Tag: marriage

The Framers and Love

As some of you are aware, I recently got married, right here on Cato’s roofdeck, overseen by the eagle of liberty. I’ll spare you the details – there were plenty of “constitutional moments,” including personalized pocket constitutions as one of our wedding favors – other than to highlight my sometime co-author Josh Blackman’s excellent reading on the Framers and love:

We can look to the same patriots that gave us our Constitution to glean some lessons about love, liberty, and forming more perfect unions.

A successful marriage is not that much different from a successful republic. Both require the union of different parties to utilize their comparative advantages more efficiently. Both require a federalist system that structures powers and rights. And most importantly, both must aspire to a higher charter to bond them into one. For the United States it is our Constitution. For Kristin and Ilya, it is their vows.

First, we look to Federalist 51, Ilya’s favorite, where Madison wrote that if men were angels, we would not need government. Alas, neither husband nor wife is always an angel, so both Kristin and Ilya will need to structure a government for themselves to promote their happiness.

Second, to avoid any strife, we should heed Jefferson’s words in the Declaration of Independence, for mere “light and transient” causes are not enough. They must maintain tranquility, as they “mutually pledge to each other their Lives, their Fortunes and their sacred Honor.”

Third, we turn to the father of our country, General George Washington, whose eternal love for his wife Martha carried him towards victory. In one of the rare letters, which Martha did not burn at George’s death, the General wrote to her, “I retain an unalterable affection for you, which neither time nor distance can change.” May the two of you always be in such love, no matter where you are.

May the passion our framers had for our Constitution and Republic, mirror the love you have for each other. And as the history of our nation has witnessed, despite the dividing difficulties, insurmountable challenges, and specters of oppression, the union shall always prevail. As you pursue happiness together, may Kristin and Ilya always cherish their life, and liberty–and hopefully accumulate vast amounts of property, both personal and real. And that way, they can “secure the Blessings of Liberty to their many Posterity.”

If you’re curious about the rest of the ceremony, including Josh’s presentation, you can view it here (the audio is patchy at first, but kicks in before the vows). Yes, I got permission from my wife to post that and, yes, we’ll be going on honeymoon soon – but, like most couples, we’re waiting for the end of the Supreme Court term before getting away.

Progress toward Marriage Equality

The Gallup Poll reports today, “For the first time in Gallup’s tracking of the issue, a majority of Americans (53%) believe same-sex marriage should be recognized by the law as valid, with the same rights as traditional marriages.”

Here’s the history of Gallup’s polling on the issue:

1996-2011 Trend: Do you think marriages between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?

Gallup notes that the shift results from a substantial increase in support among Democrats and independents in the past year, but support among Republicans didn’t budge from 28 percent. The most striking number, though, is that support among young people 18-34 soared from 54 to 70 percent, mostly reflecting a shift among men, who are now almost as supportive as women.

The new poll comes just two days after Cato’s forum, “The Case for Marriage Equality: Perry v. Schwarzenegger,” featuring the prominent lawyers David Boies and Theodore Olson, who represent the plaintiffs in a lawsuit seeking to strike down California’s Proposition 8. Find video of the event here. The event also featured Robert A. Levy of the Cato Institute and John Podesta of the Center for American Progress, co-chairs of the advisory board of the American Foundation for Equal Rights, sponsor of the lawsuit. Read their Washington Post op-ed on the case.

Gays and the Law

Dale Carpenter of the University of Minnesota Law School, who wrote a Cato Policy Analysis on the Federal Marriage Amendment, has an op-ed today in the New York Times about changing attitudes among lawyers and judges about sexual orientation:

The prestigious law firm King & Spalding has not fully explained its decision this week to stop assisting Congress in defending the law that forbids federal recognition of same-sex marriage. But its reversal suggests the extent to which gay men and lesbians have persuaded much of the legal profession to accept the basic proposition that sexual orientation is irrelevant to a person’s worth and that the law should reflect this judgment.

And speaking of sexual orientation and the legal profession, don’t miss our upcoming Policy Forum with superlawyers and co-counsels Ted Olson and David Boies, “The Case for Marriage Equality: Perry v. Schwarzenegger,” on May 18.

Marriage against the State

I’m pleased to announce the publication of my new Cato Policy Analysis, “Marriage against the State: Toward a New View of Civil Marriage.”

