A Libertarian Perspective on Economic and Social Policy

Lecture 4

Same-Sex Marriage

©2007 Jeffrey A. Miron

Introduction

• Marriage is an odd institution.– On the one hand, it is a legal arrangement between two persons,

between these persons and their children, and between all these persons and the state.

– On the other hand, it’s a religious ceremony with a history going back thousands of years.

• Recent debates over gay marriage have made this incongruity even more salient:– Proponents of gay marriage want greater government provision

of marriage and often assert current practice is discriminatory.– Opponents of gay marriage object to expanded government

provision of marriage because, for the most part, they think this has undesired religious or moral implications.

Introduction, continued

• To an economist (or libertarian), neither side is addressing the right questions.

• Since the government defines and enforces civil marriage, the first question to ask is whether the government should provide civil marriage at all: – If the answer is no, even in the case of opposite-sex

couples, the question of same-sex marriage is moot.– If the answer is yes, then a second question arises:

do the arguments that justify government provision of opposite-sex marriages also apply to same-sex marriages?

Introduction, continued

• So, this lecture presents an economic analysis of government policy toward marriage, including the issue of same-sex marriage.

• The analysis makes a clear distinction between civil/legal marriage and religious marriage.

• The analysis does not necessarily provide politically feasible solutions to current debates; but it illuminates the terms of the debate and facilitates discussion of the arguments employed by both sides.

Outline

• Definition: What is a (civil) marriage?• Background on Contracts• Division of Property• Inheritance• Children• Government versus Private Provision• Religious Marriage• Polygamy

Definition: What is a Marriage

• According to Merriam-Webster’s Dictionary, marriage is

the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law.

• Key word is “contractual.”

Background on Contracts

• A contract

is basically an agreement between two or more people which creates an obligation to do, or not do, something. The agreement creates a legal relationship of rights and duties. If the agreement is broken, then the law provides certain remedies. There are three factors necessary to create a contract: 1) an offer, 2) acceptance, and 3) consideration. One party makes an offer, the second party must accept the offer and there must be consideration exchanged. Consideration has to be something of value.

Government Policy Toward Contracts

• Government can adopt one of three policies toward various types of contracts:

• Prohibit outright:– Slavery, snuff films, price-fixing, selling crack

• Permit but decline to help enforce:– Gambling debts, agreements with children.

• Permit and agree to help enforce– Most contracts, such as those between firms,

between home buyers and sellers, etc.

What Determines Which Contracts Should Be in Which Category?

• Morality or ethics:– Slavery– Gambling

• The Desire to Protect Children or “Innocents”– Child labor laws– Statutory Rape laws– Informed consent issues

• The desire to conserve government resources used for the purpose of enforcing contracts.

Enforcing Contracts Uses Resources

• A naïve, non-economist view assumes that government can determine the nature of contracts by decree.

• But economics (and common sense) dictates that it also matters what contracts the government helps enforce.

• This enforcement uses real resources: judges, courtrooms, and the like.

• In addition, the choice of which contracts to enforce potentially has broader implications.

• So, deciding which ones to enforce matters.

Costs and Benefits of Enforcing Particular Kinds of Contracts

• Enforcing contracts generates both costs and benefits. – The costs consist of expenditure for police

courts and judges, plus possibly effects in altering private sector behavior in undesirable ways.

– The benefits come from promoting peaceful resolution of disputes and from facilitating economic activity that relies on contracts.

Is Government Enforcement of Contracts Necessary: An Aside

• Another standard view is that, without governments, contracts are not enforceable.

• Thus, either commerce will grind to a halt, or, there will be violence and chaos.

• Several examples suggest this is too strong: underground markets, gambling

• So, the question of how much government should do is interesting; we will discuss later in the course.

The Components of the Marriage Contract

• Rules About Division of Property

• Rules About Children

• Rules About Inheritance

• Miscellaneous Other Issues– Eligibility of health insurance– Decisions about health care

Division of Property

• In modern societies, adults live together under a variety of arrangements.

• Question of whose property is whose can readily arise, especially if the relationship terminates.

• In the absence of government rules, dispute resolution might be inefficient (e.g., violent).

• Thus, there is potentially a role for government intervention.

• Useful to consider a simple, base case.

A Possible Policy Toward Division of Property:

• All property brought into a communal living situation belongs to the person who owned the property before the communal relation began.

• All income earned by any person in a communal arrangement belongs to the person who earned the income.

• All property acquired during the communal living situation belongs to the person who paid for it.

