Notes From Babel

“Pairriage”: A Thought Experiment

with 24 comments

After writing this several days ago, I held off posting hoping a better neologism would occur to me.  As that was not to be, I must ask you to suffer through my rather clumsy nomenclature.

Imagine that a group of people, dissatisfied with the existing forms of family structures—i.e., marriage—decided to create a new structure around which to organize their own families and communities.  The paramount concern to this group of people was age proximity of couples who sought to enter long term relationships and start families.  They decided that the relationships best suited to form the basis of a family were those in which the partners were no more than five years apart in age.  Gender did not count for anything, in their opinion, and opposite-sex or same-sex couples were equally suitable to form the core of a family unit—so long, of course, as they were within five years apart in age.  Same with race and religion: these had no bearing whatsoever, in their opinion, on whether two people could form a healthy family unit.

Imagine further that the disapprobation of age gaps felt by this group was based on a deeply held moral belief.  When pressed, however, some members of the group might offer the rationale that all other distinctions traditionally recognized by societies throughout history are outdated and unfashionable, and the only factor that ought to matter is a common temporal root in the culture and community because they will tend to have fewer more shared cultural connections.  Thus, they believe, couples with large age gaps are less capable of forming strong and lasting relationships.  However, this view is not borne of empirical observation, but only upon deeply held conviction.  Indeed, most observers suggested that the above rationale offered by the community was ad hoc, and did not explain the deep-seated moral belief for the disapprobation of age-dissimilar couples.  Similarly, some members of the group cited religious or historical texts to support the basis of their moral beliefs, but by no means all.

The community and their affinity for age-appropriate couples eventually became quite widespread.  So much so that its adherents began “Pairing” with one another.  Initially, rudimentary ceremonies were performed, typically in what became known as “pairriage houses” officiated by “pairsons,” and attended by friends and family who were invited come and witness the couple’s “Pairriage” to one another.  Later, however, the ritual evolved and became elaborate affairs, and cottage industries of pairriage dress makers, parriage wedding florists, and pairriage wedding cake bakers sprang up.  These ceremonies, at the early stages, were private affairs that had no legal effect.

As a result of the growing cultural acceptance of Pairriage, the institution became socially accepted.  Hotels offered “pairriage-moon suites,” “pairee” became accepted terminology, and it became commonplace for doctor’s offices and employers and banks to ask for a pairee’s information as an emergency contact, or as a co-signer on loans and mortgages, etc.

Because of this widespread cultural acceptance of the new institution, the state decided to formally recognize pairriage in its laws, such as to make more efficient and accurate the administration of pairriage licenses, applicable state housing or education loan subsidies, affordable home welfare entitlements and food stamps, foster care and child care services, presumptions of inheritance and child custody, etc.  These laws were identical to the state’s existing marriage and domestic partnership laws.

After a time, however, pairriage became so commonplace that in certain areas, it became socially awkward for a couple to not become pairiraged.  In fact, many people largely abandoned marriage in favor of pairriage, as marriage and its vernacular of “husbands” and “wives” became outmoded.  People felt awkward and even stigmatized when trying to explain their relationship to creditors or employers.  To refer to one’s mate as a “husband” or “wife" suggested antiquated, comical, and even offensive social roles.

Although they attempted to get pairriaged, however, some folks were turned away by the pairriage houses and pairsons, who refused to pairriage them.  Moreover, because the state’s laws recognizing pairriage had adopted the socially defined definition as “any two persons whose ages are not more than five years apart,” the state likewise refused to issue pairriage licenses to such couples who did not meet this minimum definitional requirement.  They could, of course, still marry or register as domestic partners, and thus become entitled to all the same legal benefits as pairriaged persons.

Believing they were being deprived of the equal protection of the laws by the state’s refusal to grant them pairriage licenses, and believing they had a fundamental right to be recognized as “pairriaged,” a few of the aggrieved couples filed a lawsuit against the state to compel the redefinition of pairriage to permit two people of any age to get pairriaged.  All of the plaintiffs in this lawsuit were couples who happened to be of opposite gender, and thus were perfectly entitled to become married.  Thus, to the state’s objection that plaintiffs were still permitted the same rights and entitlements under the marriage and domestic partnership laws, the court replied that “the withholding of the designation ‘pairrage’ significantly disadvantages plaintiffs,” citing the U.S. District Court for the Northern District of California in Perry v. Schwarzenegger, striking down California’s definition of "marriage."  The court thus rejected the state’s definition of pairriage, and required pairriage licenses be issued to any two persons who applied for one.

