A couple of professors from the University of Chicago think they have found a way out of what they see as a national impasse over state marriage laws. “To respect the liberty of religious groups while protecting individual freedom in general, we propose that marriage, as such, should be completely privatized,” Richard A. Thaler and Cass R. Sunstein write in Nudge: Improving Decisions About Health, Wealth and Happiness.
“Under our proposal, the word marriage would no longer appear in any laws, and marriage licenses would no longer be offered or recognized by any level of government.”
Thaler is a professor of Behavioral Science and Economics at UChi, Sunstein is a visiting professor in the law school there.
“Under our approach, the only legal status states would confer on couples would be a civil union, which would be a domestic partnership agreement between any two people,” the authors of Nudge promise. In an asterisk attached to that sentence just quoted the authors set off more alarm bells.
“We duck the question of whether civil unions can involve more than two people,” they admit. Judges with lifetime appointments have not been known to duck such questions.
In tackling them, moreover, many magistrates show a bias towards the novel at the expense of the traditional. Thaler and Sunstein’s text is one that such jurists are likely to find inspirational.
“Within broad limits, marriage-granting organizations would be free to choose whatever rules they like for a marriage conducted under their auspices,” Thaler and Sunstein avow. “So, for example, a church could decide that it would marry only members of that church, and a scuba-diving club could decide that it would restrict its ceremonies to certified divers.”
“Instead of channeling every partnership into the same one-size-fits-all arrangement of state marriage, couples could choose the marriage-granting organization that best suits their needs and desires.” A leather bar, perhaps?
Sunstein is a visiting professor at UChi whose home base is New York University. He plans to maintain his relationship with UChi which would give him at least two academic venues in which to promote his theory.
The authors make note of exigencies that may complicate their plan. For example, “A member of a married couple obtains a number of benefits at the time of death,” they concede. “A husband or wife can give his or her entire estate to the spouse without incurring any state taxes.”
Thaler and Sunstein call their approach “libertarian paternalism.” Back to the altar:
“Our basic claim here is that state-run marriage makes it impossible to protect the freedom of religious organizations to proceed as they see fit while also safeguarding the freedom of couples to make the commitments they seek without being treated as second-class citizens by the state,” Thaler and Sunstein aver. “But we also believe that the official licensing system no longer fits the modern reality.”
“For one thing, the institution of state-run marriage has a highly discriminatory past, enmeshed as it has been in sexual and racial inequality.” Incidentally, when Sunstein tried out this thesis at the Cato Institute, George Mason University law school professor Terrence Chorvat, also on the panel, said “You can’t just take something like marriage and do away with it in 10 or 15 pages.”
For the bulk of the audience at Cato, though, few objected to the proposal. Will Winlkenson, who works at Cato and was also on the panel, approved of the idea.
“A state license was a way of ensuring that sexual activity would not be a crime; and it was difficult to adopt children outside of marital relationships,” the authors maintain. “Official marriage no longer has this role.”
“Indeed, people now have a constitutional right to have sexual relationships even if they are not married—and people become parents, including adopting parents, without the benefit of marriage.” This approach of Thaler and Sunstein’s could have the effect of opening up a whole new academic field and even specialties in legal practice.
The authors also accept the 50/50 ratio of divorces to marriage. “But that figure is derived not from long-term analysis but from the fact that the raw number of new divorces each year is roughly 50% of the raw number of new marriages,” Tony Perkins of the Family Research Council points out. “These numbers are distorted by the fact that people with successful marriages usually marry only once, while people with failed marriages have often married and divorced multiple times.”
“Fortunately, new data from pollster George Barna included a more meaningful statistic,” Perkins reported recently. “Of all Americans who have ever married, only one-third have ever been divorced.”
Malcolm A. Kline is the executive director of Accuracy in Academia.
