at large. That's a por elaboration of the argument, but I need to get back to work...