Is this the right result?

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Written by Tim Kowal

September 8, 2010 at 10:51 pm

24 Responses

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  1. Dear Mr. Kowal,

    Your analogy is clear enough and the argument is, as usual, a defensible one. Were one to take the most predictable opposing side, one would say that lifelong homosexual partnerships have been happening for thousands of years. In the nineteenth century, they were amicably tolerated in British and American society between women and were called Boston Marriages. Greece has been amenable to homosexual unions since . . . well, since Greece.

    My response to your suggestion is that pretty much anything is a “right” result to me, because I’m not one of those lucky fellows possessing a ready-made standard of right and wrong, better or worse, or any such subjective colors.

    As far as I’m concerned, if China takes over the world market, India cracks off and falls into the ocean, and a meteor obliterates Slavic Georgia and throws the world into nuclear winter, that will be a perfectly plausible result in an absolutely chaotic universe of universes. Likewise, if the religious right takes theocratic control over the US and begins a bloody, bullet-flinging jihad against homosexuals, that will seem “right” to me, too, because hey, spiders catch flies, frogs jump, and haters gonna hate, as they say.

    Perfectly normal, perfectly healthy. Am I warped?

    Cheers, Sir.

    -Both

    P.S. – Incidentally, I think I may agree with pairriage, ha ha, but it really _is_ too ugly a word to belong on a bumper sticker.

    BothEyesShut

    September 9, 2010 at 8:42 am

    • Yes, you obviously saw where this was headed. But I am interested in knowing whether the analysis would play out differently in my “pairriage” hypothetical. Would it?

      Tim Kowal

      September 9, 2010 at 8:47 am

      • If it were really to garner as much momentum as you suggest? Hmm, that’s a very interesting thought.

        Sure, I don’t see why not. I mean, look how Mormonism has helped shape legislation in Utah. I think religious resistance would be far more determined in their fight against pairriage, because pairriage would be too young a concept to take seriously from many perspectives, but the masses are prone to suggestion and social inertia is nothing to sneeze at.

        Furthermore, if the gov should reflect its constituents (by the people, of the people, et cetera) then your scenario should play out just about like that, I guess.

        Wow, ha ha! Fun conjecture.

        What do you think?

        BothEyesShut

        September 9, 2010 at 8:59 am

        • I think you’re fighting the hypothetical a bit. The idea is to accept the premises as true and see what conclusions follow. I’ve proposed that pairriage does indeed catch on such that traditional marriage becomes the minority, even a disfavored minority.

          To hint further at what I am getting at, is not pairriage, as described, an institution instantiated by the people, without respect to the law? And does not the law, by recognizing it (at first anyway), simply seek to accommodate itself to the social institutions of those it means to govern for the purposes of the orderly administration of the law and, perhaps, to better reflect the social reality of its polis? And thus, if that social institution thereafter were to be changed, would it not seem tremendously backwards—something like the tail wagging the dog—to change it through the law, wherein the institution did not originate, rather than in the opinions of the people, wherein it did?

          Tim Kowal

          September 9, 2010 at 10:33 pm

  2. OK I got you.

    To answer straight: no, not in my opinion.

    I think all governments doom themselves when they feel as though they were the dog, rather than the tail. The Russians and French have learned, but how many times did the dog have to gnaw its tail off to prove to the tail that it was a tail?

    I believe that it is precisely when governments fail to respond to changes in the popular social climate that they become especially frightening to the people.

    I do not mean to say that they engage in illicit or immoral activities (…). It’s just that when the people can’t relate to their governors, anymore, or even simply think they can’t, it’s basically over, a matter of time, an irreparable mess, bring out the tear gas and the beanbag guns. There’s a reason why stepdads have a hard time making friends with little Bobby and Jenny. Unmistakable changes in character, whether on the part of the public or the government, will result in the alienation of both unless the government allows the people to dictate some policy.

