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Alienation of Affections:

Maggie Gallagher, blogging at National Review Online's The Corner, suggests (more or less) a revival of the tort of alienation of affections, which has been abolished in the vast majority of states:

An updated tort of adultery could look something like the document below the fold. This tort (drafted for Minnesota, don't ask me why) could be either expanded to include "commerical enterprises that intentionally and explicitly attempt to profit from acts of adultery," or we could choose to limit it to commerical enterprises. Such a tort would not prevent websites from facilitating hookups that include adulterous ones. It would prevent them from explicitly incorporating adultery into their advertising plan.

– DRAFT –

Minn. Stats. sec. 517.23. Intentional interference with marriage.

A person is liable for damages to a spouse for intentional interference with the spouse’s marriage [marital relationship] that causes injury to the spouse. An act of adultery between the defendant and the spouse of the plaintiff when the defendant knew or should have known that the plaintiff’s spouse was married shall constitute proof of intentional interference with the plaintiff’s marriage. [Damages awarded pursuant to this statute shall not exceed $500,000. This action shall be instituted within two years of the discovery of the adultery.]

Now I think marriage is (generally speaking) a very valuable institution, and that adultery is (almost always) a very bad thing.

But not all bad things are the sorts of bad things that the legal system -- and in particular the tort liability system -- should address. Sometimes the proposed rules seem likely to cause much more bad than they would prevent. And often even if a narrow proposal would be proper, the proposals that are actually offered are much broader.

Here, for instance, are just a few of the problems with the above proposal:

1. Gallagher might be seeking a tort of adultery, but the proposed statute isn't limited to adultery; it deliberately makes actionable "intentional interference with the spouse's marriage that causes injury to the spouse," and gives adultery just as one special case. The statute would literally apply to someone who urges a friend to leave an abusive -- or unfaithful or just unsuitable -- spouse, or (say) a mother who effectively badmouths her son-in-law to her daughter. (This in fact was possible under the alienation of affections tort, though at least that tort often had a limited privilege for such statements.)

2. Families are, by and large, financial units, at least until a divorce; a husband's income benefits the wife, and vice versa. This is true even as to non-community-property, at least so long as the couple does not divorce (and much infidelity is indeed ultimately followed by reconciliation, not divorce, a result that I take it Gallagher would praise).

So say that Henry and Wanda are married, and Wanda has an affair with Alex. Henry sues Alex, not Wanda. (Presumably he could sue Wanda under the first sentence, though not if the statute is revised to avoid problem 1 by being limited to the second sentence; but if Henry plans to stay with Wanda, there's little benefit in suing her.) So Alex, a culpable party, loses up to $500,000 (if the damages cap is implemented). But Wanda, the more culpable party -- she's the one who broke the vows, after all -- actually gains $250,000, because her family will now get the $500,000. (Presumably the family would gain less if Wanda reconciles with Henry before the decision or settlement, since then Henry's damages would seem less; but I suppose a jury could find $500,000 worth of emotional distress, loss of trust, and such on Henry's part even if Henry takes Wanda back.)

I know that in principle tort liability for interference with contract by an outsider may exceed contract liability for the breach by the contracting party. But that has always struck me as a weakness of that branch of tort law; the better view, I think, is that an aider to misbehavior should be no more punished than the primary misbehaver himself, absent some special circumstances (e.g., the misbehaver is a child). And this proposal would exacerbate the weakness, by letting the breaker of the vows use the law to profit at the expense of her coconspirator (in a sense) in the enterprise.

3. Nor need this be iandvertent; consider a modern legal badger game: Wanda seduces Alex (or lets Alex seduce her; the line is often quite vague). Henry then threatens to sue. Alex settles, maybe not for the full $500,000 but for $100,000. The settlement doesn't hit the news. Wanda then seduces Andrew, Anthony, and so on, and each time Henry and Wanda pocket a settlement. All perfectly legal. But is it just? Not so much.

4. All this might be less of a problem if we thought this would vastly deter adultery, since with perfect deterrence there wouldn't be any recoveries. But of course people aren't going to be perfectly deterred; and some people -- especially those without enough assets to be worth suing -- won't be deterred at all. So the cheater who just wants sex would just have to get it from poorer partners.

Interestingly, this would probably have a sex-differential effect, to the extent heterosexual men find younger women more attractive and don't care as much about their partners' wealth or success, and tot he extent heterosexual women find successful men more attractive and don't care as much about their partners' youth. The man who is cruising for hot twentysomethings will find his prospective partners not much deterred, since they're largely judgment-proof. The woman who is more sexually attracted to men who have success and status will find her prospective partners more deterred, since they have more money to lose. I'm not in principle troubled by such sex-differential effects; most laws have some such effects to some extent. But the effects do help illustrate, I suspect, the likely perverse effects of such laws.

5. Of course, for every Henry who is willing to reconcile with his Wanda, or is even complicit in the affair (as in 2 or 3), there may be many who are reluctant to reconcile. The same is true if we flip the sex of the parties. They may initially be reluctant to acknowledge the affair to themselves, but once confronted with it, they may find it hard to take the cheating spouse back, even if there are good reasons for it (e.g., to preserve an intact household for the kids).

How will the prospect of a massive damages recovery affect that? Absent alienation of affections law, a Henry might well try to avoid seeing evidence of adultery, and once confronted with the adultery might well conclude that there's much loss for the family in a divorce and little gain (other than to his own pride and dignity). But if a spouse's adultery, especially with a rich partner, equals money to the victim spouse, the incentives (both conscious and subconscious) are changed. Spotting adultery becomes less unappealing, because there's a possible financial upside as well as emotional downside in identifying it. And once the adultery is discovered, taking the cheating spouse back promptly may well diminish the recovery (a jury is less likely to find damages if a major source of damages, a broken home, is absent).

What's more, the victim spouse will know that in the event of a divorce he or she will at least have an extra $500,000 to play with, money that needn't be shared with the cheating spouse. Why not split up?, the victim might reason -- at least I'll be well-off enough to live in comparative comfort, and maybe even pick up a better new spouse.

6. And of course let's not forget the obvious problems of proof and risk of perjury. Was there an act of adultery? Should the defendant have known the other person was married? Much of the time this will depend on what was said and done behind closed doors, and who seems more trustworthy and appealing to the jury. And this is even more so today than in the past, given that men and women have innocent friendships more often than decades ago; evidence of dinners together will no longer be particularly probative, and it will be all a swearing match among three people who may have all sorts of financial and emotional motives to lie. That's in fact one reason the alienation of affections tort has mostly been abolished.

As I said, you can love marriage and hate adultery without thinking that more tort liability will make things better.

Nathan Wagner:
Gallagher's specific target was a website which profits by designedly facilitating affairs. Her proposed limitation to "commerical enterprises that intentionally and explicitly attempt to profit from acts of adultery" would deal with every one of your objections except #5. What would you think of such a more narrowly targeted statute?
3.11.2009 1:28pm
Order of the Coif:
I thought that Americans had long ago learned that you cannot FORCE people to remain in love (and thus in a viable marriage) by operation of law. Marriage is sustained by personal commitment, which may, BTW, go far beyond hormone-driven infatuation, and, really, by nothing else.

When the commitment dies, for whatever reason, the end of the marriage is in sight.

All of the above occurs completely outside the control of the state. Indeed, it occurs irrespective of marriage certificates, counseling requirements, and divorce courts.

Only the welfare of children, if any, gives the state any reason to inject itself into the process.
3.11.2009 1:29pm
Tocqueville:
Eugene, you are always thoughtful and full of insight, even when I disagree with you. This post is no exception. (And I'm not sure I disagree with you).
3.11.2009 1:29pm
jweaks:
Not abolished here in NC, but probably should be. I've seen it badly misused.
3.11.2009 1:29pm
Hannibal Lector:
Professor Volokh: I'm curious whether you can provide similarly forceful arguments against an enforceable and enforced law making adultery a criminal offense with criminal penalties.
3.11.2009 1:32pm
111:
I quit reading at "Gallagher".
3.11.2009 1:36pm
David Schwartz (mail):
There is nothing "wrong" with a prohibition on commercial sites that seek specifically to profit from adultery. It doesn't have the long list of potential problems that this post points out. I just don't see that there's any significant benefit.

Certainly a business model that's premised on helping people violate their contracts is not one society has any reason to encourage and one society can legitimately prohibit.

However, many of the laws proposed ignore the fact that:

1) "Cheating" is actually not a violation of every marriage agreement. In general, there is no way to know the terms of another person's marriage.

2) Seeking a divorce is a legitimate way of complying with the terms of one's marriage agreement. Encouraging a person to seek a divorce (especially if it's that instead of cheating) is in fact encouraging them to comply with their agreement.
3.11.2009 1:42pm
byomtov (mail):
A person is liable for damages to a spouse for intentional interference with the spouse's marriage [marital relationship] that causes injury to the spouse.

To me, this covers a lot more than just adultery.

Suppose I offer a married person a very demanding job that will interfere with the marital relationship because of extra time demands, stresses, travel, etc. Would that fall under the statute?

Suppose i encourage a stay-at-home wife to get a job, despite the very strong opinion of her husband, possibly religion-based, that her duty is to stay home and be a submissive wife?

Suppose I discuss religion, or politics, with a married person and cause them to change their views in a way that conflicts with the spouse's strong opinions?
3.11.2009 1:54pm
David M. Nieporent (www):
3. Nor need this be iandvertent; consider a modern legal badger game: Wanda seduces Alex (or lets Alex seduce her; the line is often quite vague). Henry then threatens to sue. Alex settles, maybe not for the full $500,000 but for $100,000. The settlement doesn't hit the news. Wanda then seduces Andrew, Anthony, and so on, and each time Henry and Wanda pocket a settlement. All perfectly legal. But is it just? Not so much.
We covered such a scheme extensively on Overlawyered a couple of years ago. Wasn't so "perfectly legal" there, as the schemers -- lawyers! -- were convicted of extortion.
3.11.2009 1:56pm
KenB (mail):
The concern about a badger-like game is real. Not too long ago, there was a case in San Antonio in which the wife had a series of affairs. In each case, the husband extorted money from the boyfriends. Both husband and wife were lawyers.

Roberts story
3.11.2009 1:59pm
Clayton E. Cramer (mail) (www):
DId you know that adultery is still a criminal offense in some states? Like Idaho, and probably a few others.
3.11.2009 2:04pm
Jon Rowe (mail) (www):
It's ridiculous that adultery is still on the books in certain states and should be nullified by a Court.
3.11.2009 2:12pm
whit:

DId you know that adultery is still a criminal offense in some states? Like Idaho, and probably a few others.



yes, but just because a law is on the books doesn't mean it's ever enforced.

when i was in MA, "blaspheming the name of god" was a crime. so was "adultery" and fornication.

neither were ever criminally charged.

and even malicious mischief in an orchard on a sunday!

no legislator wanted to be the one to introduce repealing these laws, so they stayed on the books, but only as anachronisms.
3.11.2009 2:13pm
Dilan Esper (mail) (www):
First of all, right now the economy's in the tank, we are at war in Iraq and Afghanistan, we desperately need to fix our financial system, our automakers are going under, people are losing jobs right and left, and Maggie Gallagher thinks that Ashley Madison is a serious social problem requiring government intervention?!?

Second, in addition to Professor Volokh's points, I would observe more generally that while I wouldn't recommend adultery as a course of conduct, it is very, very easy to overstate the harm that adultery causes. A lot of spouses don't care. A lot of spouses look the other way. A lot of people need to get out of their marriages anyway. (Indeed, Gallagher is a committed conservative Catholic and part of what is probably going on here is a desire to force unhappy people to stay in their miserable marriages as the Pope has decreed that they must.)

Whenever you start creating tort or criminal liability for a practice that isn't always that injurious, you create a huge incentive for people to gin up phony claims or overstate their injuries.

But beyond that, there's probably a socially optimal level of adultery and it isn't zero. Swingers, people with disabled spouses, people who have serious sexual incompatibilities with their spouses but stay married for other reasons, closeted gays, and all sorts of other people cheat on their spouses in relatively harmless ways. That fact alone, to me, justifies someone developing a business model to serve them.

I sometimes think that the Maggie Gallaghers of the world have no imagination as to what it would be like to be living a very different life. If her husband became a quadroplegic, would she give up sex altogether? If she became one, would she insist that under no circumstances could her husband take a lover? If her husband and her stopped having sex for 15 years but stayed together for the sake of the children or for financial reasons, would she really insist that both of them needed to remain celibate?

I doubt she's really even confronted the reality of other people's lives. Adultery is a very, very complex subject once you get beyond the simplistic rhetoric of the true believer.
3.11.2009 2:14pm
donaldk2 (mail):
I took it to be a spoof.
3.11.2009 2:17pm
wfjag:

A person is liable for damages to a spouse for intentional interference with the spouse's marriage [marital relationship] that causes injury to the spouse.

