More on decoupling marriage and the state

August 10, 2010

In my previous post on the topic, which was somewhat rushed, I asserted that the best solution to the issue of marriage inequality for homosexuals is a libertarian one: make everyone equal not by allowing gay marriage, but by getting the state out of the business of straight marriage. I believe this is not only the easiest consensus political solution, but also the most normatively desireable result. The remainder of this post explicates the argument, in six part:

I) The misunderstanding of the fundamental issue at hand

II) The relationship between marriage and government

III) The advantage of removing the state from heterosexual marriage

IV) Addressing conservative objections

V) Addressing liberal objections

VI) Addressing the conservative-gay objections 

VII) Implementing the idea

I. The misunderstanding of the fundamental issue at hand

It’s easy to get lost in the all the high-minded talk about marriage from both the pro-gay marriage crowd and the anti-gay-marriage crowd. Most of the rhetoric is wrapped up in things like love, tradition, equality, western civilization, freedom, and the such. That’s understandable from a political lobbying point of view, but it’s not really a good way to think about what is actually at stake here: selective government benefits.

Right now, anyone who is legally married (whether straight or gay) in the United States has access to a myriad of public benefits from their home state. Here’s a list of several dozen:  tax breaks, estate planning benefits, sick days from work to care for your spouse benefits, medical benefits, consumer benefits, etc. Etc. Etc. The list goes on and on. In addition to these state level benefits, straight couples legally married in the United States can get similar benefits from the federal government (such as social security, tax breaks, etc.)

Since only a handful of states have gay marriage (or civil unions that are identical to gay marriage) and the federal government does not recognize gay marriage at all, gay couples do not have the same access to these benefits that married straight couples can receive. Thus the claim of inequality.

What is emphatically not at stake here is the right to live a married life. Ever since Lawrence v. Texas was decided by the Supreme Court, it is not possible for a state or the federal government to punish someone for homosexual conduct. Short of the selective government benefits, gay couples may mimic the lifestyle of any straight couple without any worry about public repercussions: they can have a public wedding ceremony, put rings on their fingers, cohabitate, and even bicker with each other over who should take out the garbage. In essence, gay couples have complete and total access to marriage as it exists outside the sphere of the state. Prior to Lawrence v. Texas, this was not the case. But it is now. No government in our nation can punish you for living a married, homosexual lifestyle. All they can do is deny you the selective benefits.

So the cause of action here is simple: one group of people (heterosexuals who declare themselves married)  can get a set of selective benefit from the state if they sign some forms. Another (homosexuals who declare themselves married) cannot. The latter group would like the selective benefits of the former group. In effect, they want in on the party. It can be cloaked in as soaring rhetoric as you would like but, in the end, what we are talking about here is tax breaks and visitation rights. Nothing more, nothing less.

II. The relationship between marriage and government

But this raises a fundamental libertarian question: why do these selective benefits exist at all? And what about the heterosexual (or homosexual) couples that would like to live a so-called traditional married lifestyle (i.e. long-term monogamous cohabitation) but don’t really feel like signing up with the state? Where are their benefits? Even more to the point, what about heterosexual (or homosexual) couples who don’t want to agree to one of those three pieces (long-term, or monogamy, or cohabitation), but would surely like them some visitation rights at the hospital?

Or even more to the point, this: why should the government let my wife visit me 24 hours a day at the hospital, while my unmarried friend cannot have anyone visit him 24 hours a day? It’s nonsensical. And it can be dressed up in any of the lingo currently being tossed around in favor of gay marriage: is someone less deserving of love and companionship when they are sick, simply because they aren’t married? Should they really have to go it alone at 3am at the hospital because they don’t have a husband?

So the question becomes this: what should the relationship be between the state and marriage? State and federal law says “lots and lots of selective benefits.” I say ” nothing.”  Marriage is fundamentally not a government institution. It existed prior to government selective benefits for married couples, and it will exist long after we do away with those selective benefits. What marriage is is this: a private arrangement between private citizens. Some people think it’s a religious arrangement, others just a contract between consenting adults. But whatever it is, it can be achieved without the existence of the selective benefits.

And note that this is historically true. Selective government benefits for married couples are a (relatively) new phenomenon. Five hundred years ago, this isn’t how it was done. And 500 years isn’t all that long when you are talking about an institution that pervades a decent chunk of human history

III. The advantage of removing the state from heterosexual marriage

None of this would be all that important if there weren’t one fundamental wrinkle: the development of the selective government benefits is having a corrosive effect on marriage and human relationships. This falls into two general categories:

1) The state has a monopoly on the marriage contract. Right now, if you want to get married in the state of Virginia and get your hands on those selective government benefits, you have to play by the state’s rules. One of those rules is “no gays need apply.” But there are tons of other rules, mostly regarding how the marriage might legally end and what happens to the joint possessions of the parties when it does. Once upon a time there were other rules (i.e. husbands could not be charged with raping their wives, etc.), but many of them are gone. Some remain: those regarding debt, pre-marriage property, liability, etc. And, of course, the most important one: adultery is a criminal offense in Virginia if you are married.  In any event, your marriage in the state of Virginia will be just like mine. One size fits all.

