All government recognized marriages should be unconstitutional by the 13th amendment

Last night I had a strange dream.  It was about my job search and encountering someone who asked whether I’d want to apply for a suitable professional job at his business.  I agreed and he handed me an application that only asked me to fill in my name, address and phone number.  There were other questions on the form for things like education and experience, but the space was too small to fit more than the word “yes”.   I turned in the minimalist application and he told me to wait for the interviewer.   The interview was interrupted by some emergency and I was asked to return the following day.  The next day while waiting for the interviewer someone comes out and asks for an introduction, after a brief introduction he commands me to follow him.   Not sure what was going on, I followed and we left the building and drove over to a client’s office where he began to engage in argument about something about the business about which I hadn’t even the foggiest notion.  At some point, the coworkers turns to me and demands “help me out here”.  I proceed my usual routine of active listening manage to calm things down and buy some more time for the company to address whatever the problem was.  As we head back, the coworker briefly expressed satisfaction in my contribution (although he was worked up about it).  I return to waiting for the interview and that interview again was immediately interrupted but this time there is no attempt to send me away, and engaged me in the problem as if I were already employed.   I spent the rest of the day there, and the rest of the week working like this all the time without ever getting the interview or even asking what the job was about.   At some point, it became clear that I had become part of their team even though I hadn’t been formerly hired yet.   While dreaming this I recall specifically thinking this was odd.  Finally, there was a meeting and the top manager, president, or whatever spoke spoke up to discuss the challenges facing the firm and how much he is relying on everyone to continue the work.  The part I recall most clearly was his use of the word marriage to describe his relationship to us.

That is really the part that echoed in my mind when I woke up.  I began thinking about how a marriage analogy can work as a workplace management philosophy, hoping that my dream gave me some neat insight into some business inspirational blog post.   But quickly I realized I had the analogy backwards.  What I dreamed was a workplace metaphor for marriage.

Marriages can (and probably often do) have a lot in common with a employment scenario.  Besides the family life ideals, there is usually a division of labor for daily tasks that could be done be servants in wealthier times or when servants were more commonly part of the household.   A century or so ago, wealthier families could employ servants with few government restrictions concerning wages, working hours, or benefits.   Today wealthier people may still use servants but it is more restricted by labor laws.   Meanwhile, the spouses are not restricted by labor laws.  Spouses can and do work around the clock for their shared marriage.   We don’t thinking of it that way, of course, but if in the middle of the night someone knocks over something and causes it to break, someone will get up to clean up the mess.   This is not considered a labor task for a spouse, but if the family had an around-the-clock household servant, this would be task for him to do.

I began to think about this aspect of marriage.  Marriage enables labor relationship outside of interference by the state.   I then began to question my earlier ambivalence about the recent controversies of same sex marriage.

Imagine the following scenario.  A single lady operates a home business as a seamstress. Due to her skills and designs, she has a thriving business.  She equips her home with industrial grade sewing equipment.  Later, she arranges an impressive marriage ceremonial and exchange of vows with her new wife.   Afterwards, the neighbors notice that only the original occupant is seen frequently leaving the house.  The lights in the room with sewing equipment are on all night even during long absences of the original occupant.  Each day there are daily deliveries and pickups of boxes from mail services.   On the occasion that the new wife is seen, she presents herself as being exhausted and unhappy.   Is this a marriage, or a servitude arrangement?  If the latter, does the state have any recourse to intervene?

Now imagine an future when we extend marriage rights to allow people (of either sex) to have multiple wives or husbands (but not a mix of both).  I think this will happen soon after the same-sex marriage right is settled.   Imagine a landscaping firm named “Joe and his 5 husbands” offering a great deal on a major project.

Can marriage licenses be used as ruse to circumvent labor laws or even to trap people into perpetual servitude or slavery?  As I mentioned above, I don’t doubt there are some traditional marriages that operate that way today.  Expanding the franchise of marriage to broader definitions may make it more likely that people will use marriages as a way to shield labor arrangements from state interference.

Coincidentally, we are entering a new post-Internet age economy where fewer people can be employed in a traditional sense.   Regulations for employment are becoming more burdensome with higher minimum wages, higher contributions for health insurance, social security, unemployment, etc.  There may be reemergence of cottage industries of small family businesses providing boutique services relying on the shield of marriage to avoid interference by the state.   Same sex marriages or eventually pluralistic marriages could provide even more cottage industry opportunities where the hidden motivation for entering the marriage is to operate a business without having employees.

