The supreme court announced it would decide on whether state bans on same sex marriages are constitutional. My personal opinion is that this should be left to the individual states but I do not understand the need to ban same sex marriages. Often the debate about marriage is presented as a matter of love, but in my opinion the more compelling argument concerns access to legal rights and privileges as well as state benefits afforded to married individuals. There are good reasons to recognize a unique relationship between two individuals so that they can share certain privileges and risks.
I appreciate the historical justification of limiting the status to opposite-sex couples. For example, in debates leading to passing of many laws that grants special privileges and benefits to married couples, the assumption (probably even explicitly argued) was that marriages must involve opposite sex couples. To change the definition now does seem to invalidate the justification for passing those laws. But, the intent of these laws recognizes some benefit of allowing people to pair up in facing challenges in life. As a result, it seems to me that this should be allowed between any two individuals even if there is no love involved.
A marriage is a mutual commitment between the partners and is special because that multiple commitments of this type are not allowed. A marriage allows the state to recognize that in certain situations a couple can be considered a single individual. I agree with this view, but I still think it is not a topic to debate at the federal level. It is a state issue.
In spite of my views, the supreme court will address this issue as a constitutional issue and this may lead to a final decision that the constitution forbids the states from banning recognition of marriage between same sex partners. If that happens, the supreme court would achieve a good end through an incorrect means. It won’t be the first time that happened.
My motivation for this post is not about specifically about same-sex marriage but instead about the peculiar contract that a marriage involves. Note that I have no direct experience with marriage and I haven’t studied it so what follows lacks any authority.
A marriage is a particular type of contract that has no time limit and has virtually no written statements of what the partners are expected to deliver during the contract. The terms of the contract are implicit. The implicit terms of the marriage contract involves such topics as a license for sexual activities, defined parental rights over any offspring, and shared responsibilities for providing for the offspring. Of course there are many other terms in the contract but most of them are implicit and assumed by the partners: one will be a good husband and the other will be a good wife. The definition of good is left to the partners and may change over time.
A particular feature of the marriage contract is that it is perpetual. The contract is not satisfied by reaching a certain date (such as subscription service or an insurance policy) or after completing some specified actions (such as delivering a product or service). Instead when the partners no longer want to be in the contract, they must get the state to terminate the contract.
I do not know of any other contract that operates this way. While other contracts can end up in civil courts, the partners in the contract have at least the option to mutually terminate the contract without any state intervention.
The closest examples I can think of are the states granting of charters to corporations and of state populations ratifying constitutions. In these cases there is an initial grant of a perpetual contract with many terms incompletely specified. A marriage contract may be seen as analogous to corporation charter or a constitution ratification. Marriage is a state charter of a particular type of corporation that is limited to one pair of individuals. As exemplified by corporate charters, there are certain benefits that the state charter provides the individuals. Also the state has an interest in setting some standards for charters it grants. A marriage is like a corporation where some states demand a requirement that the pair of individuals be of opposite sex. The opposite sex requirement is just one of several requirements the state demands to be met in order to obtain the charter. Clearly it is debatable about whether these restrictions are reasonable. For corporations, most states have very lenient requirements for granting charters and this allows for a great diversity of corporations. By comparison, marriage charters appear to be much more restrictive.
Although I started talking about marriage, the thoughts I have are probably applicable to all of the perpetual charters: marriages, corporations, and even government constitutions (a topic for future post). These are contracts that can not terminate themselves. Corporations and marriages need to file for a dissolution of the charter and the state has to accept that filing in order for the dissolution to be valid.
The state could reject the request. Interestingly, the state’s approach for dissolving charters is opposite its approach for granting charters. The state places more demands on corporations than on marriages when it comes to request to dissolve the charter. If the concepts are interchangeable, then there should be equal treatment here as well, but that is yet another topic.
The topic I want to entertain today is the role of charters in a Dedomenocracy, a government by data. In my concept of such a government, every rule governing a population at a given time would come from an automation of trusted statistical analytic algorithms (such as machine-learning) runs against the most current repository of data. That data would include all historical data plus the most recent observed data. Precedents (such as previous rules) are part of the data, but that data must compete with more recent observations. The rule-making is not obliged to honor precedents that contradict recommendations based on more recent observations. In the purest sense, the rule-making is not obliged to convince humans of some cognitive justification of the rules. In a dedomenocracy, the rules are simply the consequences of applying analytics to data. The population agrees to follow the automated rules because doing so results in benefits more frequently than failures, and over time the rewards will outweigh the losses. There is no requirement for the rules to have convincing rational explanations.
Dedomenocracy is an authoritarian government that makes no assertions or assumption of either morality or justice. The analogy is program-trading on stock markets where stocks are bought and sold based on predictions of market dynamics and without regard to the inherent qualities of the stocks themselves. The goal of program trading is to gain wealth, not to promote specific business or market visions. Similarly, dedomenocracy is focused on social gains to avoid immediate hazards or to exploit immediate opportunities for benefits.