But what’s the point of that? Why can’t my wife and I have a different marriage contract than you? Why does the public get to set the terms of any dissolution of my marriage? And why does it have to be uniform? In effect, what is going on here is that the government is saying the following: if you want our selective benefits, you have to play exactly by our rules. This is not only a bar on gay or polygamous relationship, but it’s a bribe on heterosexual relationships: go with our marriage contract or be denied the benefits. Thanks, but I’d much rather write my terms of life with my wife.

So here’s a trade I propose: the state drops all selective benefits, and we’ll all write our own contracts. And just like the state of Viriginia will enforce a premarital financial contract (i.e. a prenup), they can enforce our marriage contracts. And then, without the bribe of the selective benefits to straights or the bar against non-traditional marraiges, we’ll let a thousand flowers bloom: gays can write up their contracts, polygamists can write up theirs, and I’ll write up mine. Maybe you’ll put in a bar on adultry, maybe I wont. Maybe your wife will change her last name. Maybe I’ll change mine ( can’t do that in VA right now! Go cavaliers!).

2) People (especially homosexuals) have come to equate marriage with state recognition. Nothing makes me sadder than to see a gay couple on TV crying because they “can’t get married.” Why? Because it’s obvious that they aren’t crying because they can’t get at those selective government benefits. They’re crying because they don’t feel that their marriage is valid if the state won’t approve it. This, of course, is complete pap. Their marriage is perfectly valid the minute they proverbially stick some rings on their fingers and begin living the lifestyle of whatever they believe “marraige” means. But that’s an intellectual take on what is obviously a highly emotional thing. And I hold the government responsible: the public through its elected officials has created a situation in which two people, engaged in an utterly non-governmental insitution, are made to feel excluded by the fucking government. As if anyone needs the government to bless their marriage. It’s heartbreaking. But it’s real. Your fault, big brother.

IV. Addressing conservative objections

So, everyone right-wing ideologue and his brother are reading this and having the same thought: wait, Matt, the state has an important role to play in all this, because marriage is a positive for society and the state has a vested interested in promoting things that are positive for society. If we encourage marriage, it will be for the benefit of all.

Leave aside that it’s an odd thought for a conservative to be arguing the positive role of government. I take issue with each clause of the above statement. Let’s start with the first one: marriage is a positive for society. Two objections: what’s your proof and, more importantly, who cares?

On the proof question, conservatives love to raise all sorts of stats about how children do better in school or are happier or whatever in a two-parent household. Probably true, but it’s not good enough proof, because the comparison that is most important isn’t how kids with married parents do vs. how kids with single parents do. Undoubtedly, the former do better. The true comparison is how kids of married parents do vs. kids of unmarried-but-cohabitating parents do. Because as we’ve shown above, state marraige is nothing but a set of selective benefits. But conservatives want to make the case that marriage — private marriage prior to those benefits — is worth promoting. And so an apples to apples comparison would be that marriage itself, not two-parent households, is the key. And if the key is two-parent households, then the state should, on its own terms, be promoting co-habitation, not marriage. Or else conservative defenders have to address the causation issue (more on this below). (Also note that the comparison should be betweeen (married parents minus the selective benefits) and cohabitating parents, since that would be a true prior-to-government proof of the benefit of marriage).

But let’s assume the conservatives are right that marriage is a positive for society. Who cares? There are a million things that would be positive for society that we wouldn’t dare directly incentivize: brushing your teeth, not eating ice cream, running a few miles a day, getting enough sleep. Why? Because these are all in the domain of stay the fuck out of my life. Whatever the benefits of marriage might be for society — and I’m skeptical they amount to much if anything — they need not take precedence over any other potential benefit.

Why? Because of the second clause: the state has a vested interest in promoting things that are positive for society. In a word: No. The state has a vested interest only in collective action of what individuals would collectively like to achieve but cannot, or will not, do privately together. The state has a vested interest in national defense. In policing crime. In building roads. In ensuring universal access to the democratic process.  Plausibly in regulating national economic affairs.  But in promoting marriage? Please. I’d write more, but you can go look up your favorite libertarian theorist at this point. If you disagree, little will convince on this point, but maybe…

…a eureka moment is possible on the third clause: If we encourage marriage, it will be for the benefit of all. Again, in a word: No. It will be for the benefit of those who get the selective benefits and would have chosen the exact same marriage arrangement if the benefits had not existed. Everyone else — everyone else — will pay a price, either in benefits or freedom. Single people will not benefit. Gays will not benefit. Polygamists will not benefit. Straights who wanted a different marriage contract will not benefit. And you can sure as hell believe that some of the people who would not have otherwise gotten married will not benefit.

This is the crucial point. 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.

