Laissez-Faire Marriage

by on November 30, 2007 at 7:45 am in Economics, History, Law, Philosophy, Religion | Permalink

Should the state be involved in marriage?  Writing in the NYTimes professor of history Stephanie Coontz notes:

The American colonies officially required marriages to be
registered, but until the mid-19th century, state supreme courts
routinely ruled that public cohabitation was sufficient evidence of a
valid marriage. By the later part of that century, however, the United
States began to nullify common-law marriages and exert more control
over who was allowed to marry.

By the 1920s, 38 states
prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese,
Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not
issue a marriage license if one partner was a drunk, an addict or a
“mental defect.” Eighteen states set barriers to remarriage after
divorce.

It’s no accident that the state began restricting and intervening in the marriage contract at the same time as it was restricting and intervening in economic contracts.  It was of course the evil Oliver Wendell Holmes Jr. who dissented in Lochner v. New York and who also upheld forced sterilization laws in Buck v. Bell (writing that "three generations of imbeciles in enough.")  Economists don’t like to talk about social externalities but the connection between economic and social regulation is very clear in the progressives.

I think it’s time to restore
freedom of contract to marriage.  Why should two men, for example, be denied the same rights to contract as are allowed to a man and a woman?  Far from ending civilization the extension of the bourgeoisie concept of contract ever further is the epitome of civilization.  Our modern concept of marriage, for example, is simply one instantiation of the idea of contract.

People will claim that this means a chaos of contracts for every form of marriage.  This is wrong factually and also conceptually misguided.  Factually, we already allow men and women to adjust the marriage contract as they see fit with pre-nuptials.  Moreover, different states offer different marriage contracts with some offering more than one type.  Partnerships of other kinds have access to all manner of contractual arrangements without insufferable problems. 

More importantly, the chaos of contracts argument is fundamentally misguided.  The purpose of contract law is to give individual’s greater control over their lives.  To make contract law a restraint on how people may govern themselves is a perversion of the social contract.  To restrict people from accessing the tools of civilization on the basis of their sexual preference is baseless discrimination. 

It is time to restore
freedom of contract to marriage,  Laissez-faire for all capitalist acts between consenting adults!

Thanks to Daniel Akst for the pointer.

Dan Akst November 30, 2007 at 7:53 am

Alex, nicely done! You encapsulated the possible objections, as well as the response to them, deftly indeed. Basically i agree, except I do still think the state must have some role for marriage to remain functional if not also meaningful; just as other forms of contracts must meet certain standards to be enforceable, so with marriage too some kind of parameters probably will be required.

Chi November 30, 2007 at 8:19 am

There is excellent freedom of contract to marry. However, many people (hovering around 50%, in the polls I recall) have stated a desire to withhold benefits from the state, which normally encourage certain couples to marry [similar to how many object to the same sort of benefits being given without caution to immigrants]

You’ve burned an excellent straw man though.

Cyrus November 30, 2007 at 8:27 am

At least on the face of it, freedom of contract alone is an insufficient principle when the existence or terms of the contract strongly affect third parties. The law requires the state, and some private parties, to make special provision for spouses; a possible response is to say for consistency, that all such provisions should be done away with. Thornier though are regulations enforced not by law, but by more. Most find the third party in an adultery morally culpable in a way the third party in the sexual infidelity of an umarried person is not. Finally, and probably thorniest, several parties not party to the marriage contract have an interest in it, the most notable of these being dependents.

Mark November 30, 2007 at 8:36 am

Excellent post.

Stephen W. Stanton November 30, 2007 at 8:59 am

Agree on all counts.

marktwain48 November 30, 2007 at 9:10 am

Just curious about such freedoms to contract–should a father be allowed to marry his daughter? What if the daughter is adopted? If not, why should they be denied such freedoms etc etc.

