In all the fuss over Rick Santorum’s foolish remarks, the major interference of the government in the bedroom has gone largely unremarked: It marries people.

Marriage used to bring certain responsibilities, notably the obligation to support one’s dependents and not to divorce absent extraordinary circumstances. But the first has nothing to do with legal marriage, and the second is obsolescent. With the divorce rate in this country in excess of 50%, “till death do us part” has become an absurd fiction.

The privileges, however, remain. Married couples enjoy evidentiary immunity, special immigration rights, and various insurance and tax advantages. Some of these are conferred by the State, but most are not. Such matters as inheritance, adoption, joint leases, and child custody are agreements between private parties that could be easily arranged without State interference. Other outside private parties, like insurance companies, voluntarily confer benefits on married couples, which again is no matter for the State. Insurance companies could easily ask you if you live in a monogamous relationship and give you a rate break on that basis, the same way they now ask you if you smoke.

As for the State privileges of marriage, why should they exist at all? Why should husbands and wives not be permitted to testify against each other in court, except possibly to provide a plot point in Witness for the Prosecution? The key tax advantage to marriage lies in being able to pass an estate to one’s spouse without estate tax; surely it would be more rational simply to repeal the estate tax. The marriage exception to immigration law employs a lot of INS bureaucrats; is this a virtue?

Homosexuals who promote laws protecting single-sex unions are looking through the wrong end of the telescope. If you want to kick the State out of the bedroom, the answer cannot be to take a special privilege and make it more inclusive. Many people object to homosexuality on moral grounds, and there is force to the argument that the State ought not to grant special privileges to an arrangement that many, or even the majority, of its citizens consider immoral. The proper question is, why should the State grant special privileges to any particular living arrangement?

I don’t object to the conventional nuclear family. On the contrary, raising children under one roof with a mother and father has proved to be enormously popular, for excellent reasons. This very fact, however, makes it absurd for the State to privilege Mom and Dad and Buddy and Sis over Bob and Carol and Ted and Alice. It’s as if the State were to subsidize the deodorant industry on the grounds that the vast majority of Americans use deodorant. If anything requires special protection, surely it’s the minority arrangements, not the majority ones.

If the State did not marry people, they would doubtless marry on their own, for religious and other reasons, again without objection from me. Even today, people often describe themselves as married when they lack the certificate; my girlfriend of seventeen years and I often do so ourselves, because it’s too much trouble to explain. I’m all for marriage. Just keep it out of City Hall.

Now I grant that for homosexuals, politically, a campaign against legal marriage is not a winning argument. What it is is a logical argument.

(Update: Jeff Bryant argues that the State’s principal interest lies not in marriage, but divorce.)

Aaron Haspel | Posted April 27, 2003 @ 5:16 PM | Culture

25 Responses to “Marriage: The Final Frontier”

  1. 1 1. Bill Kaplan

    I don’t want to quible with the argument that the state has taken too much notice of our personal affairs, but I do want to point out that it does not do so entirely in the manner you portray. In fact in some ways it benefits the unmarried two person "family".

    Because of income tax bracketing, every dollar my wife earns is taxed at the highest bracket because my last dollar earned is. On the other hand, that is not so for the unmarried two member "family". Since two different returns are filed, each party takes full benefit of dollars earned at the lowest and intermediate brackets. Thus, at least in this one respect, the government subsidizes the unmarried by taxing the married. It is called the "marriage penalty" and, believe me, it hurts.


  2. 2 2. Ian

    Perhaps I read too much Heinlein at too young an age, but I believe marriage should be private-contract only, with any arrangement people want legal, so long as it does no harm to minors.

    Gay marriage? Yup.

    Bigamy? Yep.

    Polygamy? Mm-hm.

    5 year marriage, with options up to 20 years if children arrive? Absolutely.

    Point being, if every adult involved agrees and consents to the circumstances, it ain’t none of the state’s business.


  3. 3 3. Jim Valliant

    Your thinking on this topic, even if I agree with most of it, ignores the main policy rationale behind encouraging marriage.

    It is the raising of offspring that motivates the State in this matter. Having two parents(conservatives would say it has to be a man and a woman) is demonstrably better for the kids–in many ways–than being reared in a single-parent home.

    That’s the justification, and that’s what needs to be addressed.


  4. 4 4. Aaron Haspel

    Bill: I think the "marriage penalty" is an accident of tax policy, a holdover from the days when women rarely worked or earned very much if they did. It turned out to be a very lucrative accident for the government, so it’s unlikely to disappear soon, for all the talk. It’s clearly anomalous for the government to punish marriage. Of course this doesn’t make it hurt any less.

