All the king’s horses and all the king’s marriages
February 7, 2013 § 41 Comments
There is no doubt that the current regime’s understanding of marriage is perverse and wrong. One proposal for dealing with the problem has been for the state to “get out of the marriage business“, and one specific proposal for how the state should do that is the nominalist solution. In the nominalist solution a prima facie contract between two or more parties is a “marriage” when the parties say it is a “marriage”; and when it is a “marriage”, the state should decline to enforce any of the contract terms. Any contracts which are enforced must not be marriages.
One background requirement seems to be a kind of “no handshakes over coffee” rule. For thousands of years it has been possible to enter into a contract over coffee with a handshake, which is perfectly enforceable as long as there is any prima facie evidence of the contract — witnesses, for example. But as prerequisite to the nominalist solution government should only enforce those terms of a contract which are explicit and written, without importing any meaning whatsoever from extra-textual tradition, culture, implicit understandings, etc. In other words it takes textual positivism as a given: sola contract, if you will.
Like every requirement that authoritative meaning proceed from the explicit text and only the explicit text, this would empty the text of all meaning.
If the nominalist solution applies to the term “marriage”, then why wouldn’t it apply to all the other terms in the contract? The words mean just what the parties say they mean, nothing more, nothing less. Therefore there is no way to adjudicate between one party’s nominalist assertions and the other party’s nominalist assertions, in general. In fact one party could assert that by “purchase contract” he actually meant “marriage”: he was marrying your car not purchasing it, and therefore the state should stay out of it.
Or perhaps the government asserts that the nominalist solution only applies to the terms it chooses to apply it to; “marriage”, for instance. In that case the government is definitely in the marriage business, through a positive assertion of its meaninglessness.
Stepping back from the issue a bit, I’ll just point out that you can’t solve the problem of marriage nominalism by insisting on more nominalism. You can’t solve a problem of raving irrationality by insisting on more raving irrationality.
Perhaps Christian weddings should be held in the Tower of Babel.