Robert Speirs November 30, 2007 at 9:15 am

What is “laissez-faire” about demanding that the state get involved in “same-sex” relationships by treating them the same as marriages? Men are free to make whatever contracts they want to with each other. They just can’t bind the state to enforce marriage rights when the state has no interest or legitimate power to do so. Marriage, after all, is not a relationship between a man and a woman. It is a relationship between an individual and the state. The relationship between a man and a woman who get married is (ideally) called “love”.

wintercow20 November 30, 2007 at 9:16 am

Alex,

Opponents of the freedom of contract to marry will often cart out the critique that allowing things like gay marriage have really negative implications for insurance contracts, traditional rules of heritability of assets, etc. In other words, this is another form of the chaos of contracts argument. Eerily, I have heard this complaint from self-professed classical liberals, not folks I would traditionally define as conservative or religious adherents.

Andrew G November 30, 2007 at 9:46 am

I have heard the “marriage is a contract” argument applied by an extreme social conservative against no-fault divorce. The idea in that case was that no other contract allows one party to a contract to withdraw unilaterally to their financial benefit and marriage should be no different.

But of course marriage isn’t just a contract – it’s a social and cultural institution with thousands of years of baggage. People marry for all sorts of terrible reasons, perhaps number one being that they believe society expects them to. Frame marriage as “just a contract” and you will have to deal with that baggage too.

Tim of Angle November 30, 2007 at 10:07 am

Having economists talk about legal questions is almost as entertaining as having lawyers talk about economic questions.

Marriage is not a contract. Never has been. Marriage is a civil status, and civil status is regulated by the state. Always has been.

The term “marriage contract” is a historical term that relates to contracts between people that *accompanied* marriage — and those have always been free. The modern “pre-nup” is a good case in point.

Learn first, then talk.

Clark November 30, 2007 at 10:19 am

Would a laissez-faire approach allow two men to marry two other men? Or a 35-year-old woman to marry a 9-year-old boy?

Hovie November 30, 2007 at 10:27 am

Alex Tabarrok makes a good point about prenuptial agreements. Wintercow20 and Tim of Angle are on my wavelength, however.

Since the beginning of the gay marriage debate I have asked without success whether anyone has ever catalogued the rights and responsibilities which come from marriage in the States. Does anyone know what “marriage” means? I hear about things like hospital visitation rights, freedom from having to testify against a spouse, parental rights and obligations, and so on; but I don’t know that all these facts have ever been compiled in one place.

I’m a software engineer. Before you rewrite a software application, you need to document the legacy version down to the last word of code, reverse-engineering the current version of the software if need be. If we’re going to rewrite the marriage convention, or if we’re at least going to replace this incessant and unconverging debate with some tangible action and a plan for the future, we will need to do the same.

jb November 30, 2007 at 10:28 am

One can preclude intergenerational incestuous marriages under this by declaring “One familial contract per pair.” I.E, if you have a relationship with another person that could be formed by adoption (a contract relationship), you can’t form another. So since no one adopts cousins, cousins could marry; but people adopt children, so no one with a parent/child relationship could marry.

Chris Durnell November 30, 2007 at 11:26 am

Marriage has a basis in the biological fact that a male and female is needed for procreation. That is why marriage is seen as a different form of association than any other. It is considered different even from the relationship between a parent and a child, or a brother and a sister, even though those are clearly family.

Certainly it is the case that not every married couple is capable of having children, want children, or successfully produce children. That does not invalidate the marriage. Basic biology is sufficient.

If we are to say that marriage can be between two men, or two women, we need to ask ourselves what is this new basis for marriage? This is important because it will have all sorts of implications.

If it s open to any two people who love each other, then why not allow brothers and sisters to marry? There does not even need for sex to be involved – maybe the brother and sister have recently moved out of the house, but want the tax advantages and support of family living together. They could divorce whenever they found the person they really want to start a family with. COuld a divorced or widowed father marry one of his adult children in order so he or she is covered by medical insurance or other benefits?

Why limit the contract to only two people? Why not three, four, or twenty? What is the reason why this is only for two?