Would this include divorce lawyers who advertise?

Dilan Esper wrote:

First of all, right now the economy's in the tank, we are at war in Iraq and Afghanistan, we desperately need to fix our financial system, our automakers are going under, people are losing jobs right and left, and Maggie Gallagher thinks that Ashley Madison is a serious social problem requiring government intervention?!?

Absolutely. Didn't you need a good laugh, too?
3.11.2009 2:22pm
hattio1:
Nathan Wagner asks;

Her proposed limitation to "commerical enterprises that intentionally and explicitly attempt to profit from acts of adultery" would deal with every one of your objections except #5. What would you think of such a more narrowly targeted statute?


But, the proposed statute is HER proposed statute. She says she wants to limit it to commercial enterprises that intentionally aid adultery. But then she proposes a statute that 1) covers more than just adultery 2) covers more than just commercial enterprises and 3) covers more than just intentional acts (and actually more than just knowingly, at least by some definitions of knowingly). So, why should you take her seriously when she says she wants to limit the tort to commerical enterprises intentionally aiding adulter
3.11.2009 2:25pm
einhverfr (mail) (www):
Findlaw had a series of articles some time ago on the hazards of keeping "wrongful seduction" laws on the books. This sort of proposal seems to be quite a bit worse.

There are a few additional points I would like to make, besides the fact that Eugene seems to be exactly right about the actual proposals offered.

A narrowly drafted law might still run into trouble in terms of ideals of American liberty at least from a libertarian viewpoint. What constitutes explicitly attempting to profit from adultery? Suppose such a site includes as its terms of service that the spouse is aware and consents to the affairs? Is there any constitutional right (similar to Lawrence) to declare one's marriage sexually open? Is there any rights under that penumbra to provide services of any sort specifically catering to such a demographic? (Presumably a bar where singles hook up with married couples to have threesomes would be prohibited under the statute?) I suppose evidence clauses could deal with this problem or the courts could just figure it out.

Now we could tie this back to Lori Drew ;-).... If a married individual visits such a web site which states that it is for hookups for married individuals, and the ToS states that one may only visit the site if one's spouse agrees, and the individual has NOT gotten such agreement from the spouse, then one might be able to argue that this is unauthorized access to a computer system in furtherance of a tort and therefore should be punishable by up to 5 years in prison :-D
3.11.2009 2:26pm
Houston Lawyer:
First of all, right now the economy's in the tank, we are at war in Iraq and Afghanistan, we desperately need to fix our financial system, our automakers are going under, people are losing jobs right and left, and Maggie Gallagher thinks that Ashley Madison is a serious social problem requiring government intervention?!?

No, the proper response is a carbon tax or possibly a cap and trade scheme.
3.11.2009 2:28pm
Wallace:
Objection no. 1 points out a drafting ambiguity which is easily remedied.

Objection no. 2 is remedied by the tort doctrines of comparative negligence or contributory negligence.

Objection nos. 3 and 6 point out the danger of collusion, proof, and perjury--dangers that are no different from any other sort of lawsuit.

Objection no. 4 seems a bit silly. Poorer people will be insufficiently deterred because they have less stuff to lose? Even if true, any action punished by solely economic sanctions has differential deterrent effects on people of different means.

Objection no. 5 is a bit like saying the financial disincentive of having a divorce prolongs unfaithful marriages because reconciliation is cheaper than leaving an unfaithful spouse.
3.11.2009 2:28pm
David M. Nieporent (www):
I sometimes think that the Maggie Gallaghers of the world have no imagination as to what it would be like to be living a very different life. If her husband became a quadroplegic, would she give up sex altogether? If she became one, would she insist that under no circumstances could her husband take a lover? If her husband and her stopped having sex for 15 years but stayed together for the sake of the children or for financial reasons, would she really insist that both of them needed to remain celibate?
I would hope so, yes. I guess it depends whether one's physical gratification is more important than one's spouse. I mean, divorce is one thing; cheating is another.
3.11.2009 2:35pm
Clayton E. Cramer (mail) (www):

Swingers, people with disabled spouses, people who have serious sexual incompatibilities with their spouses but stay married for other reasons, closeted gays, and all sorts of other people cheat on their spouses in relatively harmless ways.
Absolutely. HPV, syphilis, chlamydia, AIDS: relatively harmless. If both parties really don't care, fine, it's their lives. But I suspect that very few criminal or civil cases arise from adultery unless one party feels deceived, injured, or taken advantage of.

I do know someone who was threatened with prosecution under the adultery statute here in Idaho, probably because the police were having trouble making a rape case. The girl was so drunk that she couldn't quite remember if she had consented, and this idiot was so drunk that he couldn't remember what happened with this barely legal girl. (All the disadvantages of a marriage destroyed, time spent with the District Attorney, and no memories of the pleasure. There's a certain justice to this.)
3.11.2009 2:43pm
Connecticut Lawyer (mail):
Speaking of laws that remain on the books but are no longer enforced (but ought to be), let's not forget the laws against champerty and barratry.
3.11.2009 2:43pm
Dilan Esper (mail) (www):
David:

The sneering way you talk about "physical gratification" gives away the game. If sex isn't very important to you, I suppose that's fine. But we certainly shouldn't make public policy on the theory that sex shouldn't be very important to people!

In any event, if sex isn't very important, if it's just "physical gratification", logically adultery would be a non-issue as well. The very logic that makes adultery a serious issue also compels the conclusion that it can't be wrong in all circumstances.
3.11.2009 2:44pm
Dilan Esper (mail) (www):
Absolutely. HPV, syphilis, chlamydia, AIDS: relatively harmless.

Clayton, if you want to get on board to preventing condom usage to prevent transmission of these infections, I welcome your support. Because those things are caused by UNPROTECTED SEX (inside or outside a marriage).

One could talk about them in the context of SOME forms of adultery (e.g., group sex, extensive philandering). But some adultery is even monogamous-- if someone isn't having sex with his or her spouse and takes one lover on the side, that person isn't creating any greater risk of STD transmission than someone who is monogamous with his or her spouse.

The point, of course, is that the talk of STD's is a smokescreen. The real issue is that you dislike people who have a different sexual morality than you do. And, of course, I am entirely convinced that if you or your spouse was disabled, your own morality would change quite a bit.
3.11.2009 2:48pm
Dilan Esper (mail) (www):
I meant "promoting" condom usage, not preventing.
3.11.2009 2:50pm
Angus:
It's stupid proposals like this that remind me why I hold hardcore social conservatives in contempt. The government has no business trying to regulate or punish adultery, or any consensual or commercial sex for that matter.
3.11.2009 2:50pm
einhverfr (mail) (www):
Just as a note, reading the article:

Gallagher is proposing passing AND EXPANDING the legislation she posts (drafted in Minnesota). Her goal is NOT a limited legislation but one which is as broad as possible.

Presumably if a woman is alone with her husband's nephew and his friend, all sorts of allegations could be brought up as to how this interferes with the marriage. We might not give any of them lashes, but hey, we love our torts ;-)
3.11.2009 2:56pm
Clayton E. Cramer (mail) (www):

Clayton, if you want to get on board to preventing condom usage to prevent transmission of these infections, I welcome your support. Because those things are caused by UNPROTECTED SEX (inside or outside a marriage).
Actually, condoms, while fairly effective, aren't 100% on STDs.


One could talk about them in the context of SOME forms of adultery (e.g., group sex, extensive philandering). But some adultery is even monogamous-- if someone isn't having sex with his or her spouse and takes one lover on the side, that person isn't creating any greater risk of STD transmission than someone who is monogamous with his or her spouse.
Sure, and I would expect that many spouses who have been permanently sidelined will turn a blind eye. I know someone whose wife said basically, "Go ahead. I'm not interested in sex ever again." (She was a sexual abuse survivor.) But these are relatively rare compared to the larger society's problem.


The point, of course, is that the talk of STD's is a smokescreen. The real issue is that you dislike people who have a different sexual morality than you do. And, of course, I am entirely convinced that if you or your spouse was disabled, your own morality would change quite a bit.
You are wrong, once again. If you and your spouse want to have an open marriage, that's not the government's job to handle. But the remaining reason for adultery laws is because most people do NOT have open marriages, and are injured both physically and emotionally by adultery.
3.11.2009 3:04pm
Clayton E. Cramer (mail) (www):

It's stupid proposals like this that remind me why I hold hardcore social conservatives in contempt. The government has no business trying to regulate or punish adultery, or any consensual or commercial sex for that matter.
Then don't get married, or at least be open with your spouse. What consenting adults do in private is none of the government's business, but once you get married, you are legally bound to that spouse.

This is what I hate about liberals: their rationalizations for dishonesty to the person that should be closest to them.
3.11.2009 3:07pm
Oren:

I would hope so, yes. I guess it depends whether one's physical gratification is more important than one's spouse.

Is it really either/or. I take my spouse's physical gratification quite seriously -- I don't want her to remain in an unsatisfying relationship.

When you tie the knot, you are pledging to treat your spouse's happiness (physical and transcendental alike) as kin to your own.
3.11.2009 3:07pm
Clayton E. Cramer (mail) (www):

The sneering way you talk about "physical gratification" gives away the game.
He was only sneering in comparison to fidelity to one's spouse. He wasn't saying that sex wasn't important--but less important than fidelity. I'm afraid that you have given away the game--sex is more important than a long-term commitment.
3.11.2009 3:10pm
Dilan Esper (mail) (www):
Clayton:

You are being reductive. "Long term commitment" does not necessarily mean simply "long term commitment not to have sex with anyone else". The bundle of rights and responsibilities in a marriage contract are both a lot broader than that and defined by the parties to it and not the government or society at large.

My point isn't to defend all adultery. It is simply to observe that the socially optimal amount of adultery is not zero (a point you actually conceded, in a fashion, in talking about one couple you knew) and that therefore we shouldn't be using government regulation in this area that presumes that all adultery in all circumstances is bad and must be stamped out.
3.11.2009 3:15pm
David M. Nieporent (www):
The sneering way you talk about "physical gratification" gives away the game. If sex isn't very important to you, I suppose that's fine. But we certainly shouldn't make public policy on the theory that sex shouldn't be very important to people!
That doesn't make sense at all. There are other aspects of sex besides physical gratification, such as emotional bonding. But you were talking about someone who was already married! Surely you aren't suggesting that just because one's spouse becomes physically incapable of having sex, that one should emotionally bond with someone else instead.
3.11.2009 3:19pm
PatHMV (mail) (www):
Is "adultery" legally defined as penis-vagina sex? Does a "Lewinsky" count? What about a hand job?

I ask because of Eugene's comment that in today's world, where platonic friendships between a man and a woman are far more common and accepted than previously in our history, this type of statute would force courts to rely very heavily on he-said, she-said testimony (because there will rarely be any 3rd party witness to the sex act itself). I agree with that, but we also have much different thoughts on what constitutes "sex."

If oral sex and other types of sexual activity are not adultery, then even if one spouse saves the bedsheets on which the cheating occurred, that might not adequately prove the type of sex which occurred, and thus whether it was "adultery" or not. It seems to me we shouldn't want the courts to be asking people those kinds of very private questions.
3.11.2009 3:22pm
Dilan Esper (mail) (www):
David:

Whether sex is "emotional bonding" depends on the person. I doubt, for instance, that much emotional bonding went on between Bill Clinton and Monica Lewinsky. I have no doubt, however, that the activity was physically gratifying.

In any event, I don't tell couples-- especially couples where one partner has a physical disability-- what they "should" do in terms of their sex lives. I simply observe that there's nothing immoral or socially harmful about such a couple deciding that the able-bodied spouse can go ahead and take a lover or lovers without ending the marriage. It's certainly their decision to make.

The point of all this, again, is that the socially optimal amount of adultery is not zero. And for that reason it should neither be illegal nor a tort.
3.11.2009 3:22pm
Clayton E. Cramer (mail) (www):

You are being reductive. "Long term commitment" does not necessarily mean simply "long term commitment not to have sex with anyone else". The bundle of rights and responsibilities in a marriage contract are both a lot broader than that and defined by the parties to it and not the government or society at large.
Agreed, but the default assumption is sexual fidelity. If either party intends to have an open marriage, the time to say so is before contract, or by mutual consent after contract.


My point isn't to defend all adultery. It is simply to observe that the socially optimal amount of adultery is not zero (a point you actually conceded, in a fashion, in talking about one couple you knew) and that therefore we shouldn't be using government regulation in this area that presumes that all adultery in all circumstances is bad and must be stamped out. They had worked out an arrangement, but hardly a great one.
I do not concede that this is socially optimal. This was a situation where she now enjoyed the benefits of being wealthy (even though she was a nurse, not a high paying job), and put her husband in the absurd situation of either doing something that he didn't find comfortable, or losing half of his substantial real estate empire because she found it easier to say, "No" instead of looking for help with her problem.
3.11.2009 3:23pm
Dilan Esper (mail) (www):
Clayton:

OK, maybe that particular couple is a bad example, but do you not see that SOME couple may work out an arrangement that is optimal? If allowing one partner to take a lover with the other's tacit consent is what is necessary to keep a marriage together that produces other benefits, there's NO situation where you could possibly say that this would be the best-case scenario?

