Marriage for citizenship

2010-10-14

in Economics, Law, Politics

The ongoing struggle for equal rights for gay couples has kept the issue of how states should legislate marriage at the political forefront in recent years. To me, the question of whether two consenting adults – regardless of sex – want to wed is entirely settled, as far as ethics are concerned. Places that restrict that right for same-sex couples are simply bigoted and operating under antiquated laws.

A broader question is the legitimate purposes for which people can get married. Clearly, we don’t believe child-rearing to be an essential component of marriage, or we wouldn’t allow the aged and infertile to do it. What then of those who want to get married because of economic benefits (health care, tax breaks, etc) or in order to acquire citizenship. Does it devalue marriage when people use it for such purposes? Should states try to prevent people from using marriage in that way, by trying to separate those who want to wed for ‘approved’ reasons from those who want to wed for ‘inappropriate’ ones?

I have argued before that states should treat marriage as just another contract. That being said, I do think there could be some validity to the argument that using marriage as a mechanism for achieving legal benefits is something of an affront to its importance as an institution. After all, it is the social importance of marriage that explains why homosexuals want to gain access to it. That being said, it seems like an awkward role for the state to try to determine the reasons why a couple want to wed. Also, a case can be made that immigration law and regulations on healthcare are overly restrictive, as of now, and that any mechanism that opens them up a bit has value.

What do readers think?

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{ 35 comments… read them below or add one }

Anon October 14, 2010 at 9:36 am
Byron Smith October 14, 2010 at 3:49 pm

the question of whether two consenting adults – regardless of sex – want to wed is entirely settled
Regardless of blood relation? Would you rule out incest? If so, why? Would you rule those who are already married?

states should treat marriage as just another contract
Historically it has been understood as a covenant, not a contract, and there are significant differences between the two.

Milan October 14, 2010 at 5:17 pm

I think the most convincing ethical argument against incest is that the pre-existing relationships between family members make meaningful consent impossible. That is especially true when it comes to situations involving parents and children.

As for covenants, are they really something that the state should preside over? Or should they be matters of individual ethics, not interwoven with the law?

Byron Smith October 14, 2010 at 6:21 pm

Two thirty-something year old siblings are reunited after being separated at birth and decide they want to get married. Is consent compromised? I would argue that consent is necessary but not sufficient.

Should states preside over covenants? Good question. Perhaps not, but to grant that would mean removing marriage from the state’s responsibilities (which may have some things going for it, by the way).

Tristan October 15, 2010 at 1:32 am

“I think the most convincing ethical argument against incest is that the pre-existing relationships between family members make meaningful consent impossible”

I don’t want to discount this argument, but I think other ethical arguments against incest are just as convincing, although less liberal. Basically, marriages between siblings put confuse familial relationships – in what way do/should you “love” your sister after you’ve been married and divorced? How should you feel about your uncle who has divorced your mother? These arguments are not about the violation of individual rights, but the negative externalities that might result from confusion between romantic and familial relationships. But – these fears might be motivated by outdated anthropology, I really don’t know how things actually work out.

Milan October 15, 2010 at 9:24 am

Two thirty-something year old siblings are reunited after being separated at birth and decide they want to get married.

I don’t think this is objectionable, really, from the perspective of the siblings. Psychologically, they are basically in the same situation as any two other adults.

A case can be made that they should use donor gametes, rather than subject any future children to a heightened risk of genetic defects.

. October 15, 2010 at 12:02 pm

“For the first time since the Pew Research Centre began conducting polls on the subject in 1995, fewer than half of Americans (48%) are opposed to gay marriage, while 42% are in favour. All religious groups are more accepting than they were in polls taken between 2008 and 2009. The most notable shift has been among white mainstream Protestants and Catholics, 49% of whom are now in favour, and that figure was even higher for those who attend church less than once a week.”

R.K. October 21, 2010 at 1:36 pm

When people consider getting married for citizenship, perhaps it is not marriage that they are taking too lightly, but citizenship.

