Freeing Marriage from Church and State

by Mario Rizzo

The passage of a same-sex marriage bill in New York State is to be welcomed by all those who advocate freedom of contract. But now further steps must be taken on the road to free marriage from state interference.

The content of the commitment that people make to each other under the rubric of marriage should be up to individual choice, although I have no object to a standard-form contract for those who may find choices confusing. And secondly the existence or non-existence of a marriage should not be a condition for tax or any kind of welfare-state privileges.

On the first, let individuals decide whether “infidelity” violates the contract. Let individuals decide how long the relationship should last. (Note that that Jeremy Bentham, the father of utilitarianism, advocated temporary marriage.) Of course, we already have prenuptial agreements that arrange for property division upon termination of the marriage. But there could also be fine-tuning of other financial arrangements during the marriage.

On the second, there will be much disagreement by those who fought for same-sex marriage precisely for the special tax and welfare-state privileges associated with marriage. The state should neither favor nor penalize those who are married. It should simply enforce the contract as it does with other contracts.

For example, marriage should not lower or raise the taxes of the individuals involved. People ought to be able to transfer wealth after death with the same inheritance tax treatment (preferably zero) regardless of whether the person was a spouse or not. If some Social Security benefits are paid to the surviving spouse these ought to be assignable to any particular individual the individual lists as a beneficiary.

I do not believe that the state should busy itself about providing incentive or disincentives to individual contractual behavior that violates no one’s rights. If the institution of marriage has a good social purpose it is because it enhances the lives of the individuals involved.  This is not inconsistent with recognizing that there may be external benefits (or costs) to marriage relationships.  At the margin, I would guess (until further strong evidence to the contrary is provided) that the individual incentives to marry are enough to drive to externality to some non-positive point (that is, either zero or negative).

The Churches can bless whatever they like and condemn whatever they dislike.  But individuals should be able to follow their own consciences and values in determining the nature of their relationships.

Who knows what the myriad of “experiments in living” will help us discover about society and ourselves?

35 thoughts on “Freeing Marriage from Church and State

  1. The best argument regarding the tax thing in this. If you do nothing when people become married and one of them is very highly productive, you create perverse incentives, assuming we have a graduated income tax. The more highly productive one will want to work only a portion of the year, until he/she reaches the cusp of the highest income bracket. At that point, the spouse will begin working.

    Of course, there are many problems with this argument. It makes many silly neoclassical assumptions about the zero transaction costs involved in choosing when and how to work. But it still should apply to some people some of the time. It also draws into question why the efficiency of our tax code could dictate our social policy. But it is a genuine rationale for wanting to allow people to file jointly.

  2. “I have no objection to a standard-form contract for those who may find choices confusing.”

    Thank you, this is the clearest thing I have read.

  3. Marriage is a standardised contract; it has evolved over time since it became, legally, a secular institution – the introduction of non-fault divorce, for instance – but it is still one of the most standardized in law, and it’s not likely to become a very plastic contract for the simple reasons that there are all sorts of trazaction, enforcement and menu costs – this is precisely why in Europe the legal profession, first and foremost, came up with new cvasi or para-marriage arrangement like cohabitations contracts and so on, which sliced the bunddle of contractual rights and obligations of a marriage (ranging from settlement of disputes, common property, legal contracts with third parties, rights over children etc) so as to better fit the demands and constraints of different people. All this happened before there was any question of homosexual marriage. I continue to believe that this is the best way to settle the matter, although I can understand that gay rights activists consider “marriage equality” a sort of recognition and a sort of triumph over the condition of opressed minority.

  4. We’ve hashed this matter out before on this blog. I still think you’re not dealing with the incomplete contracts point, Mario. Calling it “marriage” brings in a great body of law, as Bogdan says. I view that as an important reason to support gay *marriage* as opposed to gay something-we-don’t-want-to-call-marriage.

  5. I said I have no objection to the “standard form” for those who want to adopt or apply the whole legal history to their case.

    But ultimately with adoption of a more individually tailored form of marriage courts will do what they do with (incomplete) commercial contracts — try to discern the intentions of the parties from what they actually agreed to. Over time certain classes of contracts will have default rules. People

    may agree to certain arbitrators. It will take a little time. But, hey, we don’t have one size fits all commercial contracts, including humble consumer contracts.