This year, US Supreme Court will decide two questions related to State recognition of same sex marriages:

The justices will consider two questions — whether the 14th Amendment to the Constitution requires states to license marriages between same-sex couples, and whether it requires states to recognize such marriages when licensed by other states.

The relevent part of 14th Amendment is the first section:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

With my usual caveat that I’m a lazy researcher, my impression is that the questions relate to the due process protections of denying a person equal protections.    A marriage is a government charter that recognizes a new person in the union of two people.  This married union person should be granted equal protections.

I admit ignorance of how this compels states to recognize same sex marriages, but this is not the point of this post.  Personally, I have been ambivalent about the issue.  I don’t see any reason to favor either side of the debate as to whether states should to extend state-sponsored marriage privileges to same sex marriages.  I’ve never been married nor do I expect to be married so I’d just as soon ignore the issue entirely.

In my recent imaginings of a dedomenocracy, a new form of government based on data exclusive of any human politics, I did find a need to talk about the peculiar nature of the marriage charter when compared with corporate charters.  I imagined a form of dedomenocracy that is mostly libertarian but when needed will be authoritarian.  In its authoritarian mode, it will need to extend its reach inside charters to govern individuals within the charters.

My understanding of state charters is that they create of a state recognized person in the form of a collection of individuals organized according to some state-approved plan.   Marriage is one of the kinds of charters a state can recognize, but is unique because the marriage charter involves no written plan for assigning responsibilities or obligations to the partners.  A marriage charter may involve just the simple assertion of mutual love and commitment.  The actual details of the relationship are up to the partners.

The naturally vague terms of the marriage charter limits the state’s ability to withdraw the charter based on violations of the terms.  Essentially, the state has no access to any terms to judge the operation of the marriage.   For example, the state must wait for the partners to demand a divorce before it can consider dissolving the marriage.

Although the details of the relationship are unwritten, there has been a customary template of expected obligations such as sharing of debts or incomes and the state can compel the parties to continue to meet these burdens even after divorce.   But even the divorce proceedings appear to be based on perceived obligations at the end of the marriage instead of firm contract at the beginning of the agreement.

State recognition of chartered persons in the form of marriages is very unusual in that it gives the state very little power to regulate the relationships within the marriage.   I imagine this special nature of marriage being out of reach of normal state control may provide a good reason for states to try to restrict access to marriage.

One distinguishing restriction of a marriage is that an individual is allowed to participate in only one marriage at a time, while he may participate in as many corporations as he wishes.   In normal corporate charters, an individual simultaneously may be a president of one corporation, a treasurer of another, and an employee of a third.  In contrast, an individual can be a partner in only just one marriage.  I argued that this was a consequence of the peculiar nature of marriage as a state charter.   The state only make sense of the vague terms of a marriage relationship only if there are two individuals involved.  The state also restricts marriages to be between exactly two individuals.

The same reasoning can argue for restrictions of marriage only to opposite sex partners because the state can access traditional expectations of marriage obligations based on the different sexes.   Today, we don’t recognize as many of those traditional sex-based obligations as we did in the past, but tradition can still provide a useful guide in deciding what the rules were when the rules never were written down in the first place.

One of the arguments for same sex marriage is the universal ability for any pair of people to meet the marriage prerequisite of being in love.   I believe this is true.  Two men, or two women, can fall as deeply in love with each as can a combination of man and woman.   I also believe that marriage commitments can occur even without any expectation of sexual access.   A marriage is a commitment between individuals to collectively meet the challenges of living life in a stronger way than they can do alone.  In an earlier post, I offered a simple definition of marriage as:

If one is comfortable living ones life without caring about the gaining approval from others, then that person is married.

Even platonic partnerships can allow the newly created person (the team of two individuals) to face the world as one.

The problem with marriages is that it is an exceptional type of charter that a state grants.  The exceptional qualify of this charter is the lack of clearly defined written contract defining roles and responsibilities of the partnership.   The state’s grant of a marriage charter allows the individuals to work out those details later.   It grants this exception from requiring more precision in up-front because the individuals are in love.   The argument for same sex marriage is that deep love is equally possible for same sex partners.

It is a potential violation of the 14th amendment for states to withhold equal protections to same sex marriages when those marriages are based on essentially the same terms as opposite sex marriages.  This is especially true today with society’s dismissal of traditional (idealized) sex-based roles.

The primary eligibility requirement for a marriage is an assertion of deep love and commitment between partners.  In that definition, the 14th amendment should forbid states from denying same-sex partners the privileges of a state-recognized marriage.

