If government provides marriages, there’s no reason to allow only opposite-sex couples to marry. A libertarian legal order could have a variety of marriage types.
Miron: Welcome back. Today’s topic is marriage and the government’s role, or not, in marriage. There’s of course been huge debate over the past several decades in the U.S. and around the world about whether government should provide marriage licenses, should define and supply marriages to gay couples, to same-sex couples, in addition to opposite-sex couples. There have been huge changes recently in the United States, an incredible victory at the Supreme Court, for libertarians and everybody who loves liberty, in favor of legalizing gay marriage throughout the country. This comes on top of lots of victories at the state level that legalize marriage at those levels. Now it’s the law of the land in the United States.
The debate might not be entirely over. There certainly are people who are pushing back. But it seems that it’s close to an outright libertarian victory. Nevertheless, it’s important to talk about this topic. For one, libertarians don’t have that many such huge victories. So it’s nice to talk about one of the ones we do have. But more importantly, it’s useful to examine the marriage case because I think it illustrates a principle that comes up over and over again, which is that if we go back to first principles, instead of accepting all the preexisting layers of government and kinds of rules and regulations and stuff and argue about whether some particular change relative to all the preexisting stuff that’s good or bad, we can actually get much cleaner, simpler, convincing answers by saying why is government in this business in the first place. Why is there any particular role for government? If there’s not, if even the prior layers are misguided, then the whole analysis gets much simpler.
So in particular, on this topic, we’re going to ask should government be providing marriages to anyone, same-sex or opposite-sex? If the answer is no, it should be in the marriage business, then the whole question of whether it should apply to same-sex as well as opposite-sex couples is of course moot. If you come to the conclusion that there’s a role for government in providing marriage, then you should be able to say why? What are the arguments? Why does that promote something that’s good? And if it does, then why does it apply only to opposite-sex couples? Why doesn’t it apply in equal force to couples of whatever possible configuration?
The outline of what I will do today is to first talk about what is a civil marriage, to think about some first principles what exactly does it mean when the government is in that business, talk about an alternative to civil marriage, to having government take a stand, be the supplier and definer of what constitutes marriage, think about what’s better, which of those approaches has the best ratio of positives and negatives, which approach is most convincing given some thought as to why government is in that business in the first place, and end up concluding that if government is in the marriage business, it absolutely should be supplying it equally to couples of all persuasions.
What is a marriage exactly? Setting aside the religious definitions and the religious aspects, a marriage with respect to government policy is a contract. It’s a contract that combines several different pieces, that has rules about things like the division of property when people live together and then separate, who gets the coffee table in the living room, who gets the furniture, who gets the financial assets, what happens to property that is at some level jointly possessed or utilized.
A marriage contract is also in large part about the guardianship of children. If a child is born, who has the rights to have that child be their child? Who has the responsibility to take care of that child? For what number of years are those rights shared with someone else who may have been the biological parent or may not have been the biological parent? And so on and so forth. When can parents give up their parental rights? When can parents acquire parental rights of children who weren’t their biological children? And all those sorts of things. Marriage contract contains a huge amount of rules about those sorts of issues. And marriages contain rules about inheritances. When people are married and they die, what happens to their property, their joint property? That depends on what your marital status is under the current arrangements. And that’s the third key component of a marriage contract.
There are also some other things that come up: people’s eligibility for health insurance, their ability to make decisions about healthcare for some kind of a partner or whatever. For other people, may depend on their marital status. But I’m going to focus on especially on these first three things, rules about the division of property, rules about children and guardianship and rules about inheritance.
We’re so used to civil marriage that people haven’t thought very much about what’s the alternative to civil marriage. Here is at least one alternative. It’s not the only, and it’s certainly not necessarily the best. But it’s a clean, simple thing to focus on, to understand the key ideas. Government could define and enforce default rules about each of these three different areas of the standard marriage contract. Think about division of property. There in fact are people who live together under many, many circumstances: college roommates, people after school who get job in the same city, people who are married, everything. And this issue of who owns what comes up in all those cases. If there was no default rule, if there was no common law or understanding as to who gets whatever was brought into that common living arrangement, you can imagine that maybe there would be violent disputes, there would be unnecessary arguing, there might be some adverse effects of not having a simple rule. If there is a simple rule such as whoever purchased the item and brought it into the common living arrangement owns it and gets to take it away. You own your clothes. If you bought the coffee table for the joint living room, you own the coffee table and get to take it with you. That’s a very, very simple rule and would cover the vast, vast majority of all possible issues. So that’s a way that government could be involved a little bit by saying there’s a simple default. Now if you don’t like the default, you can contract around it. If you and the person you want to live with wants to say one person gets to own everything or you’re going to share things two-thirds, one-thirds, or whatever else, and you can write a clean, simple enough contract that the court is willing to enforce it, that’s fine, not stopping that in any way. So there is again a little bit of government involvement, but it’s not a priori defining very much. It’s just saying, “Here’s the default. If you don’t sign any new agreement, the defaults will be enforced by the courts of law. Otherwise, you do what you want.” And if there’s no dispute, whether you sign anything new is irrelevant.
