Getting the Government (Back) Out of Marriage
2018-03-02 · Guest: Sarah Skwire and Steve Horwitz (Liberty Fund and St. Lawrence University) · 51:14
The Libertarian Case for Privatizing Marriage
Bob Zadek discusses the libertarian case for privatizing marriage with guests Sarah Skwire and Steve Horwitz. They explore the historical origins of marriage licenses, the economic distortions caused by state involvement in the tax and welfare codes, and how a contract-based system would better serve diverse modern relationships.
Topics: Marriage Licensing, Libertarianism, Contract Law, Tax Policy, History of Marriage, Private Governance
Speakers:
- Bob Zadek: Host and business attorney
- Sarah Skwire: Senior Fellow at Liberty Fund
- Steve Horwitz: Professor of Economics at St. Lawrence University
Introduction to Marriage Licensing [00:18]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on radio. The show of ideas, never of attitude. Today is kind of a first for the Bob Zadek Show. Today’s topic is marriage. Specifically, the license of marriage. My regular listeners know how much I despise the noun “license,” the verb “to license.” I despise it because whenever we need permission from the government to do something that is personal to us, that doesn’t affect anybody except for ourselves, we resent the fact that we need permission to do a purely personal act. And in all of the licenses that government issues to us, the license to marry—to enter into a private, intimate, and sometimes financial relationship with somebody that we have selected or that has selected us—the need to get a license is abhorrent to all, or should be to all, freedom-loving Americans. With that introduction, I’m happy to welcome to the show for the first time two licensees, if I dare say, Steve Horwitz and Sarah Skwire. Steve and Sarah, first of all, congratulations, and second of all, welcome to the show.
Sarah Skwire: Thank you very much, Bob.
Steve Horwitz: Great to be here.
Bob Zadek: Now, Steve, you and Sarah—or I’ll address my questions to either one of you and you can decide amongst yourselves which one of you is going to answer, I don’t want to intrude into that part of your relationship—so, you are married, and I presume you have a license. Because I don’t want to be involved in this show in having you live through day-by-day an unlicensed activity. That would be contrary to all that I stand for. So, I presume since this is your wedding anniversary, I presume you have a license.
Contract vs. Permission [01:53]
Steve Horwitz: We do.
Sarah Skwire: We have two.
Steve Horwitz: We have two.
Sarah Skwire: When Steve and I—Steve and I are Jewish—and when Jews get married, there is a religious license called a ketubah. It’s a contract, really. It takes the form of a contract between the two people who are getting married. In the old days, it took the form of a contract between the families of the two people who are getting married, and states the obligations—primarily the obligations of the groom to the bride—and allows for the dissolution of the marriage if those obligations are not met. So, we have a ketubah, which is a very beautiful work of art and it’s framed and it is hanging in our bedroom. We also have a standard civil religious license from the state of Indiana, which was printed out for us at the city-county courthouse. And I think it’s in the—
Steve Horwitz: It’s in the strongbox, tucked in a drawer where we keep all the stuff like bank records and, you know, whatever. And obviously, it doesn’t have the meaning for us that the beautiful ketubah does. And I think one of the interesting things is, as you said, Bob, right, it’s a license. And I think the distinction here for us is the distinction between a license and a contract, and then the distinction between having to ask the state for permission to get married versus the contract, which reflects our consent, our willingness to be together.
The Communal and Status Aspect [03:17]
Bob Zadek: And you exactly—it’s interesting how so early in the show you have framed the issue which we are going to be discussing this hour. You have pointed out a contract which you negotiated between the two of you, a contract which is personal, that sets forth the rules by which you will live together. And that is a contract negotiated—it is, like most contracts, a private affair negotiated between the two of you, and it is frankly nobody’s business except your own because it is a private contract. But then you have the government saying, “Well, let’s see, Steve, let’s see, Sarah, well, okay, we will permit you to marry each other to enter into this contract.” And that distinction between a license (permission) and a contract (freely negotiated between the parties and intensely personal) frames the issue for today’s show. And I should point out that the marriage license is, in the area of governmental licensing, it is unique. And here’s why it is unique, and I think we will flesh this out during the show: a marriage license is the only license which only conveys status. It’s like a license to be a knight, or an earl, or a baroness. It only creates status. That Steve and Sarah and every other married couple will perform—whether it’s sharing property—what is this show’s problem with the state being in marriage?