    The main thing is we should not be slaves in our personal life to the state or the Church or to the least-competent contractors.

  6. As to the word “marriage” — yes, I agree, it gets confusing to use that word for very different arrangements. But the purpose of my post is to push things beyond where they are now with the hope that the many variations of marriage will deprive “marriage” of much legal meaning and ultimately abolish it in favor of individually-tailored “civil unions” for all. But some will want the traditional thing. Legal and cultural change is messy — words and institutions undergo changes in meaning.

  7. Mario,

    Okay, I think that puts us on the same page. There is a default marriage contract, but people should be able to contract around particular features they want to change. Right on to experiments in living.

  8. “If the institution of marriage has a good social purpose it is because it enhances the lives of the individuals involved.”

    The possibility of such private enhancement is clearly a positive social benefit of marriage. The raising of children in supportive families headed by married parents is another; the potential for positive externalities is obvious, and appears to be the basis for the state to favor marriage as the preferred institution for producing and investing in children.

  9. I would think that the biggest roadblock to the denationalization of marriage, or opting-out of standardized-form clauses, isn’t tax related privileges, but the immigration privileges it grants. I don’t see this happening without major changes in how we think of nationality.

  10. Dear GlibFighter,

    I do not know of many people who remain in a committed relationship around the rearing of children mainly because of tax advantages to the married state. Now the tax advantages that accrue to people with dependents is another matter. I express no opinion on this.

  11. I oppose the state determining the definition of marriage and who is married.

    But, by reducing marriage to nothing more than a contract, you have changed the traditional definition. From now on we will have to talk about gay marriage and real marriage. This is the same thing socialists did with the term “liberal.” Now we have to define it every single time we use it in order to prevent confusion.

    They did the same thing with morality. The great atheist philosophers meant universal truth about how to act. Now it means nothing more than personal tastes and you have to define it to avoid confusion.

    Homosexuals wanted to steal the morality that marriage connotes without accepting the religious definition. Otherwise, why not accept the commonly used term “civil union”?
    This issue should fall under Hayek’s fatal conceit. For Hayek it was the idea that intellectual could make up the laws of economics as they went along. That’s not much different from the idea that humans can make up morality as they go along.

  12. Roger,

    The fundamental issue for those who oppose same-sex marriage is find some concrete harm that is likely to occur if those who wish to pursue conventional marriage continue to do so along side of those who are same-sex married. What harms will those who are conventionally married suffer?

    First, I am not impressed by issues of DEFINITION. Words change their meaning. In itself this is of no consequence.

    More substantively, we cannot claim that the conventional marriage bond will become weaker — at least that doesn’t seem plausible to me. Divorce is already quite easy. Most marriages do not survive a lifetime. Many people are “unfaithful.” “Scandal” is daily given by irresponsible heterosexuals who marry irresponsibly. And so forth.

    You say “reducing” marriage to contract. I say raising it to contract. The history of freedom is written along the path “from status to contract” (Sir Henry Maine).

    I am more of a rationalist in morality than Hayek. Henry Hazlitt and Carl Menger argued that, although there is much to be said for spontaneously evolved moral rules, they are not definitive. Each generation has the responsibility to critically evaluate what we have been handed (Menger) and ethical presumptions can be overcome under the light of reason (Hazlitt). Otherwise, we may consign our selves to superstitition.

    I should also add that Hayek never argued that spontaneous ordering processes of rules and institutions were error free.

  13. Mario,

    I don’t oppose SSM; I oppose the state being involved in the issue at all. I do oppose them using the term marriage for what they do because it’s simply dishonest.

    As for determining the harm of SSM, changes in morality take a great deal of time to show their effects. That was Hayek’s warning about faux rationalism and the importance of tradition. The effects of some institutions are very long term. Hayek wrote that religion played an important role in protecting institutions for which there was no short term rationalization, such as property rights.