    Jim: Sure, children do better with two parents, as everyone knows, even the government. They may even do better with a man and a woman. Hence the illogic, as I pointed out. There is no reason to offer additional legal protection to what is already an advantageous arrangement.


  5. 5 5. Jim Valliant

    Personally, my sympathies are with Heinlein, too, but Aaron, the conservatives would tell you to look at the stats showing the rise of single-parent homes–and the negative economic consequences which seem to attend to that situation. It seems many do need to be "encouraged"–however obvious the "advantages." At least, that’s the argument we need to get at!!


  6. 6 6. Aaron Haspel

    I would tell the conservatives, first, that marriage has been around a long time. The rise of single-family households, especially poor ones, begins in the 1960s, with the rise of welfare programs that encouraged them. On this point they would sympathize.

    More to the point, I would simply ask the conservatives what right they have to subsidize behavior that they wish to encourage. Isn’t that what leftists are supposed to be keen on?


  7. 7 7. Michael Krantz

    Robert Wright points out in "The Moral Animal" that marriage initially evolved as a mechanism for the equal allocation of sexual resources (i.e., females) across the economic spectrum of males (in more primitive societies, more powerful/wealthy males took dozens or hundreds of wives, thereby eventually depriving less powerful males in more advanced societies of sufficient incentive to continue working for the benefit of the more powerful. Since longterm monogamy has (more or less) now become part of most of humanity’s basic morality, marriage itself derives most of its power as an institution from the belief that God wants it that way. In societies where the religious hold is much weaker (northern Europe, say), so too is the attachment to marriage as an institution.


  8. 8 8. Bill Kaplan

    Certainly, it would be good to know where the libertarian-leaning think state interests begin. Incest? Polygamy? Bestiality?

    It would also be an interesting exercise to imagine what a marriage "contract" would look like. "We agree to have sex at least twice a week. You will take out the garbage. I will provide you with a home cooked meal 4 times a week."

    "Your honor, I wish to void my marriage contract. I took out the trash twice last week. That is a material breach."

    My colleague says that marriage is the weird intersection of the religious and the state. Imagine a rabbi issuing you a driver’s license.


  9. 9 9. Aaron Haspel

    Michael: Wright’s explanation of marriage is the sort of "just-so story" for which evolutionary biology is notorious. His one shred of anthropological evidence is the relative frequency of dowry in monogamous societies — which survives in the tradition that the bride’s family pays for the wedding — but this is susceptible to many explanations, and there are many monogamous societies that lack any form of dowry. Fact is, I don’t know, you don’t know, and Wright doesn’t know either. But it sure sounds good, doesn’t it?

    I’m quite willing to stipulate that many, or even most, people marry for religious reasons, but I fail to see how that bears on the discussion.

    Bill: Incest, polygamy, and bestiality will all be legal when I rule the world. As for not taking out the trash, well, I’ve heard of divorces for less.


  10. 10 10. Bill Kaplan

    Aaron, great to see you standing up for inbred idiots, harems, and consenting sheep! The point you miss is that the state DOES get involved in private affairs whether you call it marriage or contract. There’s no way around it if you want something enforceable.


  11. 11 11. Aaron Haspel

    Now Bill, you know perfectly well I don’t condone any of these practices. If, however, we wish to enforce our private morality, then we are in Santorum country. The line between enforcing contracts and proscribing deviant behavior between consenting adults is easy enough to draw.

    Sheep, incidentally, would fall under the province of animal cruelty laws, which I don’t think are a good idea either, since I view animals as property. Unless they consent, of course.


  12. 12 12. jay mckee

    Aaron of all that has been written re the Santorum mess your’s is far and away the most interesting
    and u are also right that animals are property


  13. 13 13. Michael Krantz

    I don’t think the religious point is off-topic at all. Governments give and then enforce marital contracts because, in most countries, secular governments have taken over duties once performed (and enforced) solely by religious authorities. You asked why conservatives seem to think it’s okay to subsidize behavior in this case. The answer is religious belief, and Western government’s roots in religious authority.

    And now for something truly off-topic: if you really believed that animals are *only* property, then you would also believe that any form of torture of any animal should be legal. But as best I can recall, you don’t believe that.


  14. 14 14. Aaron Haspel

    Michael: It is extremely bad manners to tell people what they do and do not believe. I’m sure I’ve mentioned this before.