As I note in the introduction, it’s quite rare that Congress ever considers marriage as a policy area in its own right. There are comprehensive health care bills, defense spending bills, farm bills, and civil rights bills, but no really comprehensive marriage bills.

Of course, this might be a good thing, but one of the side effects is that marriage policy can be haphazard in the extreme. Inconsistencies and surprises abound. Marriage influences welfare, immigration, tax law, child custody and support, and many others besides.

Are all of these things legitimate? A popular view among libertarians is that the federal government, and possibly the states, should get out of the marriage business altogether. It’s an approach with much to recommend it, but I can’t entirely agree. For at least some areas of public policy, marriage represents a barrier to government meddling in your financial, family, and intimate life. In these areas, it’s an unqualified good. Marriage is often a defense against the state, and as such, it’s something libertarians ought to want.

Consider child custody. All children born to a married couple are presumed to belong to them. You don’t have to do anything special to assert your paternity (or maternity). You are presumed to have it. This is probably for the best. Inviting the government to prospectively examine married couples’ fitness as parents is one of the most corrosive things I could imagine doing to the nuclear family.

Or consider the gift-tax exemption for married couples. Husbands and wives may gift one another money or property without limits, tax-free. It’s an important part of the financial independence that we are accustomed to having in our families, and it allows a family to conduct an interdependent financial life with dignity and autonomy.

Yet this same exemption, oddly enough, can make a legal divorce cheaper than the breakup of a never-married relationship. A married couple can divide their assets, including houses, cars, and other properties, before they split up. A never-married couple will often have to pay taxes on their pre-breakup transfers – making the government in effect a third party to their relationship. No one would want this for all couples, of course, least of all libertarians.

Extricating marriage from other parts of federal law won’t be easy, either. For some fairly complicated reasons that I explain in the paper, the only way to make the income tax fully neutral with respect to marriage – and also neutral across families with unequal income distributions between spouses – is to adopt a flat tax. While I share the view of many of my Cato colleagues that a flat tax is a good idea, the marriage-related consequences of our current tax system aren’t always appreciated as a reason to move in that direction. They should be.

As a third example, consider immigration. Marriage to a citizen considerably hastens the process of immigrating legally. Even if that process were not unconscionably slow (which I think it is), we would probably still want the immigration of marriage partners to be a high priority. Immigrant spouses of citizens are clearly integrated to some extent into American society. The American spouses’ own liberty interests are clearly implicated. And, perhaps best of all for critics of immigration, immigrant spouses’ numbers are relatively small in any case.

Lastly, and because I know a lot of you probably skimmed up to this point, I do discuss same-sex marriage. One of the more common arguments against same-sex marriage is that those who have moral objections shouldn’t be forced to subsidize same-sex unions with their tax money.

Let’s grant the basic justice of the argument (and never mind that Quakers, Buddhists, and others could morally object to our enormous defense spending!). Still, it’s not well known that by the best available estimates, federal same-sex marriage would leave the government in a better fiscal position, not a worse one. A good way to channel less federal money to same-sex couples is actually… to allow them to marry.

Why is this? Well, some married couples still pay a marriage penalty, and gay and lesbian couples obviously would too. More significantly, spouses’ incomes and assets are declared in the means testing for federal welfare programs. Marriage would exclude some gays and lesbians from these programs. They may want marriage anyway, but on balance, it’s clearly not for grabbing federal dollars.

I discuss quite a few other marriage-related issues in this Policy Analysis, and even so, it’s not remotely comprehensive. My goal is to suggest a new way of thinking about marriage, one that evaluates the effects of various marriage-related policies using the individual right to form a family as the standard. Not every aspect of federal marriage policy stands up, but some of them do. Let’s let a new conversation begin.

Krauthammer Misreads History

Charles Krauthammer calls same-sex marriage “the most radical redefinition of marriage in human history.” Really? Some might say that ending “till death do us part” was more radical. And maybe ending the requirement that the bride promise to “love, honor, and obey.” And how about the end of polygamy? Polygamy was probably the most common marital system in the broad sweep of human history, but now it is virtually unknown in the Western world; indeed, ahistorical conservatives warn that allowing two people of the same sex to make a vow of marriage could lead to polygamy.