    It’s true that the public’s participation in policymaking is a sham, but it’s not _supposed_ to be a sham. And when the people realize that they do not consent, and yet have no control, bad things happen.

    I hope I understood you right this time, ha ha

    Always a pleasure, Tim

    BothEyesShut

    September 10, 2010 at 7:43 am

  3. Mr. Kowal,

    Are you saying that in fact the married and the pairried couples had precisely the same legal rights and privileges attached to their relationships?

    Because if you are, then obviously it’s not a good analogy because that’s not the case in the U.S. today, in any state without SSM, except for Washington, which passed an “everything but [the word] marriage” law.

    But let’s say that you’re willing to go the Washington state route, and grant civil unions to homosexuals that have all the legal rights and privileges of marriage attached to them. If you’re willing to grant full legal equality in that sense to homosexuals, then why cling so desperately to the mere word “marriage”?

    The only reason for clinging to it is because it must mean something to you that you don’t want homosexuals to have. On my blog you suggested that it was the cultural recognition element of marriage. But what harm comes from homosexuals having that (as they increasingly do, because SSM now exists in several states and countries)? What precisely are you trying to keep for your marriage and mine that you don’t want gay people to have, and why is it so important?

    I don’t get it. I really don’t.

    James Hanley

    September 12, 2010 at 10:02 pm

    • Wait, when you ask, “why cling so desperately to the mere word ‘marriage’?” do you mean “pairriage”? I’m not sure if you’re asking about the hypothetical or its application. In the hypo, people made up the institution for their own private moral reasons. It became a popular cultural symbol. The state recognized it because the laws reflect the values and institutions of its people. If we then take the position that we shouldn’t mind if the state then changes its definition of pairriage for the sake of “equality,” what we’re really saying is that people shouldn’t make up their own institutions based on private morals to begin with. And that’s clearly not the right conclusion.

      Tim Kowal

      September 12, 2010 at 10:57 pm

      • No, people can make up their own institutions based on private morality. The government cannot recognize those institutions, though, if the private morality includes discrimination for no legitimate purpose. That applies even if something that was not considered discriminatory or illegal when the institution was adopted by the government is discovered to be discriminatory later on.

        Just so with same-sex marriage. True, when government (English government, in the history of our jurisprudence, I’d guess) first adopted the use of the institution of marriage for various legal purposes, no one voiced any objection to the exclusion of same-sex couples. They would have been mocked at the very least, and would have had a decent chance of being beaten or murdered. Homosexuals were deviants and criminals.

        Fortunately, our society has recently come around to understanding that IT WAS ALWAYS WRONG to ostracize homosexual people. So, any tradition that excludes gays and was born during a time when gays were ostracized is automatically suspect.

        It always strikes me as an indication of likely bigotry when someone says marriage is between a man and a woman because that’s the way it’s always been. It’s PRECISELY BECAUSE it’s been that way ever since people beat and murdered other people just for loving the same sex that courts should chuck that tradition out the window as an invalid argument.

        Scott

        September 13, 2010 at 9:26 am

        • Just to be open, this is Scott, Jason Kuznicki’s husband. I came here by way of the discussion at One Best Way.

          Scott

          September 13, 2010 at 9:30 am

        • Scott,

          Your model you suggest is perhaps a plausible one—that the state may not reflect any of the morals of the people. But it is neither the model of government we started with nor the one we have. My point is that we have a system of government borne of much reflection and consideration, and consummated in blood. Yet many current critics of our system who would like to effect fundamental changes in that system cannot even be bothered to employ the amendment process. They instead agitate that the evils they find in our government are so intolerable that no time or political energies should be wasted, and that judges must take up their pens and rewrite our laws to conform to the standards of Justice that yet elude us.

          Now, I agree with you that, according to those standards of Justice, certain laws were “always wrong.” Just because laws are enacted by due process does not make them just. And in a constitutional republic like ours, founded and guided by natural law and right reason, I believe that Justice will, in her time, root out those of our laws that do not conform to her standards. Some of those standards, I recognize, are too important to wait for, and must be hurried along by judges. But, respectfully, I believe the state’s imprimatur of social acceptance through marriage should not be forced upon the people by the courts—particularly when the people seem so close to offering true acceptance of their own accord.