    Your inference, however, is correct: I oppose all animal torture laws. Although it is obviously reprehensible to torture animals for sadistic gratification, lab scientists torture animals all the time for very good reason, and animal torture laws would require the government to decide what is and is not science, which isn’t such a hot idea.

    My question was not why conservatives wish to grant special privileges to married couples — that’s obvious enough — but what ground that leaves them to complain when leftists want to grant special privileges to conceptual artists or smug radio hosts. And incidentally, religious authorities cannot enforce marital contracts, and never have, because they have only moral sanction at their disposal, such as ex-communication. Even in theocracies it’s the State that does the enforcing, not the Church.


  15. 15 15. Bill Kaplan

    Now you think the government can’t tell the difference between cock-fighting and cancer research? Hmm…maybe you’re right, but it is an awfully cynical view of humanity.


  16. 16 16. Aaron Haspel

    I have no doubt that the government can tell the difference between cock-fighting and cancer research. What worries me is when some PETA nut tries to prosecute a scientist on the grounds that he’s not doing science, and the government has to decide whether his research is "scientifically valid," or whatever the standard might be. It’s State power I’m cynical about, not human beings.


  17. 17 17. Michael Krantz

    Aaron, I see your point about my religion posts lacking a point. But you’re on shaky ground when it comes to animals. It may, on (rare) occasion, be difficult to make decisions about whether a given piece of research is "scientific," but isn’t that the job of the legislative and judiciary branches of government? It isn’t always easy to decide whether Defendant A is guilty or innocent of any crime, but we still need the laws. I’m no PETA supporter, but the idea that some jerk should be able to buy a bunch of dogs and torture them for his own pleasure just doesn’t pass a moral society’s smell test. That’s why I’ve always felt the animal rights issue is a bit more complicated than some, including you, in this conversation, would claim.


  18. 18 18. Aaron Haspel

    If we agree that it’s OK to kill animals for food (or even sport), and that it’s OK to torture them for medical purposes, then we must conclude, ineluctably, that animals have no rights whatsoever. This is the minor premise. The major premise is that government’s only legitimate function is to protect individual rights. This leaves animals out. Ergo, no torture laws. To take a contrary position, you must reject either premise or both. So what’s it gonna be? And if it’s the major premise, then what else do you think government ought to be doing, and why?


  19. 19 19. Bill Kaplan

    I’m not sure that animal protection laws rely on the rights of animals as their justification. It seems to me that they rely more on the doctrine of waste. A person cannot burn down his own home, even if it does not violate fire codes and there is no insurance fraud going on, unless it is for a good reason — like replacing it with something else. The law sometimes requires people to protect their own property because there is a presumption against decreasing aggregate wealth. I believe Richard Posner has written on this, but I am at a loss to remember where.


  20. 20 20. Aaron Haspel

    You’re an actual lawyer, while I just play one on the Internet, but if it’s illegal to burn down my own house, on grounds of waste as opposed to, say, dangerous conditions, why isn’t it also illegal to smash my own dishware?


  21. 21 21. Bill Kaplan

    It may be. Then again, there is generally an exception for de minimus value and Greek rituals.


  22. 22 22. Michael Krantz

    I believe that society has the right to reach a democratic consensus that raising animals for food and using them in medical experiments that can save human lives is acceptable (I can’t say that eating animals bothers me in the slightest), but that causing pain to animals for no rational purpose is not. I recognize, however, the force of your logic (and thus the inconsistency of my personal views). I suspect that if we could travel forward 5,000 years into the future, we might find a human society which considers the eating of animals to be a relic of a barbarian age.


  23. 23 23. Bill Kaplan

    5000 years in the future. How about at dinner at Zen Palate?


  24. 24 24. Aaron Haspel

    Michael: Feeeeelings…nothing more than feeeeeeeelings….feelings of looooovvvveee…

    Bill: That’s about how long it’ll be until I eat at Zen Palate again.


  25. 25 25. Bill Kaplan

    Here we go on the Doctrine of Waste from Locke:

    "though man in that state (of nature) have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it."

    I believe Locke’s view was an extension of the Doctrine of Waste from Landlord-Tenant law to law governing personal property.

    So under the Doctrine of Waste as applied to animals one can, in Reagan’s memorable joke, butcher the pig a little at a time but cannot torture or kill it without some purpose. In the Doctrine of Waste as applied to real property the position is justified in terms of the incohate rights of the remainderman which cannot be abrogated without some very minimal scrutiny.


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