Minor Note: Legislative Strategy for “Obergefell”

The judicial strategy for any resistance to the Obergefell decision divides into two parts:

  1. Win elections, appoint judges, get majorities in lower courts (which also serve as a recruiting pool for judicial talent) and ultimately in higher courts.
  2. Find legal arguments that allow lower courts to evade the force of Obergefell; creatively misapply its underlying principles; write decisions (and more generally, develop legal doctrines) that attract less-committed leftist judges, in courts where we need compromises; and ultimately refine and perfect our own legal principles in a way that is optimally appealing to smart young lawyers with integrity, and demoralizing to leftists who must publicly reject them.

I will not comment on either of these right now.  The first falls under electoral strategy in general; like everyone else I am no longer interested in elections because the next round of of elections is two years away. (A terribly short-sighted attitude! )  The second is an area where I have nothing intelligent to say.

But the Right can still resist judicial tyranny where it controls legislatures; the question is how to do it.  I have a few ideas.

Forms of marriage

American states already acknowledge multiple forms of marriage.  Alabama, for example, offers both a standard marriage contract and a “covenant marriage”.  The difference lies in how the contract can be terminated.  In a standard marriage, one spouse can file for a divorce for cause (alleging the other spouse has violated his or her duties) or the husband and wife can jointly file for a “no fault” divorce.  For “covenant marriages,” no-fault divorce is off the table; the marriage can only be dissolved if the spouses can convince a judge they have serious grounds for divorce.

Covenant marriage also differed on a few other points: maybe there was a 120 waiting-period before the engaged couple could enter their covenant?  Perhaps it was required to be a first marriage for both partners?

In other cases, the explicit purpose of the forms of marriage is who may be married under them.  For example, most states have a form of marriage in which any adult couple (defined variously as 18 years of age, or 21 years of age) can apply for a license to marry, and another form in which the couple petitions their parents or a judge for permission to marry.

Thus if either the fiancé or the fiancée is still a child in the eyes of the law, the couple cannot marry in the normal way, and must begin the process by obtaining evidence that a qualified authority consents to the marriage.  Or — I do not wish to prejudge this question! — perhaps it would be equally valid, and a great deal more traditional, to say that the “normal” form of marriage begins with the happy couple asking for their parents’ support, but there is a second form of marriage available to older couples who cannot get this support.

There are other ways in which “forms” of marriage differ which involve waiting periods, blood tests, and so on; but these mostly differ between states, rather than within them.  There is also a distinction between common law marriage, whereby partners acquire spousal rights and obligations without any formal contract or ceremony, and marriage per se.

(An Aside)

There is nothing novel (much less “progressive”) about having multiple forms of marriage.  Nearly every historical civilization distinguished between marriage (to a wife who is one’s peer) and the various grades of concubinage.  Roman law had always allowed a man to hold wives under a variety of legal forms, including some available only to patricians, but only one at a time.  The Church extinguished forms that were closer to prostitution, but continued to permit morganatic marriages (whose issue could not inherit either the property or the privileges of one parent) and also distinguished between weddings that could be celebrated by all believers, those celebrated by priests, and those that could only be celebrated by bishops.

So you shouldn’t be afraid of the multiple forms of marriage.  Embrace them!

The Strategy

Given that the states have the right to offer multiple forms of marriage, and they have been actively exercising this right since the beginning of the Republic, there can be no objection if they continue to do so.

The soul of legislative resistance would be to offer a general form of marital contract which is available to absolutely everyone, as Obergefell demands.  However, there would also be a special form available to a special class of potential spouses, whose marriage has some special telos relevant to the details of that contractual form.

a.  Age of Majority.  One idea is to force everyone who gets married to seek the permission of their parents and/or a judge, but allow some subset of couples to marry independently.  The most aggressive approach would be to just say, directly, that minor couples and same-sex couples need parental permission, while an adult man and adult woman can become husband and wife without anyone’s consent.

b. Putting the “permission” back in patriarchy.  But perhaps you could accomplish the same thing just by raising the age of majority (with respect to marriage) for everyone, especially in very conservative states.  Say you require parental consent for all marriages up to age 30 or 35.  If two young ’uns cannot get a parental blessing, they need throw themselves at the mercy of a kafkaesque judicial bureaucracy.  (One could dislike this proposal on the grounds that parental veto might lead to fewer marriages. On the other hand, returning parents to their traditional role in betrothal might lead to happier, longer marriages, in which case it would be desirable in its own right.)