Steve Horwitz: Well, I mean, one of the problems with the state being in marriage, I think as you suggest, Bob, is that it gives the state the ability to sort of pick and choose who is eligible for this status, right? I mean, that’s, you know, one of the I think great parts about the libertarian argument for getting the state out is that we don’t have that, right? People are able to decide for themselves who or what counts as marriage and, as you say, to negotiate those terms.
Sarah Skwire: And they’re able to decide with their communities, Bob, as well. I mean, you spoke about a marriage contract as being purely private and entirely between two individuals. And while I think that is in part right, it’s also a contract—at least in the case of our ketubah—it’s a contract that you sign publicly in front of friends and family, and in fact, that is read out as part of the ceremony. So that everyone in your community of family and friends knows and understands the promises that you have made to one another. And their presence there and their physical witnessing of the signing of the ketubah, and sometimes their signing of the ketubah as additional witnesses to it, indicates their approval of and their support for that marriage, right? That kind of community approval, community support, community recognition that a couple counts as married is, I think, what should be much more important than government acknowledgment of a marriage.
Steve Horwitz: So, just to follow that up too, I do think one of the other issues when we think about why it’s important to have that sort of public acknowledgment, and even why people think that the state needs to license marriage, is there’s another group that’s part of this potential part of that community, that family, and that’s children, right? Part of the obligations that married couples have is that if they have children, is to care for those kids. And sort of the public ceremony of a wedding, certainly, and the public reading of that contract indicates that everyone understands they’ve taken on—that couple’s taken on those obligations. And I do think one of the reasons people think the state needs to do this—and as you say, maybe it doesn’t—but one of the reasons people think is that there is this third group of third parties in there, children, to whom the married couple has obligations. And so to the degree that we think the state granting that status has something to do with that—and it’s not clear, because certainly we know plenty of couples who’ve been officially married by the state who are lousy parents, right?—but I think that’s how people think about why the state and why one might need a license for that wedding, is that children are an important part of that communal story too.
The History of Marriage Licensing [05:54]
Bob Zadek: But of course, in society in 21st-century United States, it is not uncommon at all—or to use the affirmative, it is quite common—for there to have children without being born, as they say, out of wedlock, not part of a legal marriage. And we have long since learned more or less—we don’t do a great job, but an okay job—we’ve long since learned how to manage that relationship. And we have lots of regulations governing duties of the natural parents of the child, duties of the parents to the child, we have the infrastructure to supervise that. So, children is hardly the reason to license marriage. Now, Steve or Sarah, we are talking about getting the state out of marriage. So, my question is why? Given it’s not a headline for the government to intrude itself into our private affairs—that’s not a headline—but what is your problem with the government requiring or creating the status of marriage? Why would you prefer a society without it?
Steve Horwitz: Well, I think one of the advantages is that when—if you think about our earlier discussion of the Jewish wedding contract, right?—it enables couples, and perhaps more than two, to fashion contracts and arrangements, as you said earlier, that sort of fit their own needs, right? I mean, one of the problems we have right now is that when we have government not just licensing marriages but defining the terms of marriage, defining the terms of divorce, so forth, it makes it—it’s more of a challenge. And when you throw on top of that a variety of public policies that affect the way structure marriage gets structured, we have a sort of tendency towards a kind of one-size-fits-all notion of marriage that simply is not flexible enough for the world of the 21st century in which more people want a more diverse range of arrangements and a more diverse range of perhaps ways of dealing with those arrangements. So, you know, just as one example, we can imagine private marriage contracts that are, you know, a five-year or a ten-year renewable contract giving the couple the opportunity after five years or ten years to say, “Yeah, we want to continue to do this,” or “We don’t,” right? And to sort of walk away without perhaps some of the messiness that we see with divorce. I think what’s key here, right, across all of these things, though, is this idea that marriage has this sort of public commitment component to it. And it doesn’t have to be the state licensing it that’s the public commitment. It’s just that notion that a married couple is saying to the rest of the community and others, “We are married, here are the terms by which we consider ourselves to be married, you now know that, and you have expectations of us and we take on certain obligations as well.” But sort of imagining that the state has to be the one doing that is, as you say, the arguments are not all that compelling.