    I have never witnessed a word change its own meaning. (I’m being facetious). My experience is that words tend to be rather fond of their traditional meanings and do all they can to keep them. Words only change their meanings when people force them to. And why would people force the meaning of a word to change? Often the cause is simple ignorance, such as in the common usage of ornery. But often it’s dishonesty. People desire the connotation of a word but don’t like its definition. So they use intimidation to force weak minded people to change. That’s what happened to the world “liberal” and “capitalist.”

    So I guess you would be open to experimenting with eugenics again? And btw, that is not a slippery slope argument. The issue is this: if “morality” is nothing but an experiment about the harm of differing personal tastes, what logic is left to prevent the most distasteful practices? And what happens when those practices are no longer distasteful?

    What would a society look like in which morality doesn’t exist at all, only things deemed harmful to society? And who would determine what is in the long run harm to society? By today’s standards, some pretty evil societies existed in past, but those societies saw no harm in what they were doing. In fact, the Southern state were willing to fight to the death to retain what they saw as a very moral and necessary slavery.

    SSM seems like a very simple issue on the surface, but it has wider consequences.

  14. I wish I could get Austrian economists to see the parallels between economics and morality. When I read “Fatal Conceit” my first impression was how much is paralleled the debate about morality.

    Epistemology for morality is very similar to epistemology about economics. For example, the old institutional school of economics is not much different in methodology and outcomes than the idea that morality is different for differing episodes and geography.

    Maybe I see it more because I discuss economics with socialists quite a bit on different blogs. The arguments against object morality are very similar to the arguments against free markets, private property, state intervention, etc.

    Even common people who are not socialists hate the idea that economic laws exist. Even for the well educated, economics is mere ideology, personal preferences. So-called pragmatists scoff at any suggestion of economic laws. They say the practical man should be willing to experiment and do whatever is necessary to solve the problem at hand and not worry about ideology. How different is that from the typical discussion of morality?

  15. McKinney, I’m still not seeing what your argument is. What does morality have to do with the definition of marriage? I don’t disagree on the usage of the word, I think it’s rather silly, adult men wanting to have their unions associated with little princess weddings and churchy cultisms. But you are only alluding to a moral issue, though you say you aren’t opposed to gay unions… just homosexuality in general? Say what you mean.

    To me the useful and edifying alliance between me and my partner is something to carefully craft for maximum utility to us both. Not sign a one-size-fits-all form and leave it up to some judge to apply what he thinks is best upon us at some possible future point.

  16. Jeremy: “I think it’s rather silly, adult men wanting to have their unions associated with little princess weddings and churchy cultisms.”

    That’s funny, and there is a lot of truth in it! Yes I think homosexuality is immoral. But I don’t think the state should enforce my moral code of conduct or tell people what marriage is. Traditionally, marriage in most cultures has been society’s way of distinguishing moral sex from immoral sex. That has been the purpose and definition of marriage for at least 8,000 years.

    Now people want to change the definition because they find it too restrictive, but the want to keep the moral connotation it carries. Why aren’t homosexuals satisfied with the piles of civil union legislation passed over the past generation? Those laws give them all of the tax and benefits of marriage.

    Most Christians who consider homosexuality to be immoral don’t want the state to do anything about it. They think homosexuals should be left alone to do what they want. And they certainly don’t approve of the persecution and violence against homosexuals. We don’t consider homosexuality any more immoral than adultery, and we certainly don’t want to stone adulterers. That would kill half our churches.

    At the same time, we don’t appreciate the homosexual evangelism that goes on in the mainstream media, or homosexuals trying to steal the morality of a religious ceremony.

  17. Jeremy, however, the point of my last two rants was the cavalier attitude that economists take towards the field of the philosophy of morality. They take an approach very similar to that of Marxists looking into economics: it’s all ideology so why bother thinking very hard about it. My opinion is as good as the next guys.

    Applying the same sloppy thinking to economics as many economists do to morality would result in the current mess the US is in today.

  18. Mr. McKinney can have his own moral views, however misguided I may think they are. It is good that he doesn’t want to use the state to enforce his morality. If the state says it will recognize certain contractual relationships as “marriage” Mr. McKinney need not do so as well, nor must any church/religion. Civil marriage — going to city hall to get married — is not a religious ceremony. It is simply a legal thing. Mr.Mckinney’s real “enemies” are those liberal churches that will have religious ceremonies blessing such marriages and invoking the name of Jesus Christ.