Remember what my claim is-- that the socially optimal amount of adultery is not zero.
3.11.2009 3:28pm
Crunchy Frog:
Is Maggie Gallagher married to a divorse lawyer? That's the only group that would benefit from such an asinine idea.
3.11.2009 3:41pm
Clayton E. Cramer (mail) (www):

OK, maybe that particular couple is a bad example, but do you not see that SOME couple may work out an arrangement that is optimal? If allowing one partner to take a lover with the other's tacit consent is what is necessary to keep a marriage together that produces other benefits, there's NO situation where you could possibly say that this would be the best-case scenario?

Remember what my claim is-- that the socially optimal amount of adultery is not zero.
I'm willing to agree that there are couples out there who prefer a little adultery to divorce. I will also agree that there is a strong case for a spouse to understand that we are all human, and all make mistakes. When I see a couple where a one-time dalliance doesn't destroy the marriage, I am immensely gratified to see that the wronged party is prepared to forgive and move on. (When this becomes a pattern, I am not so gratified. "What's wrong with you people?") But lowering the standard doesn't encourage forgiveness or mercy; it encourages adultery--which already has enough encouragement.
3.11.2009 3:43pm
Christopher Cooke (mail):
would my liability be covered by my homeowner's insurance?
3.11.2009 3:53pm
Eugene Volokh (www):
PatHMV: Depends on the state -- see this New Hampshire case holding that oral sex is not adultery.
3.11.2009 3:55pm
Dilan Esper (mail) (www):
Clayton:

That's a reasonable post, but remember, the issue we are discussing is about RAISING the standard (by reimposing tort liability), not lowering it. And presumably the tort liability would apply to adultery without regard to the circumstances that gave rise to it.
3.11.2009 4:07pm
David M. Nieporent (www):
In any event, I don't tell couples-- especially couples where one partner has a physical disability-- what they "should" do in terms of their sex lives. I simply observe that there's nothing immoral or socially harmful about such a couple deciding that the able-bodied spouse can go ahead and take a lover or lovers without ending the marriage. It's certainly their decision to make.

The point of all this, again, is that the socially optimal amount of adultery is not zero. And for that reason it should neither be illegal nor a tort.
I don't see how that follows. Assuming that you're correct that in some circumstances, spouses would want to decide that one spouse should commit adultery, then obviously that ought to be a defense to the tort, not a reason not to have the tort at all in situations where the non-adulterous spouse doesn't consent.

In any case, either marriage is a purely private arrangement, in which case there's no reason why there shouldn't be "tortious interference" just like any other interference in a contractual arrangement, or it's not just a private arrangement and there are public reasons for recognizing marriages, in which case it's not just their decision to make.
3.11.2009 4:16pm
Andy Bolen (mail):
I sometimes think that the Maggie Gallaghers of the world have no imagination as to what it would be like to be living a very different life. If her husband became a quadroplegic, would she give up sex altogether? If she became one, would she insist that under no circumstances could her husband take a lover? If her husband and her stopped having sex for 15 years but stayed together for the sake of the children or for financial reasons, would she really insist that both of them needed to remain celibate?

If the answer to this is "no," what's under consideration isn't really marriage (unless the vows were modified to the point that almost no one from the last few millennia would consider it a marriage).
3.11.2009 4:25pm
Randy R. (mail):
What's amazing is that there are busy-bodies who seem to want to be the moral arbiters of the world. Gallagher -- self-proclaimed 'marriage expert' is one of them. Why anyone would listen to her drivel is beyond me.

We already lost the war of drugs and the war on pornography -- so now we have to have a war on adultery? I'm sure that will be just as successful....
3.11.2009 4:28pm
Dilan Esper (mail) (www):
Assuming that you're correct that in some circumstances, spouses would want to decide that one spouse should commit adultery, then obviously that ought to be a defense to the tort, not a reason not to have the tort at all in situations where the non-adulterous spouse doesn't consent.

If your baseline is that normal human activity should be tortious and that people should be able to assert justification defenses to avoid paying damages, I would suppose this would follow. Of course, such a system would be a goldmine for personal injury lawyers, but I doubt the rest of us would want to live in it.

In any case, either marriage is a purely private arrangement, in which case there's no reason why there shouldn't be "tortious interference" just like any other interference in a contractual arrangement, or it's not just a private arrangement and there are public reasons for recognizing marriages, in which case it's not just their decision to make.

The public aspect is that society facilitates a way for two life partners to order their relationship. But how people define marriage within that framework is the couple's own business.

It can't be otherwise, because the alternative is the nightmare scenario portrayed by Justice Douglas in Griswold, with government agents snooping around the marital bedroom.

But we are, of course, off the point. The point is that since the socially optimal amount of adultery is not zero and since we really don't want people to have to expose the embarrassing and personal details of their private lives in order to avoid a tort judgment, those of you who fantasize about the government swooping in and policing everyone's sex lives and keeping us all in line are on the wrong side of this argument.
3.11.2009 4:30pm
Randy R. (mail):
On second thought, bring it on! Let's pass that legislation, with the proviso that the first ones targeted should be any social conservative who preaches about the sanctity of marriage. (Congressman Vitter, are you listening?).

That should tie up the courts enough to prevent our law enforcement industry from pursuing anyone else.
3.11.2009 4:30pm
Dilan Esper (mail) (www):
If the answer to this is "no," what's under consideration isn't really marriage (unless the vows were modified to the point that almost no one from the last few millennia would consider it a marriage).

Andy Bolen:

It depends on what you mean by marriage. If you mean based on the simplistic teachings of religious preachers that admit no shade of doubt or complication, then maybe you would be right. But on the other hand, in terms of the way people have actually lived their lives and conducted their own marriages, you'd almost certainly be wrong— these sorts of arrangements have existed for as long as marriage has.
3.11.2009 4:32pm
Putting Two and Two...:

I doubt she's really even confronted the reality of other people's lives.


Maggie hasn't confronted the reality of her own life.

Her schtick pays the bills. There's little to it beyond that.
3.11.2009 4:32pm
Oren:

Then don't get married, or at least be open with your spouse. What consenting adults do in private is none of the government's business, but once you get married, you are legally bound to that spouse.

This is what I hate about liberals: their rationalizations for dishonesty to the person that should be closest to them.

I have to agree with Clayton (Gasps from the crowds, a woman faints!) on this one. Before a marriage is made officials, the principals should sit down and make clear what is being agreed to.
3.11.2009 4:36pm
Dilan Esper (mail) (www):
Oren:

1. Adultery and dishonesty are two somewhat different matters. One can have one without the other; on the other hand, sometimes they happen at the same time.

2. Further, whether there is anything special about dishonesty about extramarital sex as opposed to dishonesty about anything else is also something that depends from couple to couple.

3. I suspect that in many cases, couples fully intend to be faithful to each other and decide later, for some reason, to change the arrangement. (Especially when something changes like the end to their sex life or a disability.)
3.11.2009 4:39pm
Putting Two and Two...:

If the answer to this is "no," what's under consideration isn't really marriage (unless the vows were modified to the point that almost no one from the last few millennia would consider it a marriage).


Surely you make an exception for the French at least, no?
3.11.2009 4:43pm
PubliusFL:
Dilan: OK, maybe that particular couple is a bad example, but do you not see that SOME couple may work out an arrangement that is optimal? If allowing one partner to take a lover with the other's tacit consent is what is necessary to keep a marriage together that produces other benefits, there's NO situation where you could possibly say that this would be the best-case scenario?

It's possible to make basically the same argument about domestic violence. In other words, can you really say there's NO situation where from a utilitarian perspective a working-class wife with small children should live with a husband who beats her when that is what's necessary to keep a marriage together that produces other benefits? That's the choice a lot of women have made, but that's not exactly a justification for the abuse. It makes it the toleration of the abuse understandable (at least in some ways), but it doesn't make it right.

I'm reminded of the kind of advice Dear Abby (or was it Ann Landers) gave back in the 1950s: "If your sister is letting her husband smack her around, she must have a reason. It's none of your business, butt out." (I'm paraphrasing.)
3.11.2009 4:48pm
Dilan Esper (mail) (www):
Publius:

Bad analogy. Domestic violence = physical harm to anyone who is a victim of it. Adultery = gets some people really upset. And your reference to 50 year old advice columns proves my point-- 50 years ago, adultery was considered a huge deal and domestic violence was not. Sure looks like we got our priorities backward, doesn't it?
3.11.2009 4:56pm
Andy Bolen (mail):
It depends on what you mean by marriage. If you mean based on the simplistic teachings of religious preachers that admit no shade of doubt or complication, then maybe you would be right. But on the other hand, in terms of the way people have actually lived their lives and conducted their own marriages, you'd almost certainly be wrong— these sorts of arrangements have existed for as long as marriage has.

If you mean people commonly violate marital commitments, that's obviously true. But traditionally, everyone understands marriage to be a commitment to sexual fidelity. Thus marriage vows say things like "in sickness and in health." Those aren't religious constructs, they're a vow to maintain that commitment in the face of serious adversity. Like, say, the paralysis of your partner.
3.11.2009 4:59pm
Dilan Esper (mail) (www):
If you mean people commonly violate marital commitments, that's obviously true. But traditionally, everyone understands marriage to be a commitment to sexual fidelity.

This is a claim that requires evidence. In the past, marriage included a number of different things that seem inconsistent with your claim:

1. Property exchange / dowery.
2. Arrangements by parents.
3. Social class and caste impositions.
4. Polygamy (usually polygyny, less often polyandry).
5. Concubinage.

The idea that marriage is a freely entered-into contract between two persons who exchange mutual promises of sexual fidelity, therefore, appears to be a rather modern innovation and certainly doesn't describe lots of traditional marriage arrangements, to say nothing of the arrangements that couples voluntarily entered into whatever their vows may have said.

But I should make clear-- even if you were right about the traditional meaning of marriage, the traditional meaning of marriage isn't relevant to the question of whether the government should impose the heavy hand of the state upon suspected adulterous relationships. Whether or not what couples actually do is in accordance with tradition, if adultery works for some couples in some situations, that's reason enough not to have intrusive government regulation of the activity.
3.11.2009 5:04pm
Andy Bolen (mail):
I didn't say anything about marriage traditionally being consensual.

Re: the last paragraph. Sure. But you were claiming that people traditionally didn't understand marriage vows to preclude adultery if your partner became handicapped. If you're backing away from that, that's fine.
3.11.2009 5:08pm
Dilan Esper (mail) (www):
Andy:

I made no claim about traditional "understanding" of marriage vows. I don't know how people traditionally understood them, nor do I care.

I do make a claim about traditional practice, which is that it is in no way a new development that people would make arrangements with their spouses that permit adultery (and not just in situations where there is a disability, that just being but one example). And since I'd rather the law provide couples space to structure their own relationships based on the factors that they think are most important, such couples being the best judges of what works best for them (except in cases where you have something like unarguable physical injury or harm to the children and the state has to step in), I don't think that the fact that "traditional" marriage vows may have condemned adultery is of any weight at all. We certainly shouldn't be using the force of the state to enforce traditional and rote "promises" on couples who may or may not even want to keep them in the first place! And certainly if any "tradition" at all is relevant here, it is the actual tradition of marital arrangements and not the tradition as to what often meaningless words were spoken at the ceremony is.
3.11.2009 5:18pm
ohwilleke:
In Colorado, adultery was decriminalized and no fault divorce was established in 1971.

But, the alienation of affections civil action was abolished in the 1930s. Moreover, it is actually a misdemeanor to file such a suit in the state, which is a bit more impressive than the usual attorneys' fees pursuant to Rule 11 or a for prevailing on a Rule 12 motion. It is also a crime to pay to settle or offer to settle such a suit.

The U.S. Supreme Court recently refused to grant cert after a state supreme court upheld an alienation of affections judgment. Therefore, so far as I know, civil remedies under such a statute are not definitively unconstitutional.

It is also worth noting that courts routinely compensate "A person is liable for damages to a spouse for intentional interference with the spouse's marriage [marital relationship] that causes injury to the spouse," in the form of loss of consortium damages in physical intentional tort cases, and the courts have upheld adultery as a valid reason for an employment termination even in places that have abolished an alienation of affections action.
3.11.2009 5:20pm
Thorley Winston (mail) (www):
I largely agree with Wallace's response to Eugene's objections except that I don't actually believe that the language as written is ambiguous because by defining an act of adultery as the only "proof" (as opposed to merely being "one special cases" as Eugene intimated) of "intentional interference with a marriage" it serves to limit the tort to being a tort against adultery.