Think about that in the case of children. Here’s the default rule for guardianship of children: The biological mother is always the legal guardian and responsible for the support, care, feeding etc. of any of her biological children. And she has all parental rights over those children, which means things like if you want to move to another state, you can make your 5-year-old come with you, and things like that. And the other biological person is responsible for some fraction of that support of the child. That fraction might be zero. So it might be that the biological mother has all the rights and all the responsibilities unless she decides to contract those out to someone else. If she chooses to make someone else, male, female, a co-parent by legal adoption, she would have that choice. These would be defaults that would apply to everyone and don’t ever need to use the word marriage. Of course, women could also enter into a contract with someone that says, “I’m only going to have sex with you if you promise you’ll provide 50 percent of the child support if there’s a biological child from this interaction.” That might also be a contract that the courts would want to enforce. But there’s a simple default that applies in all cases, regardless of whether there’s any new contracting around the default.
Same thing for inheritance. A simple default rule for what should happen with inheritances that if you’ve written a will, the court enforces that will, perhaps subject to some conditions about it being clean enough, simple enough will that court is going to interpret and enforce in a reasonable way. That applies with respect to government enforcement of all contracts. It has rules about how those contracts are written so that the government has the ability to interpret them. But the rule says if you have a will, we enforce it. If you don’t have a will, all your money goes to X. X might be the treasury of the government. X might be some charity the government designates or a collection of charity. Whatever it is, it would be simple, clean, and applied to everyone, unless you had contracted around that by having written a will that specifies that your estate goes to the museum of science, your estate goes to your third cousin, twice removed, or your estate goes equally to your children or whatever it is that you want to.
The really interesting thing about this alternative system of rules, this is a world in which there’s no government-defined or created marriage, there are default rules about the components of the marriage contract, and the government is willing to enforce privately entered into contracts that try to modify the default rules. The interesting thing is we have to have all those defaults anyway because of course there are people who have kids who aren’t married. So there need to be some rules that say who is the biological parent, does the biological father owe child support, and under what conditions. People can reasonably disagree about what that default should be, whether the mother should have full responsibility for all the child support unless she explicitly got the father to commit ex ante or not. Maybe in most places that I know of, father has some responsibility, even if there was no explicit agreement. But whatever the default rules are, they have to exist anyway because those situations are going to arise with respect to inheritance. Clearly, people die who aren’t married. People die who haven’t written wills. There have to be default rules that address those issues regardless of whether there’s any government involved in marriage as well. Same thing for division of property. Lots of people live together who aren’t married, so we have those sorts of systems already in place. So the defaults that I’m speaking about already exist, which makes it even easier to think about that as an alternative to civil marriage.
Next thing to note about this alternative perspective – mentioned this slightly, but it’s important to emphasize – these alternatives, these defaults don’t ever have to mention the word marriage. There’s nothing essential about that. All these rules can be written in a way that they apply whether a person is single or not, whether the person is male, female, gay. They’re just completely independent of all that. So there’s no need for the government ever to define the word marriage or use it in coordination with defining these defaults. As I mentioned, private contracts can get around the defaults if people want them to.
And finally, setting up these defaults, taking this alternative, no-government-marriage approach in no way, shape, or form prevents people from engaging in religious marriages of whatever kind. If you want to be married by the Catholic Church, under Jewish law, under Muslim law, under the laws of libertarian party or whatever it might be, of course, you’re still free to do so. But those religious or whatever kind of marriages would have no legal implication. The only legal rulings would be those default rules and the contracting around those defaults.