As I mentioned above, the states historically have imposed multiple restrictions on marriages because of its peculiar nature.   The states make additional restrictions on marriages when compared to other corporations.   One is that a person can participate in only one marriage at a time.  Another is that a marriage should involve exactly two partners.  The reason is that the state has less regulatory authority within a marriage arrangement than it has with corporate charters.

One argument against requiring recognition of same sex marriage based only only the requirement for mutual commitment based on love is that the same criteria can be met in other relationships.  I believe that one person can form deep commitments based on love with more than one partner.  The same rationale to justifies same-sex marriage (the possibility of strong love and commitment between any pair of humans) can justify pluralistic marriages.

States may justify restrictions against polygamy and polyandry for the same reasons it had been justifying the restrictions against same sex marriages.   The marriage charter is too vague and provides too much restraint on the state’s ability to regulate the relationship within the marriage.  The state’s restrictions for eligibility for marriage help the state to manage its governing obligations.

These restrictions only apply to the marriage charter.  States are generous in granting corporate charters that provide written definitions of roles and responsibilities.   As a result, corporate charters can consist of any combination of individuals.   Also, these charters grant considerable autonomy to the individuals and allows the state to treat the corporation as a person.

Restrictions narrowing the possibilities for marriage have the positive affect of limiting the exceptions to more formally defined charters.  States are more comfortable with charters because they can use the terms of the charter to regulate that entity.   States lose that leverage with the essentially undefined terms of a marriage charter.  An alternative to marriage is to set up a corporation for any combination of partners.

To me, there can be a persuasive argument for states to restrict marriages to a subset of all the possibilities of how people may deeply fall in love with each other.

People setting up businesses involving state-granted corporations can share a deep love for some goal such as promoting some dream instead of merely making money.  They set up a corporate charter, not a marriage one.

Most of the value of marriage may be replicated by winning a corporate charter from the state based on a written business plan stating roles and responsibilities of each partner.   People sharing love in non-traditional ways can always set up a corporation and operate as one.

Note that I said most and not all.  Marriage offers more autonomy than charters for corporations.  The lack of an enforceable prior agreement for organizing roles and responsibilities prevents the states from regulating the internal affairs of a marriage like it can regulate the internal affairs of corporations.

For example, states can not enforce labor laws, such as working hours, safety standards, minimum wages, etc, onto marriages.   There is an old argument that marriages do in fact result in one or both of the partners experiencing labor conditions that would never be permitted in any other corporation.   In traditional opposite sex marriages, the wife may be burdened with child care and house keeping duties that may be hazardous or be compensated far below minimum wage.   Similarly, the husband may have house maintenance duties that could involve unsafe practices that the state would never permit a corporation to practice.

Marriage is unique because it provides a more complete shield from state interference than does standard corporate charters.   The appeal of marriage is that it allows a more complete autonomy within the relationship.

A marriage can be based on a fraudulent claim of personal commitment based on deep love.   People may use a marriage as an alternative to contracts or partnership charters and enjoy far more freedom from state interference especially in terms of labor laws.  People may use marriage as an alternative employment arrangement allowing for freedom from all labor laws for the internal activities.   In other words, marriages avoid the 13th amendment prohibitions against slavery or indentured servitude.

It is not hard to imagine partnerships of unequal wealth where the richer agrees to provide necessities to the poorer in exchange for services.  The pair can approach the state with an assertion of their mutual deep love and commitment and then be left alone in a relationship indistinguishable from servitude or even slavery.

This post is just a thought experiment without any research, but I presume that this type of economic arrangement is not uncommon even for opposite sex marriages.  One partner has the wealth or income.  The other partner has the obligation of providing unrestricted labors in exchange for food, shelter, and security.   The actual relationship may not involve any physical pleasures at all.  In such a relationship, the required labor conditions would be be permissible in any other type of corporation.

Based on this concern, I would argue that we should move in the opposite direction and further restrict marriages for the very limited purposes of raising children or the real and likely prospects of procreation.  Even those marriages may result in abuses not permitted in other corporations, but at least the state enjoys the benefits of a new generation of adults.

Yes, this is an argument against even opposite sex marriages where there are no children involved or where the partners are infertile.   The state can instead offer an alternative limited partnership for these barren couples where the state will retain its ability to enforce labor laws and the 13th amendment in particular.   To address the moralistic concerns of sexual activities, there may be special type of partnership that govern exclusive access to sex, but the basic arrangement will still require the same time of up-front formal agreement for roles and responsibilities required for registering a corporate partnership.  Such partnerships will permit the state to regulate the partnership’s internal affairs in a way it can not regulate internal affairs of marriages.