Bob Zadek: And to put this in perspective, you know, when one is born and you come into the world, the world is at a certain place and there’s certain activities and devices and ways of living. And you assume when you’re born the world has always been that way. Children born today assume everybody is born with a cell phone. I, of course, I remember rotary phones. I remember dialing long distance and paying for it. So, that was the world I remember. So, the point of my saying that is marriage licenses, getting the government into the business of marriage, is relatively new. And it has a fairly ugly history. In America, there were really no marriage licenses. You just got married. There were no marriage licenses until the early part of the 19th century. And then, why were there licenses? And it started in the Northeast as I recall, and about 38 states at that time, they had marriage licenses in order to prohibit white women from marrying, quote, “a drunk, a mulatto, and certain Asians.” In other words, marriage licenses were created not for any public good, but for fairly ugly racist reasons to get the government into a personal relationship as personal as marriage, government get involved only to take away the freedom to live the way you want with another human being. So, let’s remember that ugly history of marriage. Go ahead, Sarah.
The 1950s Outlier [07:29]
Sarah Skwire: Right. And it’s important to remember, I think, that when a lot of people talk about traditional marriage, right, whether they are arguing against say same-sex marriage or whether they’re arguing in favor of continued government licensing of marriage or whatever version of marriage it is that they’re arguing in favor of, when people say, “I’m in favor of traditional marriage, the way that it’s always been,” they’re thinking about a very narrow slice of human history called the 1950s, usually, right? And they are thinking of a decade that’s really an outlier in human history. For most of human history, marriage does not look like—the process of getting married does not look like the process of getting married today. My area of specialization is the Renaissance and the Reformation. And during that time period and during the Middle Ages, right, for much of that time, if you promised you were going to marry someone and then you sexually consummated that relationship, that was considered a binding and legal marriage, whether or not you had gone to church and had a marriage ceremony and been blessed by a priest, whether or not you had a piece of paper that was signed, whether or not you were living together or whatever. If you had promised you were going to marry each other and then you consummated that promise, that was a contractual marriage. And there’s a Shakespeare play that turns on a couple of young people who aren’t quite sure if they’re married or not and end up in a lot of trouble because the laws are sort of changing around them. And there are many real-life instances of not being quite sure of whether one is married or not, right, because the laws are changing where the traditions of society have been different from what the law says. If you fast forward that to the American frontier, for example, when people are living right out on the edge of what was then considered to be civilization, right, couples would often be living together as if they were married, would be generally considered to be married by everyone around them, would not be considered to be living in sin or in any way unrespectable, because they were simply waiting for the circuit rider judge or the circuit rider minister to come through town on his one visit a year to solemnize the relationship, right? But the relationship was viewed by the community and by the people who were in it as already an existing marriage.
Steve Horwitz: And the one thing to add to that is, as you say, Bob, one of the exceptions to that was that interracial marriages at the time were not often treated with that same sort of respect for those promises, right? Those were indeed an exception and sort of the way that licensing later worked. And there were all kinds of ceremonies that people, you know, sort of symbolic ceremonies people had. If your listeners know the sort of history of American slavery, they know that slaves frequently had the ceremony of jumping the broomstick, right, was a symbol of being married. Well, that same idea was used by non-slaves as well to sort of indicate that, and even some places if you jump backwards over the broomstick, that was a way of indicating you wanted to be divorced. So we had all of these very sort of bottom-up, decentralized, private ways of indicating to the community that you were married.
Why Privatize? [09:05]
Bob Zadek: And just so the audience can keep their eye on the goal of how I would see marriage existing in America: just imagine—and now you’re going to get all misty-eyed and aching for this—just imagine an American society where there was no such box to check anywhere that says “married,” “single,” “divorced,” “engaged,” “going steady.” You didn’t have to check any box, and there was no distinction at law for whether you were married or not. Think of the effect upon tax policy, social security, health insurance, gay marriage—so many very artificial results of being, quote, “married” disappear. And all you have is human beings interacting with each other, and whether or not they are married or not is nobody’s business unless they care to share it. But it is never, ever, ever the government’s business. There is no relationship between a human and government that is affected by whether you check the box of “married” or “going steady.” And that’s the goal that I see, that most libertarians see, for the relationship of marriage and government. Steve, is that pretty consistent with your end result if we are able to persuade all of our listeners and society?
