RSS Feed MenuThis is part two of a series. Read part one here and part three here.
In my first post in this series, I “unbundled” the concept of marriage. That is, I divided the features of marriage into three categories, the private (ie., the marriage contract set by the parties), the government (ie., the legal consequences of marriage), and the social (ie., the norms of marriage). I now intend to show that the alleged conflict between traditional marriage and marriage equality is illusory.
Start with private marriage. While every state has rules governing marital property, none tells spouses exactly how they should divide it. On the contrary, couples in all states have wide latitude to deviate from their state’s basic property settlement template. In a prenuptial or postnuptial agreement, for example, each spouse may waive rights to support, a share of the other’s estate or any of the property acquired by the other during the marriage. Laws governing the division of property and income in a marriage resemble laws governing, say, automobiles dropped off in a parking garage. When you drop off your car at a garage, you don’t have to stop to negotiate all the terms of the arrangement. Rather, courts have fashioned a well-developed body of law that supplies the terms for you. Similarly, when it comes to marriage, local governments only provide the default terms that couples may freely bargain around.
One doesn’t have to be married, however, to enjoy freedom of contract. Unmarried persons, no less than married persons, may enter into enforceable agreements for support and the sharing of property. Such “domestic partnership agreements” have already become common. To be sure, the default terms of a domestic partnership agreement differ from those of a government-recognized “marriage” covenant. Nonetheless, couples eligible to be recognized as “married” do not have greater freedom to form binding partnership agreements. (On the contrary, married individuals have less freedom of contract, insofar as agreements to break up a marriage in the future will be held to be unenforceable.) Married and unmarried couples simply face a different set of transaction costs when reaching their agreements.
Private marriage is thus an easy case to resolve because the two camps already agree — or at least have no reason to disagree — that both heterosexual and homosexual couples should have the right to share their property and income. To be sure, some gay marriage opponents such as Maggie Gallagher worry that domestic partnerships may undermine the concept of marriage. Their fears reflect a failure to distinguish between private marriage and government marriage. Whether or not domestic partnerships should affect the distribution of government benefits, as a matter of freedom contract, same sex couples already can enter into domestic partnership agreements. The only issue is to what extend the government should facilitate domestic partnership agreements by providing a better set of default rules. (In my own view, the government should make it easier to enter into domestic partnership agreements, for they may prevent the poorer party from becoming an obligation of the state.) In any case, the benefits of marriage qua contract between two parties — what I have called private marriage — are already available to non-married persons. Opponents of same sex marriage should have no interest in restricting anyone’s freedom of contract.
In the next post, I move on to what I have called “government marriage.” That is, I consider whether marriage traditionalists and believers in marriage equality have any genuine disagreement over whether the many government policies implicating those who are married should apply equally to same sex couples. As with private marriage, I believe the answer is no.
sinz54 // May 13, 2009 at 6:51 am
dragonlady asks: “For example, how do we square the studies you linked to the plethora of studies that says it’s very important for sons to have adult male role models, preferably their biological fathers?”Perhaps it has to do with there being two not-quite-independent variables: The number of parents and the gender of parents.Most single-parent households are single-mom households. Then the child has to cope with not just the lack of a male role model, but with being a latchkey kid tossed into a daycare center or babysitter while the mom works all day. So what they may be measuring is not just the lack of a male role model, but the lack of any parent.At minimum, two parents are likely to be much better than one, since that allows for emotional bonding and emotional support rather than latchkey. I think both liberals and conservatives can agree on that. That factor may actually outweigh the gender factor.And (I may get into trouble for saying this, but here goes): In a lesbian relationship, one of them may assume the dominant (“butch”) role, and the other the submissive (“femme”) role. That may approximate the traditional male-female parent roles enough that the child gets the support he needs from both types of roles.
sinz54 // May 13, 2009 at 6:59 am
balconesfault: That’s exactly my point.There is a direct conflict between the conservative principle of federalism (smaller Federal government, greater freedom for states) and the Religious Right’s attempts to create national legislation and Constitutional Amendments that override state marriage laws, state drug laws, etc.In the case of Vermont, we have a state where the legislature, the people’s representatives, voted for same-sex marriage through an entirely constitutional and democratic vote. For the GOP to oppose that also would mean that now we oppose the right of states to set their own course. That contradicts everything we’ve been saying about federalism and states as social laboratories.Ditto for the Bush Administration’s attempts to sic the DEA on cancer patients who were allowed to smoke marijuana by their own states’ marriage laws. The most grotesque example was the recent attempt to get Congress to pass a national law banning Internet poker games. Here is a recreational activity that you carry out in the privacy of your own home, on your own computer, at your own expense. But because some folks are morally affended by gambling, let’s ban it nationwide???It seems that we conservatives too often wave the banner of federalism around to stop secular liberals, but then trash the principle when it would stymie the Religious Right too.
dragonlady // May 13, 2009 at 12:52 pm
sinz54, I do agree that two parent households are better than single parents because it’s easier to spilt the division of labor and attend to the needs of a child. As far as the importance of fathers and mothers, yes, obviously this dynamic is missing in single parent households. I also won’t speculate on the dynamics of who’s the dad or mom in same-sex relationships but I’m not sure it as simple as you make it. Gender means something; a man shows his son how to control his testostorone during puberty, and channel his power productively. A young girl experiences unconditional, non-sexual love from her father in a healthy relationship. She learns that men can value her in her entirety, and not just for sexual reasons. It’s these intangibles which I believe it’s important for children to have opposite sex parents. And I also agree this is a issue that should be left to the states versus a Federal Amendment. I would support taking that out of the platform. I believe gays are equal and we can give them rights under the law. But I also believe that we can do that without redefining the meaning of marriage. It’s analogous to the equality of women. Passing the ERA would have brought a host of issues to the forefront from the trivial (unisex bathrooms for all?) to more serious (women registering for the selective service). However, we still ensure that women are equal in the law without pretending there are no differences between the genders.