More currently, I would suggest that the truly radical redefinition of marriage is the revolution over the past generation in the idea that people should marry before they cohabit or have children. Barely a generation ago cohabitation simply wasn’t acceptable; now it  is just assumed. Out-of-wedlock pregnancy is celebrated on the cover of People and no one seems to much care. In 2009, for the first time, more 25- to 34-year-olds were unmarried than married. A writer as smart as Krauthammer should be able to see that that gay liberation and gay marriage are a product, not a cause, of the unprecedented redefinition of sex, marriage, and childrearing.

But like socially conservative politicians, Krauthammer is not about to confront his friends, colleagues, and fans by denouncing that radical redefinition of marriage. Sensing discomfort with rapid social changes, he shouts “Look over there!”

Reducing the incidence of unwed motherhood, divorce, fatherlessness, welfare, and crime would be good for society. But it’s not easy to figure out what to do. That’s why social conservatives point to a real problem and then offer phony solutions.

Who I’m Not Voting For

It’s that time of year again, when friends start telling me about this or that candidate I should support because he or she is a dedicated defender of liberty and limited government. I’m a political junkie, so I love getting these recommendations. But I don’t end up supporting or contributing to many candidates. In my view, it’s not enough for a candidate to say that he’s ”committed to slashing wasteful spending, providing tax relief, and eliminating red tape.” What’s your actual tax plan? What spending do you propose to cut or eliminate? Not many of them offer clear answers to that.

And liberty involves more than just economics. Often I’m told, “Congressman X is a libertarian.” I always check, and then I say, “He voted for the war, the Patriot Act, and the Federal Marriage Amendment. Sounds like a conservative.” Now a conservative who opposed President George W. Bush’s trillion-dollar spending increase, his Medicare expansion, and his stepped-up federal involvement in education is a lot better than your average member of Congress. But those votes do not a libertarian make.

This year I’m looking for candidates who stand for freedom across the board, who want government constrained by the Constitution, who believe in the principles of individual liberty, limited government, free markets, and peace.

And that means I don’t want to back candidates who support

  • the war in Iraq
  • the war in Afghanistan
  • war with Iran
  • the war on drugs
  • the constitutional amendment to override state marriage laws and make gay people second-class citizens
  • the president’s power to snatch American citizens off the street and hold them without access to a lawyer or a judge
  • new restrictions on immigration

So don’t everybody write at once. But I’ll be looking out for political candidates who support liberty and limited government across a wide range of issues.

Marriage, Private and Public

Wouldn’t it be great if we could just get the state out of the marriage business? Perhaps. Marriage is fundamentally private, after all. It’s a matter for families, churches, and couples to decide for themselves.

Yet state recognition of marriage often acts to keep the government out of private life, to ensure family stability, and to give regular, orderly rules for all those times when, despite our best efforts, family and state still collide. Here are just a few of the things that the civil side of marriage does:

  • If you’re happily married and you have children, you don’t have to worry for a moment about child custody law. Your children are yours to raise jointly, whether they are biological or adoptive.
  • If you’re married and you die without a will, your spouse typically gets at least a share of your estate. You don’t have to do anything special for this to happen. It’s automatic, and I think this probably strikes most people as fair.
  • If you’re married, you don’t need to do anything special to be able to make medical decisions for an incapacitated spouse. It’s presumed that you are competent to do this.
  • You can sponsor your foreign spouse for U.S. citizenship.
  • You can sue for wrongful death of a spouse.
  • You can collect a spouse’s Social Security benefits.
  • You can often keep joint personal finances without worrying that your spouse will bankrupt you.

Depending on where you live, some of these protections can be won outside of marriage, if you’re willing to go to a lawyer and spend a few hundred bucks. Others, like the last four, can’t be had without either a marriage or a blood relationship.

State recognition of marriage protects families, often from the state itself. If the state got out of the marriage business, the state would be a lot more in all of our private lives, judging, inspecting, regulating, forbidding, taxing, redistributing, and all the rest. Much of the state part of marriage is really a protection against the state.

All of this is a lead-up to saying congratulations to the same-sex couples who will now be able to marry in Washington, DC. Perhaps even more than other types of marriages, same-sex marriages need these protections. (Some, like sponsoring an immigrant or collecting Social Security, may have to wait for federal law to catch up.)

On the whole, same-sex marriage means that gays’ and lesbians’ private lives can stay private. It gives them a protection against the government, which has too often been used against them. It means that gays and lesbians can be treated the same as any other group of citizens. And it means that their basic right to be left alone is finally being honored.