          Tim Kowal

          September 13, 2010 at 9:48 pm

        • Scott,

          Pleased to have you here! And thank you for offering your comments. I have always enjoyed my discussions with Jason. He is a very incisive thinker and writer, as apparently you are as well.

          Tim

          Tim Kowal

          September 13, 2010 at 10:00 pm

      • Actually, I mean both. In the hypothetical, once it shifted from being purely a social convention to being a government-legitimated one, the playing field changed. “We, the people” as a society is a functionally different institution than “we, the people” as a government.

        But for the real world case as well, why does the mere word “marriage” mean so much. If, hypothetically, government granted every single right, privilege, and duty of marriage through civil unions, why would you continue to insist that government give different legal names to legally equivalent institutions? It seems to me that you’d want government to still make a legal distinction just for purposes of supporting your social distinction.

        f we then take the position that we shouldn’t mind if the state then changes its definition of pairriage for the sake of “equality,” what we’re really saying is that people shouldn’t make up their own institutions based on private morals to begin with.

        No, that’s not at all right. People can make up all kinds of social–i.e., non-governmental–institutions based on private morals. But the moment they ask government to give those social institutions a legal sanction, they enter into a different realm where different rules apply.

        And there’s the fundamental problem with your analysis–you’re not recognizing the different rules that apply when something is “official” as opposed to when it’s social, or “unofficial.”

        Hey, if conservative Christians get very upset when government allows same-sex marriage start using a different word in their own conversations, writings, and religious ceremonies (say, for the sake of discussion, “sacramental union”), I have no objection. But if they then ask government to formally, legally, recognize “sacramental unions” as something different than marriage, government cannot constitutionally do so without opening it up to everyone.

        James Hanley

        September 14, 2010 at 10:37 am

  4. Tim,
    You interpret my position thus:

    “Your model you suggest is perhaps a plausible one—that the state may not reflect any of the morals of the people.”

    The only way I can re-read my own comment and get to your understanding is if, for you, morality is equivalent to the right to discriminate on unjust bases. I think this false definition of private morality causes a lot of problems for your arguments in the other thread, as well.

    Private morality comprises the morals held by individuals. An individual is moral only to the extent that they understand what reasons are appropriate for discrimination, and what reasons are inappropriate discriminators. My personal list of appropriate discriminators is propensity toward violence (to self or others), theft, and dishonesty in general, and, in direct personal dealing, I additionally abhor the wanton disregard for the wishes and feelings of others.

    I suspect your list would be different, but that it would probably be similar in effect. However, to the extent that your list would discriminate on the basis of characteristics that do not harm you or your society, I would judge you immoral. Just as you would judge me immoral to the extent that I’m in a same-sex marriage. These are private judgments of morality, and no one has the right to take them away from us.

    The U.S. Government, however, cannot have a private morality, because it is not an individual. It serves to protect a more basic set of rights for U.S. citizens, and a somewhat curtailed set of rights for non-citizens, with the ultimate goal of allowing people to work and live together more freely than if the Government did not exist.

    So, the Government may not EVER discriminate on the basis of private morality: It doesn’t have a private morality. You would like the actions of the Government to “reflect” your private morality, in this case because you perceive a majority of Americans to agree with you. But there is no mechanism by which our Government can reflect the private morality of any group of people except by subverting the purpose of government.

    Your private morality is yours to enforce. Public liberty is the government’s duty. If you choose to not recognize my marriage in whatever private way you want, that is your right. Don’t seat me next to Jason at a dinner party. At a wedding, ask me not to dance with Jason. Refuse to allow your children to play with our daughter. These are all within your rights.* But there is no reason for the government to treat my marriage as different from yours.

    * Note that I’m not saying you WOULD do these things. However, I these are most certainly the kinds of things many people want to continue to feel good about doing when they want to deny our marriage. You may not be a bigot–I don’t know–but your position primarily serves bigots. It would give me pause.

    Scott

    September 14, 2010 at 6:45 am

    • In reading my comment again, I think I should clarify my assertion that you must think me immoral to the extent that I’m part of a same-sex marriage. I mean that my getting LEGALLY married to a man, and therefore my willingness to use the government to force legal recognition by other parties, is contrary to what I’ve understood as your position. I realize now I had inferred, rather than read, that you are against the legalization of same-sex marriage, per se.