That being said, I'm agnostic on the issue of whether to create a tort for the intentional interference with a marriage. The claim that this is the government trying to prohibit "consensual adult activities" is of course utter nonsense as the aggrieved spouse -- the only party with standing under this tort -- didn't "consent" to have someone violate the terms of their marriage contract as defined under the statute. Whether or not there should be a tort for this violation, I'm undecided but don't really have strong feelings one way or the other.
3.11.2009 5:21pm
PubliusFL:
Dilan: Bad analogy. Domestic violence = physical harm to anyone who is a victim of it. Adultery = gets some people really upset.

Funny point to make for someone who just argued that reducing sex to "physical gratification" trivializes it, because there's much more to sex than physical gratification that makes it "very important." Physical abuse is not always more harmful than mental or emotional abuse.
3.11.2009 5:25pm
Dilan Esper (mail) (www):
Thorley:

Part of the complication here is that consent is a really thorny issue. Sure, there's "go behind the spouse's back and two-time her with your secretary while the spouse thinks you have a perfect relationship at home". That might be one thing. But there's all sorts of levels of "consent" here, from "go ahead and give me the details" to "do it in front of me" to "I wish I hadn't agreed to that threesome" to "just don't embarrass me" to "I won't give you an explicit go-ahead but I'm not going to be surprised if you do it". And the tort is going to require that judges and juries litigate this. Compared to this, the consent issues in a rape case look straightforward and simple!
3.11.2009 5:26pm
Andy Bolen (mail):
And since I'd rather the law provide couples space to structure their own relationships based on the factors that they think are most important, such couples being the best judges of what works best for them.

But you'd rather they not be free to structure their marriages ex ante, in the form of a binding commitment to sexual fidelity. You want to preserve an ex post freedom at the expense of that ex ante freedom, by not allowing the freedom's alienability.

That may be reasonable, but don't pretend you're the one who favors allowing people to "structure their own relationships," and people who favor allowing binding marriages don't.

(FWIW, I like the idea of allowing couples to choose between marriages that are legally enforceable in some way and marriages that aren't. Although there are plenty of problems with that, too.)
3.11.2009 5:28pm
Putting Two and Two...:
I suppose the grand irony of Maggie Gallagher suggesting the criminalization of intentional interference in someone's marriage is lost on all of you.
3.11.2009 5:30pm
Oren:

Thus marriage vows say things like "in sickness and in health."

That's funny, all the weddings I've attended seem to have forgotten that part. Also the "'till death" part.


Adultery and dishonesty are two somewhat different matters. One can have one without the other; on the other hand, sometimes they happen at the same time.

Distinction accepted. I have no problem with "technical adultery" so long as it is done in the knowledge of the other spouse.


2. Further, whether there is anything special about dishonesty about extramarital sex as opposed to dishonesty about anything else is also something that depends from couple to couple.

I don't think there's anything special about extramarital sex, I think there's something special about your spouse that merits being honest.


3. I suspect that in many cases, couples fully intend to be faithful to each other and decide later, for some reason, to change the arrangement. (Especially when something changes like the end to their sex life or a disability.)

So long as they have a frank discussion about it, they can amend their marital charter however they like. The vows are not static.
3.11.2009 5:30pm
Oren:


But you'd rather they not be free to structure their marriages ex ante, in the form of a binding commitment to sexual fidelity. You want to preserve an ex post freedom at the expense of that ex ante freedom, by not allowing the freedom's alienability.

When the State mandates that all marriages fall into one or the other category, I vote post.
3.11.2009 5:33pm
Dilan Esper (mail) (www):
Physical abuse is not always more harmful than mental or emotional abuse.

1. It's emotional DISTRESS, not necessarily abuse. They are two very different things.

2. I am not sure what you mean here. If you were talking about constant torture, sure, driving a person mad can be worse than physical abuse. But normally, physical abuse is a lot worse, which is why you have to prove an "outrageousness" element to win a claim for intentional infliction of emotional distress, and negligent infliction isn't actionable at all without a special relationship. Whereas physical harm is actionable whenever it is negligently or intentionally inflicted.

Our law certainly assumes, and correctly assumes, that emotional distress in general isn't as big a deal as physical harm. And in those adultery cases where this is not true, I suspect there could already be a tort recovery. For instance, if Wife's mother decides to deliberately piss off Wife by giving Husband oral sex in front of everyone at the couple's daughter's First Communion, I suspect that Wife could sue Mother for intentional infliction of emotional distress (i.e., that would meet the "outrageousness" requirement). But there are very good reasons not to make run-of-the-mill adultery actionable in this way.

Lastly, sex is very important to different people for different reasons. Plenty of people think it is important because they enjoy it a lot. Don't assume that it is always about some deeper emotional intimacy as opposed to the pleasure of a good lay.
3.11.2009 5:34pm
Dilan Esper (mail) (www):
Andy:

The problem with allowing couples to make marriage more "binding" is that the optimal level of divorce, like adultery, is not zero. Indeed, the optimal level of divorce is quite a bit higher than the optimal level of adultery.

So we allow couples to structure their relationships any way they want to, but we don't make the promises so legally binding that the couple can't get out of them later.
3.11.2009 5:39pm
Thorley Winston (mail) (www):
Part of the complication here is that consent is a really thorny issue.


No it's not actually. Minnesota law confers on those who wish to enter into a statutorily defined civil marriage and receive all of the benefits that contract entails a duty of "fidelity" to their spouse. People who want to continue having sex with other people are free to enter into whatever private arrangements they like but they're not entitled to (a) enter into a civil marriage for the "benefits" and then (b) expect the courts to ignore the duties that are also embedded in the statutory terms of their contract. The issue of whether the parties informally agreed to see other people on the side doesn't need to be litigated at Minnesota doesn't allow the admission of parol evidence that conflicts with the written (in this case statutory) terms of a contract.
3.11.2009 5:42pm
Dilan Esper (mail) (www):
Thorley:

Think about what you are saying. And go back and read Griswold v. Connecticut.

You are saying that the state should use valuable resources (in the form of judges and juries and courts) and its awesome power prying into the private arrangements contained with the marriages of its citizens. And for what, exactly? To smoke out a few adulterers-- as if adultery is a huge pressing issue that we just have to stamp out!

Your comment is based on a bunch of assumptions that a marriage is like a business contract rather than a social arrangement, that only the expressed promises at the ceremony matter and not the parties' actual course of dealing, and that there's some social advantage gained by holding these parties to the expressed "terms" of their social arrangement rather than letting them define things for themselves and do what works best for them.

You truly are advocating the nanny state. And you are further not really enforcing the parties' intentions at all, but rather what you THINK parties should intend when they are in a marriage.
3.11.2009 5:49pm
Anonymous Attorney:
I'm not sure that I agree with some of the characterizations of marriage as a contract. It has some of the formal trappings of a contract but in any state that has no-fault divorce, it's a contract voidable at any time for any reason or no reason by either party. Doesn't sound much like a contract in fact, at least to me.

Playing devil's advocate, if you want to consider the contract angle more closely, you could argue that (as someone further up the thread did) it is a contract that exchanges promises to provide physical, emotional and financial sustenance for each other. Under that view, when someone (for instance) becomes disabled, they are no longer able to perform and thus the underlying assumptions of the contract have been violated. Whether or not it is then honorable or ethical to simply take a lover without consultation, it would be poor public policy to allow the party who can no longer perform their duties under the contract to "force" performance by the party who can perform, since the party that can perform can by definition no longer receive the benefit of their bargain.

Finally, I think strict liability torts should be extremely limited as a matter of policy, and my experience from seeing the kinds of cases my wife handles (she does family law, including A of A and criminal conversation) is that they are almost always a swearing contest in which one of the two innocent parties involved (non-cheating spouse and adulterous partner of cheating spouse who doesn't and shouldn't have known) can be made to pay for the misbehavior of the spouse who actually violated their "contractual" obligations. That seems a particularly large waste of judicial and private resources to me.
3.11.2009 5:57pm
David Schwartz (mail):
If you mean people commonly violate marital commitments, that's obviously true. But traditionally, everyone understands marriage to be a commitment to sexual fidelity. Thus marriage vows say things like "in sickness and in health." Those aren't religious constructs, they're a vow to maintain that commitment in the face of serious adversity. Like, say, the paralysis of your partner.
The problem is that our society offers marriage as a "take it or leave it" proposition. So at least some people who want just the financial benefits or some just the social benefits take it rather than leaving it. How you feel about laws like this depends upon how good or bad you think this is.
3.11.2009 5:59pm
Andy Bolen (mail):
So we allow couples to structure their relationships any way they want to, but we don't make the promises so legally binding that the couple can't get out of them later.

Again, though, you contradict yourself. I think you mean "we allow people to structure their relationships any way they want short of binding themselves in a way they can't get out of later."
3.11.2009 6:08pm
ohwilleke:
A few more notions.

1. Section 230 immunity for websites if structured correctly, notwithstanding state law.

2. Authorizing a husband to sue someone who rapes his wife would probably be constitutional (and indeed might even exist under existing law).

3. One can imagine a construction of the statute in the interest of constitutional and policy considerations that implausibly construes it to include only situations when one's spouse is engaged involuntarily in adultery.

4. This would keep private eyes in business.

5. Courts hate adjudicating cases requiring proof of voluntary sexual activity.
3.11.2009 6:10pm
Dilan Esper (mail) (www):
Andy:

People can't bind themselves. Only the government can make a promise binding.

Thus, you are perfectly free to promise a girl you meet at a bar that you will be at her house at 7 the next night to pick her up for a date. But if you break that promise, it isn't legally enforceable, even though it will hurt her feelings. That's a social arrangement, not a legally binding contract.

But it would be strange-- and wrong-- to say that the fact that the government won't enforce the promise is a restriction on your right to make it.

Similarly, couples can promise to stay together, to not be unfaithful to each other, etc. Whether or not the promises are legally binding, and what penalties should attach if they are violated, is a public policy choice-- it does not affect couples' right to make such promises in any way.
3.11.2009 6:11pm
Dilan Esper (mail) (www):
Authorizing a husband to sue someone who rapes his wife would probably be constitutional (and indeed might even exist under existing law).

It's actionable as intentional infliction of emotional distress. (And, of course, the husband would also generally benefit from any tort suit brought directly by the wife for battery.)
3.11.2009 6:13pm
einhverfr (mail) (www):
One of the big things I think we need to look at is how to reduce the divorce rate. Ensuring that a financial settlement would not be community property if the couple divorces is a bad thing to do to encourage reconciliation where adultery has occurred.

My own thinking is that we should adopt no-fault divorce procedures, streamlined custody criteria, etc. in order to prevent parents from fighting in court for the duration of their children's childhoods, but at the same time extend the waiting period for a divorce to a year unless the spouse joins the petition in which case it should be 3 months. Separations would still be granted immediately and for the term of the waiting period. Waiting periods are one of the few things which are shown to reduce divorce rates, and one year seems to be reasonable.

The state does have an interest in encouraging reconciliation of estranged couples. This is something that needs more attention. However, making interference in the marriage contract an actionable tort seems to be a way of ensuring longer, more costly divorce battles which will help nobody but divorce attorneys.

Also I would add, regarding the discussions of "traditional" marriage, that concubinage has been quite common among upper classes for the last several millennia, so the idea in particular that the man owes the woman sexual fidelity has not been one which has affected actual practice much.
3.11.2009 6:49pm
Waldo (mail):
Adultery may be a problem but allowing people to sue for alienation of affection is not the answer. It's simply holding one person responsible for another's violation of contract. That's not a policy to apply to "consenting adults."

Instead, the problem is no-fault divorce. If one spouse has an extramarital affair, the aggrieved spouse should be able to divorce and receive the preponderence of marital assets, as well as preference for custody of any children in the relationship. If couples wish to enter into a relationship that doesn't include sexual fidelity (or if one is disabled after marriage), they can freely sign a pre-nuptual or post-nuptual agreement to that effect. As for domestic violence, anyone who physically abuses a spouse should forfeit both assets and custody as if he committed adultery.
3.11.2009 7:05pm
Dilan Esper (mail) (www):
Again, the problem with attacking no-fault divorce is that the optimal amount of divorce is nowhere near zero. A lot of marriages are bad marriages. Even a lot of marriages with children in them are bad enough that the children don't benefit from the couple staying together (and the husband and wife themselves are miserable). Further, perpetuating bad marriages is a sure-fire way of increasing the adultery rate, if that's something you are very concerned about. It's certainly a good way to increase the rate of domestic violence.

No-fault divorce didn't just happen in a vacuum. It happened because fault divorce was a failure. It was a failure at keeping good marriages together, it was a failure at letting people out of bad marriages, it was a failure in forcing couples to air their dirty laundry in court and in public, and it was a failure in that its effects were disproportionately harmful to women who found themselves with less power to escape bad relationships.

