Marriage against the State: Toward a New View of Civil Marriage, Cato Policy Analysis No. 671

8/8/2019 Marriage against the State: Toward a New View of Civil Marriage, Cato Policy Analysis No. 671

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As U.S. courts have repeatedly declared, mar-riage is fundamentally a private, individual right.One implication of this view, clear but not alwaysconsistently applied, is that the federal role inmarriage should be to get out of the way. When itcannot, it should behave in predictable, orderly,and low-cost ways so that individuals may con-duct their family and private lives as they thinkbest. When the federal government must act in

this area, it should do so only with a view towardpreserving individual rights. This paper considersfederal marriage policy in a new light by suggest-ing that some, though far from all, of the federalprovisions governing marriage may be under-stood as protections of this kind, or as guaranteesof individual responsibility, as in the case of chil-dren. When marriage acts in such a way, it meritsfederal recognition, but not otherwise.

Although privatizing all aspects of marriagemay well be appealing, such an approach wouldresult, at both state and federal levels, in muchgreater government interference in family life,higher taxes for married couples, invasions of pri-vacy, difficulties related to child custody, and oth-er negative consequences. In some areas, marriageis a defense against state power, and such a de-fense should not be lightly discarded. However,

marriage should be decoupled from the tax codeby adopting a flat tax; the Defense of Marriage Actshould be repealed; and Congress should adoptlanguage making it clear that civil and religiousmarriage are not the same institution, and thatthe existence of marriage as a legal category is neu-tral with respect to religion. Wherever possible,marriage penalties and bonuses in the tax codeand welfare system should be eliminated.

Marriage against the StateToward a New View of Civil Marriage

by Jason Kuznicki

_____________________________________________________________________________________________________

Jason Kuznicki is a research fellow and the managing editor of Cato Unbound, as well as an assistant editor ofThe Encyclopedia of Libertarianism. He earned a Ph.D. in history from Johns Hopkins University.

Executive Summary

No. 671 January 12, 2011


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Introduction

Much like the old saying about the BritishEmpire, federal marriage policy seems to

have developed in a fit of absence of mind.Its rare to find legislators giving any system-atic or sustained consideration to how thefederal government ought to treat marriedcouples. Unlike many other discrete areas ofpolicy, such as housing, agriculture, or trade,one seldom finds legislation whose explicitfocus is marriage in a wide variety of itsaspects. Instead, in one largely unrelated pol-icy area after another, legislators have addedprovisions that address marriage in the con-text at hand, but in no others. This approach

has had the effect of setting up differenttreatment for married couples, or sometimesjust for husbands or wives, one provision at atime. Seldom have these scattered provisionshad a common goal or even a coherent set ofgoals.

The result has been the accretion of morethan 1,100 rights, responsibilities, preroga-tives, duties, entitlements, tax breaks, and taxobligations for married couples.1 Some arerecent, like the marriage-related provisions inthe health insurance subsidy enacted by the

current Congress. Others are much older,going all the way back to the ancient com-mon-law protection that allows one spouse torefuse to testify against the other. Some, likethe joint income tax return, are accepted ascommonplace in the United States, eventhough they are relatively rare elsewhere inthe developed world.2 Other legal incidents ofmarriage are nearly universal to societies withmature legal systems, such as the presump-tion that one spouse is entitled to at leastsome share of the others estate if he or she

dies without having made a will. With somany different powers and duties, so manydifferent rights and obligations, it should beno surprise that cross purposes, perverseincentives, and strange windfalls have grownover time. These unexpected incentives can befound in marriage, in singlehood, and even indivorce. As the nation changes demographi-

cally, they fall with varying severity and fre-quency on various populations, sometimes inways that their framers clearly did not intend.Confusion proliferates in the world of policyanalysis as well; assumptions about the costs

and benefits of various marriage-affectingpolicies often diverge wildly from their actualeffects.

Advocates for single people argue, oftenwith some justice, that many of the federalbenefits of marriage amount to discrimina-tion against single-headed households, whichnow make up the majority of all householdsGay and lesbian advocates observe, again withsome justice, that many of the desirable inci-dents of marriage are reserved for heterosexu-al relationships only. While some of these ben-

efits can be had by alternate methods, quite afew of them cannot be. Indeed, every one ofthe specific legal incidents of marriage men-tioned in the paragraph just above is impossi-ble to obtain short of actually marrying. Con-tracts, civil unions, domestic partnerships, andother marriage-lite arrangements are all in-capable of providing these legal incidentsNone of the exclusively federal incidents ofcivil marriagelike the ability to sponsor aspouse for immigrationcan be had even witha state-level same-sex marriage, because the

federal government is legally barred from rec-ognizing such marriages.

Evaluating all of the many marriage-relatedprovisions in federal law would make anexceedingly long and dull policy analysis. It isalso a feat that no author on marriage policyappears to have ever attempted. Nor will Iattempt it here. Instead, I would like to pro-pose one defensible underlying purpose formuchthough certainly not allof federalmarriage policy. I will then briefly outlinesome major federal marriage policies and con-

sider whether these are consistent with therationale I advance. Finally, I will suggest thata more consistent adherence to this rationalewould do much to calm some contentiousdebates about taxation, same-sex marriage,and perhaps other areas of marriage policy.What I propose here is a tool of analysis forlooking at civil marriage in a new light.

2

Federal marriagepolicy seems tohave developed

in a fit of absence

of mind.


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Why Even Have aFederal Marriage Policy?

One obvious try at a solution is to declarethat there should be no federal marriage poli-

cy whatsoever. After all, the word marriageappears nowhere in the U.S. Constitution.Like education or housing, there is no expressmandate for federal action here, and it is notimmediately obvious what the federal govern-ment can add to the institution of marriage.This objection remains in place, and evengains some strength, when we consider thatthere are at least two aspects to what we com-monly call marriagea religious and a civilaspect.