Steve Horwitz: Yeah, well, if—there’s an “if.” So, I think two comments on that, Bob. I mean, yes, I mean, it would—look, at the end of the day, would I, would we like to see that world? Yes. So, let me just two points about that. One, I think the real challenge, however, is that as long as government continues to do all of the other things that government does that, you know, libertarians take objection to, you know, rightly, I think the perception on the part of governments and on the part of the public that we need to have some definition of marriage or some ability to indicate who is and who is not married for the purpose—married for the purpose of distributing those benefits, I think is going to be a hard argument to make. It’s tempting to want to say we just have to pull one plug, right, the plug that says marriage is licensed by the state, right, and we’ll sort of address all of these problems. But I think the real challenge is that all the other ways in which—the reasons that marriage matters are ultimately the issue here, right? That we have to fix healthcare, we have to fix the tax system, we have to fix how welfare payments are made. It’s those things that are creating the context in which people then want to have a definition of marriage.
The Goal: Eliminating the “Married” Box [10:57]
Steve Horwitz: So, just as one example, right, if we think about the tax code, historically, the way the US tax income tax code has evolved was intended to favor a particular kind of family, right? So, when you are married and if you file jointly, what we call the secondary earner—that’s the member of the couple who might not work and might choose to stay at home with the kids, usually but not always the woman—the secondary earner is taxed—their first dollar is taxed at the same rate as the last dollar of the primary earner, right? So, that’s a consequence of a progressive tax code and the way we’ve set up joint filing. Now, that, you know, that was set up intentionally in the 1940s and adjustments later on to encourage stay-at-home moms, right, to encourage women not to work. And so now we’ve got this tax code that does that, that depends upon notions of marriage and so on. We can change—there’s ways we can change the tax code that affect the way in which—or make it so that married couples don’t get any favoritism nor any penalty, right? And that also in the same breath, right, if we move to something like a nice low flat tax, right, where we don’t have this secondary earner bias. But it seems to me that you can’t just pull the plug on marriage in the state, as much as we might like to, without thinking about how do we change these other kinds of policies so that when we pull that plug, right, the impact of that is even less than it would be otherwise.
Bob Zadek: This is Bob Zadek, I’m talking with Steve Horwitz and Sarah Skwire. We are celebrating their first wedding anniversary. What better way to celebrate a wedding anniversary than to change the institution of marriage? Oh my god, I get misty-eyed just thinking about it. I’ll be back in 30 really short seconds. Lots more to come, please stay tuned.
(Music break)
Tax Policy and Social Engineering [12:15]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. I’m joined this morning by Steve Horwitz and Sarah Skwire. We are celebrating their first anniversary and discussing the institution of marriage. Should government be in the business of marriage at all? After all, as I pointed out in the first half of our show, a marriage license is unique in all of governmental policy. It is the only—most licenses give you permission to do something: to practice law, to build something, to renovate something. Marriage licenses do not give you permission to do anything; it simply confers status. You get to check a different box with different economic relationships and legal relationships between you and government and you and other citizens. So, the marriage license takes a purely personal relationship and imposes upon the participants in that relationship the obligation to get permission of the government. And to show you how absurd this all is, as recently as the very end of the 20th century, there was a poll taken and the overwhelming majority of Americans felt that the purpose of marriage, the goal of marriage, was to be an emotional and psychological commitment to each other and to provide psychological support for each other. What could be more intimate and personal than that? And to think that you need a license to promise another human being, or dare I say group of human beings, you need a license, you need permission to commit yourself to somebody else’s emotional and psychological support. How absurd is that? Now, Steve, before the break, you mentioned a very important point. You showed how government through the tax code tries to influence behavior. The progressive income tax in effect imposes a marriage tax penalty on two wage earners in a family so that the secondary, as you said, wage earner has his or her income taxed at the highest rate of the other, the primary wage earner. That’s just one of countless examples of how government uses the tax code to influence personal, social, and sometimes intimate behavior. Expand on that if you would, please.