We learned, as a society, the hard way that it was best not to make marriage contracts very firm and hard to escape. A lot of people-- especially a lot of women-- were harmed, battered, or even killed before we got that point.
3.11.2009 7:17pm
David Schwartz (mail):
Holding one person responsible for another person's violation of contract is as justifiable as holding the person who hires the hitman responsible for the murder.
3.11.2009 8:04pm
Anonymous Attorney:
Holding one person responsible for another person's violation of contract is as justifiable as holding the person who hires the hitman responsible for the murder.


I assume you are just trying to be funny? I had no idea getting sweet-talked into bed by a married person was the equivalent of murder for hire...
3.11.2009 8:14pm
David Berke:
Don't get me wrong, it would be a beautiful day if adultery ceased to exist in its entirety. But, why the heck does anyone want the courts and the legislature getting involved in this matter? Not every wrong or harm can be compensated - that's why we have limits on negligent and intentional infliction of emotional distress, and so many other torts. It's why ordinary social promises aren't enforceable.

How can the courts decide whether the parties really agreed on an open or closed relationship, implicitly or explicitly? What happens when someone changes their mind - either the adulterer, or the other partner? What happens when after a relationship fails, one partner is upset, and the other becomes involved with another soon thereafter? How many false lawsuits does this encourage; people who are in love can do crazy things....for that matter, so can people who aren't in love, and now have additional bases for lawsuits, justified or not.

As a practicing lawyer, I'm going to do something crazy, and cite some decisions:

"the Courts should stay out of the bedroom." Askew v. Askew (1994) 22 Cal.App.4th 942; Barbara A. v. John G. (1987) 145 Cal.App.3d 369, 386.

"Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden...'The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.'" Douglas R. v. Suzanne M. (1985) 487 N.Y.S.2d 244, 245-246.

"To attempt to correct such wrongs or give relief from their effects, may do more social damage than if the law leaves them alone." Nagy v. Nagy, 210 Cal.App.3d 1269.
3.11.2009 8:26pm
MCM (mail):
You know, I've lived my whole life in states that recognize alienation of affection as a valid cause of action (North Carolina and Illinois).

I'm pretty sure it's had almost zero impact on how people actually act.

I'd be interested if anyone had actual data as to adultery rates, as well as resulting litigation. I think we had a large jury award for AoA in NC, maybe 3-4 years ago. But that case was news because it was unusual, and not many people seemed to be familiar with AoA.
3.11.2009 8:34pm
MCM (mail):
Is "adultery" legally defined as penis-vagina sex? Does a "Lewinsky" count? What about a hand job?


This was actually part of an essay question on the NC Bar Exam in 2007.
3.11.2009 8:36pm
ReaderY:
Minnestota has a scienter requirement?

In North Carolina criminal conversation (adultery) is a strict liability tort and does require proof defendant knew of the marriage or that the spouse's affections were diminished. Alienation of affections, which requires proof defendant's conduct diminished plaintiff's spouse's affections, does not require any sexual conduct.

Recent cases:

Jones v. Skelley (N.C. App. 3 March 2009)

McCutcheon v. McCutcheon (N.C. 2006)

Jones v. Skelley (N.C. App. 3 March 2009)a>">Misenheimer v. Burris (N.C. 2006)/a> — N.C. App. 2007 (remand)

Brown v. Ellis (N.C. App. 2007)

Fox v. Gibson (N.C. App. 2006)

Jones v. Skelley (N.C. App. 3 March 2009)a>">Misenheimer v. Burris (N.C. 2006">Stann v. Levine (N.C. App. 2006)
3.11.2009 8:48pm
Waldo (mail):

We learned, as a society, the hard way that it was best not to make marriage contracts very firm and hard to escape.

Let me clarify. I am not proposing that divorce should only be allowed for cause, which I believe was the norm before no-fault divorce. I am arguing that the person who wants to end a marriage for reasons other than infidelity or domestic violence should bear most of the financial burden. People are still free to divorce for whatever reason. But if it's not one of the two reasons above (unless modified by mutual agreement), they'll have to pay for it. Otherwise, there's really no commitment involved. And, no, that shouldn't increase the rate of domestic violence since domestic violence would justify divorce.

I believe that idea extends to child custody because marriage is about more than a relationship between two individuals. It also defines a relationship between parents and children. Therefore, someone who divorces without cause is not merely divorcing their partner, but their family.


Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit.

Sounds like a perfect reason why legal marriage shouldn't be solely about romantic love.
3.11.2009 9:03pm
Oren:

Minnesota law confers on those who wish to enter into a statutorily defined civil marriage and receive all of the benefits that contract entails a duty of "fidelity" to their spouse.

How absurd to create a duty towards someone even if they don't want it. It's almost as if you think spouses have a duty to the government not to cheat on their spouses.
3.11.2009 9:04pm
ReaderY:
Once more, hopefully with the links fixed:

Jones v. Skelley (N.C. App. 3 March 2009)

McCutcheon v. McCutcheon (N.C. 2006)

Misenheimer v. Burris (N.C. 2006)N.C. App. 2007 (remand)

Brown v. Ellis (N.C. App. 2007)

Fox v. Gibson (N.C. App. 2006)

Stann v. Levine (N.C. App. 2006)

In Cannon v.Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888 (1985) the North Carolina Supreme Court, in a brief order, vacated a lengthy Court of Appeals opinion purporting to abolish the torts of alienation of affections and criminal conversation, holding that the Court of Appeals had "acted under a misapprehension of its authority to overrule decisions of the Supreme Court of North Carolina and its responsibility to follow those decisions, until otherwise ordered by the Supreme Court"
3.11.2009 9:06pm
ReaderY:

It's almost as if you think spouses have a duty to the government not to cheat on their spouses.



In North Carolina, spouses absolutely have a duty to the government not to cheat on their spouses, the duty is vigourously enforced, it's a routinely litigated tort, large numbers of cases are filed, punitive damages are automatically available (adultery is considered inherently malicious conduct) and several damage awards upwards of a million dollars have been upheld.

There is of course also a criminal adultery statute.
3.11.2009 9:10pm
Dilan Esper (mail) (www):
Sounds like a perfect reason why legal marriage shouldn't be solely about romantic love.

In a freedom loving society, how about letting it be about what individual couples want it to be about?

Really, at the bottom of all of this is a sexual perversion-- namely, the perverted desire to use government power to make sure that someone else isn't misusing a penis or a vagina.
3.11.2009 9:15pm
Grigor:
One-note Gallagher is just an embarrassment to the Corner, almost all of whose other commenters have generally interesting or at least fairly well-reasoned things to say. She, the plaid-skirt wallflower prude Kathryn Lopez, and the foam-flecked Krikorian ought to just clam up.
3.11.2009 9:33pm
ArthurKirkland:
I don't know much about Maggie Gallagher, and what I recall isn't positive, but I give her the benefit of the doubt and hope she is not proposing such foolishness -- she merely said 'here is what it would look like' in the linked message.

In any event, is is difficult to take the proposal seriously. Remarkably poor draftsmanship (crayon-on-grocery-bag) in the service of a silly idea.
3.11.2009 9:34pm
Waldo (mail):

In a freedom loving society, how about letting it be about what individual couples want it to be about?

That's why there are pre-nups.

It's been said that he who defends everything defends nothing. In the same way, if marriage is about anything, it's really about nothing.
3.11.2009 9:47pm
Oren:




In North Carolina, spouses absolutely have a duty to the government not to cheat on their spouses, the duty is vigourously enforced, it's a routinely litigated tort, large numbers of cases are filed, punitive damages are automatically available (adultery is considered inherently malicious conduct) and several damage awards upwards of a million dollars have been upheld.

There is of course also a criminal adultery statute.

Tort cases brought by whom? The aggrieved spouse -- the one that can logically be said to be owed a duty of fidelity. I was referring to the notion that the spouses have a duty to the government notwithstanding the other spouse's consent.
3.11.2009 9:54pm
Dilan Esper (mail) (www):
It's been said that he who defends everything defends nothing. In the same way, if marriage is about anything, it's really about nothing.

How about enforceable business contracts? Because they can be about anything, are they really about nothing? How about business partnership law? How about negligence law? How about the First Amendment?

Why, in fact, does marriage HAVE to be "about" something? This is a fundamental error that homophobes make in the gay marriage debate. They want to say that marriage is "about" procreation. But that's reductive. Marriage is "about" all sorts of things, depending on the marriage. That in no way makes any particular marriage meaningless-- it has the meaning that the couple gives it. Just like a contract. Just like a business. Just like First Amendment protected expression.

We certainly don't, as a matter of policy, require people's marriages to be "about" anything in particular. We don't stop people from getting married for the "wrong" reasons. And nobody thinks we should (except the people who want to stop gays from marrying, and even they don't draw any other similar exceptions).

It's a pretty intrusive government that's going to come in and define everyone's relationships. Especially with 2 wars, global warming, and economic catastrophe and all the rest going on.
3.11.2009 9:55pm
Waldo (mail):

How about enforceable business contracts? Because they can be about anything, are they really about nothing? How about business partnership law? How about negligence law? How about the First Amendment?

Then make it enforceable. Whoever breaks the contract bears responsibility. Since IANAL, is there something about business contracts I am unaware of?

Once again, the problem with Gallagher's proposal is that is uses tort law to extend liability to someone who isn't a party to a contract and may not even know of its existence. A better option is to enforce the original marriage contract.

BTW, I'll disregard the gay marriage angle and associated ad hominems. Wrong thread.
3.11.2009 10:11pm
Dilan Esper (mail) (www):
Waldo:

1. The reason we don't "enforce" marriage contracts is above. Not only is it not what most people are agreeing to, but it's a very bad idea to stick people in bad marriages. We learned that the hard way.

2. The problem with Gallagher's proposal is not only that it is impractical (see Professor Volokh's post) but also that the government has no business telling husbands and wives that they can't or shouldn't have sex outside of marriage, and certainly no business punishing them if they do.

3. The reason I brought up gay marriage is that you were making the same argument the homophobes make-- that marriage must be "about" something. In fact, different marriages are about different things, which is why anti-gay bigots have no business denying gays the opportunity to get married on the grounds of marriage's supposed singular "procreative" purpose.
3.11.2009 10:15pm
Putting Two and Two...:

but I give her the benefit of the doubt and hope she is not proposing such foolishness


Her primary motivation is probably to counter same-sex marriage proponents who accuse her and other anti-gay hysterics of doing nothing to actually defend marriage.

That's not to say I think she actually supports the ideas she writes about. That said, I wouldn't give her too much credit even if she did. After all, she misses what's really responsible for the resurgence in out-of-wedlock births since 2000: the passage of many state DOMAs across the country. The causation is glaringly obvious to someone with her analytical skills.
3.11.2009 10:17pm
Putting Two and Two...:
Ooops. I was confusing Maggie's 12:50 PM silliness with her 11:30 AM silliness.

It's hard to keep up sometimes.
3.11.2009 10:25pm
David Schwartz (mail):
I assume you are just trying to be funny? I had no idea getting sweet-talked into bed by a married person was the equivalent of murder for hire...
Obviously, they differ massively in degree. But if marriage is a contract not to commit adultery (which I'm not saying it is or should be) then knowingly encouraging someone else to breach that contract is conceptually in the same category as knowingly encouraging someone else to physically harm someone.

It can certainly be a tort to knowingly induce a third party to violate a contractual obligation.

I again repeat, however, that urging someone to get a divorce or separate is urging them to *comply* with their marriage obligations. Urging them to cheat may or may not be, depending on whether you view marriage as a promise not to cheat and whether you see it as the type of contract that should be enforceable against third parties.
3.11.2009 10:31pm
Waldo (mail):
Dilan:

1. We actually do "enforce" certain parts of marriage contracts. Presumption of paternity still applies and child support is more enforceable than most business contracts in that it can't be discharged through bankruptcy. Also, we're not "sticking" people in bad marriages. Marriage is still voluntary. It's simply that the person who violates the common understanding of the contract should bear liability.

2. Yes, the government has no business telling husbands and wives that they can't or shouldn't have sex outside of marriage. That's why adultery shouldn't be a criminal offense; I didn't argue that. However, the normal understanding of marriage should be that couples don't have sex outside of marriage. If individual couples wish a different relationship, they can sign a pre-nuptual.

3. Once again, wrong thread.
3.11.2009 10:35pm
sdfsdf (mail):
I've written a couple of articles on this subject. I thought of titling an article, "An Argument for Heterosexual Marriage". At the moment, traditional marriage has been outlawed, in effect. That's because not only has the state redefined it to become a weak status voidable by either party for any reason, but it has become at best unclear whether the courts would uphold anything prenuptial contract that tried to do otherwise.

The situation is at least unclear, though. Does anybody know of cases where a court has either upheld or struck down a contract penalizing a spouse for adultery, either directly or in a divorce settlement? I looked a few years ago and couldn't find any. PLease email me at erasmuse@Indiana.edu.

