The Laws Are Made for People…

By skepticlawyer

…And not people for the laws.

First, an apology for my lengthy absence. I have discovered that working and studying at the same time is difficult, so much so that I have resolved never to combine the two again. However, the study has now finished, and even better, I have a month to prepare for my last ever set of examinations. And examinations, for me, are very much a known quantity. The exams are in May, so you’ll lose me for much of that month again, but both before and after, I will be back on deck around these parts.

In so far as it’s possible, I’ve tried to maintain an active presence on Facebook, and I have now set up a ‘subscriber’ feature, so you don’t have to be one of my ‘friends’ in order to read what I write. It’s handy and easy to use, but not the same as blogging, which requires a great deal more thought and consideration.

Some worksharing…

Reason grab

The main purpose of today’s post is to share with you one piece of work I’ve done in the last few months.

In the wake of my win last year in the Law Society of Scotland’s annual essay prize, the Reason Foundation commissioned an academic study of the legal arguments surrounding same-sex marriage and the historical evolution of marriage over time (the full paper is here). They knew from the outset that I lacked the expertise to comment directly on the constitutional issues in the two cases before the SCOTUS this past week (for the very simple and basic reason that I am not American, am neither qualified nor trained in US law, and–as I discovered–am unsympathetic to notions of entrenched rights).

At one point during the essay-writing process, I attempted to incorporate some of the US law on point, but the ‘mugging-up’ in which I was engaging became increasingly obvious, and the whole paper threatened to disappear up its own fundament. Instead, what I do is place same-sex marriage in legal and historical context, and engage in some careful and thoughtful comparative law. I advance the following arguments:

(a) Major proposition 1: marriage has changed enormously over time, sometimes allowing same-sex marriage, sometimes prohibiting it, while the status of women has also undergone enormous change.

(b) Major proposition 2: same-sex marriage is simply another change, and on the scale of possible changes that can be (and have been) made to ‘marriage’ qua marriage, is of lesser import than changes to the status of women.

(aa) Minor proposition 1: ‘Traditional’ marriage as defined by the monotheistic traditions has treated both women and gays badly, and has had empirically demonstrable deleterious effects. It is therefore unwise to use it as a basis on which to found law or public policy.

(bb) Minor proposition 2: Removing the state from marriage is easier said than done.

This means that while the two US cases on point provide ‘background radiation’ to what I have written, readers from outside the United States don’t need to know the intricacies of US Constitutional law in order to understand my paper. If you wish to understand the intricacies of the US law, as well as the background facts in the two cases (although I suspect anyone even vaguely interested in law would need to have been living under a rock in the last week or so to not know the facts of the two cases), then the SCOTUSblog is the place to go (that link will take you directly to the same-sex marriage special feature).

Some background…

Very briefly, Windsor (summarised in reasonable detail in my paper) involves the discriminatory application of inheritance tax law to a gay couple purely on the basis that they are… a gay couple. It is a classic ‘wills and estates, private law, private client’ case. It is so obviously and transparently unfair that I can imagine it going down 9-0 or 8-1 in the SCOTUS.

Hollingsworth is harder, especially for someone like me. It involves a legal challenge to a court ruling that overturned a ballot initiative that made same-sex marriage illegal. Let’s break that dowm: the Californian people, in a referendum, voted to make same-sex marriage illegal (the infamous ‘Proposition 8’). A court then overturned their vote. The people who won at the ballot box then challenged the court ruling. If that plain tale doesn’t make the primarily British and Australian readers of this blog distinctly uncomfortable, then you’ve all forgotten your Dicey and the doctrine of parliamentary sovereignty.

I say this because one of the most powerful arguments against the anti-abortion lobby in the US in recent years has been the results in ballot initiatives. Even in the reddest of red states, when abortion is put to the people–regardless of what they may say in public–in the privacy of the polling booth, people in the Dakotas, Mississippi, and the like vote to keep abortion legal.

The obvious take-home is, ‘duh, it’s a democracy, stupid: give up, anti-abortionistas’.