  19. Mario, How can you say my moral views are misguided if you believe morality is nothing more than personal tastes? How can your personal tastes be less misguided than mine?

    I have known many Christians to get married at city hall, and they still regard marriage as a religious ceremony and adultery as immoral.

    And I don’t have any enemies in this fight. Just people I disagree with. Besides, liberal churches don’t believe anything in the Bible is true. They don’t believe in the same god or Jesus Christ. Heck, they aren’t even sure Jesus existed. So why would I care what they do?

  20. “How can you say my moral views are misguided if you believe morality is nothing more than personal tastes?”

    I do not believe that morality is a matter simply of personal tastes. You have simply assumed that.

    In addition, your characterization of liberal Christianity is also incorrect.

    But now we have moved beyond the subject of the blog post. I am signing off.

  21. Mario, If you don’t accept that objective morality exists, there is nothing left but personal taste, no matter what language you dress it up in.

    And my characterization of liberal churches is exactly right on. I studied under some of their theologians as an undergrad.

  22. McKinney: You are seem to be saying that there are two possibilities. 1) Your particular version of a “objective morality” and 2) “personal taste.” You are in error regarding the facts. There are more than these two options available. Your apparent refusal to acknowledge as much might bolster your inner sense of conviction, but it does not make your views more persuasive to those not already in agreement.

  23. Roger, no, there are not more than two possibilities. Either morality is given to us by a higher authority or we make it up ourselves. If we make it up ourselves then regardless of the fancy language it all boils down to personal tastes.

    Some will argue that we can decided what is best for mankind and use reason to determine the means to achieve that, but you’re going to have a lot of disagreements over what is best for mankind as well as differences about the short run and long run consequences, just as you have in economics. What everyone sees as best for mankind depends on your particular values and therefore on personal tastes.

    Some will argue that what we call morality is the work of natural selection that enabled the species to survive millions of years ago. We just don’t know the original circumstances. If true, that means that or moral ideas are no longer valid and we are free to make up whatever morality we want, and that will come down to personal tastes.

    Others will argue that morality is a social contract. But social contracts do nothing but aggregate personal tastes. People with the same personal tastes get together and ridicule and exclude those with different tastes.

    Did I miss someone?

  24. Well, Roger, that’s where you have to put in some hard work, study philosophy and religion and determine that for yourself. I have done that for myself over the past 40 years, but it’s an ongoing process.

    However, if you put enough time into it you’ll find that the major religions differ very little on the main points of morality.

    I realize that economists will find this hard to believe, but the study of religion and philosophy requires as much hard work and clear thinking as does economics. Finding the truth is a matter of sound methodolgy married with sound logic.

    Irreligious people laugh at the many different religions, but what about the many schools of macro economics? Have you vanquished Marxism, yet? Does the fact that many contradictory schools of economics exist make the field just another religion?

  25. BTW, a good place to start is Ed Feser’s “The Last Superstition”. He lays the groundwork for sound methodology in thinking about religion and morality.

  26. “. . . determine that for yourself.”

    Um . . . surely you have anticipated my comeback, Roger? To be clear: Isn’t it, then, a matter of the reviled “personal taste”?

    Also, if the issue is “authority,
    ” what does it matter if false authorities “differ very little” from the revealed ethics?

    Finally, I really don’t see what’s so attractive about “authority” in the first place. I would like to have, for example, the moral courage to spurn any deity who would order me to slaughter my own son.

  27. Roger: “To be clear: Isn’t it, then, a matter of the reviled “personal taste”?

    So your decision to follow Austrian econ instead of Keynesian econ is just a matter of personal taste? I don’t think so.

    There is a difference between just asserting something to be moral because I find it personally pleasing (or immoral because I find it disgusting) and arriving at a conclusion based on sound epistemology and logic.

    Economics is an example. Socialists dislike free markets because they dislike the uneven outcomes. Their economics is based on personal tastes and they think they can make up economic laws to suit their personal tastes. Good economists don’t make up economic principles. They discover them based on human nature.

