Hollow Victory

The 9th Circuit Court of Appeals has struck down Proposition 8, effectively legalizing gay marriage in California.

For the libertarian reasons I’ve outlined in depth here and also defended here, I don’t think this is the optimal way to address the issue of marriage inequality; it takes a set of special government preferences (for heterosexual married couples) and extends those benefits to a wider group of people (heterosexual and homosexual married couples), while leaving enormous pools of people short of the benefits (single people, people who prefer polygamy, and the huge and growing group of long-term monogamous cohibatators).

It’s kind of like if the civil rights act had said “no discrimination against blacks” instead of “no discrimination on account of race.” Not a bad thing, by any means, but hardly a statement of universal equality on the issue of human sexual relationships.

I believe the only legitimate solution to this is to completely decouple marriage and the state. In other words, abolish all state benefits for any marriage, — gay, straight, polygamous, or otherwise. Anything short of that leaves in place a system in which the state preferences, incentivizes, and legitimates some human relationships over others. Human sexual relationships exist prior to the state, and the state has no business promoting some and not others.

My brother-in-law and his girlfriend live virtually the exact same lifestyle my wife and I do, in all respects. Why we should have a myriad of financial government benefits that they lack, simply because we signed a piece of paper the state wrote, is a question that has no plausible legitimate answer. Allowing homosexuals to sign that same paper is certainly benevolent, but hardly equal.

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8 thoughts on “Hollow Victory

  1. BH

    Matt, Love the blog, but you’re way off on this one.

    Consider the implications:

    Inhertance btw husbands and wives would be subject to a tax, leaving widows extremely vulnerable financially to the death of their husbands. Note that this is not just rich folks, and the problem is especially bad with farmers, loggers and other high asset, (relatively) low income professions.

    Both husband and wife would have to acquire health care by their own means. A mother that stayed home with her kids would be ineligible to be shared on the husband’s health care.

    I’m sure there are more, but I’m at work and dont have time to think of them.

    Society absoultely has an interest in incentivizing (through certain benefits) citizens to enter into long-term, stable relationships. Call them “marriage” or “civil unions,” but there MUST be some distinction between relationships that raise children and roomates-with-benefits.

    Reply
    1. Matt Post author

      BH:

      Thanks for the comment. I respectfully disagree on the implications.

      First, right now there’s no estate tax on inheritances less than several million dollars, regardless of whether spouse or someone else gets it, so that’s not an issue. But to address your broader concerns, I would say this: I’m not against the state helping out the needy. I don’t think there’s anything wrong with tax breaks for children or other dependents. If you want to subsidize something for the greater good, however, marriage is the a ridiculously indirect place to do it. How about we just subsidize dependents? That would solve all of your tax-related concerns — anyone who was financially dependent on someone else could get a pile of benefits — without needlessly getting the state into marriage.

      Even if you want to head down the better-for-the-children line of argument, we still should only be incentivizing cohabitation fo parents. Because while it’s almost undoubtedly true that a two-parent household is better for children, whether those two parents are married or not has precisely zero effect on the situation. I have yet to hear a justification for marriage subsidies that would not be an even bigger justification for cohabitation subsidies. If you can think of one, I’m all ears. But I’m pretty sure they don’t exist.

      And that’s because the state might have an interest in me and my wife living together. But they have no interest in whether we are married or not.

      I would recommend the two linked articles I put in blog post — it goes into this in somewhat more detail.

      Reply
      1. Bridget

        I, for one, am disgusted/mortified?/infuriated? to have been labeled – totally without provocation, I might add – a “roommate-with-benefits”.

        I’ve often wondered why someone would want to drag the state into their personal life, but look, as a lawyer, I understand the necessity of easy, black-and-white classification in a country of our size – for estate reasons, for health insurance, for visitation rights, etc. My (foolish, immature, purely sexually-based) significant other has health insurance through my employer because we both signed an affirmation of our continuing commitment towards one another. To realistically avoid an ad hoc benefits nightmare, however, I really think that civil union with a functioning no-fault divorce system would strike a nice balance. The mistake, BH, is equating marriage with civil union. If civil unions were an option, I’d sign up tomorrow in my non-white (frankly, probably black) dress.

        But, hey, I’ve spent the last twelve years of my life having tickle fights with my roomie, so what do I know?

        Reply
  2. Pete

    Completely agree.

    And to look at it another perspective, it seems that the only result of a government subsidy for the institution of marriage (gay or straight) would be an increase of couples marrying for financial reasons. I would think anyone that believes the U.S. would be well-served by a higher marriage rate thinks so because of the non-financial benefits of marriage, something that a subsidy does not address.

    In reality though, voting to remove tax breaks for married couples is a political non-starter for a democratically-elected politician, so I think extending the benefit to gay couples is the best option at this point.