c. Benefit of clergy.  Anyone can perform a marriage these days; finding someone to officiate at one’s wedding is easy, provided you already have a valid license.  Why not offer one form of marriage to people who will be married by their own minister, and another to couples who will be married to anyone else?  A minister who has watched a romance blossom, and who can offer pastoral guidance once the honeymoon is over, can vouch for the soon-to-be married couple; if he is willing to marry them, that means something.  If a couple is to be married by a justice of the peace, a notary, or a minister who is as much a to them stranger as their caterer, then the whole affair is much more doubtful and the state has every reason to force them to follow a different procedure when they apply for a marriage license, or to apply for a different type of marriage entirely.

(You can’t just let the godless say they are being married by their own minister, by the way.  To prove it’s your own minister signing the license, you need to show that you have been enrolled as a member of his congregation for a substantial period: one year? five years?)

d. Statistically validated benefit of clergy.  We could also extend the same logic to the officiation privileges of ministers of various recognized denominations.  Start keeping track of the marriages where a minister (or all ministers from a certain denomination) agreed to officiate; if the marriages in question fall short of certain goals (number of divorces? longevity of marriage? number of children, if you’re feeling lucky?), that minister/denomination does not taking his role seriously, and so he will henceforth be treated like a notary.

e. Intention to conceive.  Just as we offer incorporation of one type to business partners who plan to make a profit and incorporation of another type to those who don’t, we can do the same thing for marriage: offer a general form for anyone, and then a special form for people who intend to raise a family together.  A man and woman need only affirm that they will try to conceive a child after the wedding celebration; for any other couple, of course, such conception is impossible.  One could simply exclude them from this form entirely; but a more pragmatic path to the same outcome would be to force them to provide evidence that immediately after the wedding they will undergo artificial insemination, IVF, adoption, or whatever unnatural ways to acquire children the legislature instructs the courts to recognize.

f. Medical issues.  It is of course crucial for anyone entering into a lifelong partnership to be aware of any incurable diseases his future “spouse” has, particularly if those diseases are sexually transmitted.  A few states already require blood tests: the next step is to require such blood tests except for marriages between a husband and a wife, or for anyone who will sign an affidavit that he has never engaged in homosexual acts. (As a matter of public policy, it’s not pragmatic to require people with very low rates of infection with GRIDS to undergo testing.  Aren’t you pragmatic?  You aren’t some kind of religious zealot, are you?) — The next step, once someone’s venereal diseases are listed on their marriage certificate, is to change the spousal duties and obligations of those who test positive (and/or refuse to get tested).

The general strategy is simply to create a form of marriage (which we intend to correspond to the sacrament) alongside the existing form of pseudo-marriage (which Obergefell sez must be available to sodomites), and shepherd as many newlyweds as possible into the former while containing as many sodomites as possible within the latter.  These variations on what the legalistic rationale for the two forms might be are merely brainstorming; there are many possibilities.

Remember, the legislation enacting these forms does not have to survive judicial review, and nor does it have to be 100% successful in separating the wheat from the chaff.  The legislative strategy can serve a valuable purpose, where the Right already controls the state legislature, just by:

  • infuriating the Cathedral
  • gumming up the appellate courts
  • giving lower courts room to wriggle out from under stare decisis, and
  • forcing the higher courts to embarrass themselves in amusing ways

And if that worked, then maybe…

If a real form of marriage and a spurious form could be instituted and went on to gain traction, the strategy can be extended to further eviscerate Obergefell simply by encouraging more and more non-romantic couples (roommates? business partners?) to apply for recognition under the spurious form.  That would cement the victory.

Another possible extension of the strategy is to impose the idea of common law marriage on same-sex couples, to the point that in disputes between long-term roommates, one roommate could nearly always bring suit against the other, alleging that a common law marriage already exists between them.  This could also be quite convenient as a tactic in divorce cases!  If a man was actually in a common law marriage with his roommate at the time of his second, bigamous marriage, the second marriage is invalid and legally void.  — The beauty of this variant of the strategy is that such disputes are so acrimonious, the disputants do not care whether or not their legal tactics align with their ideology.  We would recruit foot soldiers from thousands of failing bolshevik households. — The problem is that common law marriage has been significantly weakened in nearly every state, so searching for frivolous, abusive extensions of it to common law same-sex marriage might be fruitless.  Lawyers can assess its plausibility.


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