My articles on this, which take a law-and-economics approach, are:

"An Economic Approach to Adultery Law," Chapter 5, pp. 70-91 of Marriage and Divorce: An Economic Perspective, edited by Antony Dnes and Robert Rowthorn, Cambridge: Cambridge University Press, 2002.A long- term relationship such as marriage will not operate efficiently without sanctions for misconduct, of which adultery is one example. Traditional legal sanctions can be seen as different combinations of various features, differing in who initiates punishment, whether punishment is just a transfer or has real costs, who gets the transfer or pays the costs, whether the penalty is determined ex ante or ex post, whether spousal rights are alienable, and who is punished. Three typical sanctions, criminal penalties for adultery, the tort of alienation of affections, and the self-help remedy of justification are formally modelled. The penalties are then discussed in a variety of specific applications to past and present Indiana law. http://rasmusen.org/published/Rasmusen_02.BOOK.adultery.pdf


"Lifting the Veil of Ignorance: Personalizing the Marriage Contract," (with Jeffrey Stake) Indiana Law Journal (Spring 1998) 73: 454-502. Modern state laws only allow marriages in which each party can unilaterally divorce the other. We argue that the law should clearly permit parties to contract for more restrictive forms of marriage. http://rasmusen.org/published/Rasmusen_98.ILJ.marriage.pdf
3.11.2009 11:05pm
ReaderY:
We certainly don't, as a matter of policy, require people's marriages to be "about" anything in particular. We don't stop people from getting married for the "wrong" reasons.

But we require business to have a "legitimate business reason" for sexual preference and stop people from going about their business if they are in business for the "wrong" reasons. What's our justification for doing so? What makes business more important to government than marriage? And why isn't people's personal happiness a "legitimate business reason"? Why should government care why people are in business any more than it should care why they aren't married? Why should government require people in business to concern themselves with anything other than their own happiness?

In Atlanta Hotel, the Supreme Court said Congress has the same interest in interstate commerce that the states do in domestic relations. If the states interest in domestic relations cann't trump people's desire to associate with whom they please for reasons only of personal happiness, why doesn't it violate Atlanta hotel for Congress to act as if its interest in interstate commerce can do so?
3.11.2009 11:16pm
Perseus (mail):
First of all, right now the economy's in the tank, we are at war in Iraq and Afghanistan, we desperately need to fix our financial system, our automakers are going under, people are losing jobs right and left,and Maggie Gallagher thinks that Ashley Madison is a serious social problem requiring government intervention?!?

Would you mind telling the people in California whining about the passage of Proposition 8 the same thing?


In a freedom loving society, how about letting it be about what individual couples want it to be about?

That's only convincing to those who confuse liberty with license.
3.11.2009 11:24pm
Randy R. (mail):
"At the moment, traditional marriage has been outlawed, in effect. "

Baloney. Any couple that wants a 'traditional marriage', however they wish to define it, is allowed to have it. If divorce is not acceptable to the married couple, there is no one forcing them to divorce, and they may continue their miserable marriage till death due them part. If that's what really makes them happy.
3.12.2009 12:39am
David Schwartz (mail):
Baloney. Any couple that wants a 'traditional marriage', however they wish to define it, is allowed to have it. If divorce is not acceptable to the married couple, there is no one forcing them to divorce, and they may continue their miserable marriage till death due them part. If that's what really makes them happy.
This is like arguing that traditional slavery is still legal, for as long as the slave consents.

Traditional marriage was about making promises that would be enforced by society. Society has decided that it will enforce, and only enforce, a set of promises different from traditional marriage.

And I have no idea how to fix it.
3.12.2009 1:14am
Randy R. (mail):
" Society has decided that it will enforce, and only enforce, a set of promises different from traditional marriage. "

Then you will concede that traditional marriage is not *outlawed*, as the original commentator argued. Why is it necessary for society to 'enforce' traditional marriage? If two people enter into an agreement and want a traditional marriage, no one is going to force them into a divorce for any reason. Only the two people can decide whether they can or should get divorced.

"Society has decided that it will enforce, and only enforce, a set of promises different from traditional marriage."

Really? So if two people want a traditional marrage, whatever you mean by that, 'society' will say, oh no -- you can't have that. We will prevent you from getting married, or if you do get married, we simply won't enforce the marriage, and will force you to get divorced.

Please. There are orthodox jews who get married in the US, and I don't see anyone forcing divorce upon them.

Your beef isn't with society enforcing anything. Your complaint is that couples have abandoned the idea that 'traditional marriage' is the only one that exists.

First, what do you mean by traditional marriage? One in which a couple will never get divorced? If so, then yes, society,and most couples have abandoned that idea. Is that good, for couples or for society? Well, it depends. If it was a bad marriage to begin with, then it's good for everyone to end it.

However, I do agree with you that too many people see marriage as a temporary condition, and that the moment the going gets tough, you just split up. What we need is more couples' therapy to help people grow up and realize that a commitment that involves children (if there are any) means that there will be tough times, but in the end it's worth it.

But no one,not even society, can force anyone to be a adult.
3.12.2009 7:50am
Oren:

But if marriage is a contract not to commit adultery (which I'm not saying it is or should be) then knowingly encouraging someone else to breach that contract is conceptually in the same category as knowingly encouraging someone else to physically harm someone

Because a contractual obligation has a lower status than a criminal law.

At the extreme, suppose I had a contract with someone to quit smoking (in exchange for due consideration, of course). Now, he walks down the street and bums a cigarette from a stranger, who is now apparently liable for encouraging him to break his contract?
3.12.2009 9:04am
Dilan Esper (mail) (www):
That's only convincing to those who confuse liberty with license.

When it comes to most consensual sexual issues, with only a handful of exceptions, liberty requires license. Because the government has no business in that area whatsoever, as the theories as to why it should be in that area are based either on stupid, discredited patriarchal, misogynist conceptions of sex and/or are based on what an invisible man in the sky who has an inordinate and unhealthy obsession with what we do with our genitals.

There is no RATIONAL reason to give the government broad power to tell us what we should do in the bedroom, and plenty of good reasons not to. Against this, you have the traditional religious beliefs of people who are obsessed with the fun that others are having. It's no contest.
3.12.2009 11:24am
Dilan Esper (mail) (www):
Traditional marriage was about making promises that would be enforced by society.

So until government created courts that would enforce marriage contracts, there was no "traditional marriage"?

So much for marriage being one of the oldest, most established human institutions! Turns out its younger than organized municipal government!

Of course, the reality is that you are making a dumb point-- traditional marriage never REQUIRED that the government enforce the promises.
3.12.2009 11:26am
David M. Nieporent (www):
I'm not sure that I agree with some of the characterizations of marriage as a contract. It has some of the formal trappings of a contract but in any state that has no-fault divorce, it's a contract voidable at any time for any reason or no reason by either party. Doesn't sound much like a contract in fact, at least to me.
I don't know why not. Divorce is not "voiding" a marriage, but terminating it. Many contracts are terminable at any time for any reason or no reason by either party. For instance, at will employment.
3.12.2009 11:39am
David M. Nieporent (www):
I'm not sure that I agree with some of the characterizations of marriage as a contract. It has some of the formal trappings of a contract but in any state that has no-fault divorce, it's a contract voidable at any time for any reason or no reason by either party. Doesn't sound much like a contract in fact, at least to me.
I don't see why not. Divorce is not voiding a marriage, but terminating it. Many contracts are terminable "at any time for any reason or no reason by either party." At will employment, for instance.
3.12.2009 11:40am
forgotten_password (mail):
"Criminal Conversation" is neither criminal, nor conversation -- Discuss.
3.12.2009 11:49am
David M. Nieporent (www):
Oops, sorry about the double post.

In a freedom loving society, how about letting it be about what individual couples want it to be about?
But you're the one who refuses to allow that, by declaring that no marriage contracts can be binding regardless of what the parties who enter into them want. You keep raising the issue of possible consent, as if that were relevant in a situation when said consent didn't exist.
3.12.2009 11:50am
Dilan Esper (mail) (www):
But you're the one who refuses to allow that, by declaring that no marriage contracts can be binding regardless of what the parties who enter into them want.

By the same token, then, the law's refusal to enforce social agreements like whether to show up for a date must be a gigantic imposition on human freedom, right?

The government's choice to enforce or not enforce an agreement is a public policy question-- in a state of nature, no agreements are enforced by the government. ENFORCING the agreement is the imposition on human freedom, that's the one that involves turning the guns of the state against someone who doesn't do what the government says he or she should.

You are free to do many things. But when you ask the government to get involved and enforce what you want to do against another individual, that's no longer a question of preserving your own liberty.
3.12.2009 12:04pm
David M. Nieporent (www):
1. The reason we don't "enforce" marriage contracts is above. Not only is it not what most people are agreeing to, but it's a very bad idea to stick people in bad marriages. We learned that the hard way.
No; you learned that the hard way, and you learned the wrong lessons. Which is why we hear all these plaintive cries from liberals now about how government needs to do more to help the lower percentiles on the economic spectrum.

And I think if you asked anybody, as they're getting married, whether they're agreeing that their spouse can commit adultery, I think you'll find that the answer is no.

2. The problem with Gallagher's proposal is not only that it is impractical (see Professor Volokh's post) but also that the government has no business telling husbands and wives that they can't or shouldn't have sex outside of marriage, and certainly no business punishing them if they do.
That's an argument against criminalizing adultery, not against making it a tort. The "government" isn't telling them anything other than that they have to live up to their agreements, which the government routinely does. (And, once again, consent is a defense, so your argument that they may change their mind or whatever is irrelevant.)

The point of all this, again, is that the socially optimal amount of adultery is not zero. And for that reason it should neither be illegal nor a tort.
The socially optimal amount of non-consensual adultery is zero.
3.12.2009 12:20pm
Dilan Esper (mail) (www):
No; you learned that the hard way, and you learned the wrong lessons. Which is why we hear all these plaintive cries from liberals now about how government needs to do more to help the lower percentiles on the economic spectrum.

The feminist critique of fault divorce has little to do with welfare state liberalism, David. It has to do with the fact that sticking people in bad marriages led to horrible results, especially for women.

And I think if you asked anybody, as they're getting married, whether they're agreeing that their spouse can commit adultery, I think you'll find that the answer is no.

That's not the question, though. The question is whether that subjective intention, even if it is formed, should bind a couple as they get older and wiser and make different arrangements, with the government enforcing the deal.

The "government" isn't telling them anything other than that they have to live up to their agreements, which the government routinely does.

So tort liability is not an intrusion of the regulatory state? I'll remember this when we have debates about tort suits against corporations.

Seriously, embarrassing judicial inquiries into people's private conduct in tort cases, and compelled payment of damages enforced by government power, is an intrusive government intervention in people's private conduct. Maybe not as big a one as a criminal case, but big enough nonetheless.

The socially optimal amount of non-consensual adultery is zero.

That's begging a pretty important question. A lot of the consent in these situations is tacit, and it would be a huge, big government, anti-liberty, sexual witch hunt for judges and juries to be digging into people's most intimate decisions and discussions within the privacy of marriage to determine whether this consent actually occurred.

Face it David, you want the government (or at least the judicial branch) to be the sex police. You might try being a little more tolerant of people who do things that you don't like.
3.12.2009 12:28pm
David M. Nieporent (www):
By the same token, then, the law's refusal to enforce social agreements like whether to show up for a date must be a gigantic imposition on human freedom, right?
De minimis non curat lex.

That -- not some policy against "enforcing social agreements" -- is the reason that the law doesn't handle agreements of that nature.

But marriage is not a trifle.
3.12.2009 12:34pm
Dilan Esper (mail) (www):
De minimis non curat lex

Adultery is de minimis too-- most of it causes nothing more than emotional harm, and for very good reasons, the vast majority of emotional harm is not actionable as a tort.

That -- not some policy against "enforcing social agreements" -- is the reason that the law doesn't handle agreements of that nature.

You are quite mistaken about this. Social agreements are not enforceable because of lack of consideration, and the consideration rule arises out of the policy that it would be impossible and impractical for judges and courts to determine which gratuitous promises were intended to be enforceable. Read any major contracts treatise and you will find this.

But marriage is not a trifle.

"Marriage" isn't anything. Particular aspects of marriage are important to particular couples. Other aspects aren't. In any event, violating the prohibition against adultery does nothing more than piss people off. And we don't allow every person who ever gets pissed off at something to sue and collect damages.
3.12.2009 12:39pm
David M. Nieporent (www):
Lastly, sex is very important to different people for different reasons. Plenty of people think it is important because they enjoy it a lot. Don't assume that it is always about some deeper emotional intimacy as opposed to the pleasure of a good lay.
Wait, when I talked about physical gratification, you denied this claim.

The feminist critique of fault divorce has little to do with welfare state liberalism, David. It has to do with the fact that sticking people in bad marriages led to horrible results, especially for women.
Of course it had to do with welfare state liberalism, because easy divorce has led to horrible results, especially for women and children. Men too, of course. (Divorce lawyers do well.) And the way that these feminists want to mitigate those horrible results is with the welfare state.

