Why doesn’t the state just get out of the marriage business altogether?

Marriage against the State: Toward a New View of Civil Marriage, Cato Policy Analysis No. 671

In his report, Marriage against the State: Toward a New View of Civil Marriage, Jason writes,

Although privatizing all aspects of marriage may well be appealing, such an approach would result, at both state and federal levels, in much greater government interference in family life, higher taxes for married couples, invasions of privacy, difficulties related to child custody, and other negative consequences. In some areas, marriage is a defense against state power, and such a defense should not be lightly discarded. However, marriage should be decoupled from the tax code by adopting a flat tax; the Defense of Marriage Act should be repealed; and Congress should adopt language making it clear that civil and religious marriage are not the same institution, and that the existence of marriage as a legal category is neutral with respect to religion. Wherever possible, marriage penalties and bonuses in the tax code and welfare system should be eliminated.

While it is certainly true that marriage cannot be completely privatized, Jason fails to really address why that is. It is because marriage alone is capable of producing the new citizens necessary to replenish the national supply. Instead, marriage is seen as merely another contractual situation.

Because of this popular, though not well thought out stance, all objections to public contracts between same sex partners1 are seen as objections from “the religious aspect of marriage”.

The problem with this notion, however, is that no religion to my knowledge, and that includes Christianity, Judaism, and Islam, understand the public purpose of marriage anything other than what our law currently supports. Additionally, Jason is simply wrong when he asserts that faith communities “do not
always agree about the proper conditions of entry or exit, the proper norms of continuance of a marriage, or what constitutes an ‘ideal’ marriage at all”.

Jason goes on to note that marriage is a pre-political arrangement, he writes

A good way to think of the relationship between marriage and the state is that marriage is ontologically prior to the state. Although all existing marriages are chronologically younger than the U.S. government, they are not dependent upon it for their survival. If the government were to dissolve, probably no one would imagine that their marriages and families had also been dissolved. On the contrary, in such alarming circumstances, perhaps our first thoughts would be for the protection and maintenance of our families. Even in the resulting disorder, churches, families, and couples would very likely continue to practice marriage. And if they wanted to preserve their freedoms, one of these would surely be the freedom to marry. As the Court wrote in the landmark case Loving v. Virginia (1967),

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. . . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.

Or, as the Court wrote in Griswold v. Connecticut (1965),

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Marrying and forming a family, the court has repeatedly said, are fundamentally personal acts. As such, they are acts that governments should not be allowed to interfere with for anything less than compelling reasons. Yet there are clearly at least some ways that state or federal governments can interfere unacceptably with marriage, as with most other individual rights. Such actions are forbidden to the U.S. federal government, because to marry, to have children, and to raise and educate them according to the dictates of one’s own conscience are all a part of what it means to have a free society. By the same token, the government of a free society must respect those instances when this liberty has been exercised—and therefore perhaps must formally recognize them. In other words, perhaps the government should recognize marriages only so it can more effectively leave them alone.

Jason goes on to “examine a different facet of federal marriage law and ask whether it can be justified as part of a framework of negative rights.”

The Income Tax Trilemma

The first thing Jason hits is the wildly unpopular “marriage penalty”. This penalty exists because of competing goals with regard to marriage.

In practice, the pre-2003 tax code tended to penalize dual-earner marital units, because on marriage, the partners were treated as though they held one—albeit higher—household income. This placed them in a higher marginal tax bracket, and they paid more tax than they would if they had remained unmarried, much like couple B after their taxes are raised to the level of couple A’s. As dual-earner marriages came to make up a greater and greater proportion of married households, the marriage penalty was felt more widely, and more couples found that divorce was, perversely, a way to save money on taxes.

While it sounds like the abatements made in 2003, which will also likely be made permanent under Obama, are a good thing. I would like to point out that if we step back and look at the public purpose of the underlying marriage and re-frame the question with regard to that, we will see that the pre 2003 tax code should be preferred. Actually, the most ideal situation would be to abolish income taxes altogether, as Jason also notes, but next to that I would argue our society has a vested interest in encouraging couples to have and raise children and not to shuffle those children off to daycare.

There is a reason we incentivised one family structure over all others in the pre-2003 tax code structure.

Now I agree that it was and is a mess, and I would be remiss to pretend the tax situation wasn’t fraught with holes in the pre-2003 system. But since public policy has the effect of encouraging and discouraging behavior, I figure its worth mentioning that what we consider the goal of marriage has an impact even on the tax policies we choose to enact.

Jason goes on to indicate that stay-at-home parents (usually moms) are a luxery item and that so-called provider/dependant marriage arrangements hurt the poor. I disagree with that notion on historical grounds.

Nevertheless, I agree with Jason’s conclusion in this section that

Taxation, then, should be made marriage-neutral, perhaps by enacting a flat tax, which would have just that effect.

This is one area where the federal government most certainly should withdraw from marriage.

Immigration

Jason notes that the ability of citizens to marry foreigners and bring them back as recognized citizens is a big advantage of marriage. He also notes that

Marriage is older than, and superior to, the law of nations. It would be a strangely limited U.S. citizenship, more of a curse than a privilege, if it entailed never marrying the one you loved.

While this is an excellent observation, Jason goes on to explore the implications of this policy with respect to our policy of not recognizing same sex relationships as marriages.