If someone voluntarily becomes an American citizen and then gets drafted to fight in a war, they are probably morally obligated to go. After all, they chose to adopt a citizenship that has the possibility of a draft explicitly embedded within it.

People see the upsides of citizenship, in terms of where you can work and live, but may not be adequately aware of the responsibilities. The obligation to live up for them is stronger for people who adopt a new citizenship, since everyone else is a national by accident.

Tristan October 21, 2010 at 1:46 pm

“Marriage for citizenship”

I don’t think citizenship is a valid concept. It’s used to validate the lives and interests of some humans, and de-value and dismiss the interests of others. It’s not “racist”, it’s “citizen-ist”. “You happen to be born here or you found a way through the immigration process, so you get these rights” – but why are those people better than other people?

The size of Canada’s migrant worker program is now more than 200,000 people. That’s 200,000 non-citizens with very much not the rights of a citizen, easy to exploit, easy to underpay, easy to send home if they complain. What gives us the right to treat them poorly, and others less poorly? What gives us the right to leave it up the provinces whether these workers even have the right to unionize?

It’s easy enough to say states should work together for the interests of humans, not wall themselves off in anachronistic 19th century structures which serve to benefit the few and exploit different regions of the many in different ways. But, it won’t happen unless we demand it. So, whenever we use notions like “citizenship” in the way power defines it, and against the implicit backdrop of the moral adequacy of the nation-state, we work against those forces which might bring an end to this persistent form of human discrimination.

Byron Smith October 21, 2010 at 4:30 pm

The obligation to live up for them is stronger for people who adopt a new citizenship, since everyone else is a national by accident.
Why should chosen loyalties and identities carry more weight than those we are born into?

Milan October 21, 2010 at 4:41 pm

I definitely think obligations adopted voluntarily are more morally binding than those that are arbitrarily applied to you by birth.

In the former case, informed consent is a safe bet. It’s unlikely you would get through the process to adopt a new citizenship without being told what it involves. Even if you aren’t explicitly told, it seems safe to argue that you have a duty to investigate it and that if you fail to do so and get surprised by an obligation (like paying taxes or military service) it’s your own fault.

There may be conceptions of ethics that don’t involve much concern for consent, but the legal and political systems of western democracies treat it as a matter of critical importance – often the difference between a perfectly acceptable action and a major crime.

. October 21, 2010 at 4:45 pm

David Hume, Of the Original Contract
1752

When we consider how nearly equal all men are in their bodily force, and even in their mental powers and faculties, till cultivated by education, we must necessarily allow that nothing but their own consent could at first associate them together and subject them to any authority. The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty and received laws from their equal and companion. The conditions upon which they were willing to submit were either expressed or were so clear and obvious that it might well be esteemed superfluous to express them. If this, then, be meant by the original contract, it cannot be denied that all government is, at first, founded on a contract and that the most ancient rude combinations of mankind were formed chiefly by that principle. In vain are we asked in what records this charter of our liberties is registered. It was not written on parchment, nor yet on leaves or barks of trees. It preceded the use of writing and all the other civilized arts of life. But we trace it plainly in the nature of man and in the equality, or something approaching equality, which we find in all the individuals of that species. The force which now prevails, and which is founded on fleets and armies, is plainly political and derived from authority, the effect of established government. A man’s natural force consists only in the vigor of his limbs and the firmness of his courage, which could never subject multitudes to the command of one. Nothing but their own consent and their sense of the advantages resulting from peace and order could have had that influence.

Yet even this consent was long very imperfect and could not be the basis of a regular administration. The chieftain, who had probably acquired his influence during the continuance of war, ruled more by persuasion than command; and till he could employ force to reduce the refractory and disobedient, the society could scarcely be said to have attained a state of civil government. No compact or agreement, it is evident, was expressly formed for general submission, an idea far beyond the comprehension of savages. Each exertion of authority in the chieftain must have been particular and called forth by the present exigencies of the case. The sensible utility resulting from his interposition made these exertions become daily more frequent; and their frequency gradually produced a habitual and, if you please to call it so, a voluntary and therefore precarious acquiescence in the people.

