Compare forms and names and see if they are identical. Then the ruler will find nothing to worry about as everything is reduced to its reality.

-Han Feizi: The Tao of the Sovereign

The State of Discourse on Marriage in the West

There are primarily two issues involved with the question of gay marriage. First is the phenomenon of homosexuality itself, then there is the question of the institution of marriage and how same-sex marriage fits into that.

There is little objection to the fact that as far as the “culture war” is concerned non-progressives on both issues are losing the public debate (at least among the literati). Although I would maintain that there are good and persuasive arguments against both (see here and here and here), we do need to formulate more immediate and practical strategies out of our predicament other than “trying to convince everyone that we are right”.

Assuming that in those places where homosexual marriage exists there is little political will to repeal them, and that the manifest absurdity of gay marriage would not be evident to society at large anytime soon, we will need some practical and incremental steps towards recovering the institution of marriage against its contemporary distortions. It is to that end that this post is dedicated whereby I suggest some practical proposals towards mapping a way out of the politics of same-sex marriage which doesn’t require us to repeal them.

Marriage as a Legal Institution

Rather than debating over the meaning of words, like what marriage “really is”, we should instead be asking ourselves what does recognising marriage as a contract do. The answer is not far to seek. 

One of the primary functions of a marital contract is the creation of sexual obligations and the regulation of sexual behaviour, i.e. no adultery, etc, as well as obligations to remain together through the use of state coercion or incentives, e.g. disincentives in the form of unfavourable divorce settlements for faulting parties, etc. However we must note that with the advent or no-fault divorces, the marital obligations has effectively become an illusory promise, a legal term referring to a contract which does not as a matter of fact contain any real promises or obligations. As this blog puts it most expertly:

Every state currently allows some form of “no fault” divorce – divorce not based on any wrongdoing of a party, but simply because the parties claim they don’t want to be married anymore. Even though the couple may “vow” to remain together until one of them dies, everyone knows these vows have no legal or real-world effect. The marital “contract” is not a contract at all.

Imagine a regular legal contract in which either party could end the agreement by saying he didn’t like it anymore. Could the purposes of contract law be served by such a contract? From a law and economics point of view, such an “if-I-feel-like-it” contract would not support the reliability of contracts, and would require an inefficient level of hedging. The legal term for such a contract is an illusory contract – one that doesn’t have any legal effect, of which the legal system will take no notice.

Marriage once did have a legal effect – once married, parties could not divorce without a really good reason (physical cruelty, desertion, or adultery). Not coincidentally, marriages were much more likely to be reliable lifetime partnerships. In addition to the legal strictures surrounding marriage, social groups essentially forced couples to stay together or risk social death.

With the nationwide adoption of no-fault divorce and the elimination of the social stigma of divorce, the nature of marriage changed from a genuine contract to an illusory contract. Marriage stopped being the reliable, socially enforced lifetime partnership it had been for generations.

While I have been advised by a friend of mine who’s reading law that he would not use the term “illusory promise” to describe marriages with no-fault divorces because there are still terms within such a marriage which are enforceable, I think there are certain promises and obligations which have been removed from such marriages, especially in same-sex marriages which do make those sort of marriages an “illusory promise”.

The Promise of Sexual Fidelity

I have mentioned earlier that one of the primary functions of legally recognising marital contracts is to create obligations of sexual fidelity, to prohibit divorce save for very narrow conditions, and to impose penalties against the erring party against those obligations. The problem however is that it is impossible for same-sex marriages to contain any legal obligations towards sexual fidelity.

The reason for this is very simple. There is simply no definition of adultery or consummation for gay marriages as Britain discovered to its chagrin when it had same-sex marriages:

…Civil servants, confronted with the embarrassing task of working out what defined the consummation of a homosexual relationship, faltered. Since homosexual acts have no existential purpose and no procreative result, consummation is a meaningless concept. From this it followed that the Government could come up with no definition of adultery in a homosexual marriage. A law designed to be equal, is not. Under the Bill, non-consummation will not be grounds for divorce in same-sex marriage. Nor will adultery.

By accident, then, the Government is introducing, for the first time, a definition of marriage which has no sexual element. Yet it refuses to face the logical consequence of this surprising innovation.