The power to regulate the religious aspect of

marriage is of course properly left to churchesand other faith communities, which do notalways agree about the proper conditions ofentry or exit, the proper norms of continu-ance of a marriage, or what constitutes anideal marriage at all. Yet faith communitiesactions in these areas arent rightly subject toeither state or federal interference, thanks tothe First Amendment. On the margin, thoselooking for a faith community likely chooseone based on the congruence of a given com-munitys marriage norms with their own. Or

they may remain within a community whileagitating for a change in marriage norms,through whatever channels that communityhas to offer. Differences proliferate, as doeschange over time. Governments, federal andotherwise, have nothing to contribute to theprocess.

Civil marriages, however, are recognized bythe state governments. Such recognitiontakes place under a patchwork of common-law jurisdiction, state constitutional authori-ty, and legislative enactments, often drawing

on states abilities to regulate public healthand order via their police power. Diversity pre-vails here as well, owing to model legal codes,residual common-law understandings, partic-ular local concerns of individual states, andthe principle of comity, by which states typi-cally recognize marriages performed in otherstates, even against their existing laws for

entry into marriage, with a view to simplifyingfamily law and avoiding confusion.

On the civil side, entry and exit from mar-riage has almost always been left to the states,in nearly all respects. Yet statutes have varied

over time. These statutes have added orremoved blood tests, waiting periods, and var-ious (sometimes conflicting) definitions ofincest and age of consent, as well as many verydiverse regulations for dissolving a marriage.In recent years, state laws have variouslyauthorized or forbidden same-sex marriagesas well. At times, individuals have traveled toother states for their easier marriage and/ordivorce terms, particularly during and beforethe first half of the 20th century.3

Yet despite the legal and religious diversi-

ty, most people who do get married usuallyhave had both the civil and religious aspectsperformed at the same time, even usually bythe same officiant. Though outwardly reli-gious, nearly all marriage ceremonies in theUnited States have been legally deemedsimultaneously to be secular/civil in natureas well, and religious officiants are common-ly delegated the authority to marry individu-als under the civil laws of various states. Thislegal fiction skirts the First Amendmentswall of separation between church and state

and perhaps makes for some added conve-nience to married couples. Yet the setupseems one likely source of confusion inAmerican marriage policy, by which concernsabout the sacred regularly intrude into gov-ernment business. Likewise, it could be a rea-son why fears about government manage-ment of religious business are perhaps notentirely unfounded. The convenience of asingle marriage act, both civil and religious,comes at the cost of some clarity about whatmarriage isa conglomerate institution with

both civil and religious aspects, each of whichis independent of the other. One way to clar-ify this distinction, while changing nothingabout the institution of marriage itself,would simply be to write federal law so as torefer to civil marriage in all cases, making itplain that marriage law exists independentlyof churches and other faith communities.

3

One obvioussolution to thefederal marriagepolicy is todeclare thatthere should beno federalmarriage policywhatsoever.


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It remains possible to have a religiousmarriage without a civil one, even thoughclergy do typically recommend against it. It isalso possible to have a civil marriage withouta religious onea preferred choice, obviously,

for secular-minded couples. The commonali-ty of officiants in most marriages should nev-er be taken to mean that civil and religiousmarriages are one institution. Just as thereare civil oaths and religious oaths, civil officesand religious offices, and civil laws and reli-gious laws, there are also civil marriages andreligious ones. Its just that nearly everyonehas both, and both are generally performedsimultaneously.

So why does the federal government needto be involved in this confusion at all? And by

what authority does it act? If no authoritycan be found, then presumably the federalgovernment should indeed step aside, exactlyas it is told to in the Tenth Amendment tothe U.S. Constitution, and permit states andchurches to do what they have been doing allalongexperimenting, bargaining, and mod-ifying the institution in response to localconcerns. Why not let the federal governmentget out of the way?

There is great merit to the argument that itshould. For one thing, removing federal

involvement would settle once and for all thedebate about same-sex marriage, at least at thenational level. Separation of marriage andstate would also be at least roughly congruentwith earlier church/state separation, and assuch it may appear a very welcome step in theadvance of private life and the retreat of thestate. The argument might be entirely con- vincing, except for one very important fact:The U.S. Supreme Court has consistently heldthat individuals have a fundamental libertyinterestin marriage, and that government must

act to recognize and protect that interest.What does a liberty interest mean in this

context? It means that the government maynot interfere unduly in private marriages. Andthat fundamentally, all marriages are really pri-vate already. It means that marriage may be rec-ognized by the state, but that marriage comesfrom somewhere deeper and more important

than even the state itself. If the state is to act inthis area, it must be only to protect and pre-serve one of the institutions that gives humanlife its dignity and valuean institution with-out which we could hardly be called free at

all. A good way to think of the relationshipbetween marriage and the state is that mar-riage is ontologically priorto the state. Althoughall existing marriages are chronologicallyyounger than the U.S. government, they arenot dependent upon it for their survival. If thegovernment were to dissolve, probably no onewould imagine that their marriages and fami-lies had also been dissolved. On the contrary,in such alarming circumstances, perhaps ourfirst thoughts would be for the protection and

maintenance of our families. Even in theresulting disorder, churches, families, and cou-ples would very likely continue to practicemarriage. And if they wanted to preserve theirfreedoms, one of these would surely be thefreedom to marry. As the Court wrote in thelandmark caseLoving v. Virginia (1967),

The freedom to marry has long beenrecognized as one of the vital personalrights essential to the orderly pursuitof happiness by free men.

Marriage is one of the basic civilrights of man, fundamental to ourvery existence and survival. . . . To denythis fundamental freedom on so un-supportable a basis as the racial classi-fications embodied in these statutes,classifications so directly subversive ofthe principle of equality at the heart ofthe Fourteenth Amendment, is surelyto deprive all the States citizens of lib-erty without due process of law.4

Or, as the Court wrote in Griswold v. Connecticut(1965),

We deal with a right of privacy olderthan the Bill of Rightsolder than ourpolitical parties, older than our schoolsystem. Marriage is a coming togetherfor better or for worse, hopefully en-

4

Marriage comesfrom somewheredeeper and more

important thaneven the state

itself.