Making divorce easy in the event of actual abuse has very little to do with the state of marriage laws today. (And, obviously, has nothing to do with the issue of adultery.)

That's not the question, though. The question is whether that subjective intention, even if it is formed, should bind a couple as they get older and wiser and make different arrangements, with the government enforcing the deal.
No, that is not the question. For the umpteenth time, if they make "different arrangements," then there's no breach of contract/no tort. (And as for my statement not being the question, you're the one who claimed that people didn't intend marriage to forbid adultery.)

That's begging a pretty important question. A lot of the consent in these situations is tacit, and it would be a huge, big government, anti-liberty, sexual witch hunt for judges and juries to be digging into people's most intimate decisions and discussions within the privacy of marriage to determine whether this consent actually occurred.
No, it wouldn't. In any case, that's an argument that we can't get to the socially optimal level, not that it isn't the socially optimal level. We can't get to the socially optimal level of automobile fatalities (zero) without banning cars entirely (which we don't want to do). That doesn't mean we shouldn't punish (at least via tort) culpable parties in instances of auto fatalities.

I don't know what kind of circle of friends (or marriage) you have where it's "tacit" that spouses can have affairs, btw. (And what's the "sexual witch hunt"? (1) Did you have an affair? If not, then it doesn't matter whether it was tacit or explicit. (2) If you had an affair, was there consent? Why would it require a "sexual witch hunt" to determine whether there was consent?)
3.12.2009 1:09pm
mischief (mail):

In a freedom loving society, how about letting it be about what individual couples want it to be about?


For couples who want total freedom to decide what their relationship is about, we have an institution. It's called cohabitation.
3.12.2009 1:11pm
David M. Nieporent (www):
You are quite mistaken about this. Social agreements are not enforceable because of lack of consideration, and the consideration rule arises out of the policy that it would be impossible and impractical for judges and courts to determine which gratuitous promises were intended to be enforceable. Read any major contracts treatise and you will find this.
Bait and switch. With only a couple of exceptions, no agreements are enforceable without consideration; that's not something unique to "social agreements." We're talking about situations when there is consideration (and/or promissory estoppel) -- like marriage -- and when, therefore, the agreements would ordinarily be enforced.
3.12.2009 1:13pm
Oren:

But you're the one who refuses to allow that, by declaring that no marriage contracts can be binding regardless of what the parties who enter into them want.

Do you intend to let married couples check a box designating how binding they want their vows or are you going to impose this as a one-sized-fits-all solution? If there is going to be a single marriage contract that is enforceable by the State, it's far better to have it be under-binding than over-binding with respect to the principal's desires.
3.12.2009 2:16pm
Oren:

I don't know what kind of circle of friends (or marriage) you have where it's "tacit" that spouses can have affairs, btw.

Most of them don't call them affairs unless it's behind the other spouses back.
3.12.2009 2:17pm
lancellotti (mail):
Having followed this debate as an outsider, I have a question for Dilan Esper: if marriage is not about "anything in particular," if it is about what people make it to be, if adultery is de minimis, why should such a thing have any legal status whatsoever? Why should the state meddle with it? Why should it be the object of public policy? Why does it deserve any fiscal or other benefits?

This what never stops puzzling me about the liberal ideology on these matters. If sexual relationships are all about subjective self-expression and are not liable to any objective constrain (not openess to reproduction, not sexual fidelity, not larger social purposes), the only intellectually honest conclusion should be the abolition of civil marriage.
3.12.2009 3:23pm
wva (mail):
There are already so very many comments on this Volokh posting that it's doubtful whether anyone will get this far, to read another (even assuming it has not already been covered by a previous commentator). Still, it does appear to me that the statute Gene questions is, in part, merely a codified form of the familiar common law tort known as "criminal conversation." It differs from "alienation of affection," inasmuch as it requires no evidence that the defendant acted to "alienate" the woman's affection from her husband. Rather, it is more akin to a simple "trespass" action. One who is aware that the woman with whom he has intercourse is "married" is invading a "property" (her body) she, by marriage, committed exclusively to the use of her husband and to no one else. Modernly, the tort has not been abandoned in every jurisdiction, rather, it has simply been made "mutual," i.e., a wife may make a similar claim against a woman who has intercourse with her husband on the same "trespassory" idea. (His consent is no defense...he has no capacity to "consent" to any such thing.) For readers of the Volokh blog, they may even find the description of this tort ("criminal conversation") worth pursuing (what a marvelous descriptive title it has.....)
3.12.2009 3:26pm
Oren:
Lancellotti - because it's a convenient way for the State to do business with respect to child custody, intestate succession, visitation rights and medical decisions most in line with our prevailing norms.

Marriage doesn't mean nothing, it's a powerful bond between two people that finds expression in their own particular definition, whether or not that definition requires sexual fidelity.
3.12.2009 3:27pm
Dilan Esper (mail) (www):
david:

we've gone round and round, and most of it is answered above. but on the issue of fault divorce, theoretically, domestic violence was always a valid ground. but in practice, forcing women to swear under oath regarding the deepest secrets of their marriage made it difficult for women to seek divorce on this ground. women therefore died because of fault divorce, because the system imposed impediments to them leaving their marriages. no fault is the only system that would have saved their lives.

but even where there is no abuse, easy divorce is a social good, because it lets people out of miserable marriages. in order to preserve your ideal of what marriage means, you are willing to make people's lives a living hell.
3.12.2009 3:36pm
Henry679 (mail):
Always amusing to read a thread littered with the morality-at-the-point-of-a-gun types. What they are doing here, a supposedly libertarian leaning site, is another issue.
3.12.2009 4:15pm
lancellotti (mail):
Oren:

you conflate two different things. Having an agreement over child custody, intestate succession, visitation rights etc is not a powerful bond. It is just a package of private legal agreements that anybody could easily set up by spending an hour at a lawyer's office. If that's all there is, this whole discussion would not be taking place.

The truth is that marriage as a legal construct is indeed motivated by "powerful" cultural/biological realities (do I need to explain?). If these realities are not in any way normative to the legal definition of marriage, in the end legal marriage is bound to become irrelevant (like is happening de facto in many European countries). What needs to be seen is whether such "fading" of the legal definition of marriage will do harm to marriage as a social reality. I suspect so.

From a contemporary liberal position, of course, no damage is possible because there is no reality to marriage, which is a purely subjective construct. For me, I still think that if marriage has no definition except the one two people give it to, it means precisely nothing.
3.12.2009 4:26pm
Dilan Esper (mail) (www):
It differs from "alienation of affection," inasmuch as it requires no evidence that the defendant acted to "alienate" the woman's affection from her husband. Rather, it is more akin to a simple "trespass" action. One who is aware that the woman with whom he has intercourse is "married" is invading a "property" (her body) she, by marriage, committed exclusively to the use of her husband and to no one else. Modernly, the tort has not been abandoned in every jurisdiction, rather, it has simply been made "mutual," i.e., a wife may make a similar claim against a woman who has intercourse with her husband on the same "trespassory" idea.

That's even worse. So marriage creates a PROPERTY right in your spouse?!?!? Or just your spouse's genitals?
3.12.2009 6:18pm
Randy R. (mail):
lancellotti: "The truth is that marriage as a legal construct is indeed motivated by "powerful" cultural/biological realities (do I need to explain?). "

Yes, you do. Please explain why marriage was illegal between races until Loving v. Virginia. I understand that there were powerful cultural reasons for it (bigotry), but zero biological ones. So why did the cultural ones override the biological ones?

"If these realities are not in any way normative to the legal definition of marriage, in the end legal marriage is bound to become irrelevant."

So when interracial marriage was outlawed in the US, the legal definition was conforming to the cultural reality, but not the biological one. Then I assume you are arguing that marriage, until Loving, was bound to become irrelevant. When Loving was decided, about 80% of the population was against interracial marriage, so then marriage now came in line with the biological reality (which supports interracial marriage), but not the cultural one (which did not). Therefore, marriage was again becoming irrelevant.

Today, of course, the culture has reversed itself, and no longer condemns interracial marriage, so both culture and biology support the legal definiation of marriage, thereby reversing it's slide to irrelevancy. Which is good news, right? Am I reading you correctly?
3.12.2009 7:06pm
Visiting Comment:
The AoA tort arose out of the property interest in the spouse theory.

Personally the government should do away with 'marriage' and make it all civil unions, to provide for a less charged atmosphere to modernize and reconceptualize the institution, and sidestep those thorny SSM issues.
3.12.2009 7:07pm
Oren:

It is just a package of private legal agreements that anybody could easily set up by spending an hour at a lawyer's office.

(1) Many of the benefits of marriage (hospital visitation rights, tax breaks, testimonial privilege) cannot be conferred by private contract of the principals.

(2) Even for the agreements that can be made, the whole damned point of default rules is that they are made default. In theory, everyone should have a last will, living will and power of attorney drawn up -- in practice, few do and it makes life much easier if we impose a set of default rules.


The truth is that marriage as a legal construct is indeed motivated by "powerful" cultural/biological realities (do I need to explain?).

And as our culture changes and becomes more open to a variety of lifestyle choices not contemplated in the past, so to do our institutions change. Human society is not set in stone.


For me, I still think that if marriage has no definition except the one two people give it to, it means precisely nothing.

That's quite sad.
3.12.2009 7:07pm
Randy R. (mail):
Perseus: "That's only convincing to those who confuse liberty with license."

Yup. Give people a little freedom, and before you know, you've lost all control over 'em.

Lancellotti: " If these realities are not in any way normative to the legal definition of marriage, in the end legal marriage is bound to become irrelevant (like is happening de facto in many European countries)."

Strange. Marriage rates are declining in Italy and France, and yet holding steady (and even slightly increasing) in the Scandinavian countries. So why is bound to become irrelevant in some countries and not in others?
3.12.2009 7:35pm
Uh No.:

Strange. Marriage rates are declining in Italy and France, and yet holding steady (and even slightly increasing) in the Scandinavian countries. So why is bound to become irrelevant in some countries and not in others?


You must enjoy making things up.
3.12.2009 10:38pm
Uh No.:


So when interracial marriage was outlawed in the US, the legal definition was conforming to the cultural reality, but not the biological one. Then I assume you are arguing that marriage, until Loving, was bound to become irrelevant. When Loving was decided, about 80% of the population was against interracial marriage, so then marriage now came in line with the biological reality (which supports interracial marriage), but not the cultural one (which did not). Therefore, marriage was again becoming irrelevant.



You can't stop can you. You do realize that the overwhelming majority of States had overturned laws against interracial marriage by the time Loving was decided. A very small minority still had the laws on the books.

Do you lie professionally?
3.12.2009 10:40pm
Oren:

[ Footnote 5 ] After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md. Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala. Const., Art. 4, 102, Ala. Code, Tit. 14, 360 (1958); Arkansas, Ark. Stat. Ann. 55-104 (1947); Delaware, Del. Code Ann., Tit. 13, 101 (1953); Florida, Fla. Const., Art. 16, 24, Fla. Stat. 741.11 (1965); Georgia, Ga. Code Ann. 53-106 (1961); Kentucky, Ky. Rev. Stat. Ann. 402.020 (Supp. 1966); Louisiana, La. Rev. Stat. 14:79 (1950); Mississippi, Miss. Const., Art. 14, 263, Miss. Code Ann. 459 (1956); Missouri, Mo. Rev. Stat. 451.020 (Supp. 1966); North Carolina, N.C. Const., Art. XIV, 8, N.C. Gen. Stat. 14-181 (1953); Oklahoma, Okla. Stat., Tit. 43, 12 (Supp. 1965); South Carolina, S. C. Const., Art. 3, 33, S. C. Code Ann. 20-7 (1962); Tennessee, Tenn. Const., Art. 11, 14, Tenn. Code Ann. 36-402 (1955); Texas, Tex. Pen. Code, Art. 492 (1952); West Virginia, W. Va. Code Ann. 4697 (1961).

That's 35 legal, 15 illegal -- definitely not overwhelming but still a solid majority.
3.12.2009 10:45pm
Uh No.:
Professor Carpenter,

Strangely North Carolina seems to have no problem functioning with an alienation of affections tort.

Here is something else to think about. If one cannot turn to the law when adultery strikes a relationship, a person might have a strong incentive to make their own law. Typically things don't work out well for anyone when individuals feel that they must resort to making their own law (often with violence) because they can't turn to the courts.

What is a better solution, having a person sue the offending party or having the person settle the situation with their fists or a weapon.

You are sadly mistaken if you think the latter won't happen.

I think having a tort option would serve both a public safety and deterrent function.
3.12.2009 10:46pm
Oren:
Sorry, 34 legal, 16 illegal ("Virginia and 15 other").