A distinguishing characteristic of dedomenocracy is the rapidity of replacing rules. The validity of rules based on data are necessarily limited in time because new data will make the justifying analytic results obsolete. Also the benefits and risk avoidance comes from rapid replacement of rules instead of any claims of long-lasting truths or deep wisdom that are the goals of human deliberation and debate. Dedomenocracy simply follows the data. It welcomes new data (including new sources of data) in order to come up with potentially radically different rules to exploit new opportunities for benefits (or to avoid eminent risks).
Given the rapidly and short-lived rules, there needs to be some limiting principle on the number of rules active at any time. It is impossible for everyone to understand how to comply with a large number of rules that change quickly. The number of rules are limited by a concept of urgency (that is itself an analytic result using data). In a dedomenocracy, there is not a need to have a rule for everything that annoys someone. Dedomenocracy limits its rule-making to only the most urgent issues. A consequence of this limiting feature is that dedomenocracy must be free to not renew or revise previous rules for issues that are no longer urgent. In order to keep the number of rules small, dedomenocracy will allow old rules to expire without making any replacements.
In order to work, a dedomenocracy would require new concepts of tolerance within a population. Because rules are restricted to automated analytics of available data and limited to the most urgent topics, the population must accept that many annoyances will fall outside of any current rules. Also, even when rules address an urgent annoyance, the population must tolerate rule-breakers in balance to accepting punishments that must by completed before the rule expires.
A dedomenocracy does consider historic data for rule making. For example, the trends established in historic data may suggest risks or opportunities in current trends. Over time, the historic data will include observations of all of the consequences of earlier rules in determining what may happen with rules suggested by more recent data. Historic data is relevant to dedomenocracy, but historic data must compete on equal terms with more recent data. Historic data has no priority or seniority privilege based on it being older. Dedomenocracy does not constrain itself to precedents.
Government charters whether for marriages or for corporations are data. The decision to grant the charter is based on the data available at the time. That data may be the qualifications for the marriage, or the reasonableness of a business plan. Once granted, the fact that charter was granted becomes part of the historical record. As noted above, it is very likely the that urgent issues that drive immediate rule-making may never interfere with these charters. However, there is a risk that immediate urgent issues may demand a rule that can interfere with the now historical charter.
There is an inherent conflict of charters of any sort with the idealized goals of government by data. When data defines a rule that addresses an urgency also defined by data, that rule might interfere with an earlier charter.
One way out of this dilemma is to insist that any rules must respect the earlier grant of a indefinite charter. This approach restrains what kinds of rules dedomenocracy can make and this restraint will limit its opportunities to balance benefits and risks concerning current circumstances that likely were unanticipated at the time of the original grant of the charter. In addition, this approach provides a means to eventually erode the jurisdiction of dedomenocracy, probably leading to a government like what we have now: one that is based on human deliberation and debate that values historical precedence and conceit of knowing truth and wisdom over recent contrary data. A thought occurs to me that a good portion of modern law may be an accumulation of consequences of accommodating ancient grants of charters for certain groups to be treated as corporate persons instead of individuals.
Demanding that new rules fully respect the terms of old charters ultimately will be incompatible with the concept of dedomenocracy. Dedomenocracy needs to be make rules that are free contradict earlier granted charters when a rule has the backing of the data for both its substance and its urgency. In effect, dedomenocracy needs the power to violate any charter that stands in the way of one of its rules. In a dedomenocracy, any charters lose any claim of indefinite validity.
A rule that violates a charter may not explicitly dissolve the charter. In dedomenocracy, the rules automatically expire in after a short time and priorities may change to produce future rules that are fully compatible with the earlier charter. Theoretically, the charter can be restored after the charter-violating rule expires.
Charters are special kinds of contracts that permit an undefined terms. The justification for granting indefinite terms for charters is because of the vague terms of the contract. Such vague contracts can only survive over time if they they are permitted to operate with independence from the state. This applies to all charters, but it is best illustrated by a marriage. A marriage is an agreement that the state will not interfere with the relationship. A marriage is a charter for the state to view the married couple as a single person: it can not interfere with what happens inside a person. Similarly, states recognize corporations as persons when it comes to government. The laws apply to the corporation as if it were a person.
It is not clear that a charter can survive even a temporary violation by the state. Once the state imposes a rule that recognizes the parties within the charter, it effectively removes the charter’s ability to represent an indivisible person. Using an analogy to a living human, this is like what happens in surgery: cutting into the body to address individual organs. When this occurs in a medical context, it has a beneficial objective of making the person better. Outside of the medical context, this risks inflicting a mortal wound. Dedomenocratic rules address the population as a whole, so the rule is unlikely to follow the medical analogy (a rare exception may be something similar to the General Motors bailout).