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during, and intimate to the degree ofbeing sacred. It is an association thatpromotes a way of life, not causes; aharmony in living, not political faiths;a bilateral loyalty, not commercial or

social projects. Yet it is an associationfor as noble a purpose as any involvedin our prior decisions.5

Marrying and forming a family, the courthas repeatedly said, are fundamentally per-sonal acts. As such, they are acts that govern-ments should not be allowed to interferewith for anything less than compelling rea-sons. Yet there are clearly at least some waysthat state or federal governments can inter-fere unacceptably with marriage, as with

most other individual rights. Such actionsare forbidden to the U.S. federal government,because to marry, to have children, and toraise and educate them according to the dic-tates of ones own conscience are all a part ofwhat it means to have a free society. By thesame token, the government of a free societymust respect those instances when this liber-ty has been exercisedand therefore perhapsmust formally recognize them. In otherwords, perhaps the government should rec-ognize marriages only so it can more effec-

tively leave them alone.This may seem a subtle point at first. It

gains in clarity, however, when we considerwhat doing more, or less, might mean.Although marriage is not mentioned as suchin the Constitution, a federal governmentthat forbade all marriage, or that denied itarbitrarily to a few, would be an illiberal oneindeed. Loving v. Virginia is a celebrated caseprecisely because it struck down one suchbarrier. One of the cases implicit assump-tions, it turns out, is that a wholly private

institution of marriage might in fact under-protect the families created under it, becauseit could leave those families unacceptablyopen to government interferenceinterfer-ence that families with a recognized marriagewould never have to suffer.

Thats because marriage creates a set ofdefault legal capacities that all of us may even-

tually rely oncapacities involving, amongother things, property, children, inheritance,and medical and legal decisionmaking. Thesecapacities are recognized by the federal gov-ernment, above all, to deny them to anyone

outside the marriage bond, be they more dis-tant family, state agents, corporations, or anyother entity. Sometimes, it may turn out thatthe government must agree to get out of theway, and do so in a permanent, publiclyacknowledged way, for the sake of the veryfreedoms that it claims to protect. Sometimesit must likewise declare that the family lives ofothers are none of ourbusiness eitherand,thanks to the institution of civil marriage, wenow have an easy way of recognizing mostsuch cases. And this is exactly how marriage

policy could and should be recast: as a strate-gic, principled withdrawal of the governmentand outsiders from family and intimate life,guaranteed by the act of civil marriage itself.

Still, thats far from an exhaustive descrip-tion of what marriage currently does. Civilmarriage also includes a set of positive entitle-ments or grants of state power or resourcesthat are designed to help families moreactively. These often come at the expense ofothers, such as singles, who have at least plau-sible grounds to object. Such positive rights

that attach to civil marriage remain deeplyproblematic under this theory of civil mar-riage.

As we shall see, many of the more impor-tant positive rights encoded in federal-levelcivil marriage are also very difficult to justifyor even to understand in a consistent manner.There is no guidance for applying this bundleof welfare rights in the federal constitution,and it has been tinkered with over the years insome very haphazard ways, with some veryperverse incentives as a result. Marriage con-

sidered as a conduit for social welfare has littleor no connection to marriage as a prepoliticalinstitution. It represents the governmentintruding in a place where it has no business.

To those who mistrust government in-volvement in marriage at all, civil marriage isfar less objectionable or threatening when itis understood, or perhaps reformed, purely as

5

Marriage policyshould be recastas a strategic,principled

withdrawal of thgovernment andoutsiders fromfamily andintimate life.


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a means of protecting oneself and ones fam-ily from the state and other outsiders, or as aformal withdrawal of external power from aclearly delineated area of life, and not as abundle of welfare rights. By this standard, the

existing federal recognition of marriage andfamily may have a more solid foundation,but only in certain of its aspects. The right tomarry, and thus to become free from stateinterference in the formation of ones family,is akin to the right to travel, to seek employ-ment, or to choose ones apparel within cer-tain very broad limits. None of these rightsare mentioned in the Constitution either, butthey are retained all the same, and U.S. courtshave intervened to protect them.6 We wouldthink it tyrannical for a government to inter-

fere with these acts without some verystrongindeed some compellinginterest.There is no reason that treating marriagelikewise poses any great burden on our liber-ties, and it is arguably liberty-enhancing.

If we consider civil marriage as the recog-nition of an individual liberty interest, ratherthan as a grant or exercise of power by thestate, then we may begin to look at each ofthe more than 1,100 federal provisions gov-erning it in an entirely new light. Are theseprovisions also implicit in the concept of

ordered liberty, as the courts demand whenlitigants assert an unenumerated right? Arethey at least somehow related to ordered lib-erty? Do they recognize individual autonomyand empower people to lead their own livesas they see fit? Does a given policy act toensure the long-term plans and goals of fam-ily members themselves, as against the inter-ference of third parties? If so, we may be oncomparatively solid ground.

If, however, a given regulation amountsmerely to a grant of economic privilege, or a

nudge of citizens behavior in one direction orthe other, or even an arbitrary discriminationamong different classes of citizens, then theregulation is unrelated to what may be theonly justifiable grounds for federal involve-ment in marriage in the first place. The prop-er way to evaluate federal laws touching onmarriage is one at a time, keeping continu-

ously in mind that any federal right to mar-riage is on its soundest footingif it has anyproper footing at allonly as a recognition ofan individual negative right, at least as far asthe federal government is concerned.