Sarah Skwire: Well, it’s a particularly dire example, I think, Bob. And I actually, you know, I may be one of the few people you know who gets like super excited talking about the tax code, so I’m going to try and keep calm here. But I find this particularly enraging because what the tax code was structured to do here was to prioritize and to encourage single-income families, which sounds great if, say, you happen to be married to an economics professor, right? Steve and I and our kids could do just fine on his single income. We have more fun on our double income, but we could do just fine on his. But for folks who are on the bottom rungs of the economic ladder, for folks who are living right on the edge of the poverty line, right, a two-income family is a huge step—or should be a huge step—out of scarcity and out of the very edge of the poverty line. But because of the way the tax code is structured, a lot of those folks look around, they do the math because they’re not stupid, and they say, quite correctly, “We cannot afford to get married.” And then what happens is the very people who structured the tax code in order to do that to those people say, “Look at those immoral poor people who are not getting married, and look at the failure of families, and look at people who are deciding to stay on welfare and deciding to accept government benefits,” when what these people are actually doing is responding intelligently to the tax code as it is currently structured, and then they are condemned for it by the people who built the tax code in the first place. And there I go getting mad again, so I’m going to let Steve talk.
Steve Horwitz: And when you throw the welfare system on top of that, you get a similar story, right? The ways in which welfare programs are structured—Earned Income Tax Credit and others are structured—discourage poor people from being married. And I think it’s important to note here, right, that there is tons of social scientific and demographic data that marriage is really, really good for people, independent of the question of who’s licensing it or whatever, right? When people get married, they’re happier, they have more sex, they have better sex, they raise kids better when they’re actually married, when they’ve made that public commitment. There’s all kinds of evidence about this. So, for me, the notion that we don’t want to use the state to subsidize marriage, but we also don’t want to use it to discourage marriage either, right? We want people who should be married to get married. It’s good; getting married is good. And I think that when we look at the way the tax and welfare system has discouraged marriage, again, as Sarah said, particularly among poor folks and the working poor, those are for whom the benefits of marriage arguably might be the greatest.
Property Rights and Prenuptial Agreements [14:59]
Bob Zadek: Now, Steve and Sarah, I want to be a devil’s advocate. And whenever I voice the opinion of government, I am of course voicing the opinion of the devil. So let’s stipulate that. So I am going to be government, aka the devil, and I’m going to pose to you the question: doesn’t marriage license and the legal implications of the license—because it’s a change in legal status—doesn’t that protect, let’s say, the woman, typically the party who is being protected, with certain property rights so that when the ne’er-do-well husband abandons her, she is, by dint of being married before the husband abandons her, she gets certain vested property rights she wouldn’t otherwise have? And doesn’t that status protect her from becoming a ward of the state when the ne’er-do-well husband abandons her? So, can’t an argument be made—by the way, I know the answer is no, but I’m going to pose it—can’t an argument be made that there is some benefit in all of the legal implications that come from a governmentally issued marriage license?
Sarah Skwire: Well, maybe and maybe not. I mean, a lot of it depends on the state where you get married, right? Property arrangements and assumptions about whose property goes where should a marriage dissolve are not the same depending on which state you get married in and which state you get divorced in. Steve and I are celebrating our first wedding anniversary, but we have also both been married and divorced in the past, right? So we can tell you a little bit about the differences between getting married and then divorced in Indiana or getting married and then divorced in New York, and the laws are very, very different.
Steve Horwitz: And the other part of this too, I mean, you know, again, we’re going to play this sort of devil’s advocate game, right? The question is always a comparative one. It might well be the case, and I think it is, again, as Sarah said, depending on the laws, that those laws do protect normally the woman from being exploited by the ne’er-do-well husband who runs away. But the question is whether alternatively we couldn’t contract around those.
Sarah Skwire: Right. I mean, we’ve seen more and more prenuptial agreements coming out as a fairly standard part of the sort of wedding process, which suggests to me that people are in fact very dissatisfied with the way that the state handles such matters, so they’ve gone for a sort of—they’ve done an end run around the state here to create a private solution with private prenups.