• In addition, the government stands ready to enforce private contracts regarding the division of property, if those contracts satisfy reasonable criteria for clarity, enforceability, and the like.

Comments on This Policy

• The policy is what exists now for communal situations other than those coincident with a legal marriage. – For example, it is exactly the arrangement made by college

roommates, persons of the same sex who share apartments, couples of whatever gender composition who “live” together

• Nothing in the policy requires the government to define or provide marriage:– The policy addresses all communal living situations.

• Nothing in this policy prevents or discourages religious marriages between persons of whatever sex or sexual orientation. – These religious ceremonies simply have no legal implications.

• Nothing prevents private contracts that “mimic” relevant features of current marriage contract.

Comments, continued.

• Consider two people who wish to make the “standard” arrangement about division of “communal” property in the event their “marriage” ends.– Aside: there is in fact not a single “standard”

arrangement now;– There are community property states and

common-law states, which are quite different.– But leave that aside.

Comments, continued

• This couple could write a contract that says, e.g.,– All income is divided 50/50.

• Then this couple will have replicated this aspect of the marriage contract;– That is, they would have contracted around

the default law about division of property.

Bottom Line on Division of Property

• Private contracts can address this without having policy define or provide marriage; that is a separable issue.

• The policy proposed here might not be “optimal.” – But the example shows it is feasible to

address this issue without any government provision of marriage.

Inheritances

• In any society, people die owning property. In some cases the amount is trivial, in other cases significant.

• In the absence of government, dispute resolution with respect to inheritances might be inefficient (e.g., violent).

• Thus, again, there is potentially a role for government.

• So, it is useful to consider a simple base case.

Possible Policy Toward Inheritances:

• For persons who die without a valid will, the government takes everything.

• For persons who write valid wills, the government enforces these wills.

Comments on Proposed Inheritance Policy

• Nothing in this policy requires the government to define or provide civil marriage. – The policy applies to everyone, regardless of their

sex, sexual orientation, or any other characteristic.

• Nothing in this policy prevents or discourages religious marriages between persons of whatever sex or sexual orientation.– These religious ceremonies simply have no legal

implications.

• Nothing prevents anyone from adopting wills that mimic current rules within marriage.

Comments on Inheritance Policy,continued

• This policy is similar to what occurs now, except that under current law the spouses have special privileges.

• And there is in fact not one standard now about inheritances.– In some states, one spouse can disinherit the

other; in other states, this is not allowed.

Inheritance Policy, Bottom Line

• As with policy toward division of communal property, there might be a role for government.

• But this can occur easily without government provision of marriage.

Children

• People have children. • As with property division and inheritance,

disputes about the guardianship of children inevitably arise, so there might be a role for government in fostering efficient dispute resolution.

• In addition, there might be a role for policy to safeguard the welfare of children.

• Thus, it is plausible that governments should establish policies regarding guardianship, adoption, and related issues.

A Possible Policy Toward Children:

• The biological mother is a child’s only legal “parent” unless the mother voluntarily gives up that status (by putting the child up for adoption or by agreeing to share legal guardianship with another person).

• The biological father is always responsible for X percent of the cost of child support.– X = 0 is one possibility

• In addition, the government enforces private contracts regarding adoption, guardianship, and the like.

Comments on Policy Toward Children

• This policy does not require government provision of marriage.

• This policy does not prevent religious or other marriage.

• This policy does not prevent private contracting that mimics some or all aspects of current civil marriages.

Comments on Policy Toward Children, continued

• This policy overlaps with what already occurs.– There are already government defined and enforced

rules about the rights and responsibilities of a biological mother as legal guardian.

– There are already government defined and enforced rules about the rights and responsibilities of biological fathers, even when not married to the mother.

– There are already government defined and enforced rules about adoption.

– The ways in which some of these are currently written makes reference to the legal, marital status of parties; these aspects would simply be moot under the alternative policy discussed here.

Summary So Far

• Governments can establish simple, enforceable rules about division of shared property, inheritances, and guardianship of children without providing civil marriage.

• The specific alternative policies outlined here are not necessarily the optimal ones.

• But existence of these alternatives shows there is a question for analysis: – Which approach is better, and by what criterion?

Which Approach is Better?

• Three Possible Issues to Consider:– Efficiency– Protection of Children– Protection of “vulnerable” adults.

Efficiency• Both government provision of civil marriages, and government

enforcement of private marriages, require government and private resources.

