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Desrtopa comments on On private marriage contracts - Less Wrong
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Contracts never have merely two parties. They are never "private" in the sense implied above. A contract requires a third party to enforce the contract against either party at the other's appeal. The existence of the enforcing party is a suppressed premise in almost all contracts, and the consent of that third party is rarely explicitly discussed.
Asking for unbounded "freedom of contract" means asking for the existence of a third party who consents to enforce any contract, and has the power to enforce any contract; in other words, a third party that is amoral and omnipotent; one with no objections to any contract terms, and sufficient power to enforce against any party.
The state, in a democratic republic, cannot be such a third party, because it is not amoral — it has moral (or moral-like) objections to some contract terms. For instance, today's republics do not countenance chattel slavery; even if a person signs a contract to be another's slave, the state will not consent to enforce that contract.
I suggest that, given what we know about humans, the creation of an actual amoral and omnipotent third party would constitute UFAI ....
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.