Standardizing Private Contracts [16:21]
Steve Horwitz: Right. And I think one of the things we would see in a world in which government was not in the business of licensing and sort of regulating marriage, we would see sort of the development of pretty standard marriage contracts that, you know, had various provisions in them, right, that would be the general kind of thing people sign. But you can imagine couples in particular situations—both high earners or something, or one has very highly variable earnings or whatever—where they might want to negotiate something different, or they have complicated child custody arrangements that they’d want to specify in a contract like that. But again, at the same time, you know, you might be able to walk into Walmart or someplace and, you know, get a copy of the standard wedding contract that people use and use that. So, again, there’s a variety of things. And one of the biggest problems I think that libertarians have in these kind of questions is, as sort of ties back to the point you made earlier, that we’re born into this world that we know. And what we’re often trying to argue is, look, there’s this other potential world out there. We think it’s better and we have reasons to think it’s better, but we can’t describe exactly what it’s going to look like precisely because the reason we want that other world is to figure out, right, what those things should look like. And so we just don’t know precisely what a world of stateless marriage would look like. We have some ideas, right, but it’s hard—the rhetoric is hard here because we can’t say this is precisely how it’s going to work and what it’s going to look like.
Resolving Social Conflict through Privatization [17:32]
Sarah Skwire: But, you know, you can think about it—sort of you can draw a comparison maybe to the way that people design their own wedding ceremonies now, right? There are a lot of bits and pieces that just about all Christians will use or just about all Jews will use, and there are some very, very traditional wedding ceremonies that people are happy to use and they’ll use the same ones their parents used or the same ones their grandparents used. And then there are folks who want, you know, quotes from Star Trek or, you know, long discussions of economic policy in the middle of their wedding ceremony or any number of other things that we and probably everybody listening, and I know I’m sure you, Bob, when you’ve been to friends’ weddings, have seen the things that make people’s individual wedding ceremonies quirky and individualistic and work for them. One could imagine the same sort of variety in the kinds of wedding contracts that people have with one another, right? And in the same way that we can’t predict what somebody else’s wedding ceremony is going to look like because it’s going to be personal and it’s going to be intimate and they’ll choose to share it with us, right, and then we know what it’s going to look like, we can’t predict what the terms of somebody else’s wedding contract would look like because they’re personal and they’re intimate and they’re designed to reflect their own personal circumstances and their own personal needs, which is what your marriage ought to do, right?
Bob Zadek: Sarah, you raise such an important point with your reference to prenuptial and indeed there are often postnuptial agreements. And the point being is that society today cannot tolerate, in my opinion, this one-size-fits-all concept where you have state law that says once you get married, here’s the deal. And people say, “That’s not our deal.” And so they draft around it. They have a contract that undoes the rigid statutory property effects of marriage law, of family law in the country. And the point is, if you get rid of the marriage license with all of the property rights implications, all you do is get rid of the one-size-fits-all concept which doesn’t work in 21st-century America. And there’s one parallel I would invite our listeners to imagine: imagine that Steve and Sarah are not discussing marriage, but they are discussing an economic partnership. They are going to go into business together. And they sit down and privately they work out the deal. Steve will do the books and Sarah will do the marketing, or Steve will do the manufacturing, and here’s how they’re going to share the profits and the losses, and Steve has a duty to keep the books and Sarah—it’s all set forth in a contract that fits them. And what happens if the relationship fails? If Steve discovers that Sarah is bad at her job or vice versa, they end it. There’s no drama. You resolve the partnership and you go about your lives. And there’s no drama affected. The employees are protected by other law or by the law of the partnership. So, the image that I’d like our listeners to bear in mind is there’s nothing unusual or dramatic or harmful in simply inviting people who are getting married to enter into an agreement to think about how this is going to work and to sit down at the kitchen table and work it out. Now, you could have a default template which is sort of a starting point if people choose not to think about it—it’s their choice—but they don’t need permission of the government and the government and the state law does not tell them how the property gets split up if this partnership fails. Is that a pretty fair description of what you guys would like to see?
Steve Horwitz: I think that’s pretty good. I mean, a couple things I’d add to that. I mean, just one bit of history, right? Historically, that’s what marriages were, right? Really until the middle of the 19th century, early 19th century, depending on what class group you’re talking about, right, people got married because they had to produce together. The archetype here is the farm family, right? You know, as I—when I do lectures on this for students, I frequently say for most of human history what men were looking for in a female marriage partner was not sort of, you know, beauty and grace, but, “Look at those shoulders, she can push a plow,” or “Look at those hips, she can have kids.”
Bob Zadek: Productivity. Productivity.