Now let’s think about which approach to marriage might be better, the purely private or decentralized default rule approach or the current approach where the government defines and enforces civil marriage. There are three possible issues you could think about considering and deciding which is the better way to go. Maybe there’s some efficiency in having the government supply this one default if it doesn’t impose that that’s the only one, as long as it allows for a variety and differences or other types of arrangements that people might want – which it does to some degree now. But it’s not obvious. I mean there could be a lot of variety in the types of arrangements people want. People, if they’re having second marriages, may have very different views about how they want their inheritances to be allocated than people in first marriages because they want to make sure that kids from the first marriage are protected and get their wealth and so on. So it might not be any obvious efficiency advantage to having the government do it.
The second might be the protection of children. If you want to make sure that children have well-defined guardian, someone who’s responsible taking of them, maybe you can make an argument that the government approach is better. But I don’t see that because anything you could include in the government approach that bundles these together and has the government define and enforce them, you could do under the default rule. You could say that the default rule such that the biological father is always 100 percent responsible for some fraction of the child support, whatever you want that fraction to be.
The same thing with trying to protect vulnerable adults. Maybe some people would enter into these private relationships, other, something different than a government marriage naively and not think about their own interest. So perhaps having the government default available, government marriage available, would help such people have their interest protected and not be taken advantage of. But that’s not especially convincing. All sorts of things can go wrong in standard marriages. All sorts of people can naively not think about the details or be talked into prenupts, which are not really in their interest. So that’s the weak case that the government civil marriage approach is better than the set of default rules, the alternative to civil marriage that I discussed.
Then the question is let’s imagine that perhaps there’s some mild advantage, even though I don’t particularly see it. But there’s some advantage to having government provide civil marriages. Why should that apply only to opposite-sex couples? The way I’ve described it, the government is in effect providing a service by defining, supplying, and enforcing civil marriage. It’s doing that because it thinks it promotes some beneficial social goal. Social goal might be efficiency. The social goal might be the protection of the children. The social goal might be the protection of vulnerable adults who would enter into inappropriate entanglements if not for the government involvement. But why should that only apply to opposite-sex couples? I can’t think of any reason. I don’t think there’s any evidence or likely to ever be any evidence that anything would be different with respect to those issues for same- or opposite-sex couples. So if the government chooses to provide this service, if it’s using its resources to help promote some goal or has no basis for providing that service, for devoting the resources only for some of its citizens and not for it’s other citizens, that is at a minimum inconsistent with the spirit of the equal protection of the laws in our constitution. So if the government is in the marriage business, it should be providing it equally to both same-sex and opposite-sex couples.
Now a sort of interesting thing to discuss briefly is polygamy, one of the issues that some people raise up as a criticism of gay marriage and say, “Well, if you’re going to do that, then where does it stop? Why shouldn’t the government be in the business of supplying polygamy?” That’s a red herring because at some level, polygamy already exists. One person, a man, can already live in a house, an apartment, whatever, with many women and have sexual relations or not with all those women and father children with all those women. And the government already enforces all of its standard, default rules about division of property, about inheritance, about guardianship of children, for all those children. And that in some sense is already illegal marriage, so polygamy is already at that level legal. Now it’s not officially legal because there’s no government-provided polygamy contract, at least not anymore in the vast majority of countries. But so what? So what if legalizing gay marriage leads to a demand for government to provide legal polygamy? If there are benefits in terms of protecting children, adults etc., then maybe the government should enforce that contract for similar reasons to why it should enforce other contracts because it provides definition of property rights that might be advantageous for all the people involved. So the polygamy thing is absolutely a red herring scare tactic. There’s nothing about that that should change one’s thinking about whether government should provide gay marriage.
So to think clearly about gay marriage, we should ask why is government in the marriage business at all. In a libertarian view, it shouldn’t be. Private contracting with government enforcement of those contracts and of additional contracts around the defaults can address all the issues raised by civil marriage contracts just as well as the standard civil marriage contract. And government not being in the marriage business would be far less polarizing than U.S. experience has been over the past 20-30 years. There would never have been these arguments, this bitterness over gay marriage because government just wouldn’t have been in the marriage business at all.
Second thing that libertarians conclude very strongly from this discussion is if the government is in the marriage business, it has absolutely no basis to deny that service, that provision and enforcement of that kind of contract from everyone under equal protection views and under just basic fairness and thinking about what government is doing is helping the people, is serving the people, not making its own decisions about what’s good for people. Everyone who wants marriage should be entitled to it. So government should supply gay marriage just in the same way they supply opposite-sex marriage. Thank you very much.