Finally, why couldn’t best friends or roommates marry each other for the legal protection with a pre-nuptial agreement to preserve separate finances, then divorce when they need to, then marry their next roommate, then divorce and marry someone of another sex they do intend to start a family with.

Once you go down this route, you quickly devalue marriage as an institution because it becomes nothing more than an LLC – a legal trick. Maybe people do need such a legal tool for a variety of reasons, but that is a very, very different thing than what people mean when they say “marriage.”

Clearly there has been past abuses by the government in denying certain people the legitimacy of marriage. However, that function is really just a means of recognizing marriages, and it is easy to prevent abuse of that function. However, we need to define what the basis of marriage is for society clearly distinguishes it from all other forms of contract. Clearly there is something special here that makes marriage intrinsically different than other forms of legal partnership.

If people deny that marriage is based on biological facts and the important sociological needs based on that, then it is important to tell us what exactly the basis should be so we can examine their arguments.

MostlyAPragmatist November 30, 2007 at 11:54 am

Economists don’t like to talk about social externalities but the connection between economic and social regulation is very clear in the progressives.

You had a nice post that I was prepared to agree with (secularize marriage and make it a contract), but then you had to go and overreach. Why did you have to go and say this? It’s statements like this that make some people (not me mind you, but some!) say “crank libertarian ideologue.” Where to begin?

1. Are you saying it’s not clear among the conservatives?
2. Are you saying that the progressives always have ulterior motives of social control? Where’s your anthropological data on this :-)

Rich B. November 30, 2007 at 12:41 pm

Pennsylvania abolished common law marriages only a few years ago (2003?), not exactly the Lochner era.

Colin November 30, 2007 at 12:57 pm

Great post — I’ve been thinking along similar lines for some time. I am all for eliminating state intervention from marriage. The state should neither recognize marriage nor accord it any special benefits. You should be able to marry anything — 2 other people, your cat, your television, whatever. The only possible restriction I see is that both parties — if, indeed, it involves people — is that they be legal adults so that children aren’t involved.

Now, the obvious criticism of this approach is that it devalues marriage. But here’s the thing: I don’t have to recognize that marriage. If someone tells me that they married their sofa I am under no obligation to recognize it. I can say “That’s nice, whatever works for you.” Individuals that oppose homosexual marriage can simply choose not to recognize same-sex marriages. And really, who cares? If the two people who say they are married view themselves as married isn’t that all that really matters?

In fact, taking this one step further, I think that if the state were to be totally removed from marriage that we would see competition emerge in the marriage industry. For example, institutions that perform marriage — be they religious or otherwise — could have a set of requirements for people to get married, such as being together for at least 6 months prior to marriage, etc. Others may have none. Then you could judge marriages by the institution that performed it, just as we frequently judge products by their brand.

Frankly, I find it mildly offensive that I am forced to recognize ridiculous sham marriages by the likes of Britney Spears because the state declares her to be married. I think under my proposed system any self-respecting marriage institution would have rejected her (to preserve their brand image). Other couples could brag that they were married by a particular institution known for its high standards as an indication of just how devoted they are to each other. Competition could help improve marriage!

These marriage institutions could also provide actual contracts for the couple to sign, spelling out exactly what privileges were included such as hospital visitation rights etc.

File this under “Markets in Everything.”

G November 30, 2007 at 1:08 pm

Marriage, whether or not you want to define it as a contract or civil status, far predates the state as we know it. Marriage is an ancient tradition, and it will not go away if the government blows up tomorrow. It is also not directly related to procreation. Even if we concede that the state has a right to regulate the externalities of procreation, it does not follow that the state should regulate marriage. Regulation of marriage would be a poor substitute to regulate procreation, since much procreation (especially the sort the state would like to stop) happens outside marriage.

So what the hell business does the state have sticking its nose in marriage? Why should it even be able to define marriage? Do we concede the right for the state to define and regulate other traditions in our society? Does it tell us what sort of presents will give others on Christmas?