Steve Horwitz: Right. So in that sense, right, I mean, that’s the long history of marriage is precisely that. And again, it’s why people had a more flexible notion of who was married and who was not. They just knew they needed to be married. The other thing I’d say is I don’t think the kind of contractual arrangement that you’re talking about here ends all the drama. As Sarah said, we’ve both been through divorces and, you know, they were different in many ways, but I think anytime you have a splitting up of a marriage, especially if there are children involved, there’s just going to be drama. It’s complicated. Figuring out how to handle the child custody and all that, even if you have private arrangements, are still going to be complicated and messy and so on. You cannot take the sort of human emotion and the fact that you’ve been with this person for X number of years out of the equation. It’s certainly true that if you have a sort of contract that you both agreed to ahead of time that stipulates—you’re never going to stipulate everything, right, no contract is complete—but that lays a lot of that out, you’re going to reduce it, but I think you’re never going to eliminate it. The other point to make here is, you know, we were talking about prenuptials again, and given the current way the law stands, prenuptials are usually used by wealthy folks, right, because they’re the ones with the assets to protect and so on, and they can frankly afford the lawyers to do it. So one of the things to, you know, to sort of think about here as we begin to imagine a world in which we lay out all these contractual arrangements ahead of time, right, is we will see, I think, we would see the development, I think, of ways of providing those more and more cheaply as they become something that the mass of people want to use. And one last little point: I think one of the really good things about sort of these kind of proposals for couples sort of creating or at least having to think about their own wedding arrangements, marriage arrangements, is precisely that they have to think about it, right? You know, I’ve taught these issues to undergraduates for a long time and, you know, they have a very over-romanticized view of marriage, which is marriage is all about, you know, little lovebirds flying around and all those sorts of things. And sort of what marriage is mostly about is running a household together and sort of figuring out who’s going to work outside the home, who’s going to do what in the house, how are we going to—how are we going to care for the kids? And anything that forces us to be explicit with each other—not with the state, not with lawyers, but the couple or group to be explicit with each other—about how we’re going to do that and to have those conversations before one gets married, which these sorts of contracts would encourage, right, I think that’s a really valuable thing and that’s going to make for better marriages.
Sarah Skwire: Yeah. I mean, I think that it’s considered sort of impolite to, you know, when your son or daughter comes to you and says, “Mom, Dad, I’m in love, I’m getting married, I’m so excited,” it’s considered impolite to say, “That’s great, what are you guys going to live on? Right? What’s your plan for like paying the bills, kid?” People are very reluctant to do that. And, you know, I’m a big fan of the novelist Jane Austen and the other, you know, other Victorian novelists where that’s the first question that young men and women who are planning to get married are asked. You know, “That’s great, I’m glad you love this person, but how the heck are you guys going to support a family?”
Conclusion: Too Important for Government [19:00]
Bob Zadek: Now, a major byproduct if Steve and Sarah and Bob and many others get our way is—Steve and Sarah in their presentation have oftenly referred to a couple and husband and wife. Let’s remember, and it hasn’t gone away yet but it’s settled down, the huge controversy over gay marriage. If we had no marriage license, the issue of gay marriage, which tore the country apart for a while and resulted in much litigation, goes away because it’s private and nobody is asking for permission. You just—gay marriage goes away, polygamy goes away. Indeed, if you want to announce your profound love and loyalty and commitment to your cat, have at it. Nobody’s going to care all that much. You might have your friends start to shun you, maybe, but society is not going to care. And all of the planning, the economic planning—think about healthcare, think about all the healthcare rules and the living wills that are profoundly affected by this most personal of decisions about healthcare—they go away if there’s no box to check, “Are you married?” There’s nobody fighting for certain economic benefits because there are no benefits to be had from the legal status of marriage because the concept doesn’t exist. So society gets so much less divisive and so much simpler economically if you simply eliminate the box called marriage. Is that a pretty fair description of what you guys would like to see?
Sarah Skwire: I mean, I think that’s true. I do think that there is room for using a little bit of caution and saying something like a marriage that is consensually contracted between or among legally consenting adults is a valid marriage, right? Because I think that we want to—I have no problem with, you know, polygamy in general, but one wants to make sure that everyone involved is a legally consenting adult and that you don’t have 12-year-olds, 11-year-olds who are dragged in unconsenting and forced to marry people four or five times their age. I’m also not sure that animals can legally consent. So, I’m—you know, I’m—so I’m not sure that marrying one’s cat—
Bob Zadek: I’m going to get phone calls from PETA if you say that. I’ll start getting phone calls from people who are active in PETA, so please don’t say that.
