The Case for Small Government

A Libertarian Perspective on Economic and Social Policy

April 02, 2006

Gay Marriage

The gay marriage debate has unleashed passionate responses from both opponents and supporters. Opponents believe gay marriage violates moral and religious values, while supporters believe bans on gay marriage are discriminatory.

Lost in the acrimony is the one thing both sides agree on: that government should define and provide civil marriage. Yet this is arguably the source of the trouble.

From a policy perspective, legal marriage is a collection of contractual arrangements between the government, the marrying couple, and their children (if any). In particular, marriage establishes default rules about inheritance, division of common property, and guardianship of children. And civil marriage bundles all these contractual rights and responsibilities.

Governments probably should define and enforce default rules about each component of the marriage contract, such as those about who is the legal parent of a minor child.

Governments can do this, however, without defining or “supplying” marriage. Indeed, governments already do so. If an unmarried woman has a child, government rules determine this mother’s rights and responsibilities with respect to that child, as well as those of the biological father. Likewise, government rules already exist regarding communal property and inheritances for people who are not married.

By exiting the marriage business, governments would avoid any necessity of taking a stand on gay marriage. This would calm the debate and polarization over this issue. Couples that wanted the particular bundle of contracts included in civil marriage could arrange for this through private contracts. Paradoxically, government exit from the marriage business might strengthen religious marriage, precisely the goal of many gay marriage opponents.

The approach outlined here is, without question, unlikely to occur. But it still provides a useful framework for thinking about gay marriage. Viewed from the “contracting” perspective, the main argument for civil marriage would be that this particular bundle helps vulnerable groups, like children. This claim does not seem particularly convincing. If it is, however, it presumably applies to children of same-sex couples and opposite-sex couples alike. Thus, the contracting approach says that if governments do provide marriage, they should include gay marriage.

Would this then mean governments had to provide civil marriage for polygamous relations? Not necessarily. Governments might reasonably decline to provide polygamous marriage simply because such contracts could easily become hopelessly complicated and difficult to enforce.

43 Comments:

At 9:46 PM, Blogger Greg Mankiw said...

This comment has been removed by a blog administrator.

 
At 9:49 PM, Blogger Greg Mankiw said...

Jeff writes: "Governments might reasonably decline to provide polygamous marriage simply because such contracts could easily become hopelessly complicated and difficult to enforce."

This is not very persuasive, in my view. Many business contracts involve more than two parties and are difficult to enforce, but the courts do not rule them to be invalid contracts. If you take the "marriage is simply a private contract" view, the polygamy question needs a better answer.

 
At 10:29 PM, Blogger LP Mike Sylvester said...

I tend to overall agree with your thoughts on marriage except I want the fifty states to decide what they want WITHOUT Federal intervention.

Mike Sylvester

 
At 6:20 AM, Blogger Mike Huben said...

This article is wrong headed on so many fronts that it's amazing.

First, why would anyone want to make rights the same without marriage as with marriage? "One size fits all" is usually a poor fit.

Second, marriage is a clear contractual event, which simplifies legal debate over obligations.

Third, prenups can easily change the rules, but the ordinary marriage is the starting point of negotiations because it is generally fair and doesn't advantage one party over the over, the way wealth, social position, or emotions might.

Fourth, the problem of gay marriages is due to conflation of religious ideas with economic practices. If there is government fault here, it is that it allowed such conflation.

Fifth, homophobic opposition to gay marriage wouldn't go away if government stepped away. There would then be demands that such contracts be declared unenforceable.

Sixth, you can't solve problems of bigotry with government inaction. Nor is pandering to bigots an appropriate use of government power.

Greq Mankiw spotted the biggest howler. Plenty of cultures have dealt with the legal issues of plural marriages, and many still do.

 
At 9:36 AM, Blogger Chris said...

I dunno where you get all this Huben. Perhaps you should read the post again.

With governmental involvement it currently is one size fits all -- hence the current problems with gay marriage and polygamy. Private contracts could easily solve this and establish a private common marriage law.

Additionally, the fact that legal and religious marriage are intertwined is a good enough reason to have the government get out of the deal(because of the current relationship, religious folks are able to influence marriage laws).

Private markets have greater incentives to not discriminate than the government. Currently we have a governmental failure of discriminatory practices. A better alternative can be found.

And I do think polygamy can be solved under private contracts (Miron said government 'could' decline).

Complexity is much more easily coordinated in private markets that under governmental bureaucracy.

 
At 6:56 PM, Blogger Mike Huben said...

Chris, I love when people like you accuse me of their own problems.

Miron proposed one-size-fits-all rules for married and unmarried childrearing and inheritance, as opposed to the current system of two sets of rules.

I pointed out that we already have a great deal of variation with prenuptial agreements.

It also happens that marriage as a religious ceremony has much less historical basis than marriage as a government recognition of an economic institution.

Miron isn't really proposing government disentanglement: he's simply suggesting a slightly different entanglement. He's still proposing government decisions about what's enforceable and default rules for those who don't make explicit contracts.

Perhaps you need to read more carefully.

 
At 7:27 PM, Blogger James said...

For what may be the first time, huben says something that I agree with without any proviso.

"... the problem of gay marriages is due to conflation of religious ideas with economic practices. If there is government fault here, it is that it allowed such conflation."

If you assume the religious view of marriage to be correct (as most Americans seem to do) then the state is simply recognizing a civil union in any marriage regardless of the number and sex of the members to that union. The religious sacrament is above and apart from any legal measures. No legal measure can make a contract that isn't a sacrament into a sacrament. If the religious side would be consistent with their own beliefs, they'd see this: Would they believe that a law could make unconsecrated beer and pretzels into communion?

And if you take a secular view, then marriage can only be secular, because everything can only be secular. marriage is just the government's decision to recognize a contract to form a civil union.

The trouble is that the government has gotten itself into a position of making laws which refer to things that are religiously defined. Zoning laws treat churches as a unique type of land use, tax laws treat churches a special kind of corporation, etc. so the government has to come up with a definition of a church. In making decisions on education, the government has to have some definition of religion to use in deciding whether claims of intelligent origins are really religious dogma disguised as something else.

And in each case, the government's definition of religion will, itself, depend on some belief regarding what really counts as a religion. Could the NRA become tax exempt and specially zoned if they claimed gun ownership helps ensure that "thou shalt not kill?" Could a stock trader claim to be a Mammon worshipper to avoid capital gains taxes? Too far fetched? Consider that the "Creativity Movement" has already done the equivalent. I wouldn't be surprised if some capitalists or firearm enthusiasts have attempted to do so as well.

The root of the problem is that the government cannot involve itself in some part of society related to religion without having to have some non-neutral notion of how those religious aspects should be dealt with. Such non-neutral notions are hard to come up with, if not impossible. One way around to this difficulty is to just dispense with the idea that government policy should be perfectly neutral toward religion. A government that embraces secularism can be nearly neutral by claiming that all other religions are wrong when they take positions incompatible with secularism. Or the government could refuse to become involved in any issue related to religion, but that would imply some fairly strong limits on what the government could actually become involved in.

 
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