As long as the state is given power over a thing, people will fight for that power. If the state had no power to define or regulate the tradition of marriage whatsoever, it wouldn’t be an issue in debates, and the religious right would be powerless to stop two women from living with each other.

M.D. Fatwa November 30, 2007 at 1:34 pm

I think Bastiat makes a good point.

Slipperyslopes November 30, 2007 at 2:53 pm

“Once you go down this route, you quickly devalue marriage as an institution because it becomes nothing more than an LLC -”

I think this person means, “Once I begin my slippery slope argument and equate homosexuals marrying with people marrying their own children and live stock…”

Lots of male cranks on this post….

y81 November 30, 2007 at 3:43 pm

What Tim of Angle said. But for the non-lawyers who haven’t thought this through, let me note that there will be no divorce in Alex’s world. My wife and I promised to love each other “till death do us part.” A bargain’s a bargain, a deal’s a deal, and utility is maximized by enforcing consensual bargains. It’s the same as if my employer had promised me my job for life; they may have been unwise, but they are stuck with it.

Maybe some people will object that certain, uh, very personal, contracts shouldn’t be so strictly enforced. Let’s call the class of contracts that aren’t so strictly enforced “schmarriage.” Now clearly “schmarriage” is not a class of contract chosen by the contracting parties; the courts will need to decide which contracts fall into this category. And we are back where we started.

Psychohistorian November 30, 2007 at 4:27 pm

The biggest problem would probably be transfers of wealth – marriage, as I understand it, allows two people to transfer unlimited amounts of money between them without taxation. Cleverly tailored marriage contracts might allow this to be done to avoid inheritance tax, wage taxes, gift taxes, etc.

I suppose the government could set a specific limit on the number of tax-free “marriage” contracts you could have, and make it illegal to use such exemptions to pay wages or some such. It seems like a regulatory nightmare, but it might not be that bad.

As far as the benefits thing goes, it seems like that can all be worked out contractually. If I have four wives, my employer gives me a three-wife insurance plan and takes the difference between that and the one-wife one out of my wages. Or, better yet, he gives me money and I buy the plan I need.

If we could figure out exactly what society’s goal is in regulating transfers of wealth, and then treat this contract system in accordance with that, this idea would work out very well.

Mark November 30, 2007 at 4:54 pm

Colin, thank you for that post. Very innovative ideas.

A lot of lawyers around here nitpicking, reminds me why common sense ideas will never make it through the courts :)

Mike November 30, 2007 at 6:59 pm

The whole hidden agenda of advocates of state sponsored marriage has to do with getting society to validate relationships. The state has no business validating relationships.

Marriage is at its core an institution societally grounded in religion. If the state insists on getting involved it should issue something like a cohabitation license which gives the power of the state to enforce a contract between two consenting adults. If people want to call it marriage that should be between them and anyone who wishes to claim they have authority to marry, be it a religion or otherwise.

The state, other than for tax purposes, shouldn’t even be in the business of regulating religious institutions as long as that religion does not impose its will on non-believers of said religion.

Superheater November 30, 2007 at 10:07 pm

Alex’s post illustrates the intellectual failure of the over extension of utopian libertarian economics as the sole instrument with which to view every social interaction. Life is complicated and the unfortunate confusion between liberty and unlimited personal autonomy is operative in his post.

The state ROUTINELY restricts individual contract rights. Your pension or profit sharing plan must operate according to the provisions of a written instrument which contains certain mandatory features and benefits with limits on the sponsors ability to amend it.

You cannot purchase insurance on the life of a person where you do not have a “insurable interest” (a relationship with a presumption of natural affection or a direct financial interest), even if you provide your consent. You cannot purchase a “pure endowment” (a contract which provides that you are paid a specified sum of money only upon the attainment of a specified age) because it would provide an insurer with an adverse interest in your life.