But philosophers who have embraced a party–if that be not a contradiction in terms–are not content with these concessions. They assert not only that government in its earliest infancy arose from consent, or rather the voluntary acquiescence of the people, but also that, even at present, when it has attained its full maturity, it rests on no other foundation. They affirm that all men are still born equal and owe allegiance to no prince or government unless bound by the obligation and sanction of a promise. And as no man, without some equivalent, would forego the advantages of his native liberty and subject himself to the will of another, this promise is always understood to be conditional and imposes on him no obligation, unless he meet with justice and protection from his sovereign. These advantages the sovereign promises him in return; and if he fail in the execution, he has broken on his part the articles of engagement, and has thereby freed his subject from all obligations to allegiance. Such, according to these philosophers, is the foundation of authority in every government, and such the right of resistance possessed by every subject.

But would these reasoners look abroad into the world, they would meet with nothing that in the least corresponds to their ideas or can warrant so refined and philosophical a system. On the contrary, we find everywhere princes who claim their subjects as their property and assert their independent right of sovereignty from conquest or succession. We find also everywhere subjects who acknowledge this right in their prince and suppose themselves born under obligations of obedience to a certain sovereign, as much as under the ties of reverence and duty to certain parents. These connections are always conceived to be equally independent of our consent, in Persia and China, in France and Spain, and even in Holland and England, wherever the doctrines above mentioned have not been carefully inculcated. Obedience or subjection becomes so familiar that most men never make any inquiry about its origin or cause, more than about the principle of gravity, resistance, or the most universal laws of nature. Or if curiosity ever move them, as soon as they learn that they themselves and their ancestors have, for several ages, or from time immemorial, been subject to such a form of government or such a family, they immediately acquiesce and acknowledge their obligation to allegiance. Were you to preach, in most parts of the world, that political connections are founded altogether on voluntary consent or a mutual promise, the magistrate would soon imprison you as seditious for loosening the ties of obedience, if your friends did not before shut you up as delirious for advancing such absurdities. It is strange that an act of the mind which every individual is supposed to have formed, and after he came to the use of reason too–otherwise it could have no authority–that this act, I say, should be so much unknown to all of them that over the face of the whole earth there scarcely remain any traces or memory of it.

. October 21, 2010 at 4:48 pm

“Should it be said, that, by living under the dominion of a prince which one might leave, every individual has given a tacit consent to his authority, and promised him obedience; it may be answered, that such an implied consent can only have place where a man imagines that the matter depends on his choice. But where he thinks (as all mankind do who are born under established governments) that, by his birth, he owes allegiance to a certain prince or certain form of government; it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and disclaims.

Can we seriously say, that a poor peasant or artizan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires? We may as well assert, that a man, a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.

-David Hume

Byron Smith October 21, 2010 at 5:45 pm

Notice the context of that passage.

“Hume famously criticizes the social contract theory of political obligation. According to his own theory, our duty to obey our governors is not reducible to an instance of our duty to fulfill promises, but arises separately though in a way parallel to the genesis of that duty. Hume denies that any native citizen or subject in his own day has made even a tacit promise to obey the government, given that citizens do not think they did any such thing, but rather think they are born to obey it. Even a tacit contract requires that the will be engaged, and we have no memory of this; nor do governments refrain from punishing disloyalty in citizens who have given no tacit promise.”

If you’re looking for a politics based on voluntarism (consent alone), then it is to Rousseau you ought to turn.

I’m not saying that consent is irrelevant or even unimportant, just that it is not an exhaustive foundation for morality or politics.

Byron Smith October 21, 2010 at 5:46 pm

For instance, my obligation to honour my parents doesn’t arise from my consenting to having been born to them and is an obligation that exceeds most of the obligations I enter into voluntarily.

Byron Smith October 21, 2010 at 5:46 pm

Oops – forgot to link to the source of that earlier quote.