• Which approach best economizes on these resources? • If the kinds of contracts demanded by the private sector are diverse

and complicated, there might be some savings in enforcement and contracting resources from government marriages, i.e., the imposition of one particular approach.

• But this does not mean government provision is efficient, because the additional resources needed under a private system arise because of diverse demands; government imposition means the inefficiency of having everyone adopt the same marriage contract.

• So, government provision probably economizes on enforcement and contracting resources, but it is not necessarily efficient overall.

Protection of Children

• A second possible consideration in choosing between civil marriage and private contracting is the welfare of children.

• The argument for civil marriage would be that these protect children better than private contracts.

• No obvious reason why. • And children can already be born outside of civil

marriages.

Protection of “Vulnerable” Adults.

• A third possible consideration is that some adults might enter communal living arrangements and devote substantial resources to childcare, household upkeep, joint production, etc., under the expectation that the other person would share property, child care, inheritance, only to be disappointed later.

• But this is possible already. Perhaps having civil marriages creates the appropriate expectation and reduces the magnitude of this problem, but that is not obvious.

Bottom Line on Private Versus Government Marriage

• There is no obvious reason government provision of marriage is superior to private contracting from any of the three perspectives considered.– Perhaps there are other factors to consider such as

role of the state in promoting “family values” or religion; leave that question aside for now.

• But, let’s assume that, for some reason, government provision does improve on the private outcome with respect of efficiency or protection of children or protection of vulnerable adults.

Same-Sex Versus Opposite-Sex Couples

• Given the assumption that government can improve social welfare by providing civil marriages, the key question is this:– Does this argument apply only to opposite sex

couples or do exactly the same reasons apply in the case of same-sex couples?

Same-Sex Versus Opposite-Sex Couples, continued

• My answer: The arguments apply to same-sex couples as much as to opposite-sex couples. – Apparently many gay couples do desire the contracts

in a civil marriage. – If the government is relatively efficient at providing

this bundle of contracts, it is hard to see why that applies only in the case of opposite-sex couples.

– If government marriage is necessary for the protection of children, why does that not apply to children of same-sex couples?

– If government marriage is necessary for the protection of vulnerable adults, why does that not apply to adults in same-sex relationships?

Clarification

• The arguments presented suggest that– Private contracting can accomplish the same

thing as civil marriage.– If government should be involved, there is no

obvious reason to restrict the provision of marriage to same-sex couples.

Clarification, Continued

• A different question is, if government and public provision are roughly equivalent in terms of efficiency, etc, how does ones choose?

• Note that private provision does not necessarily mean there is a huge savings in enforcement costs:– Government is still needed to enforce private

“marriages” and related contracts, although private forces might do some of this.

Clarification: Which Approach is Better?

• So why might the private contracting approach be better?– It does not require the government to take a

stand on marriage one way or the other and thus avoids the polarization that occurs now.

– In addition, the private contracting approach means there is less scope for government to limit choices and thereby reduce welfare.

Religious Marriage

• An interesting implication of the arguments here is that having government exit the marriage business might strengthen religious marriage.

• Many couples, of whatever orientation, would have religious ceremonies.

• Some religions would suggest particular marriage contracts and require couples who married in their churches to accept these contracts.

• Religions might therefore be in the position of establishing the main forms of marriage.

• But, there would be variety, scope for innovation, and freedom for anyone to choose their preferred kind of “religious” marriage.

Polygamy

• What about extensions of the arguments here to polygamy?

• Note first that polygamy is already “legal” in the sense that a man can legally live in the same house with many women, father children with them, have parental rights and obligations, and the like.

Polygamy, continued

• Note second that the private contracting approach would allow this to continue unless the government decided not to enforce “polygamy” contracts.

• In that case, polygamy is treated little differently than it is now.

• So, the polygamy issue is mainly a scare” tactic, not a real concern.

Conclusions

• To think clearly about the gay marriage, it is useful to go back to first principles:– Why is government in the marriage business at all?

• In the libertarian view, it should not be:– Everything can be handled at least as well by having

government establish simple rules about each of the pieces of the marriage arrangement and then helping to enforce private contracts, some of which might replicate current marriage contracts.

• And this approach is far less polarizing than current policy.

Conclusions, continued

• If one argues that government should be in the marriage business because it can provide marriages “better” than private contracting, one should have to say exactly why.

• And then one should have to say whether those arguments apply only to opposite-sex couples or to all couples.

• In my view, it is hard to give a rational reason why the arguments for government provision would apply only to opposite-sex couples.