A better world is one in which intimate human relationships are defined and executed not by the government, but by the parties involved. That’s called freedom. It’s not a world where someone takes your one-size-fits-all marraige contract and submits to it because they want to go visit their boyfirend at the hopsital when it’s not visiting hours. That’s called cruelty.

V. Addressing liberal objections

The liberal objection to my idea goes something like this: getting the state out of heterosexual marriage won’t provide real equality for gays, because the inequality is prior to the state. State recognition would legitimate homosexuality as “normal” and would promote tolerance in private society as it enforced it in public society. Decoupling marriage and the state would be like decoupling education and the state in the south after Brown v. The Board of Education; it would be equality on paper, but nothing else.

For me, the short (and callous) argument is: too bad. I’m sympathetic to the Brown comparison (which is closer to reality than you might think; South Carolina and other states flirted with abolishing or defunding all public schooling as a way to avoid integration), but both not convinced and unconcerned even if convinced. It’s just a bridge too far: legal equality exists under law; not in people’s heads. I concede that law can change attitudes; I’m not such a libertarian as to think that anti-segregation laws did not improve private race relations, or that Lawrence v. Texas didn’t improve attitudes about homosexuals. But I also believe that equality can run both ways. If the state is handing out benefits, then equality can be achieved by equalizing the benefits, even if its a downward equalization.

But, in reality, these liberal arguments are too clever by half. True equality would mean equality for the cohabitating, for the polygamists, and for those who are single who just want someone to sit by them at the hospital at 3am. Recognizing gay marriages does nothing for these equalities. In the end, it’s still just selective benefits for a few more selected people.

VI. Addressing the conservative-gay objections

My favorite objections to my position is the Andrew-Sullivan-esque critique: that marriage is a wonderful institution, should be promoted by society, and that getting gays to marry is a conservative victory: more good-for-society marriages! Most of my responses to this are above in my thoughts on the general conservative objection. In this section, I will simply outline a simple case for why this is wrong. In essence,  I do not think any political resolution of gay marriage will be legitimate unless polygamy is legalized.

Many people will bristle at this. Especially liberals, because they fear that equating gay marriage with polygamy means political death for gay marriage. That may be reality right now, but in the long run it’s not the correct course of human freedom to continue to insist that traditional marriage was wrong about its gender specificity, but correct about it it’s monogamy component. Easing the transition of thought necessary to make the leap to a true freedom of intimate human relations could be jumpstarted by abolishing the selective benefits. I presume it’s a lot less scary for everyone if they know that the polygamist at least won’t have some special benefits that single people don’t have.

If human beings want to construct personal relationships, I see little reason to tell them they can only do so with one other person. I personally don’t think polygamy works that well in practice, but who am I to judge. The stereotypical negative vision of polygamy is a bunch of teenage girls in Utah forced into a marriage they don’t want. But that was upheld by the state of Utah at the time.

We can’t stop polygamous relationsihps from existing in private right now. If we just kill off state marriage, we won’t even have to do anything to bring equality to polygamy. It will just be so.

VII. Implementing the idea

So what is to be done? Here’s my three-step plan:

1) Repeal all selective government benefits for married couples. Abolish state marriage licenses. This means everything: no tax breaks, no special hospital visitation rights, no more social security benefits for widows. No more power of attorney. None of it.  Abolish the very definition of state marriage.

2)Arrange for the government to enforce all otherwise-legal marriage contracts. Write statutes directing the courts to enforce all legally-written marriage contracts. Straight? Of course. Gay? Sure. Polygamy? Bring it on. The only exception I would make would be that  no one could write a contract that violated other laws (i.e. husband can beat wife without recourse). A tough call would be contracts that called for perpetual marriage with no exit. But I’d be inclined to allow them. And other things that make people squirm — contracts that allowed one partner to practice adultry but not the other; contracts that put all marriage property into one partner’s name or gave one partner all property upon dissolution — I would be fine with. Welcome to the world of freedom. A contract is a serious piece of business.

3) Continue to allow private marriage discrimination. This is the toughest call of all. It’s a no-brainer that churches and other religious organizations should be allowed to continue defining marriage however they want. No question. The tough question is whether private entities should be allowed to offer selective benefits to married people under their own definition of marriage. I say, with reservation, yes. Could a university that received federal funds define marriage its own way and provide married student hosing only to those who fit the defnition? It’s a tough call, but I’m persuaded that it’s the right one right now. But I’m open to being convinced otherwise.

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2 Responses to More on decoupling marriage and the state

  1. More on ending state marriage… | Matt Glassman on August 11, 2010 at 11:20 am

    [...] at Confirm Or Disconfirm, John is taking issue with my ultra-libertarian view on marriage. To reiterate (or perhaps clarify), I believe the following three [...]

  2. Hollow Victory | Matt Glassman on June 25, 2011 at 12:46 pm

    [...] the libertarian reasons I’ve outlined here and here, I don’t think this is the optimal way to address the issue of marriage inequality; [...]

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