Marriage and the State in the New York Times

As David Boaz and Jesse Walker have already noted, there's a terrific op-ed in today's New York Times by the well-known historian of marriage Stephanie Coontz arguing for the separation of marriage and the state. I have been writing and teaching on family issues for a number of years and have used several books of Coontz's in class and in my research.  Her most recent book Marriage:  A History is especially good.  She is no classical liberal, but her history of marriage hints at a story about the ways in which the development and expansion of capitalism made possible modern marriage and modern family arrangements, including and especially the liberation of women in a variety of ways.  I have offered a short, non-scholarly account of such a story in my "Capitalism and the Family" article in a recent issue of The Freeman. I also have a working paper, which I presented a couple of weeks ago at Pete's workshop at GMU, called "Markets, Maslow, and the Evolution of the Modern Family" that also addresses some of the same issues. Those interested in how Austrian economics might be applied to the context of the family might wish to read my paper co-authored with Peter Lewin, entitled Heterogeneous Human Capital, Uncertainty,   and the Structure of Plans:  A Market Process Approach to Marriage and Divorce that will appear in the Review of Austrian Economics early in 2008.

This work on the family is part of a larger book project that I'm currently working on, tentatively titled "Two Worlds at Once: A Classical Liberal Approach to the Evolution of the Modern Family." One of the chapters will deal with the relationship between marriage and the state. In that chapter, I will echo the arguments that Coontz makes (and that Boaz made in an earlier Slate article and that Colin Jones made in 2006 in the Independent Review) and will call for "privatizing" marriage as the ideal solution. As all of this literature notes, privatizing marriage is difficult in a world where a large number of state benefits depend upon marital status. Jones's article is better than most in trying to sort through how private marriage licenses might articulate with state-provided benefits.

For many, the privatization of marriage is the ideal solution to the vexed question of whether the state should sanction same-sex marriages. By getting the state out of the business altogether, everyone can search out their own marriage provider with their own rules about who they will and will not marry. It's the same logic used for arguing that privatizing education would resolve questions such as whether sex education should be taught in the public schools.

The more interesting question for me is the "world of the second best" one of whether given that the state is currently in the business of granting marriage licenses, and benefits based on it, should it, perhaps on equal protection grounds, be obligated to extend such licenses to same-sex couples? Generally classical liberals believe that states are obligated to not discriminate among citizens in other cases, even if such discrimination would be fine if engaged in by private actors. Jim Crow laws are rightly opposed by libertarians, but should I wish to not hire members of a particular group, or only hire members of my own ethnic or racial group, that should be legal, though perhaps subject to social criticism. The question for same-sex marriage is whether the same logic applies.

Perhaps the public schools analogy works here too. Some libertarians oppose school voucher programs on the grounds that they will only extend the state's reach into education because even though parents have choice, it is still tax dollars and they will come with strings attached. The result, these folks argue, is that we'll undermine private schools. Other libertarians (myself included here) are willing to take that risk and see vouchers (or preferably tax credits) as a big step in the right direction in the world of the second best. Similar arguments have been made about the state granting same-sex marriage licenses, normally with the same folks lining up on the same sides. Here too, I think both as a matter of social scientific analysis and justice, the state should treat same-sex couples the same as opposite sex ones. There is no net social harm in extending marriage in this way and I do believe there is a moral imperative to treat gay and lesbian citizens the same as heterosexual ones. (I also think this argument can pass constitutional muster, but that's a topic for another time.)

Comments

[Brian Pitt]

Dr. Horowitz,

I had the pleasure of reading "Capitalism and the Family." I too see how the great things that capitalism provides can give rise to manifold issues in bedrock institutions like family. I look forward to the completion of your book. Btw, it sounds a bit like a follow-up to the "Social Crisis of Our Time." (This is not to imply that you are searching for a "third way." Just an acknowledgement that you heed that along with the wonders of the market comes "cultural dynamism.")

Lastly, am I correct in claiming: Boettke a Rothbardian; Storr a Weberian; Horowitz a Ropkean?)

[Steve Horwitz]

Brian,

Interesting last question. I actually largely agree with Pete's earlier post about his goals being Rothbardian but his methods being Misesian/Hayekian. I too generally favor the vision of the libertarian world MNR lays out in For a New Liberty. In the world we live in, however, I am reasonably willing to accept steps in the right direction, even if they are imperfect ones in the world of the second best. As my friend Tom Bell likes to say, we are about "REVOLUTION!!!! ... at the margin." Always keep the end goal in mind even as you recognize the reality of small steps necessary for getting there.

I think the difference among the three of us is more that, at the end of the day, Pete slightly prefers Mises to Hayek, I slightly prefer Hayek to Mises, and Virgil might well slightly prefer Weber to either (not sure about the last, pretty sure about me and Pete though).

Your point about cultural dynamism is a very good one. I would just point to something I wrote over three years ago in a blog post:

"It also shows one of the odd aspects of modern conservativism: the very same people who rhapsodize about how marriage should be about love and commitment between partners, and deride the quickie meaningless heterosexual marriage, can't seem to see why homosexuals might ask for the same thing. But the bigger irony for conservatives is that the reality of marriage as predominantly about romantic love, and the corresponding demand for same-sex marriage, is the product of the forces of capitalism. The Right has to recognize that the forces of the market cannot be "firewalled" off from cultural change. The wealth created by capitalism and the resulting dynamism of the market inevitably spillover to the culture. Ultimately, the attempt to defend the "traditional" family is an attempt to stifle the market.

Having said all this, I do not believe the family will ever, or should ever, disappear. Families cannot be replaced, and expecting the "village" to raise children will have roughly the same results as we've seen when "the village" runs agriculture or industry. Parents have, in Hayekian terms, the knowledge and incentives it takes to raise their children, and no other institution can do better. Yes, other institutions can help or hinder that process, and families can't do it all themselves, but the family is ultimately irreplaceable. Yes, it will continue to evolve, but that makes it no different from any other social institution."

http://hnn.us/blogs/entries/3877.html

This will be a key theme of the book.

[Bogdan Enache]

Prof. Horwitz,

Perhaps this article by Shoshana Grossbard-Shechtman and Bertrand Lemennicier, entitled "Marriage Contracts and the Law-and-Economics of Marriage: an Austrian Perspective" will also prove helpful in the preparation of your book on the marriage and state :
http://lemennicier.bwm-mediasoft.com/col_docs/doc_49_fr.pdf

I personally found it to be very enlightening on the subject.

[Steve Horwitz]

Thank you Bogdan. I'm pretty sure Peter and I cite that paper in our RAE piece, but I appreciate the reference.

[Bogdan Enache]

Sorry for the redundancy; I had not read your article before posting and I wasn't aware of your citation; I shall finish rectifying this in an hour. Anyway, I think the article quoted above is really interestenting and after I first read it I was surprised that nobody seemed to notice it. But my knowledge about new writings and discussion within Austrian Economics lags behind a lot, no doubt about it.

[TGGP]

The best libertarian take I've read on the issue is by John T. Kennedy here: http://www.no-treason.com/archives/2003/11/24/marriage-the-institutional-man-and-the-sovereign-individual/