-The Telegraph: David Cameron would like to forget gay marriage but it would haunt him

The law, at least the common law, has a very specific definition of adultery and consummation (penetration is penetration is penetration…). Same-sex marriages cannot define consummation or adultery in those terms for obvious reasons. But of course if gay marriages have no definition of adultery or consummation then it cannot, in any sense of the word, perform its function in legally regulating sexual behaviour or enforcing sexual obligations. What we have essentially is a government registered friendship between two persons, a “marriage” which ironically doesn’t have anything to do with sex.

Bringing Back the Obligation to Sexual Fidelity in Marriages

Instead of arguing whether or not marriages should “really” contain such obligations to sexual fidelity, let us, as we have stated ex hypothesi, give the LGBT activists the word “marriage”. Heck, we can even give them the entire body of law or legal facilities surrounding it. If having a piece of paper issued by the state, even if it contains no legally enforceable sexual components or obligations, somehow makes their sex feel special, they can have that piece of paper. What we want instead is a contract or agreement which encodes the traditional obligations to sexual fidelity with legally enforceable penalties for its breach. How can we achieve this apart from altering the law on marriages?

One way in which some American southern states tried to do this is to introduce the idea of “covenant marriages” which attempts to make it divorcable only under fault conditions. However from what I understand all someone needs to do is to go into a non-covenant marriage state to initiate divorce proceedings and it would be treated like any other form of marriage. Besides, it seems that covenant marriages are very similar to standard no-fault marriages in that it still allows couples to divorce after having lived separately for a number of years.

Ideally while we would like a marital contract which cannot be dissolved except under certain narrow fault conditions, if there is no possibility of this then we can try settling for something much more modest: encoding substantive penalties for the faulting party in the event that his or her fault is the cause of a divorce. For an obligation to be enforceable it must have some means of compelling compliance, and the threat of penalties is one such way of making it happen. To that end I can think of two possible solutions, although one should understand that I am neither a lawyer nor a worker in the insurance industry. My knowledge in the details would no doubt be seriously flawed but I would appreciate any feedback or insights into how to tweak it to make it much more workable.

Solution (1) Pre-Nuptial Contracts

This solution will attempt to impose financially ruinous penalties upon the faulting party via the use of pre-nuptial contracts. I watched a Law and Order episode once where apparently a divorce lawyer had a clause which completely cuts off financially the adulterous partner in the event of a divorce on those grounds.

Well, it is a TV programme so I’m not sure of the legality of that in America, but this clause seems to suggest a solution to our problems. There are some stigma associated with employing pre-nuptial contracts for it is normally associated with the attempt to minimise the consequences of a divorce rather than to enhance it. However this worry could be dispelled with the following considerations.

If we conceive of marriage as essentially an objective and publicly instituted promise/contract, in Hegel sense of a “contract to transcend the standpoint of contract”, then it would be a publicly enacted contract containing promises of future obligations and actions, especially that of sexual fidelity, as we have already established. That’s why it’s called a vow, a promise, it is the undertaking of obligations and duties to render certain services or actions into the future, in the words of the Book of Common Prayer marriage liturgy, “Wilt thou love her, comfort her, honour, and keep her in sickness and in health; and, forsaking all other, keep thee only unto her, so long as ye both shall live?… to have and to hold from this day forward, for better for worse… etc”

Now an interesting part of the marriage liturgy involves this part where only the man will say, “WITH this ring I thee wed, with my body I thee worship, and with all my worldly goods I thee endow: In the Name of the Father, and of the Son, and of the Holy Ghost. Amen.” Thus, contained with the marital promises is the endowment or giving of all material goods. Of course, this “giving” is not a loss, for they are now one family via marriage and thus share the same property.

Thus, what does it mean to include a prenuptial clause which would empty the faulting party of all material possessions? It is quite simply a fulfilment of the promise or contract made. The promise which each party makes to the other is to endow each other of all their material possession, this promise, by virtue of being objective, is an obligation which binds each party to fulfil the terms of the promise regardless of how they feel about it, that is what a promise by definition is, an undertaking of an obligation which fulfilment is a duty.