Given the loose interpretation of theConstitution that prevails today, we shouldnot be surprised if these issues of constitu-tional scrutiny turn out to be largely academ-ic. In a more general sense, however, provisionsthat add welfare benefits or impose new oblig-ations on married couples arent likely to beacting as checks on the power of the stateThey are instead adding to state control overour intimate associations, and discriminatingagainst a large number of American citizensindeed, the majority of adults, who are now

single. Its here that many federal marriageprovisions also run into the objections of sin-gles rights advocates. Such advocates do notcommonly oppose marriage as a lifestyle oreven necessarily as a legal status, but they dooppose government-granted privileges formarried people. An understanding of mar-riage as a set of negative rights, with no welfarecomponents, would do a lot to satisfy theirconcerns.

Inquiring about the liberty interest in fed-eral marriage has considerable analytical pow-

er, as can be seen in the following examples. Ineach of the following sections, I will examine adifferent facet of federal marriage law and askwhether it can be justified as part of a frame-work of negative rights. Some policies can beso justified, while others cannot. Movingtoward an understanding of federal civil mar-riage as a purely negative right would, I argue,leave individuals free to decide what their ownmarriage, and those of their neighbors, meansin the context of their own family, communi-ty, and faith. It would create a space for diver-

sity and for healthy, civil disagreement aboutmarriage, rather than politicized bickering. Asindividual and communal understandings ofmarriage have changed throughout history,this framework would likewise offer consider-able flexibility.7 It would further minimize theinconvenience experienced by third partieswho object to some or all forms of marriage

6

Provisionsthat add welfare

benefits orimpose new

obligations onmarried couples

arent likely to beacting as checkson the power of

the state.


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subsidy. It could even point the way towardsounder public policy in many more conven-tional categories of analysis.

The Income Tax Trilemma

Lets consider the tax code. It has passedinto the popular mind that most, or perhapseven all, couples today face a marriagepenalty, in which they are taxed at a higherrate than they would be if they were single.The truth is actually a great deal more com-plicated, and it serves as an excellent exampleof just how convoluted the federal laws con-cerning marriage have becometo say noth-ing of the tax codes own complications.

First, a relatively modest net marriagepenalty does exist today for many married cou-ples. This penalty was formerly both higherand applied to many more couples. It was sig-nificantlythough temporarily, and notentirelyreduced by the Jobs and Growth TaxRelief Reconciliation Act of 2003.8 This tem-porary reduction is scheduled to expire at theend of this year, and no fewer than eight billsand amendments have been introduced in thecurrent session of Congress that would elimi-nate various aspects of the penalty either indi-

vidually or as a group. Notably, PresidentObamas proposed budget for FY 2011 wouldmake permanent the marriage penalty abate-ment measures of 2003, and passage of someform of permanent abatement seems very like-ly.9

But why was there ever a marriage penaltyin the first place? It arose because, given thenature of our tax system, we are confrontedwith three popular but competing goals. Eachof these goals has strong defenders, and somemay even wish they could achieve all three

goals at once. This, however, is mathematical-ly impossible. The goals are: (1) aprogressive taxstructure, (2) a tax code that is neutral with respectto marital status, and (3) equal taxation of marriedcouples with equal total incomes, regardless ofincome distribution between the partners.Each is desirable to at least some people, butthey cannot all be had together.

Taking the progressive tax structure as agiven, we are faced with a dilemma. On theone hand, if tax law also ignores marital sta-tus, then it is possible that two married cou-ples with identical total household incomes

would pay very different levels of income tax.Consider the following example. In couple A,the husband is the sole breadwinner, and hefinds himself in a high tax bracket, where hepays relatively more in taxes on each margin-al dollar he earns. In couple B, the husbandand wife both work and make equal individ-ual incomes. Their combined income equalsthat of the husband in couple A. Yet neitherthe husband nor the wife in couple B is in thehigher tax bracketand thus none of theirincome will ever be taxed at the higher rate.

Their total tax bill would be lower. Manywould find this situation unacceptable, andindeed, our tax code is structured in part toavoid it.

On the other hand, lets suppose that wefully equalize taxation between couple A andcouple B. If we do so by raising taxes on cou-ple B, then we have created amarriage penalty.Couple B would be better off financially ifthey got divorced. If we attempt to equalizetaxation by lowering taxes on couple A, thenwe have created amarriage bonus, in which the

very wealthy may find they would do well totake a nonworking wife for tax purposes.Neither scenario is terribly appealing fromthe standpoint of moral incentives or socialorder.

In practice, the pre-2003 tax code tendedto penalize dual-earnermarital units, becauseon marriage, the partners were treated asthough they held onealbeit higherhouse-hold income. This placed them in a highermarginal tax bracket, and they paid more taxthan they would if they had remained

unmarried, much like couple B after theirtaxes are raised to the level of couple As. Asdual-earner marriages came to make up agreater and greater proportion of marriedhouseholds, the marriage penalty was feltmore widely, and more couples found thatdivorce was, perversely, a way to save moneyon taxes. Some couples, however, particularly

7

The tax code is aexcellent examplof just howconvoluted thefederal lawsconcerningmarriage havebecome.


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at the very highest end of the income spec-trum and those in which one spouse did nopaid work, still found that they actually savedmoney by getting or staying married, owingto differing taxation schedules between sin-

gle and married individuals. In short, earlierversions of the tax code contained significantmarriage penalties and marriage bonuses.

Getting back to our original trilemma, ifthe United States were to enact a flat taxthatis, if it were to abolish the progressive taxstructureit would mean that couples withequal total incomes would pay equalamounts of income tax, and no penalties orbonuses would ever exist for getting marriedor divorced. Across marriages of equal totalincome, but unequal income distribution, the

spouses would simply pay different individualamounts of tax, proportional to their person-al share of the total income, while their totalhousehold tax burden would be equal in allcases. The tax code would treat married andunmarried people alike, and it would alsotreat every married couple of a given totalincome alike.10 Tax progressivity would bedeliberately abandoned, but with it would gothe unseemly penalties and bonuses associat-ed with marriage and singlehood for variouslevels and distributions of income. Under a

regime of tax progressivity, such penalties andbonuses, and/or inequalities across house-holds, are inevitable. Indeed, a good deal ofthe extant marriage penalty abatement con-sists of enlarging the 15 percent tax bracketwhere many married couples incomes fallineffect, much of the marriage penalty abate-ment consists of making the tax structure abit flatter for many couples. Making it flat foreveryone would do away with marriage penal-ties and bonuses entirely.