However, sauce for the goose is sauce for the gander. Which means that using unelected judges to go over the top of the people makes me very uncomfortable. That doesn’t mean I think the people in California who voted to make equal marriage illegal are right. Far from it. It’s possible for very large numbers of people to be wrong en masse. Look at the popularity of the Biggest Loser, to take a trivial example. I also have grave difficulties–based on my experience in charity law–with the way certain religious groups abused their charitable status in order to raise funds for what was transparently a political campaign. Had they engaged in the same behaviour in England or Scotland, they would have lost their charitable status and been forced to commence paying income and property taxes.

But yeah, democracy. The worst system in the world, except for all the others that have been tried.

However, those are just personal observations, and very much written from a Westminster perspective. Americans have built themselves a different system, one that takes a great deal away from the people and puts it in the hands of judges. Which means any decision has to make sense in an American context. To that end, I hope the SCOTUS rolls Proposition 8, but I think I can confidently predict that the judicial split will be narrower.

Shares and thanks

Since Monday (when my paper was published), it has been liberally distributed all over the internet by the likes of Steve Horwitz (FEE), Tom G Palmer (Cato Institute), Sarah Skwire (Liberty Fund), and James Peron (Moorfield Storey Institute), along with Dan Bier of ‘the Skeptical Libertarian‘. Thanks to those people, I’ve enjoyed a much larger audience than would otherwise be the case, at least in the US.


  1. kvd
    Posted March 30, 2013 at 2:26 am | Permalink

    It is so obviously and transparently unfair.

    Trying to get my head around the concept that ‘the law’ has to be ‘fair’? I think it has to be known, and to be applied consistently, and, when introduced or modified, to provide some form of ‘least-worst’ transition from old regime to new, but ‘fair’? That’s a novel thought!

    Good to see your head appearing above the parapet, SL; best of wishes for the final exams.

  2. Posted March 30, 2013 at 4:54 am | Permalink

    [email protected] That would be fairness as consistency — treating like cases alike. It is fairly basic to law, I would have thought.

    It is justice which is more dicey 😉

  3. kvd
    Posted March 30, 2013 at 5:04 am | Permalink

    Lorenzo I won’t argue the point; my comment re consistency was directed to the application of the law as it stands, not how it should have been more fairly enacted. There is a distinction.

    That said, I hope Ms Windsor is the winner, and I forgot to mention how apt I feel SL’s closing metaphor of the dry stone wall is.

  4. Dave Bath
    Posted March 30, 2013 at 10:24 am | Permalink

    This is the bit I do not “get” from Helen’s piece…. that we need the notion of marriage in law in administration – we need consistent treatment of partners … and I don’t care about the gender mix, or even the number of participants in a partnership.

    My argument is that the relationship between society (government, businesses, and fellow citizens), parents (one or more, sometimes with extras like step-parents, or grandfathers who do most of the work!), and children, is by nature more complex (especially as governments have to “butt in” more on the behalf of children) than the relationship of society to “life-partners” (well, for suitably short values of “lifetime” and relaxed values of “partners”).

    Was bastardry once a big issue in law and even with social stigma? Yep. And not that long ago.

    Now … can we organize social welfare benefits, signifing of medical consent forms, wage garnisheeing of separated non-custodial parents for child support, time off work from decent employment for sick kids and parent-teacher interviews, which parent is more likely to keep a particular residence when a family breaks up …. indeed, the names of the children, without a marriage certificate in operation, or indeed a marriage certificate ever having existed? Yep. And not too badly. Being a bastard is not a problem these days.

    If we can handle the complex and more emotion-laden case where marriage certificates were once viewed as essential for society functioning,that is, where children are involved, why should it not be easier to deal with the simpler cases, where there are no children?

  5. Posted March 30, 2013 at 11:47 am | Permalink

    Another good piece, well set out. I would have thought that legal marriage that applies to all classes is fairly new in our culture, but agree that it has undergone substantial changes in the last hundred years.

  6. TerjeP
    Posted March 30, 2013 at 4:51 pm | Permalink

    I’ve now read your full article Helen. It is much more in keeping with what I expected from you than the online extract that I mistook for the full article the other day.