      If you are not, then please accept my apology, and please read my response in that light.

      Scott

      September 14, 2010 at 7:25 am

      • I suppose it would be impractical to purport to carry on a meaningful exchange at this length and not divulge my personal moral views on the thing. As a Christian, I generally claim to the orthodox views espoused by my faith. But I typically put it in the same category as fornication, and I certainly do not ever go around suggesting I harbor judgment against friends and colleagues who unapologetically engage in that act, or who live together unmarried, etc. It has thus occurred to me to think about the same-sex marriage issue thus: what if the state decided that no two people who have lived together unmarried may thereafter be married? How would I feel about that? Probably that the legislature had been overwhelmed by a set of over-righteous zealots. But frankly, I don’t think this would change my mind about the constitutionality. (The hypo is not perfect, as it may suggest unconstitutionality in the state putting emphasis on the privacy of the home and who lives together, which the Court has suggested it may not do. But you get my point.)

        But on to the prosaic—I do have gay friends, some in committed relationships that have lasted much longer than mine yet has. I certainly would not personally undermine their relationship in any way. This does not mean I would not have a crisis of conscience if, for instance, they invited us to attend their wedding if ever that occurred. I imagine I would attend, though, my feelings of friendship trumping my views of the meaning of the institution in general. I think it would ease the crisis if the institution had been opened to accept their relationship by the community at large rather than what is, in my opinion, an ideological judiciary. There’s more finality in when the people have spoken rather than when a court has presumed to speak for them.

        I do appreciate your sensitivity in discussing this.

        [I removed some personal info from this cooment that I was concerned others might use to malign me or my family personally.]

        Tim Kowal

        September 14, 2010 at 7:52 am

    • Funny the relationship between “morals” and “justice.” Properly speaking, would not the former be considered a subset or expression of the latter? Yet, as perhaps an accommodation, we would acknowledge that certain “morals” may be legitimate yet unjust, and thus must be kept “private.” Just an aside. On to the question.

      Perhaps I am not thinking hard enough about this, but I cannot think of any “moral” views that would not lead to some sort of discrimination. Moral judgments, even though in the abstract may affect only actions, inexorably lead to judgments against those who openly engage in the actions. You mention “propensity toward violence” and “theft.” But these result in discrimination, as the state must treat differently those who act on those propensities. Likewise “dishonesty in general,” as we have laws against fraud that treat these folks differently. Now these are all different from judgments against things like suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, obscenity, public sexual acts, human cloning, and certain kinds of environmental protection. These are judgments that, according to the right panel of social scientists, would have no negative effects on society, and thus there would be no secular purpose, no rational basis for upholding laws against them.

      Yet, on balance, I prefer a system, like the one we have, in which we may express our moral judgments concerning these issues. Do you not? Or, assuming you generally take the mainstream view on the issues above, do you believe you can identify a suitably strong secular purpose for continuing to outlaw or regulate them as we presently do?

      You would like the actions of the Government to “reflect” your private morality, in this case because you perceive a majority of Americans to agree with you.

      There are many terrible things government does for its own moral purposes, such as taking my salary and distributing it through subsidies and welfare programs that I morally disagree with. But I do not contend it is unconstitutional for the government to do this.

      As a technical matter, I generally agree that the “U.S. Government . . . cannot have a private morality,” because it is a government of enumerated powers (or, it is supposed to be). The states are a different story, however. Of course, this all gets complicated with the shift in federalism that occurred with the Reconstruction Amendments, and the Lochner era and the Progressive era. But this is a topic for another time.

      Tim Kowal

      September 14, 2010 at 7:32 am

      • As a technical matter, I generally agree that the “U.S. Government . . . cannot have a private morality,” because it is a government of enumerated powers (or, it is supposed to be). The states are a different story, however.

        Would you then agree that the Federal government had no right to declare the legal marriages of certain states invalid for Federal purposes simply on the basis of whether the marriage is same-sex? I realize this is a separate question from what’s been discussed–I’m just interested in your stance.

        Scott

        September 15, 2010 at 6:17 am

        • Oops, my quoting didn’t work there. The first paragraph beginning “As a technical matter…” was, of course, yours, Tim.