A dedomenocracy imposition of a rule that violates a charter is likely to deal a fatal blow to that charter. A close example may be the Terry Schiavo case where the state’s case to continue life support challenged the marriage charter of the husband and wife being considered a single individual. This is not a perfect example because part of the debate concerns the exact limits of the marriage charter to consider a couple to be a single individual. Given the circumstances, had the state succeeded in continuing the life-support it would have effectively dissolved the marriage charter for its own goal. In this case the goal was a moral one that is unlikely to interest a dedomenocracy, but it is not hard to imagine dedomenocracy issuing a rule that would dissolve certain kinds of marriages for some immediate goal.
Domestic violence restraining orders may be another example of the state interfering with a marriage charter. To effect a restraining order, the state must get between the individuals and this in some sense violates the marriage charter of being one person in the eyes of the state. The basis of this interference is also a moral argument about the violence.
Dedomenocracy rules that violate a marriage charter are more likely to have some economic basis, such as a restraining order that prevents the couple from sharing some monetary proceeds or debt.
It seems to me that the concepts of charters would be very fragile in a dedomenocracy. Dedomenocracy will generally tolerate charters as long as the current rules are compatible with the charter. However, the charter experiences a continuous risk of the dedomenocracy dissolving its charter at any time. Dedomenocracy has no obligation to honor past precedents, and that includes past grants of charters. Marriages may occur, but the dedomenocracy government at any time stop recognizing any or all of them.
Back to the dilemma of charters and dedomenocracy, another approach is that charters are useful to dedomenocracy as a source of historical data. The existence of a charter represents good data that a group (or a couple) have entered a commitment to cooperate together as a single person. This is strong data for influencing future policies. Part of the calculation that goes into deciding new rules is the evidence that the population will cooperate. In this case, the charters present an advantage of making the offer of committing all of its participants to cooperate with the rules. In general, it is easier to govern corporations than it is to govern individuals. Corporations have means to manage their population to assure cooperation. There are many examples of corporations making firm commitments to police their employees to conform to government regulations including regulations that impact the individual employees. The corporation itself can address disobedience without requiring any effort by the government.
Dedomenocracy will likely honor charters because the data supports some advantage of doing so. At least that is true for corporations. The data for supporting a decision to honor marriage charters is weaker. Marriages can result in joint conspiracies to disobey governance. An example of voluntary disobedience occurs in modern governments that issue evacuation orders for areas prone to an eminent natural disaster. For example with hurricane Ike, the marriage charter did not make much difference in terms of getting people to evacuate and I suspect the charter may even have encouraged the disobedience in many cases. Given the disastrous consequences of the storm, a dedomenocracy may not recognize a marriage charter by treating each partner as a separate individual for the purposes of a forced evacuation: saving one partner is better than losing both.
For states, marriage charters are less useful than corporate charters. Usually, the state gains no additional leverage on the couple in a marriage and in fact risk loses advantage when the couple conspires against the state. For the motivation of governing individuals, the state would be better off not recognizing the new person in the charter of a married couple. There is even some talk (albeit motivated by the federal courts invalidating bans on same sex marriage) to have states get out of the marriage business. Even with opposite sex marriages, there may be a good argument against recognition of a charter for a new person that combines two people. Such a charter gets in the way of governing the individuals.
Frequently marriage is presented as a historical tradition. Often arguments against same-sex marriage appeal to the historical tradition at least in the most frequent way it has been practiced as the joining of opposite sex partners. As a continuation of a historical tradition, marriage is not alone as having the state’s formal recognition. States recognize a lot of benign traditions such as holidays, or state birds. Marriage is a little more dangerous to the state then a declaration of a state bird, in that marriage creates a new person to be governed (in certain areas of the law) and this person takes the place of two individuals that were previously governable separately.
For example, we grant citizen rights to a foreign spouse of a US citizen: in effect the recognition of the marriage creates a US person (the marriage charter) with the consequence that the spouse obtains the privileges of any other spouse of a US citizen. This example presents risks to the state by allowing an individual to in some sense take a short-cut around immigration laws. However, the state tolerates this and accepts this consequence.
Historical tradition may be the only justification for the continuation of state recognition of marriage to charter a new person from a couple. I understand there are arguments about the benefits of marriage to encourage the having and raising children in a stable home. However, we have no problem with marriages that do not result in children. We accept new marriages to charter a new person from an elderly couple beyond their childbearing years as well as from medically barren or sterilized couples. The appeal to the vital role of marriage for raising children always seemed to me to be to be an argument for granting special exemptions or benefits for marriages that are not available to single people. The role of marriage for raising children influences lawmaking, but it does not justify the granting of the charter in the first place.
Even before we enter an age of government by data, there is some debate about the justification of state recognition of marriages. When we adopt government by data, the rapid automated rule making of analytics of data will produce arbitrary rules that even for a short duration may need to violate a particular the charter and govern the individual separately and in ways that will likely deal a fatal blow to the chartered person. It is possible that states will continue to recognize chartered corporations and marriages but those charters will be more mortal than than are now. In a dedomenocracy, any charter is subject to instant dissolution when urgent issues lead to a rule that demands direct governing of individuals roles within the chartered institution.