    I don’t think you have provided much argument in favour of legalising same sex marriage. Your focus seems to have been primarily in taking apart the arguments against it. Which you seem to have done quite neatly.

    What is with the term “equal marriage”? This seems to be a cop out. Aren’t we talking about “same sex marriage” or more specifically “same gender marriage”? The term “equal marriage” seems to imply some marriage in which the partners are equal which is quite another matter. I’m not blaming you for this language shift but I think it is a quite annoying development.

  7. Sinclair Davidson
    Posted March 30, 2013 at 8:33 pm | Permalink

    From the Adam Smith Institute:

  8. Mel
    Posted March 30, 2013 at 8:56 pm | Permalink

    Terje, Google is your friend:

    The term doesn’t “seem” to mean what you think it means at all.

  9. Posted March 30, 2013 at 9:03 pm | Permalink

    Yes, sorry about that Terje – the layout on Reason’s webpage has confused lots of people (including the Adam Smith Institute over here):

    The rationale behind the term ‘equal marriage’ is that no-one talks about ‘my interracial marriage’ these days, they just talk about their marriage. By this argument, adding ‘same-sex’ operates to make the relationship somehow peculiar (as interracial marriages once were).

    I’m not entirely convinced (but then, I’m not entirely convinced by the feminist push for gender neutrality in pronouns, either – we rapidly move from the clunky ‘he or she’ to the ungrammatical ‘singular they’, so I tend to use ‘he’ in the same way as one does in legal drafting: it ‘includes she’), but I’m aware that I have readers from across the political spectrum. This means that if I wish to persuade people from outside my political tradition to listen to me, then it behooves me to think about how they would approach what I write.

    Dave, I’m still not sure what you’re getting at (you put a similar comment up on my Facebook page that managed to confuse three of us), but here goes an attempt to respond:

    One judges legal systems in part based on how few cases reach court: almost by definition, the cases that are litigated are hard cases. The reason relatively few cases come to court in a developed legal system is because we have evolved good heuristics (lawyers often call them presumptions) that solve problems before they are litigated.

    As difficult as it is to believe for someone who has been through a messy family law or succession case, it is important to understand that messy custody battles, awful succession disputes etc are the exception, not the rule. As in, something like 90% of divorces proceed completely amicably, with appropriate settlement and custody arrangements. Basically, the presence of clear default rules lowers transaction costs, while the greater the extent to which the law allows discretion, then the higher are the transaction costs. Divorce is quicker, simpler, and less fraught in Scotland, as is succession. Why? Because the law operates almost completely mechanically (in the case of succession, completely mechanically). People know in advance exactly where they stand, and are forced to plan accordingly. This is very Roman: ‘rules, not discretion’ to the nth degree.

    There is no ‘testator’s family maintenance’ in Scotland, for example, because Scotland has preserved the Roman law rule that one cannot disinherit one’s spouse or children. This means on divorce, a settlement agreement must be entered into, as the mechanical inheritance rules do not apply to divorced people. Of course, the tie to one’s children can never be severed, which forces people to ‘turn their minds’ to their future circumstances.

    In short, the more discretion one admits into a system of law, the higher the transaction costs, and the more cases come to court. The people pushing for privatised marriage (no lawyers among them as far as I can see) do not seem to appreciate this. Sure, have a system of marriage by contract, as the Romans did: and you will have a mass of state-backed default rules in place before you can say ‘Julius Caesar’, believe me. [You will also have to make some pretty extreme changes to fundamental contract law doctrines too, which I touch on in my paper].

    The best academic study on the ‘rules, not discretion’ issue I’ve seen is this:

  10. Posted March 30, 2013 at 9:09 pm | Permalink

    [email protected] It may also be a nod to equal protection of the law, which is where I hang my hat on the issue.

  11. Posted March 30, 2013 at 9:27 pm | Permalink

    Lorenzo: in the US, you’re almost certainly correct, due to the shorthand expression ‘equal protection clause’.