Its worth considering just how unseemly

the tax incentives for and against marriagereally are. First, the marriage penalty remainsgreatest, proportionally speaking, for low-income dual-earner marriages. Thats becausesome of the marriage penalties remaining inthe tax code center on the Earned Income TaxCredit, a means-tested tax credit designed tohelp lower-income families with children. As

the Alternatives to Marriage Project, a nation-al nonprofit organization for singles advoca-cy, describes it,

When two low-income people marry,

their combined incomethough stillmodest by any standardcan disqualifythem from benefiting from programssuch as the Earned Income Tax Credit.It is ironic that some welfare policiespromote marriage for low-income fam-ilies, while income tax policies and wel-fare benefit formulas penalize manylow-income families for marrying. . . . Insum, bonuses benefit married coupleswith so-called provider/dependentmarriages. Penalties hurt low-income

couples, and well-off married coupleswith balanced incomes.11

In other words, current tax and welfarelaws incentivize single-earner status forlower-income families. But because a careeras a homemaker isnt usually possible for thepoor, the real incentive may lie in the direc-tion of just not getting married. Social con-servatives have noted that the demographicdecline of marriage is most pronouncedamong the poor, and they have roundly con-

demned the tax code for making marriageunappealing at the margin. They are right todo so. Yet current tax law also rewards, on themargin, those highly traditional upper-classmarriages in which only one adult works.

It would be virtually impossible to retrofita consistent rationaleeven a consistentlyper-verse rationaleto explain such a policy. Stay-at-home moms (or perhaps dads) appear to bea good thing, but having a stay-at-homespouse in the family is very difficult or impos-sible for many poor families. Meanwhile, the

rich, who can already afford the luxury of astay-at-home spouse, could also see this deci-sion rewarded with thousands of dollars of taxsavings. The overall effect is to incentivize stay-at-home spouses among the wealthy, and toseverely discourage marriage itself among thepoor. Although this disparate treatment hasbeen ameliorated somewhat in recent years, by

8

It would bevirtually

impossibleto retrofit a

consistentrationaleeven

a consistentlyperverse

rationaletoexplain sucha tax policy.


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no means has the complex web of penaltiesand bonuses disappeared, and the basic incen-tive structure remains intact.12

What, one might ask, is the proper way totreat married couples, given the considera-

tions of the proper federal role in marriagethat we have outlined above? That is, what taxlevel is most consistent with marriage consid-ered as a negative liberty interest? When putin these terms, the question has no readyanswer, and it may have no answer at all. (Ofcourse, no taxes for anyone might be themost appealing choice, but achieving thataimremains little more than a fantasy.)

Yet the whole issue is relatively easy toresolve when we return to the frameworkimplied inLovingand Griswold: can it seriously

be suggested that these penalties and bonuses,graded by income tax brackets, separating themarried from the unmarried, adding here andsubtracting there, are implicit in ordered lib-erty? Can these differing monetary paymentsby the rich and the poor, the dual-incomehouseholds and the single-income ones, besaid, plausibly, to be part of a right of privacyolder than the Bill of Rightsolder than ourpolitical parties, older than our school sys-tem? The questions are hard to pose straight-faced. Obviously none of these things have any

relationship at all to deep marriageto theinstitution of marriage considered as a pro-foundly private individual liberty. Taxation,then, should be made marriage-neutral, per-haps by enacting a flat tax, which would havejust that effect.

Of course, there are many reasons to criti-cize progressive taxation and favor a flat taxeven outside of the current tax regimes strangeeffects on marriage. Flat taxes reduce the costsof tax compliance and are therefore more effi-cient than complicated systems like our cur-

rent tax code. Flat taxes discourage fraud, cor-ruption, and evasion, and they appear tostimulate economic growth.13 And once weadmit the necessity of taxation, and the near-impossibility of crafting a liberty interest in dif-ferential taxation, the proper treatment ofmarriage by the federal government wouldappear to be tax neutrality, both with respect to

marriageno marriage penaltyand withrespect to different distributions of incomebetween marriages of equal total incomefam-ily equality in taxation. This is one area wherethe federal government most certainly should

withdraw from marriage.

Immigration

Lets consider, however, another facet of fed-eral marriage policythe ability of one spouseto sponsor the other for residence and poten-tially for permanent legal immigration. Gayand lesbian advocates have frequently notedthat this is an extraordinary power of marriage,one that comes solely from the federal govern-

ment, not from the states. Further, it cannot bereplicated through any other means. Con-tracts, domestic partnerships, and civil unionsare legally inadequate for this purpose, andeven state-level same-sex marriages do notachieve it, owing to the federal Defense ofMarriage Act, which prohibits the federal gov-ernment from recognizing state-level same-sexunions as marriages at all.

Although immigration rights may not bea concern for very many marriages, for thosemarriages they do affect, the difference is

profound. The ability to live with ones mar-riage partner is fundamental to virtually allother private aspects of marriage, and denialof it is often tantamount to ending a poten-tial marriage before it begins.

Surely, if marriage is a right as old as soci-ety itself [and] that forms a cornerstone of anydecent society, then this right encompassesthe ability of the married couple to live in thesame country. This ability should not be inter-fered with on the pretext that the two individ-uals exercising that right were born in differ-

ent countries or hold different citizenships.Marriage is older than, and superior to, the lawof nations. It would be a strangely limited U.S.citizenship, more of a curse than a privilege, ifit entailed never marrying the one you loved.Such it would remain even if the limitation fellonly on a few citizens, and it would only be inthis case more arbitrary. And when we consid-

9

Althoughimmigrationrights may not ba concern for vermany marriages,for thosemarriages theydo affect, thedifference is

profound.


