Saturday, November 7, 2009

And Now for Something Completely Controversial

The above picture is of a proxy marriage being conducted in Normandy.

Proxy marriages are illegal in all but five US states. To me the illegality of proxy marriages is symptomatic of a problem in our legal system. Other symptoms of the same problem are the bans on plural and homosexual marriage, the marriage tax penalty (and the former marriage tax advantage), non-recognition by some states of some marriages that were formalized in other states, and inconsistent laws about qualifications that must be met before marriage.

The civil right vs erosion of values debate over gay marriage is a good place to start because it's such a hot issue. My question is, why does it need to be an issue at all? If social conservatives don't want to be forced to recognize gay marriage as being on equal footing with hetero marriage, they shouldn't be! If gays wish to form marriages, they shouldn't be denied the right! Why is there a controversy here at all?

Well, the obvious answer is that there is a controversy because the state is involved. The state regulates marriage, and decides who gets to marry and who doesn't. Because of this, marriages are made official in a way that makes me accept your marriage. Hence the controversy over gay marriage.

But it is ridiculous. Few other contracts require state intervention. In most cases, if I wish to make an agreement with you, we need have nothing more than a "meeting of the minds" (that's a legal term that just means we both understood what we were agreeing to in the same way). Why is marriage different? What valid interest does the state possess that justifies regulating marriage at all?

At this point in the conversation people usually start talking about hospital visitation, protecting children, alimony in the case of divorce, and a whole host of related items. My answer to most of these is that having marriage formalized by the state doesn't actually make any difference. Take hospital visitation. Hospitals are free to form whatever visitation policies they like. They can base visitation on marriage, kinship, longstanding relationship, patient preference, or anything else that seems right. It's not actually a legal issue at all. So why should state regulation of marriage matter?

What about protection of children? The courts handle that as well as they are able with very little attention paid to the marital status of the couple who produced the children. Of course, this is the result of necessity as so many children are conceived extra-maritally. In any case, state regulation of marriage just isn't important to the issue.

Alimony? Similar to above. An award of alimony is typically dependent upon living circumstances, not matrimony. When the fact of marriage becomes involved it is only relevant as a means of showing that there had been an agreement between the two parties about who should be responsible for what. Such an agreement should certainly be able to be written and signed without the consent of the state, as is so common in business agreements.

So what interest does the state have in regulating marriage? I'm seriously asking, because I can't think of one.

So, what would happen if marriage was deregulated to the point where it was simply another private contract between individuals? What if everyone started treating marriage however seemed right to them? Would our culture unravel? Would more children be left uncared for? Would the county offices have to reduce staff?

I think the answer in all cases is 'no'. I think that what would happen is that religious marriages would become more religiously-oriented thanks to the omission of the state from the marriage. I think that secular marriages would largely remain a mixture of private and public elements, a mixture of personal commitment and legal contract. I think that it is likely that the legal contract part of marriage will be given more thought by those considering marriage, as they will no longer assume that the state has standardized it for them. The ease with which one leaves a marriage will depend on how the marriage contract was written, instead of depending on the particular social experiment being legally enforced in your state of residence (see 'types of divorce'). Care of children will still be enforced by courts in precisely the same way as now - without regard to marital status. Gays will  marry. Social conservatives will refuse to countenance gay marriage. Both parties will be better off.

I've bounced this line of reasoning off of a few people with completely consistent results: No one likes it. But truly, I don't see what's not to like. If I'm overlooking something important I genuinely would appreciate having it pointed out to me.


  1. This comment has been removed by the author.

  2. Robert,

    Danny Shahar and I hashed this out in January. You might click here:

    Note the links to the original ThinkMarkets exchange.

    An important problem with your argument IMHO is that it does not take seriously the problem of incomplete contracts. Take the example of hospital stays. The big problem is not *visits*, but medical decision making. If a patient suffers an adverse event such as death, the hospital's liability may depend on who make what decision. If you are the patient's partner, but not spouse, and the hospital accepts your decision, then legally it is exposed. If you're a spouse it may be protected. It turns out that "civil union" doesn't fix the problem as suggested by ads posted here:

    Private decision making comes in a legal context and contracts are incomplete. Thus, "marriage" has an important role is setting expectations, responsibilities, liabilities, and so on. Marriage, not civil union, minimizes legal uncertainty associated with adult pair bonding.