Even as private a transaction as purchasing a car is regulated, with the seller required to abide by lemon laws and minimum age, operator licensing, vehicle registration and licensing, etc.

A marriage is not a private arrangement-it is a very public franchise. Indeed, another poster points out “common law” marriages are in fact state interference of a relationship. It protects foolish hearts from deception. Marriage conveys social status, property rights, expectations of exclusivity, intimacy and durability.

The common canard that you should have unlimited personal autonomy

ALB December 1, 2007 at 12:16 am

Apologies; I mistyped the code for a blockquote. The following is a quote from David Brooks:

“Some conservatives may have latched onto biological determinism (men are savages who need women to tame them) as a convenient way to oppose gay marriage.* But in fact we are not animals whose lives are bounded by our flesh and by our gender. We’re moral creatures with souls, endowed with the ability to make covenants, such as the one Ruth made with Naomi: ”Where you go I will go, and where you stay I will stay. Your people will be my people and your God my God. Where you die I will die, and there I will be buried.”

… We shouldn’t just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.”

David Wright December 1, 2007 at 3:37 am

To the commenters who are pointing out how marriage is not like a contract: yes, we understand. Alex is making a policy proposal to change the way the government deals with marriage. The fact his proposed isn’t or hasn’t been the status quo is not a good argument against it. A good argument against would be a plausible prediction of negative consequences.

So let’s try it: suppose the government simply stopped recognizing marriages tomorrow. Churches, businesses, friends, etc. could continue to hold ceremonies and treat people accoding to whatever policies they wished, but the government would treat all people as single. What bad things would happen?

Answers like “no one could get spousal insurance benefits or visit their partner in the hospital” don’t cut it. Employers and hospitals have the benefits and visitation policies they do because the labor and patient markets demand it. Goverment-recognized marriage provides a convenient crutch for defining those policies, but in the absense of that crutch they are entirely capable of defining new policies to meet the demands of the market. (For example, cafeteria benefit plans and medical power-of-attorney forms.) As far as the status of children, our courts have a mature and robust body of law governing the treatment of children of unmarried parents, so that is hardly a problem. You need to point out some important positive aspect of marriage that only works if the government defines it. Can you do that?

(Most of Coontz’s article is a good historical argument that there is no such aspect. But in the last paragraph of her article, she doges the logical consequence of her own argument: instead of proposing that the government get entirely out of the partnership-recognition business, she basically proposes that the government continue to recognize relationships, inclding gay relationships, but not call that recognition marriage. This is a sophist misuse of a libertarian argument for a progressive end, and conservatives will see right though it. The real libertarian compromise between progressives and conservatives on this issue is to have the government stop recognizing relationsips entirely, regardless of what it calls them.)

Hovie December 1, 2007 at 12:32 pm

Is a marriage anything more than a “next of kin agreement”? Should we replace marriage with kinship agreements and have done with? What else is there?

G December 1, 2007 at 2:14 pm

Superheater,

Alex’s post illustrates the intellectual failure of the over extension of utopian libertarian economics as the sole instrument with which to view every social interaction. Life is complicated and the unfortunate confusion between liberty and unlimited personal autonomy is operative in his post.

The state ROUTINELY restricts individual contract rights. Your pension or profit sharing plan must operate according to the provisions of a written instrument which contains certain mandatory features and benefits with limits on the sponsors ability to amend it.

So? Because the state does these things, they are somehow a good idea? Alex is arguing over what the state should do, not what it does. Clearly it does those things and more. To argue “these things are right and good for the state to do because the state does them” has no place in an serious argument. It also has absolutely nothing to do with marriage.

A marriage is not a private arrangement-it is a very public franchise. Indeed, another poster points out “common law” marriages are in fact state interference of a relationship. It protects foolish hearts from deception. Marriage conveys social status, property rights, expectations of exclusivity, intimacy and durability.

Thats your view of marriage. Thats nice. Now explain to me why others should be forced to share that view, instead of voluntarily choosing (or not choosing) to share it?

