Posted by: Chris | February 23, 2012

Privatizing Private Lives

UChicago’s Richard Thaler has an article in the NYT recommending a favorite libertarian shibboleth: cutting the Gordian knot of gay marriage by privatizing marriage entirely:

Fortunately, there is a simple solution to this problem, one that, based on their stated views, both Mr. Obama and Mr. Romney might support, along with anyone else who answered “no” to my two opening questions.

Congress should amend the Defense of Marriage Act to replace the sentence I quoted earlier with the following: “Wherever the word ‘marriage’ appears in any federal statute, replace that word with the phrase ‘domestic partnership between two people valid under the laws of the state where it was obtained.’ ”

I am not a lawyer, so I will not try to spell out all the details of how this would work. But here is a rough outline of a plan: In my ideal world, all states would follow the federal lead. The legal unions that are now called marriages would be called domestic partnerships, which would be offered to same-sex as well as heterosexual couples. But if some states are unwilling to enact such statutes, same-sex couples who live in those states could simply go to a state that does offer same-sex domestic partnerships, and would then be treated as such by the federal government, with all the attendant financial benefits and responsibilities. Companies can choose the state in which they incorporate, so couples should have that privilege, too.

Marriage, of course, would continue, but would no longer be regulated by the government. Instead, weddings would become like many other important ceremonies from graduations to funerals: private matters. (Conservatives may applaud now.)

Except of course I cannot imagine conservatives applauding much at all.  One would think that Thaler, co-author of Nudge, would worry that changing the default partnering option for people would negatively influence the number of people getting married or the norms associated with the institution, which is exactly what opponents of same-sex marriage (or at least the smart ones) fear most.  It is ironic that so many attempts to avoid the imagined potential detriments of SSM lead directly to their actualization.  Plainly put, expanding the institution of marriage to include gay couples is the best way to preserve the institution from further corrosions and extend the priviledges (and norms) associated with it, rather than any of the too-clever-by-half alternatives.

Relatedly, Salon has a rather even-handed profile up of Maggie Gallagher.  Worth a read.

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