  3. Anonymous,

    Thanks for the link -- Interesting discussion, and I agree on many points.

    Regarding medical decision making, how do hospitals handle medical decision making for unmarried people without close living relatives? It sounds as though you're arguing that when a spouse or close relative makes a decision on behalf of the patient then the hospital bears less liability than if a close friend makes that decision. Is this the case? If so, how do hospitals handle this risk for people who lack family and spouses? I have to plead ignorance here, but surely this isn't an insoluble problem. If I state in writing that I would like a particular person to make medical decisions on my behalf, is this not sufficient? In any case, legal clarification of liability can be accomplished. There is no compelling reason why this issue should remain tangled up with marriage.

    The role of marriage in "setting expectations, responsibilities, liabilities, etc." is such only by convention. As the way that people define their relationships with others evolves, so should this convention. In fact, it is preferable, I would argue, that people expressly contract for the things they hope for and expect in marriage, rather than simply accept the defaults (whatever they are).

    Let me be clear. I am not arguing for the elimination of marriage. I am arguing for marriage to be defined by those who engage in it, not by the state. And I am further arguing that this is no great change from the status quo, as our culture already largely accommodates a variety of life style choices. Any remaining wrinkles, such as medical decision making, just need to be ironed out in a way that is equitable and practical for all people, whether married or not.

  4. Robert,

    Call me Roger!

    It looks to me like the real issue between us is incomplete contracts. The contract is not what's written, but what can be enforced. Actually, the point is broader as our hospital example suggests. You gotta take seriously the idea of incomplete contracts. Why else would be have jurists! But if you do take that seriously, then I think it's clearly impossible to let marriage be "defined by those who engage in it." That plan founders on the shores of contactual ambiguity, I'm afraid.

  5. Sorry, Roger! I thought that was you but wasn't 100% certain, and didn't want to jump to any conclusions.

    I guess I'm not entirely sure what your position is. Do you feel that having the state define marriage makes the contract more complete?

    Now, I agree that in principle contracts don't, and can't, cover everything. But why is that such an important problem? We'd all get better at writing marriage contracts as we (collectively) got experience with them, with what works and what doesn't, with what needs to be included. I think that in very short order we'd see the emergence of a few very common marriage contracts, in a limited number of flavors, that most people would select from.

    Really, that's the way it is now...except that right now there's usually only one flavor of marriage contract, and some people are excluded from engaging in it with their partner of choice.

    And I still argue that the state sanctioning of marriage doesn't provide any benefit that couldn't be had from marriages that were privately contracted without the state's blessing.

  6. Hi again,

    Because we have a long accumulated tradition that integrates social practice, expectations, and the knowledge & practices of jurists. We know what is a default, what can be contracted out and how, and so on. If you take seriously the infinite variety of life and the weakness of human foresight, then you will probably see how much knowledge is embedded in the current system. Supporting gay marriage lets us increase fairness, improve the lives of gay couples and their children, and so on without suffering the period of legal uncertainty your proposal would put us through. In other words, your way gives us a hard problem that we may not solve well. Your way underestimates the epistemic task. It's a little bit like saying, "Oh, the central planning board will figure it out; they will just review the data and make a rational plan."

  7. Oh, and not "sorry" required! I am lazily selecting "anonymous" as my profile, so shame on me. :-)

  8. Roger,

    We are passing through a period of legal uncertainty, nonetheless. But I understand your point.

    So this is very interesting, because I think that what you're arguing for is precisely what many social conservatives are arguing against: a formalizing of gay marriage that has the explicit backing of the state. Right now the social conservatives are winning at the polls, though I don't honestly expect that to last forever.