          Scott

          September 15, 2010 at 6:18 am

        • My position would be that the states could define marriage as between one man and one woman based on solely the moral views of the majority of the citizens of the state. (There may be other legitimate secular reasons as well, but in my view these reasons would be primarily relevant to establishing whether there was animus behind the private moral view.) I’m pretty sure my view is that the federal government does not possess the same “police power” the states do to regulate the “health, safety, welfare, and morals” of the people. There is the “General Welfare” clause, but I don’t believe it extends to the same things.

          So I’ll tentatively say no, the federal government would not have the power to do what you describe if it had no other legitimate secular reason than the private morals of the majority of Congress acting for the citizens of the nation.

          Tim Kowal

          September 15, 2010 at 7:12 am

      • As a technical matter, I generally agree that the “U.S. Government . . . cannot have a private morality,” because it is a government of enumerated powers (or, it is supposed to be). The states are a different story, however.

        You can only get to the conclusion of states having a private morality by claiming that the reason the federal government can’t have a private morality is due to it being a government of enumerated powers.

        But that’s not the reason it can’t have a private morality. It can’t have a private morality because it is a public entity. Just as my home is private property, but a federal building is public property. I can discriminate on any basis whatsoever in my home because it is private, but the federal government is very limited in discriminating in federal buildings because they are public.

        State governments are also public. They are not private entities, so they cannot express a private morality. Your church is a private entity, so it can have a private morality (to the extent any group can actually be said to have an individual quality). But the state government, the county government, and the municipal government, are not private.

        the relationship between “morals” and “justice.” Properly speaking, would not the former be considered a subset or expression of the latter?

        I doubt you’d find many philosophers that agree with this. But even so, the issue is not whether or not morality may in any way influence the law–the question is whether purely private morality may legitimately be enacted into law. That is, a law can’t have as its sole purpose the enforcement of morality, but must seek to prevent some harm or advance some legitimate interest in addition to that morality.

        If you’re really comfortable with simply enacting private morality into law, you must be assuming that your moral values will always reflect the majority. I know someone who thinks its immoral to take children to church because it indoctrinates impressionable young minds–unable as yet to really think and consider for themselves–with harmful mythologies. I don’t agree with him, but what if I and a majority of people in our state did? Would you be comfortable with us legislating our moral views on that? Or would you rush for the cover of the First Amendment? I would think that you would, and should, rush for constitutional cover. Yet you seem quite content with legislating private morality when it advances your own ends.

        James Hanley

        September 15, 2010 at 8:29 am

  5. Wow. No equation this complex could possibly simplify for zero.

    Honestly, I think the best argument for one side would be, “The Bible is the only standard of Truth.”

    The other side would be, “Everyone is created equal.”

    Both arguments are solid within their contexts, but I don’t believe anything requiring this much imagination is likely to shed light. I’m not saying it isn’t edifying or worthwhile — I’m just saying.

    It’s just a philosophy of mine.

    Guess that’s why legislature is so . . . Creative.

    BothEyesShut

    September 14, 2010 at 9:38 am

  6. Tim,

    Can we please dispense with the following strawman?

    that the state may not reflect any of the morals of the people

    As Jim51 noted at my blog, that’s not the standard being used. As Judge Walker noted, government cannot enforce “merely private moral views without a secular purpose.”

    And in the comments on your other thread, you mentioned my “invective.” May I ask what invective? Sharp critique is not the same as invective. I have not called you an “a*****e,” or any such type of thing. Direct invective is forbidden at the One Best Way, so I avoid it there. If you actually want to see me use invective, google my name with Ed Brayton’s Dispatches blog. It won’t show me in a good light, to be sure, but that’s invective–merely saying you’re flat out wrong and that you don’t understand constitutional interpretation may not be polite and considerate, but it’s not invective.

    James Hanley

    September 14, 2010 at 11:00 am

  7. […] a comment » I previously proposed a thought experiment to help elucidate some points in the same-sex marriage debate. I refrained from giving away too […]

  8. […] is just that: the recognition of an institution borne of the people those laws mean to govern.  As I previously explained for the law to change or add to that institution is the tail wagging the dog, a breach of the […]


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