My mistake, and it certainly makes your overwhelming look less so ...
3.12.2009 10:48pm
ChrisTS (mail):
Henry679 (mail):
Always amusing to read a thread littered with the morality-at-the-point-of-a-gun types. What they are doing here, a supposedly libertarian leaning site, is another issue.


Well, they are on this thread on this site because there is nothing running today on the site about gays and lesbians. So, really, there is not much else for them to talk about.
3.12.2009 11:14pm
Randy R. (mail):
Uh no: "You do realize that the overwhelming majority of States had overturned laws against interracial marriage by the time Loving was decided. A very small minority still had the laws on the books. "

I merely stated that the opinion of the American public immediately after Loving was that 80% were against interracial marriage. One could conclude that the culture was against interracial marriage at that time, which would complicate Lancellotti's bizarre and unfounded argument. I notice you take no issue with his argument, even though it is lacking in logic and evidence. Why not?

As for marriage rates, you would do well consult with objective authorities, not Mickey Kaus, who has already been repeatedly debunked, so much so that he has retracted his statements that SSM leads to a decline in marriage.

From Slate: "Despite what Kurtz might say, the apocalypse has not yet arrived. In fact, the numbers show that heterosexual marriage looks pretty healthy in Scandinavia, where same-sex couples have had rights the longest. In Denmark, for example, the marriage rate had been declining for a half-century but turned around in the early 1980s. After the 1989 passage of the registered-partner law, the marriage rate continued to climb; Danish heterosexual marriage rates are now the highest they've been since the early 1970's. And the most recent marriage rates in Sweden, Norway, and Iceland are all higher than the rates for the years before the partner laws were passed. Furthermore, in the 1990s, divorce rates in Scandinavia remained basically unchanged.
Of course, the good news about marriage rates is bad news for Kurtz's sky-is-falling argument. "

Don't believe your eyes? Try googling marriage rates in europe -- there are plenty of stats. But then, that would hurt your arguments that SSM destroys marriage, so I don't think you will even try.

So,. Uh no, my question: Do you distort the facts professionally or just for fun?
3.12.2009 11:17pm
Randy R. (mail):
Uh no. : "What is a better solution, having a person sue the offending party or having the person settle the situation with their fists or a weapon."

Yes, of course, because most people realize that a murder charge is so much easier to deal with than a simple divorce.
3.12.2009 11:21pm
ChrisTS (mail):
One who is aware that the woman with whom he has intercourse is "married" is invading a "property" (her body) she, by marriage, committed exclusively to the use of her husband and to no one else.

On the assumption that the property rights extend both ways in a marriage, I just asked my spouse if he realized he had committed his body - as property - to my exclusive sexual use when we got married. His response: "Whoa, there, dear. I don't remember that part in our vows. Bsides, what do you mean by 'use'?"
3.12.2009 11:21pm
ChrisTS (mail):
Uh no. : What is a better solution, having a person sue the offending party or having the person settle the situation with their fists or a weapon.

And there we have it, the only two solutions to adultery: sue or kill. Sort of the Stonewall Jackson response to marital discord: "Son, if the law doesn't allow you to sue 'em, then kill 'em. Kill 'em all."
3.12.2009 11:27pm
Randy R. (mail):
Or better yet, sue the bastard, *then* shoot 'em. That way, you get double satisfaction.
3.12.2009 11:59pm
Oren:

And there we have it, the only two solutions to adultery: sue or kill.

In another thread we had the heckler's veto, which if oft discussed but I've never heard of the murderer's veto. Why would we allow sociopath's that can't handle marital infidelity to have such a profound impact on our law is beyond me.

If threatening murder was all it takes to get laws passed, Al Qaeda might be on to something.
3.13.2009 8:38am
lancellotti (mail):
Randy R:

the whole point of my answer to Oren was to challenge his positivistic understanding of social institutions. To me marriage has a reality precedent to whatever laws regulate it. At the time of Loving vs. Virginia, inter-racial marriages were perfectly real marriages, regardless of what the statutes of the state of Virginia would say about them.

Conversely, your side appears to deny that marriage has any objective reality per se, and build a complete legal theory based on the following ideological assumptions:

a) That marriage is what any individual couple makes it to be, and is not binding in any way except inasmuch the couple understands it to be binding.
b) That is in now way intrinsically related to gender difference, or the potential generation of children.
c) That it does not reflect any collective interest of society in fostering/rewarding certain types of family arrangements.

I would argue that all three assumptions fly in the face of social and biological reality. But my point in the previous post was that once you accept a) b) and c), there is really nothing left to legislate about.
3.13.2009 6:40pm
Randy R. (mail):
Lancellotti: " At the time of Loving vs. Virginia, inter-racial marriages were perfectly real marriages, regardless of what the statutes of the state of Virginia would say about them."

If the states outlawed them, then there were no marriages. No couple consisting of a black person and a white person would enter into a pretend marriage if it's not legally recognized. However, if you know of any couples who tried that, please let me know, because I certainly no one of none.

I brought up interracial marriage for one reason -- I know that you were really referring to gay marriage, but I wanted to show that you came up with an arguement that makes no sense whatsoever. I'm glad that you have made no effort to defend it or address my criticisms.

a) True. And if you can point out to any proof that society demands anything more, I will be happy to change my position. But as of now, all that is needed for a necessary marriage is two people who agree to marry. They don't have to be in love, and they certainly don't have to prove it to anyone, or any gov't official. A couple can marry strictly for money or other benefits, and it's entirely legal and moral. Therefore, a marriage is anything a couple wishes it to be.

b) True again. And it has always been true. A marriage is real even if the couple have no children, can't have children, never intend to have children, or have children and kill them all. The marriage status never changes, regardless of the potential generation of children.

c/) Marriage is now perfectly legal in Mass, Conn, Canada, The Netherlands, Spain, Belgium and Denmark. Those marriages are of course real in every sense of the term, and those societies have determined that that gay couples can and should be rewarded with this type of family arrangements. More importantly, and one people like you just refuse to answer, is that when gay couples have children -- and they do, thousands of them -- then it is society's best interest to have those children's parents married rather than not.

On that last issue, even you will agree that children do best when the parents, gay or straight, are married, than not.
3.13.2009 7:58pm
Uh No.:

From Slate: "Despite what Kurtz might say, the apocalypse has not yet arrived. In fact, the numbers show that heterosexual marriage looks pretty healthy in Scandinavia, where same-sex couples have had rights the longest. In Denmark, for example, the marriage rate had been declining for a half-century but turned around in the early 1980s. After the 1989 passage of the registered-partner law, the marriage rate continued to climb; Danish heterosexual marriage rates are now the highest they've been since the early 1970's. And the most recent marriage rates in Sweden, Norway, and Iceland are all higher than the rates for the years before the partner laws were passed. Furthermore, in the 1990s, divorce rates in Scandinavia remained basically unchanged. Of course, the good news about marriage rates is bad news for Kurtz's sky-is-falling argument. "


Kurtz debunked Slate's pathetic attempt at a rebuttal. If you had read the link you would have seen that.

Don't believe your eyes? Try googling marriage rates in europe — there are plenty of stats. But then, that would hurt your arguments that SSM destroys marriage, so I don't think you will even try.


Like here?

And here?

Nobody ever failed quite as hard as you just did.

So,. Uh no, my question: Do you distort the facts professionally or just for fun?


No that'd be you.
3.13.2009 9:02pm
Oren:
I'm still waiting for the "overwhelming" number of states to come around.
3.13.2009 9:44pm
Randy R. (mail):
Uh no: Seriously? You quote from a website that says is written by this guy:

"The first goal of Timshel Arts (by necessity the most closely correlated to my own personal goals) is to turn my artistic ventures into a career. As a gradual accomplishment, this will allow me, first, more time to work on artistic projects to, thereby, make my artistic career more self sufficient. Ultimately, I will be able to shift all of the time that I now spend working at "day jobs" toward efforts to turn Timshel Arts into its own entity."

You may wish to go to an actual objective source, such as the UN, as I did. There, you will find the marriage rates for every country. You will also find that some have high rates, some have low, and there is zero correlation between among those that allow gay marriage, and those that don't. In other words, instead of just looking only at the few countries that allow gay marriage, you need to look at all the countries of europe over a large period of time to see what the trends are. The trends are that for some countries, marriage rates have held steady, others they decline (over 20 years), and other have shown a slight increase (over the past 10 years. Denmark, for instance, has a slight increase in marriage rates over the past few years. In Italy, marriage rates have declined rather dramatically -- but strangely no gay marriage there!

In other words, even if you find correlation (and there is no correlation between declining rates and SSM), you have to establish causation, something you haven't even tried, if you want to prove that SSM causes a drop in marriage rates.

It's interesting, though uh no. Your hostility to me, SSM and gays in general reminds me of Michael B. So go ahead and operate just like Michael B does, which is to hurl insults instead of actually addressing the issues.

Just sayin'
3.14.2009 1:40am
lancellotti (mail):
RANDY:

I see you just confirmed my assertion, by professing strict legal positivism. I can assure you that the reality of my own marriage is completely unrelated to the fact of having obtained a marriage license at the county building.

As for your "a,b,c" comments, they seem totally irrelevant to my contention, namely that once you accept them (I don't, but that is also irrelevant here) there is nothing left to legislate because your idea of "marriage" has no discernible social/public relevance.
3.14.2009 6:23am
Randy R. (mail):
lancellotti: "As for your "a,b,c" comments, they seem totally irrelevant to my contention, namely that once you accept them (I don't, but that is also irrelevant here) there is nothing left to legislate because your idea of "marriage" has no discernible social/public relevance."

Really? Then why is anyone trying to ban SSM then? If you truly believe that gay marriages are just as real as straight ones, then you have no problem with gays getting married.

"I can assure you that the reality of my own marriage is completely unrelated to the fact of having obtained a marriage license at the county building."

And i assure you that either you are engaging in sophistry, or you don't know what you are talking about. Why? Because you bothered to obtain that marriage license if the first place. If you believed that your marriage was real enoughn without it, then you wouldn't have bothered. So you took that extra step to make it legally real. Why would you do that, if you truly believe your marriage is real without it?

Of course, I hope you understand that your argument is a great argument in favor of NOT getting married, and instead having two people just living together, which is exactly what people like un no fear: that allowing SSM will somehow decrease the marriage rate. And there you are saying it's perfectly okay to live together as married couple without the benefit of marriage.

And I notice that you haven't yet addressed my argument: Isn't it better for children of any union to have married parents, whether or not their parents are straight or gay?
3.14.2009 6:01pm
Randy R. (mail):
And the more I think about it, the more I see we are indeed on the same side. Your marriage is 'real' because you believe it to be real. What's more, you take that extra step to make it real in the eyes of the law.

Just so with gay couples. They can get together, and declare their marriage just as real as yours, and you would of course accept that. Which means that you would have no problem when they take that extra step, as you can do, to make it real in the eyes of the law. And they can do that in Mass and Conn., and several other countries, and no problems have arisen there.

So this is actually a pretty good argument for SSM, and I will be sure to use it the future. Thanks!
3.14.2009 6:14pm
Oren:

I can assure you that the reality of my own marriage is completely unrelated to the fact of having obtained a marriage license at the county building.


And I can assure you that my relationship with the aliens from Neptune is stronger than any earthly marriage.
3.14.2009 9:57pm
Randy R. (mail):
I wonder if it works both ways. Say Lancellotti has an affair with someone, and that pretty much ends the reality of the marriage. they are still legally married, but the 'real marriage' has ended.

In that case, it just proves it would just prove that legal marriage is more an impediment than a help, because he would have to go through all the trouble of ending it legally, but responsible for alimony, divying up the assets, and so on. So I guess when you have a real marriage, not only is there no point to getting it legalized, it's a hindrance when you want to end it. Which makes me wonder why Lancellotti would bother with the legal stuff when he already had the 'real marriage'?

Maybe there are too many benefits to the legal one.....
3.14.2009 10:17pm
ChrisTS (mail):
Oren: And I can assure you that my relationship with the aliens from Neptune is stronger than any earthly marriage.

Ahha! I had suspected, maybe, Pluto, but now I see. I'm a Saturnophile, myself, but there really is no accounting for orientation is there?
3.15.2009 4:17pm
Uh No:

Uh no: Seriously? You quote from a website that says is written by this guy:

Ad Hominem.
3.16.2009 10:36am
Uh No:


In another thread we had the heckler's veto, which if oft discussed but I've never heard of the murderer's veto. Why would we allow sociopath's that can't handle marital infidelity to have such a profound impact on our law is beyond me.

If threatening murder was all it takes to get laws passed, Al Qaeda might be on to something.

Except that Adultery causes real tangible harm to the victim spouse. A person suffering such harm will likely not think rationally.

You brush it aside like it isn't a concern, but victims of an adulterous relationship will tell you otherwise.

What gives an outside individual the right to invade the marital relationship of someone else? What gives someone else to right to victimize the other spouse in the marriage?
3.16.2009 10:45am

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