  12. TerjeP
    Posted March 31, 2013 at 7:29 am | Permalink

    Plenty of people talk about inter-racial marriage when the context requires it. And if we are discussing the illegality of same sex marriage then I think it makes sense to mention same sex marriage. IMHO.

  13. Mel
    Posted March 31, 2013 at 10:15 am | Permalink

    The momentum for equal marriage is now such that I can’t see anything stopping it. In 100 years time people will wonder what all the fuss was about.

    This Harvard paper provides an interesting comparison of anti-miscegenation and anti-equal marriage memes.

  14. kvd
    Posted March 31, 2013 at 11:51 am | Permalink

    I don’t really know if this link will work properly, but I found the question interesting.

    (The link is to audio transcript, and you need to hit the play button)

  15. Posted March 31, 2013 at 12:31 pm | Permalink

    Well, that was an edifying visit to the mod filter & spammer: this topic does bring out the crazies.

    Mel: I think you’re right, although I do think the rump of people left behind on issues like this is larger than many progressives or libertarians realise. Polls (and one ballot initiative) in various Southern states show opposition to interracial marriage still running at 20-30%. That’s a lot of people to have kicking around thinking that there’s something inherently wrong with one’s choice of spouse.

  16. TerjeP
    Posted March 31, 2013 at 4:21 pm | Permalink

    Mel – I expect you are right. And I expect some overshoot where once same sex marriage is legal some people start demanding that churches sanctify such marriages. At which point I’ll be jumping ship and backing the freedom of the churches to remain opposed.

  17. Mel
    Posted March 31, 2013 at 5:26 pm | Permalink

    “And I expect some overshoot where once same sex marriage is legal some people start demanding that churches sanctify such marriages. ”

    Some but not enough to ever seriously threaten church independence. In any case liberal churches will meet the demand for church sanctified weddings. Heck, if I thought there was a quid to be made I’d consider setting up my own church.

  18. Mel
    Posted March 31, 2013 at 5:32 pm | Permalink

    How about Saint Mel’s Cathedral of the Blessed Virgin Afterbirth? I could wear a frock in public and no-one would laugh at me. I should’ve set it up years ago. Just think of the tax breaks.

  19. TerjeP
    Posted April 1, 2013 at 2:07 pm | Permalink

    I think it is time to wheel out a distinction between acceptance and tolerance. I think Christians should tolerate same sex marriage. I don’t think that has to mean acceptance. In fact there are lots of things I tolerate without accepting. For instance I tolerate claims that Jesus rose from the dead but I don’t accept it. On the whole I think we should be far more tolerant and far less accepting on many things. But we will probably disagree on which things get put into which category.

    I tolerate an oversized government sector. I sure as hell don’t accept it.

  20. Will
    Posted April 2, 2013 at 8:34 am | Permalink

    Excellent paper. Your survey of comparative law, including the Roman historical perspective, was enlightening as always. It was particularly refreshing to read your section on the importance removing discrimination from the extant state-centric system, notwithstanding principled opposition to it.

    In my experience, Libertarians without a legal background can be terribly glib about the embedded nature of social norm dynamics, particularly when it enables them to avoid upsetting socially conservative brethren, so you’re setting a great intellectual example.

  21. Posted April 2, 2013 at 8:35 pm | Permalink

    Many thanks, Will – glad you enjoyed it!

    Note to our regulars: so much spam is landing on the blog at the moment that it’s starting to catch legitimate people out as well – I’ve just had to release desipis from its clutches.

    Please bear with us as we sort it out. We had the spam situation pretty much under control, but now it seems to have started up again.

  22. Posted April 3, 2013 at 3:06 pm | Permalink

    TerjeP, it’s not clear to me what you see as the difference between tolerance and acceptance. Allowing a same-sex marriage in a church would seem to fit in the ‘acceptance’ category. But where would acknowledging next of kin rights in a Christian hospital fit? What about acknowledging the parental role in regards to a child in a Christian school? Are these things tolerance, or acceptance?

  23. Posted April 3, 2013 at 3:08 pm | Permalink

    SL, thanks for the rescue.

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