It is not easy to estimate the number of visas that might be granted for same-sex partners under a regime of immigration equality. Some same-sex couples may be opting to keep a low profile to avoid detection and deportation of one of the partners. Others may have obtained other types of visas through more circuitous or risky routes. Still other couples have simply broken up.

There are a number of assumptions here. One is that we understand a marriage to be a lasting condition and not as transitory as the data shows vast majority of same sex relationships to be. Another is the assumption that marriage is exclusive to two parties and not fluid as the data also shows same sex relationships to be.

In the end, I agree with Jason’s overall assessment on this point as well. The state should step in and grant citizenship to married partners for the purpose of maximizing liberty.

The Presumption of Legitimacy

Marriage creates a set of default rules for child custody and for presumed relations of guardianship. These rules are sensible, well understood, and best left in place. Privatizing marriage—getting the state out of the marriage business—would leave all children in great uncertainty, because legal custody would not be guaranteed for any children, in any life situation, whether their parents were (privately) married or not. Privatizing marriage sounds reasonable until we realize that it entails privatizing child custody, alimony, and child support, providing some private mechanism of assurance and trust for them, and then providing a private enforcement mechanism as well.

I think Jason is spot-on here so I’ll just quote a bit more

The presumption of legitimacy does much of the practical work that social conservatives rightly praise marriage for doing. It ties sex and reproduction to childrearing and support, ideally in the context of a stable biological family. It allows the family to get on with the business of raising their children, free from most forms of inquiry about their origins, and certainly from any routine ones.

All is smooth sailing, and then we hit an iceberg
The presumption of legitimacy may even discreetly paper over a sexual transgression, allowing the marriage, and the family, a second chance if the parties want it.

In this Jason is talking about cases where (the woman mostly) has had an affair and has borne another man’s child. According to the presumption of legitimacy legal doctrine we simply assume this child to be the legitimate offspring of the marriage into which he is borne. But does papering over the fact that this is not the biological offspring of the parents really solve anything? I don’t think it does. If the marriage survives such a transgression it will only be due to the combined commitment of both marriage parties with respect to any of the other children they have or may have and not with respect to the child who is, in fact, the offspring of an illegitimate union. And even if the marriage continues to function, the legal problems and pitfalls are still sitting there like a landmine waiting to explode at any point down the line. So while I agree that genetic testing shouldn’t be a rule, we shouldn’t pretend that genetics plays no part in the marriage relationship.

Marriage, Divorce, and Disposition of Property

On separation, matters grow still more complicated—and expensive. Married couples who divorce may make use of the gift tax exemption to divide up their property as they see fit, but cohabiting couples or those in civil unions or domestic partnerships don’t have that option. Such couples are liable for federal taxes on transfer of property—rendering the federal government effectively a third partner in their dissolving relationship. Once again, getting the state “out” of marriage only means more state intrusion. Wood writes, “If you look at a many-year relationship with significant assets, the taxes at stake can be enormous. In fact, the tax bill can be so big that in some cases, unmarried couples trying to untangle joint assets might consider getting married just so they can then qualify for the benefits of a tax-free divorce!” At least one heterosexual couple Wood knows has done so, he reports.

I don’t see how Jason’s case for the legalization of same sex marriage to prevent the state’s intrusion into the dissolution of a relationship makes much sense. In a heterosexual marriage prenuptial agreements are quite common and it seems that an equivalent arrangement is readily attainable by anyone seeking to form a private and legally binding agreement. What will cause the government involvement to increase is if we change the definition of marriage to accommodate the >10% of the 1.7% of homosexuals in America.

The Scope of Marriage: Who Can Marry

In this section Jason first takes on the question of rights. I would maintain that rights are conferred from a transcendent source and not derived from any subjective source like a social contract.

Jason then argues,

Besides its coherence, there is also room to question the relative strength of the taxpayers’ objection to same-sex marriage. Considered as just one competing among many, it is surely no stronger, and arguably a great deal weaker, than the objection raised by the Religious Society of Friends (Quakers) that their tax money goes to pay for war, an activity which they likewise find abhorrent. And the sum of tax money that pays for warmaking is orders of magnitude greater than that which would subsidize same-sex marriage.

I must also point out here that the moral question here appears to be too lightly brushed aside as if there were no objective moral standards or ways of knowing those standards with any degree of certainty. In other words, I would argue the Quakers are wrong in their assertion of a seamless garmet of non-violence.

Jason then raises the issue of whether legalizing same sex marriage would save taxpayers money. I would argue it doesn’t compared to the damage it would do. And that is the answer to the quote above. It is not just that taxpayers would be forced to fund something they have a moral objection to, it is that they would be forced to affirm that which they object to and, moreover, they would be forced to sacrafice their own institution since, as we have seen elsewhere in the world, redefining marriage does not have a neutral effect on the institution of natural marriage.

Conclusion

In the end I wholly agree with Jason that the state’s involvement in marriage is not a viable option. But the reason I think this is so is because of the possibility of children. Without that biological factor it seems that marriage would otherwise be no different than any other contractual agreement between private parties.

  1. Simple civil contracts between consenting adults can legally be obtained today in all 50 states, which makes the argument from civil liberties on the matter quite absurd. []
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