A Stitch in Haste

There's an episode of The Waltons in which the family discovers that a logging company claims to have acquired legal title to Walton's Mountain and intends to strip the land of its timber. Daddy and Grandpa Walton rush to a lawyer, armed with generations' worth of family Bibles, wills, letters, etc., demonstrating the family's longstanding claim to ownership of the land (despite never having gone through the formality of registering a deed with the county).

In a gasp of exasperated frustration, Grandpa Walton asks, "Doesn't all this count for anything?"

"Yes it does," the lawyer answers, "in court."

That is the libertarian "paradise" envisioned by the "government should get out of the marriage business" crowd, the most recent manifestation of which is this Alex Tabarrok post:

People will claim that this means a chaos of contracts for every form of marriage. This is wrong factually and also conceptually misguided. Factually, we already allow men and women to adjust the marriage contract as they see fit with pre-nuptials. Moreover, different states offer different marriage contracts with some offering more than one type. Partnerships of other kinds have access to all manner of contractual arrangements without insufferable problems.

First, it is simply incorrect as a matter of family law that individuals can "adjust the marriage contract as they see fit with pre-nuptials." Some presumptions that flow from the legal status of marriage can be adjusted by an antenuptial (e.g., property division upon divorce); some cannot (e.g., waiver of the right to allege spousal rape). But that's only a minor nitpick I have with Tabarrok's post.

More important is another question, one that I have asked before: Since when do economists ignore transaction costs? The one unarguably redeeming quality about state-recorded, "legal status" marriage is that it is wonderfully efficient. A whole host of contractual and quasi-contractual rights and obligations achieved with a simple — and inexpensive — "I do."

Let's start with Tabarrok's somewhat insolent example: How much does a typical antenuptial agreement cost to draft? To enforce? And, as Tabarrok himself notes, is there even such a thing as a "typical" antenuptial? And that, as gay couples know all too well, would only be the beginning of the effort, and cost, of trying to replicate marriage via contracts.

Are you married, not rich, and desperately in love with your spouse? Then you don't really need a will — intestacy law works wonders for you. How, exactly, is scrapping the whole notion of intestate succession (which is essentially what would happen under a strictly contractual marriage paradigm) a libertarian dictate? How is telling just about everyone that — too bad so sad — proper libertarianism requires you to shell out money for a will, a selling point either for libertarianism or for fair and equal treatment of gays? "We'll all pay the same lawyer fees!" isn't exactly a catchy slogan.

And then there is, of course, the most nightmarish example of all: hospital visitation. Here's some cruel, vicious, utterly disingenuous blather from someone I have far less patience with than I do Tabarrok — Mike Huckabee:

Q: I just wonder what you'd say to the gay couple who says, "Well, we want to live this way, and my partner can't come visit me in a nursing home.

MH: He can with a power of attorney. That's the fallacy, that this requires some new definition of marriage. It's simply not the case.

Huckabee is many things, but "libertarian theorist" is not one of them.

It's easy to be so causally flippant (i.e., "Christian") about powers of attorney when you don't need one yourself. In any event, incidents of perfectly valid powers of attorney being perfectly ignored by hospital staff (not to mention banks, stockbrokers, landlords — and government bureaucrats) are everywhere — assuming you're interested in knowing about them. Neither Huckabee nor Tabarrok seem so inclined. Even New Jersey's civil union law is a proven failure at being "just like marriage."

To summarize: Government "getting out of the marriage business" would turn every wedding into the legal and economic equivalent of a real estate closing -- times a thousand. With the additional and unnecessary nuisance (or terror) of some clerk or bureaucrat saying at any moment, in any context, "Sorry, we don't recognize that. You'll have to go to court." Why would any libertarian embrace such a regime?

Government-recorded marriage (note that I did not say government-sanctioned marriage) -- properly crafted and fairly applied based on rational standards rather than on unbridled majoritarianism -- is simply not an affront to libertarianism. Sacrificing economic efficiency in the name of blindly striving for asymptotic "markets in everything" dogma is.