This is a very good point, but while we can’t reasonably expect the government to impartially enforce all contracts presented to it, we also can’t reasonably tolerate a government that won’t recognize or enforce any contracts.
To take an excerpt from one of the linked essays
some couples have specifically contracted for the rights marriage traditionally gave them (but no longer does). In the California case Diosdado v. Diosdado, 97 Cal.App.4th 470, a husband and wife contracted that if the husband had an affair with another woman, he would pay the wife $50,000 on top of the divorce settlement, and vice versa. The husband did in fact have an affair, but the California court refused to honor the couple’s agreement. The strong California public policy of no-fault divorce, the court said, prohibited courts from even enforcing the voluntary contracts of a mature adult couple
This is not a contract that goes beyond my intuitions of what it would be reasonable for the state to enforce. It seems we’ve come to a point where the state (or at least, some states) will refuse to enforce contracts for marriage with terms which it would readily enforce if they were business agreements. Certainly there are stronger economic reasons for making business contracts enforceable than marriage contracts, but I don’t think it follows that marriage agreements should be less enforceable, and I have doubts that this is an optimal state of affairs.
I would have framed it as a bet: I bet you $50,000 that you will cheat on me before I ever do. I think the government of my country would refuse to enforce that (gambling is restricted, I can’t even access the websites of certain prediction markets as my ISP will block them), but I would’ve expected the US to have no problem with that.
Not exactly. There’s no federal law against gambling, and states have their own restrictions. But restricted is not the same as illegal; states that do not allow licensed casinos do not necessarily have any laws against citizens making bets with each other over which money changes hands, when done on a non-commercial basis.
Sure — what you’re saying is that you don’t like the specific judgments, or standards of judgment, used by the enforcing party known as the state of California. Which (as you note) is not the same thing as saying that you don’t want an enforcing party to make any judgments.
FWIW, it is not clear to me that “receiving $50,000 if the other spouse sleeps around” is actually one of “the rights marriage traditionally gave them”, so I think the essayist is stretching the truth there.
(Further, there are n different “traditions” of marriage going into a multicultural society: Catholic marriage is not the same as Anglican marriage, that being one of the major reasons there exists such a thing as Anglicanism ….)
Traditionally, “divorce” was a cause of action with a plaintiff and a defendant—a winner and a loser, an aggressor and a victim—and alimony (in the form of cash payments) was the prize the victim/winner won for proving one of the limited grounds for divorce (generally desertion, adultery, or cruelty).
FWIW, it is not clear to me that “receiving $50,000 if the other spouse sleeps around” is actually one of “the rights marriage traditionally gave them”, so I think the essayist is stretching the truth there.
It’s certainly not a specific right ever guaranteed by the institution of marriage, but there used to be some rather strong legal hammers wielded against adultery (especially against that which was committed by women,) and some couples would like to have some comparable hammer on hand for their own relationships.
This is a very good point, but while we can’t reasonably expect the government to impartially enforce all contracts presented to it, we also can’t reasonably tolerate a government that won’t recognize or enforce any contracts.
To take an excerpt from one of the linked essays
This is not a contract that goes beyond my intuitions of what it would be reasonable for the state to enforce. It seems we’ve come to a point where the state (or at least, some states) will refuse to enforce contracts for marriage with terms which it would readily enforce if they were business agreements. Certainly there are stronger economic reasons for making business contracts enforceable than marriage contracts, but I don’t think it follows that marriage agreements should be less enforceable, and I have doubts that this is an optimal state of affairs.
I would have framed it as a bet: I bet you $50,000 that you will cheat on me before I ever do. I think the government of my country would refuse to enforce that (gambling is restricted, I can’t even access the websites of certain prediction markets as my ISP will block them), but I would’ve expected the US to have no problem with that.
Gambling is illegal in the US except in specially licensed casinos.
Not exactly. There’s no federal law against gambling, and states have their own restrictions. But restricted is not the same as illegal; states that do not allow licensed casinos do not necessarily have any laws against citizens making bets with each other over which money changes hands, when done on a non-commercial basis.
And of course, there are other forms of licensed gambling, including that which is run by the state.
Well, US regulators are attempting to declare intrade illegal.
Sure — what you’re saying is that you don’t like the specific judgments, or standards of judgment, used by the enforcing party known as the state of California. Which (as you note) is not the same thing as saying that you don’t want an enforcing party to make any judgments.
FWIW, it is not clear to me that “receiving $50,000 if the other spouse sleeps around” is actually one of “the rights marriage traditionally gave them”, so I think the essayist is stretching the truth there.
(Further, there are n different “traditions” of marriage going into a multicultural society: Catholic marriage is not the same as Anglican marriage, that being one of the major reasons there exists such a thing as Anglicanism ….)
Traditionally, “divorce” was a cause of action with a plaintiff and a defendant—a winner and a loser, an aggressor and a victim—and alimony (in the form of cash payments) was the prize the victim/winner won for proving one of the limited grounds for divorce (generally desertion, adultery, or cruelty).
It’s certainly not a specific right ever guaranteed by the institution of marriage, but there used to be some rather strong legal hammers wielded against adultery (especially against that which was committed by women,) and some couples would like to have some comparable hammer on hand for their own relationships.