Milan October 21, 2010 at 7:08 pm

I was anticipating the argument that the legitimacy of the state arises from the implied consent of those who live within it. I think Hume does a good job of weakening that argument.

If there is a moral obligation that citizens owe to the states in which they were born, it does not arise as a result of their consent.

Byron Smith October 21, 2010 at 9:02 pm

Ok, so we are agree that consent is not the only source of moral obligation. Perhaps our difference is whether there are forms of obligation that can (at times) be stronger than the moral obligations created by consent.

Milan October 21, 2010 at 10:02 pm

I doubt whether people owe any moral obligations to a state, just by virtue of being born there and regardless of anything else. Lots of people have been born into profoundly unjust despotisms, bent on attacking their neighbours.

The legitimacy of states like Canada derives from its characteristics. Perhaps democratic participation is central to that. Perhaps it is just a matter of the state improving the lives of those within it.

In any case, I don’t think states (or parents) deserve automatic obedience.

Byron Smith October 22, 2010 at 11:47 am

I do think that existing social relations (especially but not only parents) are to be honoured simply due to one’s having being born. This honouring doesn’t mean unquestioned obedience, but it does mean a recognition that my life, community, language and identity are not simply chosen or self-forged but are first received from others. Sometimes existing structures and relationships are best honoured through thoughtful and deliberate efforts at significant reformation.

Milan October 22, 2010 at 12:43 pm

I agree that there can be sources of obligation other than consent. For instance, there is Peter Singer’s example about discovering a child drowning in a pond. People probably have an obligation to help, despite having never consented to such a rule explicitly.

What do you think are the sources of obligations to the state and/or parents, aside from consent?

On an unrelated note, is BuryCoal still giving you trouble? If so, the people running the beta want to know – especially if you cannot get in by solving the CAPTCHA.

Byron Smith October 22, 2010 at 3:06 pm

What are the sources of obligation? Many and varied, though I would even want to question the language of “obligation” as a primary way of speaking about morality. I’d prefer to refer to concepts such as our freedom to love within moral community.

As a Christian ethicist, I think that opportunities to nourish the good and redeem what is evil are granted by God as gifts. They are opportunities to reflect something of divine generosity and faithfulness and so are opportunities to express our true humanity and creatureliness. Put in slightly less theological language, moral virtues are excellences in character that belong to what is properly humane and their development constitutes part of the gift and privilege of becoming more human, more ourselves.

A crucial aspect of human existence is our identity being formed in community, being received from those around us (not in a deterministic way, since the reception is not purely passive but can be creative). And so relationships of trust and mutual care are at the heart of ethical deliberation. We are therefore to honour the relationships into which we are born precisely as a reminder that our existence and identity are received, not self-forged.

These relationships may begin with a family circle (“honour your father and mother”) and move out from there. At higher levels of abstraction, such as a nation, then the appropriate honour may be quite limited. For a modern nation-state, as an invention of modernity, the appropriate form of honour may be quite minimal indeed. Established political authorities are part of the network of relationships into which we are born and which we are to receive with thanksgiving, though not without critical and creative receptivity to possibilities of growth and reform. And the necessity of such critical and creative work regarding the contemporary nation-state is evident in all kinds of ways, not least the ways in which most contemporary governments fail miserably in their appointed task of minimising evil in the ecological sphere, and so collude (with corporate power amongst other things) in the undermining of the conditions under which human society can flourish.

Such are some thoughts off the top of my head. Sorry if they are a little shorthand at points. Hopefully, they give you a little bit more of a taste of where I’m coming from. I began by noting the sources of moral obligation to be varied, and moved on to speak of our identity as humans (and as creatures: our moral community extends beyond the boundaries of homo sapiens). I could equally have spoken about becoming more like Jesus, the true human, or of living in light of God’s promised future, or living in line with the realities of the created order, or of the imitation of God’s gracious care. Each of these require more unpacking. I guess my point is that I see morality as a web of sources and resources for growing in faith, hope and love. Consent takes its place amongst these resources as an aspect of human will expressed in relationships. Consent creates and requires trust (in some measure) and so forms part of faith (which is simply another word for trust, in my book). It therefore has an important place, but not an exhaustive one (as is often assumed or claimed by many political liberals – using the word in the technical, rather than partisan sense, to refer to a worldview based on voluntarism and so placing consent at the core of interpersonal and political morality).