Thus, this is fine as long as they both subjectively and willing fulfils the promise, i.e. by remaining married. However, in the event that one breaks the promise or the vow via a marital fault, e.g. infidelity, abandonment, physical violence, etc, and a divorce is initiated on that grounds, or in the event one party initiates a frivolous divorce, the failure of one party to fulfil the promise does not negate the objectivity of the promise which is anterior to subjective actions, it must still be fulfilled. Thus, the financial emptying of the faulting party to the innocent party is simply the fulfilment of the promise to “endow” the goods of the faulting party to the innocent party. The only thing is, because the faulting party refuses to remain married, the faulting party, in so abandoning his marital promises and contracts, does not receive anything goods or benefits from the contract on the innocent party’s part.

In a sense, this is analogous to the Westminster Calvinistic idea that God does all things for his glory. Thus, either we glorify him by worshipping him willingly, and thereby share in the enjoyment of his glory, or we will glorify him anyway unwilling if we don’t want to worship him, by him displaying the awesome glory of his wrath in his fearsome vengeance upon those who refuse to pay him his rightful homage, to the praise of his glory, thus either way, God will be glorified.

Thus, the objectivity of a marital promise means that it will be fulfilled either way, willingly or unwilling. Willingly, by keeping to the marital vows and contracts, and sharing all of one’s goods in common, unwillingly, whereby the prenuptial clause will force the fulfilment of the promise anyway and make the offending “endow” all his/her goods whether he or she fills like it or not. One can even go on further to impose additional financial penalties on top of being deprived of every material good from the marriage.

So a pre-nuptial contract isn’t a matter of planning for an event of a failure. It is simply a very ancient and traditional form of oath-taking where we call upon ourselves retribution should we fail to uphold an oath as a demonstration of our sincerity. Oaths and vows have consequences, even in popular culture we still say things like, cross my heart and swear to die if we fail to uphold our end of the promise. Or as we say in Chinese, if I break my promise, 天打雷地 (may Heaven strike me with lightning)!

In this context, a pre-nup is simply a very robust form of oath and vow taking. We vow to keep to our marital oaths or may God visit vengeance upon us, or may I be materially bankrupted. This isn’t planning for an “escape route” out of our marital promises, it is a demonstration of its sincerity, and encoding substantive material consequences to fall upon oneself should one fail to uphold one’s marital promises.

Normally we expect civil courts to recognise this distinction between the innocent and guilty party in the event of a divorce, but since they no longer do, I see pre-nups as a well to bring back this venerable and ancient form of making serious and robust promises, promises with real consequences for those who dares to break it.

 Solution (2) Insurance Against Faulting Divorces

If the marital contract should prove too legally complicated because of doubt that the courts will enforce it, there can be another way of financially penalising the faulting party in a divorce and that is through taking out an insurance contract, a contract against a divorce with a very peculiar remuneration scheme.

What will this “insurance against divorce” look like? Upon marriage a couple can invest their money and continue to pay premiums towards this insurance scheme regularly. If they are married till a certain age, say, till their retirement age, or in the event of one of their deaths, the couple in the event of the former or the surviving party in the event of the latter, gets to cash out their insurance. Of course there can be a lot of other combinations, like the ability to draw out the funds within this scheme to purchase a home under joint-ownership or to pay their children’s college fund, etc.

This isn’t the interesting bit. The interesting part however is what happens in the event that they get a divorce. In the event that they get a divorce, the faulting party will receive nothing, the innocent party will receive the totality of their combined contribution plus whatever interest or dividend the insurance company has agreed on before hand. Thus in a sense, one has placed their finances in trust with the company who will impose the appropriate financial penalties in the event of a divorce.

Conclusion: Contracts with Obligations to Sexual Fidelity

This is of course just a stop-gap measure. Ideally what we want is the law courts to be cognizant of marital faults and to penalise them according, not need for us to resort to such financial devices. However if the existence of these marriages with concrete obligations to sexual fidelity becomes widespread enough, the farce of same-sex marriage would become self-evident at once, and perhaps it would simply die a natural death as these marriages with actual obligations to sexual fidelity becomes once more the norm, as they have been for most of human history.