    Reply
    1. Matt Post author

      I agree with both of your points. Well stated. If you go read through the linked pieces from the post, I took up those issues. On the incentives:

      Whether or not we incentivize marriage, a hell of a lot of people are still going to get married. The only place we can make a difference is on the margins: for the conservatives who want to make the good-for-soceity argument, the marginal marriages have to either (a) benefit those who got married on the margins, or (b) benefit society as a whole. I doubt either is the case. My guess is that people who get married for the selective benefits who otherwise would not have gotten married have massive rates of divorce. That’s clearly not good for them. And that’s probably not good for society (and, at least, a deadweight cost in the size of the legal fees). In addition, you have to guess at how many people get married on the margins: it can’t be many. It should be none.

      On the practical politics point:

      As a second-best alternative, I’m in favor of gay marriage. While I don’t think it would solve the discriminatory nature of the state marriage racket particularly well (especially as it concerns unmarried couples and single people), it would probably create significantly more aggregate happiness at this point than not doing it.

      Reply
  3. Becky

    Matt! Hi! I’ve been reading some of your posts the last couple of weeks and I’m really enjoying it! I have to say, your views on “marriage equality” really resonate with me. I’ve always been so bothered by the “please just let us in the club! don’t worry, we’ll shut the door behind us!” tone of the mainstream marriage equality movement. And it’s baffling to me that there are actually rights/privileges afforded by the government that are attached to intimate relationships. I found your original post on this issue and I think it’s spot-on. However, sometimes (in the political context) this argument feels like a way of avoiding the issue and maintaining the status quo (e.g. when Ron Paul skirts the gay marriage question by saying “oh government shouldn’t be involved in that anyway”). What’s the next (real) strategic political move that isn’t just a back-door endorsement of the status quo?

    Also (and I don’t mean this to be aggressive at all, because I agree with you and I’m also married), but it feels a bit like you’re arguing for the destruction of the country club (which has no real chance of ever being destroyed) while you’re sipping a martini on the 9th hole. How do you reconcile that? I struggle with that now that I’m officially “in the club” as well 🙂

    Reply
    1. Matt Post author

      Hey Becky! Wow, it’s been years. So nice to hear from you.

      I think both of the criticisms you raise — that I’m writing in fantasy-world rather than reality, and that I’m straddling both sides by myself being married — are legitimate. But I also think they help answer each other. As I’ve written, I’m not so naive to think that a democratic society is going to give up government preferences for married people anytime soon. And so while my first preference is for the abolition of state marriage, I think a second-best (realistic) alternative is to allow gay marriage. At this point, it would probably create significantly more aggregate happiness at this point than not doing it. And so this may sound like a cop-out, but I don’t really worry about my own lifestyle being hypocrtical; I don’t oppose gay marriage, I just think it’s the wrong solution. And so I try to separate my theoretical normative writing from my public policy positions. I’m all for the striking down of Prop 8 in California; as I wrote, it’s not a bad thing by any means.

      Now, on the merits, I would say a few things. First, I think it’s more or less fine to simultaneously believe in a reform and take advantage of the current state of the world. Look at Obama on PACs or Buffet on taxation. This is particularly true of marriage, because in my preferred world, so much would be different. Instead of spouses having 24-hour visitation rights at hospitals, any one person designated by the patient would have that right. So for me to walk-the-walk right now would have meant voluntarily giving up being with my wife when our kids were born, in order to take a political stand. Call me a hypocrite, but I wasn’t going to do that. And that’s just one issue of many. In my world, it wouldn’t be hard for two unmarried people to buy a house together. It’s a pain in the ass right now!

      Now, I think it’s also important to say that I’m actually a big believer in marriage as a commitment contract between people. I don’t give a shit about the state papers, but the personal contract between my wife and I is very important to me. Even if we abolished state marriage, I’d encourage people to write private marriage contracts, be it straight/gay/polygamous or even something I can’t personally imagine. And so even if we abolished state marriage, my wife and I would be married. And so I’m left in the situation in which something that I would have done anyway happens to be preferenced by the state. Should I turn down the financial benefits?

      From a strictly moral view, maybe. But honestly, I don’t really see this as a moral issue. Lawrence v. Texas? That, to me, is 100% a moral issue — it was immoral for the state to punish people for their sexual preferences. As a juror, I would never have convicted anyone under those laws. Workplace discrimination against gays? Also a moral issue. I wouldn’t work someplace that actively practiced such discrimination. But the marriage benefits I don’t really see as a moral issue. To me, it’s just dumb policy that creates an obvious inequality for no good reason. And so I don’t really feel bad taking the benefits while I stand publicly opposed to them.

      Now, you can call that a cop out. I’ve never lived on the gay side of the equation. So maybe it’s a luxury that I’m lazily resting upon. Could be.

      What do you think? Did you personally find any opposition from friends to your marriage on these sorts of grounds?

      great to hear from you.

      m

      Reply
  4. Tadhg

    Hey Matt. I have to disagree with your post (or at least the last paragraph). I’m reasonably confident that you and your wife do not regularly stay up until 3 a.m. watching Murder She Wrote.

    Reply

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