I’m happy to discuss any of this further.

Sorry for not replying about BuryCoal earlier. I saw your message but then rushed on to doing something else and forgot to reply. When I try to enter I get an error message saying that I must have cookies enabled in order to request temporary access. I do have cookies enabled, though have them blocked from third-parties. I currently use Chrome on a Mac if that makes a difference.

Milan October 22, 2010 at 3:18 pm

I put a response to the bit about BuryCoal and the CloudFlare DNS system on a more suitable thread.

Milan October 22, 2010 at 3:27 pm

I think the clearest moral obligations are those based on consent. Interacting with other human beings and entering into an unforced agreement about how to act creates a very strong moral and logical basis for acting in the way decided.

On that basis, I think the point made about military service and voluntary citizenship is a strong one. That being said, I think it would be legitimate to become a U.S. citizen and then refuse to get drafted or fight, if you sincerely believed that the war in question was illegal.

Situations without consent are much less clear. Should we obey the state only when it is acting in ways we think are just? How should we respond to laws and policies we consider to be slightly unjust, but perhaps not worth breaking with the state over? What about major violations of international law or our own view of ethics?

Notions like love and compassion may be helpful in generally benign circumstances, but they may not provide clear guidance on what to do when presented with a state that commits or permits major injustices. Can compassion obligate us to strongly resist – or even overthrow – institutions of the state?

Byron Smith October 22, 2010 at 3:34 pm

PS If I had access to BuryCoal, I’d want to add this link to the latest post about “climate hawks”.

Byron Smith October 22, 2010 at 3:50 pm

Notions like love and compassion may be helpful in generally benign circumstances, but they may not provide clear guidance on what to do when presented with a state that commits or permits major injustices. Can compassion obligate us to strongly resist – or even overthrow – institutions of the state?

Yes. Compassion for oppressed neighbours has motivated a number of radical Christian movements. Does it always function in this way? No. There are certainly historical examples of Christian ideas being (ab)used to fortify an unjust status quo and render believers passive. For instance, in apartheid South Africa, both some parts of the ruling regime and some parts of the radical opposition lay claim to Scriptural narratives and Christian language. Does this mean that clear guidance is lacking and that Christianity can be shaped in whatever direction one chooses? I don’t believe so, as I think there are genuine differences between use and abuse and that abuse doesn’t rule out use. This doesn’t make moral disagreement simple or all ethical dilemmas obvious. The goodness of creation is complex and differing goods are often apparently in conflict. This is where creativity, patience and receptivity are required to discover new ways forward that seek to preserve multiple overlapping goods.

Milan October 22, 2010 at 4:00 pm

I am less worried about love and compassion being used inappropriately to drive some action that isn’t really desirable, and more worried about what protection a system of ethics based on love and compassion offers against inaction in the face of oppression, environmental negligence, and so forth.

Byron Smith October 22, 2010 at 4:24 pm

Traditionally, Christian ethics has spoken of both sins of commission and sins of omission; both are failures to love, though in different ways. Singer’s example of the child drowning is a contemporary hypothetical scenario in which failure to act would be a sin of omission.

James 4.17 puts it like this: “Anyone, then, who knows the right thing to do and fails to do it, commits sin.” The answer to Cain’s angry question, “Am I my brother’s keeper?” in Genesis 4.9 is “yes, we are our brother’s keeper”. Or to pick an even better known example, Jesus’ parable of the Good Samaritan in Luke 10.25-37 effectively censures the priest and the Levite for failing to take care of a stranger in need.

There are various ways of fleshing this out, but in the terms I described above, a failure to care for one’s neighbour (and the parable I just mentioned pushes open the category of neighbour very broadly, since Samaritans and Jews were sworn enemies) is a failure to be truly human.