LemmusLemmus December 1, 2007 at 7:35 pm

Chris Durell’s comment is a beautiful illustration of conservatism:

1. Dislike something because it has not always been so.

2. Come up with some cranky rationalizations (marriage has a biological basis in procreation, although there is procreation without marriage and marriage without procreation).

It should be in textbooks. Ninth grade, maybe.

oreg December 2, 2007 at 11:55 pm

I see three types of entitlement traditionally associated with marriage:
a) Support for raising children.
b) Rights in each other (visitation etc.).
c) Rights in the wealth created together.

For the reasons mentioned by others (procreation without marriage and marriage without procreation) in a modern state a) is, or at least should be derived solely and completely from the fact that the partners have children, whether married or not. This includes the rights of the children to be supported by both their parents. Therefore, the children aspect should be taken out of the marriage question.

As for b), it’s hard to see why partners should be denied non-financial rights like visitation and it seems to make sense to me that they should be guaranteed by law.

The financial rights of c) are based on the promise to be there for each other in times of need as well as on the common situation that one partner compromises their career in favor of the other’s. Seems to make sense /if/ this situation is the case. But this part differs significantly from case to case, making it impossible to regulate with a one-size-fits-all kind of marriage agreement. So here is definitely space for individual contracts in lieu of inflexible regulation.

I don’t see why the state should pay subsidies for b) or c). That leaves only a) to be subsidized, independent of marriage, and only b) to be regulated by the state in the context of a “marriage” (or whatever the name). It’s hard to see a reason why b) should be restricted to heterosexual couples.

Tracy W December 3, 2007 at 9:45 am

Goverment-recognized marriage provides a convenient crutch for defining those policies, but in the absense of that crutch they are entirely capable of defining new policies to meet the demands of the market. (For example, cafeteria benefit plans and medical power-of-attorney forms.)

David – what happens when someone comes into hospital incapacitated, without having signed those forms?

Say person A arrives in a coma. Person B claims they are A’s partner. Person A’s parents claim B is a psycho who A has always despised. Person B says parents A say that because they have never been able to accept that A is homosexual. Might it not help the courts if there’s a contract sitting around signed by person A and person B?

Then there’s the right not to be forced to testify against your spouse. How do the courts decide when B is A’s partner?

Or let’s take a case that happened in NZ. A wealthy elderly man hired a woman as a housekeeper. Eight years later he died, leaving the bulk of his money to his children. The housekeeper claimed they had been in a secret partnership for years and she was entitled to half his money, the children said that no such thing had happened. How is a court meant to know if the two have been sleeping together?

Then there’s the case when A wants to marry someone he met overseas, and bring them into the country. How does the market supply citizenship rights?

Why are people so dead-against the thought of the government providing a standard contract? Yes, medical power-of-attorney forms can be signed, and wills signed and so forth, but what’s so terrible about the government providing one set of forms instead of a hundred?

Why are people so eager to introduce a change of which the major result will be more money to lawyers?

Diversity December 5, 2007 at 12:39 pm

Marriage in one form or another is a pretty near universal human custom. In societies which have neither church nor state, it is regulated by custom. In the Jewish – Christian – Muslim tradition it was regulated by the religious authorities (in some countries e.g. Israel and Iran, it still is). The state got involved when religious diversity got in the way, and the more so when religions ceased to be legally established.

If this custom to which we are so attached seems to have required regulation by society almost everywhere in almost all times, should we not think very carefully before suddenly de-regulating it totally? And don’t we need a lot more documented evidence on the forms marriage actually takes in different societies and states before pontificating on how the regulation of what we have long called the “marriage market” ought to be reformed? The role of the modern state in markets is to hold the ring so market disciplines can work. Before the state can do that properly in any market (e.g., see current debates on if and how to regulate hedge funds) government needs some understanding of what ring it may be trying to hold round what market, and why.

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