Sarah Skwire: Right. So I’m—that’s why I’m not sure. I’m pretty sure that animals can’t legally consent. I’m pretty sure they don’t legally consent to being eaten either, so, you know.
Steve Horwitz: And they can’t sign a contract. So we can make that sort of marry-your-cat thing, right? But—and maybe this is where we’re kind of coming down with time, but I think one of the things that we both really wanted to stress today is that we’re huge fans of marriage, right? And I think it’s important, right, what one of the things we don’t want to do as we think about how to separate marriage from the state is end up in that process sort of diminishing the importance of marriage. I think marriage is important not just for the couple—right, I think there’s real benefits for the couple and we know that from all kinds of empirical evidence—but I think society benefits when people are in marriages and have those contractual relationships and those kind of commitments. And so, you know, I think one of the worries for me when libertarians kind of go in this sort of, “Well, you know, you can do whatever you want to do,” blah, blah, blah, right, that we end up sort of trivializing marriage in a way that I think is problematic. The whole reason, as you’ve said from the beginning, Bob, to focus on this question is we have this immensely important emotional, psychological, personal decision that people make, and we should be asking the question what role, if any, should the state have in it because the thing is so important. But what I don’t want to lose is that it also has this importance to the rest of society. It’s an institution that’s been around for a long time regardless of the state’s role, and I think we have to respect that fact and sort of respect the way in which it matters for functioning human society.
Bob Zadek: Steve and Sarah, we have a couple of minutes left. What would be—when you wrote your piece, it was in Reason magazine a short while ago—what would be your hope as to the change in mindset, the immediate manageable realistic goals if people read as I did your wonderful piece in Reason and started thinking about it? What would you hope would be the next step?
Sarah Skwire: I mean, I would like people to start thinking of marriage as something that is too important for the government to handle, right? It’s like the production of food, right? It’s too important, it’s too essential to our lives to let the government get involved with it and mess it up.
Steve Horwitz: And I think the other thing is, you know, if we think about all these other things that people are doing these days that are ways of sort of getting around the state, right? You can think of Uber and Airbnb and all these sort of things as sort of, you know, getting around the traditional ways of doing things around government-regulated monopolies and so on. And I think one of the things I’d like to see is people thinking about marriage that way, is thinking about how do we design our own marriage ceremony, our own marriage contract. How do we—you know, I think there are reasons why people are still going to want that license. We have that license and there were economic and legal reasons why we thought it was important for us to have that license given the things the state does and given the way the state defines marital benefits. But I think the more people can, you know, are in different situations than us or whatever, that they can think about working around the state and sort of creating models for ways of doing this that don’t involve the state, that’s a really valuable piece of progress as well.
Bob Zadek: And as you guys have mentioned earlier in the show, if you don’t have a marriage license, if it’s simply a private contract between two consenting adults—Sarah, of course you’re right about that—then as you guys have mentioned, it forces people to think about really important issues at the very beginning, to set forth the rules because we’re drafting a contract. And when any contract is entered into, the parties have a chance to think about, negotiate for, and work out so there is no confusion and no litigation to work out what the deal is. And just thinking about and talking about what the deal is before parties commit to each other emotionally or not, or say we don’t want to deal with it, but it’s all a conscious decision. It’s empowering people and hoping you incentivize people to think about one of the most important decisions they’re ever going to make instead of simply buying a license and you’re in the program. And I think that would be the profound benefit as your article gains traction and people read and think about these issues. Steve, Sarah, any parting comments?
Steve Horwitz: No, just—again, we think marriage is awesome. Ours is; we managed to get through the hour on your show without getting divorced, so that’s pretty good too.
Bob Zadek: Thank you so much to Steve and Sarah. Congratulations on your first anniversary, wish you many, many more. And to my friends out there, have a good Sunday. I’ll be back next Sunday for another hour of libertarian thought. Thanks so much for listening, enjoy the rest of the weekend.
Steve Horwitz: Take care, Bob.
Sarah Skwire: Thanks.