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any life situation, whether their parents were(privately) married or not. Privatizing mar-riage sounds reasonable until we realize thatit entails privatizing child custody, alimony,and child support, providing some private

mechanism of assurance and trust for them,and then providing a private enforcementmechanism as well. Each of these has aspectsof a public good, however, in that we all ben-efit from the proper care of the rising genera-tion. Each also may implicate some use offorce, and thus there are two plausible causesfor at least some minimal state action.

Just as marriage is natural and prepoliti-cal, childrearing obviously is too, and it is anexpected, highly anticipated part of mostmarriages. This expectation is ratified in the

common-law doctrine known as the pre-sumption of legitimacy. This doctrine dic-tates that all children born into a marriageare presumed legitimate, and that the mar-ried couple is presumed, though rebuttably,to be the childs parents, with all the atten-dant parental duties.16

The presumption of legitimacy doesmuch of the practical work that social con-servatives rightly praise marriage for doing. Itties sex and reproduction to childrearing andsupport, ideally in the context of a stable bio-

logical family. It allows the family to get onwith the business of raising their children,free from most forms of inquiry about theirorigins, and certainly from any routine ones.If that family ever does break apart, the legalobligations of child support, which havebeen presumed all along, do not end; thesewere created at the time of marriage, not atthe time of conception (at which, after all, thehusband may not have been present), andthey endure until the child is legally an adult.The presumption of legitimacy also dovetails

well with adoption law, under which marriedadoptive parents are not requiredindeed,are not permittedto file adoption petitionsseparately.

Without civil registration of marriages,however, it becomes unclear where the statemay and may not enforce custody and liabilityfor raising children. How, for example, would

we recognize parents as the bearers of obliga-tions toward their legal charges? Privatizingmarriage would mean abandoning the com-mon-law presumption, probably letting manyunwilling parents off the hook. The result

would be a deluge of claims and counter-claims about child custody and paternity, aspartners fought either to establish or relin-quish custody without any clear advance guid-ance from the government about how theywill be treated. It is hard to imagine the statebeing more in a private familys business thanthis.

Genetic testing suggests itself as an obviousanswer, but even in our technologicallyadvanced world, there may be some deep wis-dom in the presumption of legitimacy. Many

nonbiological children, the products of extra-marital relations, have been happily raised in astable home thanks to this sensible presump-tion, which does much to shield childrensinterests and deflect litigation from jealousoutsiders. The presumption of legitimacy mayeven discreetly paper over a sexual transgres-sion, allowing the marriage, and the family, asecond chance if the parties want it.

Genetic testing as the default rule looksstill worse when we consider the sheer logisti-cal nightmare of performing it for every live

birth in the United States, and the insuperableprivacy concerns this policy would raise.Under a fully privatized marital regime, theinvasions of privacy would, ironically, increasestill further. Even happy marriages withoutany custody disputes would be forced to applyanew for child custody every time they hadanother child, because this custody, in theabsence of civil marriage, could not be pre-sumed. Besides genetic testing, applying forcustody of a child could require any numberof invasive fitness testswe can easily imagine

well-meaning legislators inventing themandthis in itself would likely be a highly politicizedprocess. Perhaps such custody examinationswould come to resemble those found foradoptive parents, with interviews by socialworkers, financial evaluations, filing fees,medical exams, home inspections, and otherintrusive measures.

11

The presumptionof legitimacy doemuch of thepractical work

that socialconservativesrightly praisemarriage fordoing.


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Compliance would be another seriousproblem. Even a modest filing fee mightbring widespread noncompliancemarriageis private, the reasoning might goand theresult, in the long term, would be more gen-

uine illegitimacy, more acrimonious custodyfights later on, and more children withoutmothers or fathers. The state would be forcedrepeatedly to intervene in complex, unpre-dictable ways, rather than the one simple andvery predictable way that it does now. By say-ing that married partners have a presumed joint custody of any children born to themarriage, the state retreats from private life,exactly as it should.

As a final note, civil marriages presump-tion of legitimacy serves a significant equality

interest as well. If child custody had to belegally established anew at every birth, theburdens of childrearing would fall even moreheavily on women than they already do, andmen would be even more removed from theconsequences of their sexual behavior thanthey already are. Establishing maternity iseasychildbirth is self-evident proof in al-most all cases; it is, as sociologist James C.Scott would have it, an eminently legible phe-nomenon.17 But establishing paternity is veryhard. Paternity is relativelyillegible, to the state

and to everyone else, particularly when themen in question are not cooperative. And whyshould they be? Mere paternity, as opposed tomarriage, has comparatively little to offermen in the way of mutual help, legal protec-tions, and companionship with the oppositesex. Paternity without marriage would be allresponsibility and no reward, and we couldhardly blame men in such a regime from flee-ing it whenever they could.

Marriage, Divorce, andDisposition of Property

One of marriages many effects at the fed-eral level concerns the disposition of proper-ty within the relationship and the attendanttax liabilities. Tax lawyer Robert W. Woodrecently offered an argument for same-sex

marriage that is seldom cited even by its pro-ponents: within a marriage, property is arbi-trarily transferable, without any taxes or lim-its. If you are not married to a gifts recipient,you may give no more than $13,000 in a year

to a given recipient without incurring a tax oreating into your lifetime ceiling of $1 millionin tax-free inheritance. A gift of a new carfrom one unmarried partner to another isthus potentially taxable, although a husbandor wife giving their spouse the same new carwould not face a tax.