A better option would be for states to stop recognizing all marriages as a special type of corporate charter.   Everyone who wants to join a partnership even for the express purpose of raising a family should apply for some type of corporate charter where roles and responsibilities are clearly defined in advance.  Such a charter will still permit the state to interfere in the internal affairs of the partnership in the same way it can interfere with internal affairs of other corporations.  In particular, the state will be able to enforce labor laws for the work done by the partners especially when that work results in earning revenue from cottage businesses.

I fear the risk of people abusing the institution of marriage for obtaining otherwise outlawed working arrangements.   The recent successful challenges to traditional marriage that allow for same sex marriage makes other marriage arrangement acceptable in the future.  If we allow marriages to be defined by expressions of love and commitment, then we’ll eventually have to allow multiple marriage partners or even more complex marriage arrangements.  In traditional terms this would involve opposite sexes: polygamy or polyandry.   With acceptance of same sex marriage, we would also have to permit similar multiplicity of same sex partners.

The problem is not the associations of groups larger than two people.   The states already grant semi-autonomy to groups through the various types of corporation charters.  When we allow more arbitrary associations to enter in marriage, we grant them the benefit of additional shielding from state interference.  I fear that the marriage institution may be subverted to permit a return to small-scale slavery or at least indentured servitude.

In the near term, the question about same sex marriages seems to be centered on the equal protection clause of the 14th amendment.  Eventually, I believe the supreme court will need to address a 13th amendment question about marriages in general.  Does state recognition of marriage as providing special autonomy to individuals shielded from state interference violate the 13th amendment’s prohibitions against slavery and (implicitly) indentured servitude?   While religious recognition of marriage is legitimate and may vary, the state may be justified in not recognizing any marriages so that it will continue to be able to protect against abusive labor arrangements.  The equal protections of the 14th amendment applies also to the prohibitions of slavery of the 13th amendment.   Taken together, the two amendments should prohibit that states from offering any special recognition and privileges to marriages that are not also available to more routine corporate charters.

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3 thoughts on “All government recognized marriages should be unconstitutional by the 13th amendment

  1. Addition to my early hypotheticals of indentured servitude hidden within same-sex or pluralistic marriages, there is also the possibility of using more broader marriage definitions to exploit child labor. The 14th amendment’s demand for equal protections will also extend to the right of all recognized marriages adopt children. Although the state’s child protection laws have greater regulatory access to adopted children than natural children, there is considerably more autonomy extended to the adoptive parents to raise the child.

    The adoptions may be used as another means to staff up a cottage enterprise with less state interference in terms of enforcing child-labor laws than they would be able to apply to corporate charters. The analogy here is the medieval practice of novices joining a master’s house to learn a trade while the master provides the education, food, and shelter during the ages of roughly 10-20. Novices and apprentices were like adopted children but worked long hours doing tasks for the master’s business.

    Even the intrusive state’s intrusive adoptive child regulations may be challenged on 14th amendment grounds for not being equal to the state’s regulation of parents of natural children.

  2. One of my earlier concerns about broadening the definition of marriage to includes same-sex partners was that it seemed especially vulnerable to exploit for immigration fraud. While this is a case of opposite-sex marriages, this article gives a recent case of undetected polygamy apparently in a scheme to bypass immigration laws.

    Prosecutors said the immigration scam involved some of her husbands, who filed for permanent residence status shortly after the marriages. Any divorces happened only after such filings were approved. It was unclear whether any of the men will be prosecuted.

    Opening up marriage to same sex partners (and perhaps eventually to polygamous marriages) will only make such schemes easier. In the particular case of a deliberate scheme to commit criminal acts (crime syndicates or terrorism cells), there are more opportunities for a US citizen male to marry a foreign male in order allow the latter gain entry into the country with an expedited process for marriages.

    This is not an argument against same sex marriages because as the article demonstrates, the risk is already there with opposite sex marriages. However, it does give a reason to be concerned for more extensive abuses in the future.

  3. Interesting NYTimes article discusses the problem of law firms declining to defend state restrictions on marriages to exclude same-sex partners. I agree with many of the points that the current environment makes defending traditional marriages is very unpopular. Law firms taking these cases face economically harm due to lost business or inability to attract new talent.

    I find the following quote relevant to my above post:

    Gay rights advocates offer their own reason for why prominent lawyers are lined up on one side of the marriage cases. “It’s so clear that there are no good arguments against marriage equality,”

    I believe the good arguments against marriage equality will come later when we discover the unintended consequences of widespread abuse of the practice to shield criminal activities from state interference. I think that result will be inevitable because marriage protections of autonomy are so attractive for purposes other than mutual love.

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