    Morality is related to the search for truth. If one doesn’t care about truth, then one is free to make up anything and assert that it is true. But if one wants to know that something is true, then he has some work to do and a process to follow. If he follows the process then he can be confident that he has arrived at truth.

    “what does it matter if false authorities “differ very little” from the revealed ethics?”

    It matters because it suggests that they have a common source. And how do you know they’re false?

    “I really don’t see what’s so attractive about “authority” in the first place.”

    It means the difference between making up morality and discovering true morality. I can assert that something is immoral because I find it disgusting, or I can discover what true morality is through logic based on fundamental truths about reality.

    “I would like to have, for example, the moral courage to spurn any deity who would order me to slaughter my own son.”

    Of course you would because you think you are the ultimate authority on morality. Your personal tastes trump everything and god is nothing but a nuisance to you. But then, on what grounds would you argue that a deity who ordered you to slaughter your own son was immoral to do so? After all, that deity merely has personal tastes that differ from yours.

  28. “or I can discover what true morality is through logic based on fundamental truths about reality.” Uh, . . . So what happened to “authority”? Perhaps the existence of some sort of Judeo-Christian creator god is one of the “truths about reality” you rely on. But if you are somehow relying on divine authority, what use is reason? Imagine revealed truth is absurd. (Recall Tertullian’s “certum est, quia impossibile.”) In that case, would you criticize it on the basis of reason or cast reason aside?

    All this got started because I pointed out that the menu of choice is richer than *your particular version* of “objective morality” and “personal taste.” Now you are coming around to statements about study, reason, comparing alternative systems to note common elements, and so on. Yeah, right. It’s a worthy subject of reasoned discourse. But doesn’t such a posture rule out the dichotomy I have criticized? Maybe some tenet of *your particular version* of “objective morality” is mistaken? If that’s not possible, how is it that your reason is infallible? If it *is* possible, then mightn’t it also be possible that more than minor or trivial errors have insinuated themselves into your moral reasoning? If so, then surely the list of possible positions that are not “personal taste” includes more than one entry, namely, *your particular version* of “objective morality”?

    Oh and by the way: Please stop imputing to me opinions that I have not expressed. Frankly, it makes me angry.

  29. Roger: “But doesn’t such a posture rule out the dichotomy I have criticized?”

    No it doesn’t. I didn’t write you a thesis with footnotes in my previous post. What I wrote was a summary of the outcomes of people who followed the differing views on morality to their logical conclusions.

    And if you have read the great atheist philosophers from Nietzche to Pete Singer you would understand that none of them disagree with my summary. Their unanimous conclusion was that without a god there can be no rational determination of morality.

  30. Okay, Roger. A lot of complicated arguments too vast to state in a blog comment show that anyone who disagrees with (again) *your particular version* of “objective morality” is elevating “personal taste” to an ethical norm. Sure, let’s go with that.

  31. The same epistemology and methodology that Austrian economists use to discover truth in economics should be applied to the discovery of morality. If you think that is something I invented and nothing more than my personal taste I can’t help you.

  32. I suppose the fact that all of the great atheist philosphers insisted that no objective morality is possible without God means anything to you.

  33. Okay, I’ll jump in again, probably for the last time.

    1) Now you’re telling me what my methodology is? There is no such thing as “the” Austrian methodology and I imagine my ideas on methodology do not match your model of “the” Austrian methodology.

    2) You have totally evaded my questions about fallibility.

    3) All the great atheists, eh? Yeah, yeah, Nietzche looked into the abyss and all. But there is a utilitarian tradition that is perfectly “objective.” Hume, the Mills, and dear old Hayek are in that tradition. Plus recent naturalist work based in part on Darwinism, which Hayek fits into as well. So your categorical statement about “all” the great atheist philosophers just does not wash unless you define “great” to make it true, but empty. Even the Buddha may not count as a full-on theist and made no use of the concept of divine authority. On the contrary he was explicit about *showing* and not *claiming*.

    You know, Roger, I don’t know that I really understand what precisely your position is, but you sure argue like a lot of these self-styled Straussians. (I don’t know whether Strauss was a “Straussian” in that sense.) I don’t care for the pretense of those (supposed) Straussians I have bumped into from time to time, and I would be glad if you would yourself take a more amiable posture.

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