On separation, matters grow still morecomplicatedand expensive. Married coupleswho divorce may make use of the gift taxexemption to divide up their property as theysee fit, but cohabiting couples or those in civil

unions or domestic partnerships dont havethat option. Such couples are liable for federaltaxes on transfer of propertyrendering thefederal government effectively a third partnerin their dissolving relationship. Once again,getting the state out of marriage only meansmore state intrusion. Wood writes, If youlook at a many-year relationship with signifi-cant assets, the taxes at stake can be enor-mous. In fact, the tax bill can be so big that insome cases, unmarried couples trying tountangle joint assets might consider getting

married just so they can then qualify for thebenefits of a tax-free divorce! At least one het-erosexual couple Wood knows has done so, hereports.18

While strategic marriage is hardly exem-plary behavior, the intent of the tax laws isactually quite clear, if only this once. It wouldbe a severe impediment to household manage-ment if all significant spousal wealth transferswere subject to taxes. It would require a greatdeal of federal surveillance of even frequentlyintimate matters. Gifts to other loved ones are

intuitively different from gifts to spouses, andthis difference stems from the fact that spous-es finances are almost always inextricably min-gled. Inserting the federal government into thearrangement does little more than to help pryit apart. Here again, federal recognition of mar-riage serves to leave people alone and makesthem more free to live their lives as they see fit.

12

Married coupleswho divorce may

make use ofthe gift tax

exemption, butcohabitingcouples are

liable for taxes.


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The Scope of Marriage:Who Can Marry?

So far we have been talking a great dealabout the nature of the federal legal benefits

and protections offered to married couples,and such a discussion is necessary in any seri-ous treatment of federal marriage policy. Butanother question is important, too: Who isable to partake of these benefits? Which peo-ple get them, and which do not? Again, theclaim that marriage should serve only as aprotection of a negative right may be useful.

As discussed in the previous sections,claiming the existence of a negative unenu-merated right means that we must first estab-lish that that right is deeply rooted in our

nations traditions. Yet deep-rootedness can beturned about to further all sorts of very tightrestrictions. Much depends on how widely ornarrowly we construe the right in question.For example, in Gonzales v. Raich (2005), thelandmark medical marijuana case, the ques-tion of fundamental rights was dismissedentirely, largely on the basis of a narrow con-struction of rights: In short, the plaintiff wasnot found to have a fundamental right to usecannabis. It would be absurd to say thatcannabis, of all things, was implicitin the con-

cept of ordered liberty, argued the prosecu-tion. The U.S. Supreme Court agreed.19

There is certainly some weight to thisclaim. The extinction of the entire Cannabisgenus would not meaningfully change how wethink about the nature of rights or of society.It would send no political philosophers backto their drawing boards in the way that, forexample, the abolition of marriage might do.But the counter-argument is obviousnamelythat the right has been too narrowly con-strued. Surely ordered liberty includes the

right to seek medical treatment when you aresick, and we would think it atrocious if a gov-ernment deliberately kept sick people fromtheir medicine. Surely it is also implicit thatindividuals may make an honest living bypracticing medicine, and that these practition-ers may recommend treatments to theirpatients. It only follows that patients may take

the prescribed treatments. What else, we mayask, are these recommendations for? Libertyclearly doesnt demand that we bear every ill-ness stoically and without treatment. Libertymust include the general right to try to

assuage suffering, or else the pursuit of hap-piness has virtually no meaning. In this light,Raich appears to have been obviously incor-rect.20

We may easily analogize between Raichand the choice of a marriage partner, andsome of these analogies again point out theimportance of choosing the scope of onesquestion. For example, can it seriously beclaimed that there is a deeply rooted rightfor Scientologists to marry? Certainly notbecause Scientology was only founded in

1953. What about the right of a blogger tomarry a spacecraft engineer? Both are quitenew as professions, arent they? Indeed, a suf-ficiently robust view of government powermight just allow us to forbid both profes-sions themselves, and then allow us to forbidthe individuals from marrying, just for goodmeasure. None of these can be deeply rooted,and thus they cant be fundamental rights.

At some point, though, we must concedethat something has gone badly awry in thisline of reasoning. Ordered liberty cant plau-

sibly mean a totally arbitrary level of govern-ment control. Such a state of affairs would notbe liberty in any sense at all. Some showingof cause is required, at the very least, for prohi-bitions on new actions. It remains to be seenhow federal courts will ultimately rule withregard to same-sex marriage, but these ques-tions are at the heart of the matter.

Once again, the division of marriage rightsinto negative and positive rights becomes veryimportant. One common objection to same-sex civil marriage is that it compels some tax-

payers to support homosexual marriages inviolation of their deeply held religious beliefs.Their tax money, like all others, goes to subsi-dize the positive or welfare rights that accom-pany marriage. Extending these rights tohomosexuals would compel a transfer ofwealth for an activity that objectors findabhorrent. Call yourselves whatever you like,

13

The claim thatmarriage shouldserve only as aprotection of anegative rightmay be useful.


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couples that exists today. These savings wouldbe accompanied by the elimination of proba-bly significant deadweight loss in legal feesand paperwork. Although hard to estimatethe CBO didnt even trythese gains surely

exist and are substantial. Recognizing same-sex marriages in like manner to heterosexualones could well be the cheapest means of deal-ing with them, and is certainly less expensivethan current approaches. If the objection tosame-sex marriage really is about not havingto pay for it, then opponents should welcomesuch a change.

Conclusion

The institution of marriage is a bundle ofboth private and public items. Federal mar-riage law is likewise a confusing patchwork.The central contention of this analysis is thatfederal law is on its strongest footing when itrecognizes marriage as a set of guarantees fornegative rights that are implicit in theprepolit-icalinstitution of marriage. The federal role inmarriage is to get out of the way, and when thegovernment cannot get out of the way, its roleis, at the very least, to behave in predictable,orderly, and low-cost ways to ensure that indi-

viduals may conduct their family and privatelives as they think best. Attaching welfarerights to marriage makes for a good deal ofconfusion, whatever its other consequences,and attaching differential tax status to mar-riage creates perverse incentives under a pro-gressive income tax regime. Although it is notclear that all of these difficulties can ever beremoved, they should at least be acknowl-edged and considered carefully when craftingsubsequent marriage policy at the federal level.