    My position is different in its focus. I see the state's regulation of marriage as something of a relic from a former age, and no longer a good fit for how people actually conduct their lives (gay marriage is just one expression of this). Since it no longer has any real benefit, I think that the regulation of marriage should be discontinued. I guess it's just one of the ways that I'd like to tell the government to get off my lawn.

  9. I personally think it makes a lot of sense to have these things done contractually and outside of governmental regulation. It would eliminate the stigma of having a "prenup" because couples would be required to hash things out contractually and who needs to know what's in the divorce clause or even whether or not there is one? I am not a lawyer, and maybe ignorance is making this problem seem blissfully simple, but I don't see how it could be that hard to go through all the standing expectations, medical decision-making, ownership issues, defaults, legal whatevers associated with marriage as a state-governed agreement and require them to be addressed in all marriage contracts while still gracefully stepping the government out of the picture. Though I can see how it would be a headache to re-do tax (and probably other) law to disregard marital status. Unless there was a serious on-going fiscal benefit, I doubt the US Government would be on board for such an undertaking.

    I disagree with one thing, however: the county offices probably would have to reduce their staff.

  10. Thanks Missy! And you're probably right about the county offices. That's what I get for being a smart alec.

  11. The role of the state is to regulate behaviors, actions, or choices that affect society’s function, or our ability to live together amiably, right? Hence, murder or theft should clearly be regulated by the state. Rather than focus on the current legal consequences of marriage (like taxes and hospital visitation), I would ask: did state regulation of marriage reflect the importance of marriage for the structure of society? If so, could our willingness to embrace alternate options (socially in addition to legally) cause adverse social consequences?

    For example, as a society we accepted divorce -- socially and legally -- a few decades ago, and the negative consequences have been dramatic. Children raised in divorced families have significantly higher rates of drug use, delinquency, depression and psychological disorders, and an inability to form lasting relationships themselves (see The Unexpected Legacy of Divorce by Wallerstein et al, a longitudinal study on the effects of divorce). Many argue that divorce is necessary in some cases when there is abuse or domestic violence. I agree that there are limited cases where divorce is helpful. But general acceptance of the practice has been detrimental to the function of society and has increased the social burdens we bear.

    When I was in CA during the 2008 election, state recognition of gay marriage seemed to be an issue only insofar that it brought about social recognition. I think eliminating civil marriage would have a social impact as well -- removing the idea that marriage is an important social institution.

  12. Sarah,

    You state your case clearly. I am sympathetic to your general views, especially regarding divorce (though I'm not sure I've seen any quality data on the subject - I'll check out the study you reference).

    However, I lack confidence in the state's ability to make personal decisions on the behalf of individuals, and am suspicious of corrosive effects (for example, rational ignorance) resulting from an expectation that the government will protect us from mistakes we might make (like choosing to divorce).

    I also want to be perfectly clear that I am not advocating the abolition of marriage in any sense. When you use the phrase 'eliminating civil marriage' I worry that I haven't explained myself well. But, maybe by 'civil' you mean explicitly state endorsed? If this is your meaning, then I tend to disagree that marriage would become less important or receive less regard than it otherwise would (though I should add that it does appear that marriage is experiencing a decline in importance in our society). Actually, I think that marriage, particularly religious marriage, would likely increase in significance to those who choose it, because of a relative exclusivity that it could enjoy. With state sponsorship/regulation of marriage, all marriages tend to belong to more or less the same club. Without those controls distinct brands of marriage would emerge, with added meaning for couples who choose one brand over another.

    However, I agree with your estimate of the significance of the movement to legally enshrine gay marriage next to traditional marriage. Another commenter states clearly that "supporting gay marriage lets us increase fairness". Marriage is a social institution after all. Exclusivity among private clubs is acceptable (even necessary). Exclusivity among state institutions, like marriage as presently constituted, does seem to infringe on a minority group who doesn't have the votes to get their preferences legally codified.

  13. Sarah,

    I also wanted to say that your caution about changing social and legal institutions is wisdom. It is dangerous. Changes should be taken incrementally, with time to understand the effects of each step along the way.

    Thanks to you, and to the other commenters, for your excellent insights!