Milan October 22, 2010 at 4:30 pm

You can try to convince Exxon, or Saudi Arabia, or the Government of Alberta of that, but what if they are unreceptive? What if you need to be more active to prevent wrongdoing from carrying on?

. October 22, 2010 at 4:34 pm
Byron Smith October 22, 2010 at 4:48 pm

More active than Dietrich Bonhoeffer, one of the best known Christian theologians of the 20thC, who, out of an ethic of love participated in a plot to assassinate Hitler? Or more active than MLK, whose ethic of love led to development of Gandhi’s strategies of non-violent resistance in the US civil rights movement and ultimately to his own assassination?

An ethic of love taken seriously doesn’t rule out radical actions.

Milan October 22, 2010 at 4:58 pm

There certainly seems to be a wide range of behaviours that could be justified within an ethic of love. Indeed, that seems to make it challenging to evaluate. Does it provide clear guidance and, if so, how?

I suppose it’s true that all moral frameworks are open to interpretation. Rather than get bogged down in abstract questions, it seems sensible to focus on what guidance they provide on the most important questions we face – and whether they provide a useful way to advance important projects.

Going back to the original question, I don’t see a major problem with people using marriage as a vehicle for citizenship. Even if you don’t want the traditional attributes of marriage with somebody – the stereotypical kids and picket fence yard – there are many situations in which one person can improve another’s life substantially by helping them gain a citizenship. For the most part, that also seems likely to benefit society in general.

Byron Smith October 22, 2010 at 7:05 pm

If marriage is being used purely as a vehicle for citizenship (with the intention that after citizenship is gained for one party, then the marriage will be dissolved), then I see that as being a problem for a variety of reasons. The promises on which marriage is based are then being undertaken in bad faith, the openness of the political authorities to granting citizenship on the basis of marriage is undermined (to the extent that they become aware of the issue), and the priority of relationships over economic or political opportunities is ignored.

Speaking of other (perhaps even more important) issues, take an old, rich, powerful person who is likely within years of death. Why, other than a concern for fellow human beings or fellow creatures, should such a person care about mitigating climate change? And more generally, what kind of ethical resources are open to maintaining focussed attention upon a problem that has no quick solutions but which will require decades of commitment and at times the rejection of short term gain for long term goals? Fear is an effective motivator for sprints, but not for marathons.

Milan October 27, 2010 at 10:27 am

The promises on which marriage is based

I don’t think these promises are enshrined in law, and they probably should not be. In some wedding ceremonies, people promise to be sexually monogamous, to have children, and even to raise children in a particular faith. Other people get married on the basis of private agreements that are very different.

I don’t see why getting married in order to transfer citizenship is less worthy. It’s not a trivial undertaking, in any case, given all the financial risks associated with marriage.

Why, other than a concern for fellow human beings or fellow creatures, should such a person care about mitigating climate change?

Concern for other people and living things is probably the major reason to care about climate change which will occur after your lifetime. Some other reasons might be:

  • The recognition that, as far as we know, the Earth is the only place in the universe with life, and that is valuable
  • A sense of fairness, in passing along the planet in as good a form as it was received in, or better
  • A selfish recognition that there is money to be made in climate change mitigation, especially through things like improving the efficiency of buildings

what kind of ethical resources are open to maintaining focussed attention upon a problem that has no quick solutions but which will require decades of commitment and at times the rejection of short term gain for long term goals?

The challenge is a new one. We have never really had to coordinate the behaviour of people all over the world before, especially with such high stakes. That said, I think the moral case for avoiding catastrophic climate change is clear. It is hard to get going on the process of mitigation, partly because people are nervous about moving first and partly because powerful industries and individuals are blocking action.

That said, my hope is that once a few states get really serious about building zero-carbon economies, there will be a snowballing effect around the world.

kjh September 8, 2016 at 11:32 pm

Lauren Sweeney took this photo.

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