In light of these principles, some reason-

able steps toward improving federal marriagepolicy would include the following:

Repeal the Defense of Marriage Act. Adopt a flat tax so as to prevent mar-

riage penalties or bonuses and to guar-antee equality of taxation among mar-ried couples of similar total incomes.

Maintain the legal capacity to sponsorspouses for immigration and extend itto same-sex couples.

Take steps to separate more clearly thecivil and religious aspects of marriage,

including adopting the term civil mar-riage wherever marriage is referenced infederal law.

Consider in future legislation that mar-riage is fundamentally a private, individ-ual right, and that governmental recog-nition of marriage exists above all toprotect that right, not to engage in socialengineering or the redistribution of wel-fare rights.

Almost no one disputes that marriage is an

institution worth saving. Marriage, however,is complex enough that the blunt instrumentof the federal government tends to do moreharm than good when it is applied to marriagepolicy, particularly insofar as this policy impli-cates deeply private and spiritual values. Muchof the resulting confusion can be dispelled byseparating welfare rights from marriage, sepa-rating civil marriage from religious marriage,and preserving only those aspects of federal-level civil marriage that act as safeguards ofindividual rights.

Notes

1. For the unequal treatment of gays and lesbiansin the recent health-insurance legislation, seehttp://www.hrcbackstory.org/2010/03/house-posts-health-care-bill-leaves-out-lgbt-specific-provisions/.

2. Lily Kahng, One Is the Loneliest Number: TheSingle Taxpayer in a Joint Return World,Hastings

Law Journal61, no. 3: 65186, February 2010,http://ssrn.com/abstract=1371902.

3. Hendrik Hartog,Man and Wife in America: A History(Cambridge: Harvard University Press, 2000). Thisbook details many of these legal changes.

4.Loving v. Virginia, 388 U.S. 1 (1967), http://caselaw.1p.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=388&invol=1.

5. Griswold v. Connecticut, 381 U.S. 479 (1965), http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?nav

15

Much confusioncan be dispelledby preservingonly those aspec

of federal civilmarriage that acas safeguards ofindividual rights


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by=case&court=us&vol=381&invol=479.

6. For travel, see United States v. Guest, 383 U.S. 745(1966); for apparel, among other considerations,see Tinker v. Des Moines School Dist., 393 U.S. 503(1969). The right to seek employment remains anadmittedly contested area of constitutional law, in

which courts have not always acted consistently.

7. Stephanie Coontz,Marriage, a History: How LoveConquered Marriage (New York: Penguin Books,2005).

8. Government Printing Office, Jobs and GrowthTax Relief Reconciliation Act of 2003, http://www.gpo.gov/fdsys/pkg/PLAW-108publ27/html/PLAW-108publ27.htm.

9. Joint Committee on Taxation,Description of Rev-enue Provisions Contained in the Presidents Fiscal Year

2011 Budget Proposal(Washington: GovernmentPrinting Office, 2010), http://www.jct.gov/publi

cations.html?func=startdown&id=3703.

10. Gregg A. Esenwein, The Federal Income Taxand the Treatment of Married Couples: Back-ground and Analysis, CRS Report for Congress,March 29, 2001, http://wikileaks.org/wiki/CRS-RL30800.

11. Alternatives to Marriage Project, Federal In-come Taxes, http://www.unmarried.org/federal-income-taxes.html.

12. Kahng, Table 1, p 658.

13. Chris Edwards and Daniel J. Mitchell,Global TaxRevolution: The Rise of Tax Competition and the Battleto Defend It(Washington: Cato Institute, 2008).

14. U.S. State Department, MultiYear Table XVI,http://www.travel.state.gov/pdf/MultiYearTableXVI.pdf.

15. Jagadeesh Gokhale, Globalization: Curse orCure? Policies to Harness Global Economic In-tegration to Solve Our Economic Challenge, CatoInstitute Policy Analysis no. 659, February 1, 2010;Immigration, in Cato Handbook for Policymakers,7th ed. (Washington: Cato Institute, 2009).

16. For the evolution of this doctrine and itsimplications for custody and child support in the

American context, see Nancy F. Cott,Public Vows A History of Marriage and the Nation (CambridgeHarvard University Press, 2000). See also, HartogMan and Wife in America.

17. James C. Scott, Seeing Like a State: How CertainSchemes to Improve the Human Condition Have Failed(New Haven: Yale University Press, 1998).

18. Robert W. Wood, Gay or Straight, MarriageMattersFor Taxes, Forbes.com, August 17, 2010http://www.forbes.com/2010/08/17/gay-marriagedivorce-taxes-irs-personal-finance-tax-lawyerwood.html.

19. Gonzales v. Raich (previouslyAshcroft v. Raich)545 U.S. 1 (2005).

20. For an anticipation of this line of argument,see Frank H. Easterbrook, Abstraction and

Authority, 59 University of Chicago Law Review 349(1992).

21. See, for example, Mike Adams, Nothing Gayabout It, Rightly Concerned (a blog of the Ameri-can Family Association), http://www.afa.net/Blogs

/BlogPost.aspx?id=2147498502, which warns thatIncome taxes will be increased . . . Social securitytaxes will be increased . . . [and] Medical insurancepremiums will rise as the result of same-sex civilmarriage.

22. Charles Murray,Losing Ground: American SocialPolicy, 19501980 , 10th anniversary ed. (New York

Basic Books, 1994). Although subsequent reformto the American welfare system did much toanswer Murrays objections, significant disincen-tives to marriage remain, as we have already dis-cussed, above all for the poor, and are chieflylocated in the tax code.

23. The Potential Budgetary Impact of RecognizingSame-Sex Marriages (Washington: CongressionalBudget Office, 2004). A similar analysis has notbeen completed in light of the Patient Protectionand Affordable Care Act (2010).

24. Ibid., p. 9.

16


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Marriage against the State: Toward a New View of Civil Marriage, Cato Policy Analysis No. 671

Documents

Transcript of Marriage against the State: Toward a New View of Civil Marriage, Cato Policy Analysis No. 671