Why Civil Marriage?
A commenter asks in response to Elias’ post on the problem with arguments against same sex marriage:
As a person who is single and has taken care of one of my parents for 18 years and helped raise one of my siblings I am of the position that nobody should get special tax benefits just for being married. Maybe this can be considered F You I Don’t Got Mine So Why Should You Get Yours. Why do us singles get the shaft? Just because I chose not to procreate or get hitched to another. I made a commitment to my parent just as strong as any commitment two people who wish to be married do. I could argue I have made a stronger commitment, one that was entered into with the understanding that my life was going to be amazingly difficult for the foreseeable future. I understand that SSM will afford couples to have access to each others insurance. SSM couples have some of the same wishes I do too. Dang, sure wish I could have put my parent on my insurance all these years. Many times I have wondered why do we even have this thing called marriage. I understand the “before God, I pledge myself to you” (insert whatever you want in the God spot). I don’t understand why we have any government involvement in marriage though. I’m not being contrary, but I really don’t understand why governments are involved in whether two people chose to spend their lives or some portion of their lives together. If we want to be responsible for each others debts and be able to make medical decisions for the one we love why can’t we enter contracts making it so? Why do we enter the contract of marriage? Maybe I’m just being silly, I will stop now before this becomes a really long post. Do what you want to do with the one you love and be happy and may you be able to fulfill your dreams. If that dream is a marriage then Good Luck and I hope you can marry the one you Love.
This is a fair set of questions, but ultimately a set of questions with a pretty satisfactory answer, I think, or at least an answer that would easily satisfy any rational basis test.
First, it’s not necessarily the case that filing jointly saves tax money, though I suppose a fair response to that would be that at least married couples have the option if it would save them money. But I’ll try to get back to the tax question at the end, since my points about it are dependent on my other points and are perhaps also not as strong.
I take the core question here to be, in effect, “can’t we just do most of civil marriage through private contract? If not, why not?” To which I think the response is that in some cases, we absolutely cannot, and in other cases we wouldn’t want to.
The medical decisions and hospital visitations issue is an example of where simple private contracting would not work. Why not? Because those issues involve relationships with third parties -and in some cases, binding obligations upon those third parties- in situations where one of the partners to the marriage may not be available. Special civil recognition of the marriage contract ensures that spouses will have the same visitation rights as blood relatives. Similarly, with regard to medical decisions, a lack of special civil recognition of the marriage contract would leave blood relatives with superior rights to the spouse, rather than the other way around. In other words, as long as civil law grants any privileges to familial relationships (and it surely does), then special civil recognition of the marriage contract is necessary to ensure that spouses are legally on the same or superior footing to blood relationships. In the case of medical decisions, an absence of special civil recognition of marriage would leave hospitals having to decide whether to obey the wishes of the blood relatives or the person claiming to hold a contract with the patient giving them equal or superior rights to those civilly granted to the blood relatives. There are precious few medical situations where a hospital would have time to allow the purported spouse and blood relatives to properly litigate the validity of the purported contract. Indeed, some of the most heart wrenching stories about why recognition of SSM is necessary involve would-be spouses being denied visitation rights or any say in their partner’s medical decisions despite having contracts purporting to provide those rights.
So those are some ready examples of how special recognition of the marriage contract is absolutely necessary to honor the wishes of the spouses. One important thing to note with the above is that these aren’t privileges unavailable to children, parents and/or blood relatives- to the contrary, these are privileges that such family members have independent of any special recognition of the marriage contract. Special recognition is needed to make clear to the rest of the world that the spousal relationship is a familial relationship, and is indeed a familial relationship that is most often more intimate than that between parent and child. Also, though rare nowadays, in the case of common law marriages where there is no formal agreement (particularly in the past, when most people were illiterate), special civil recognition of marriage is especially necessary, and not just in the instance of visitation rights and medical decisions- without special civil recognition, a common law spouse would have no rights whatsoever vis a vis the blood relatives despite having typically shared more of the partner’s life than those relatives.
But the value of special civil recognition of marriage is not limited to those instances where it is absolutely necessary. This is because one of the special civil recognition of marriage’s primary functions is to, in effect, supply default terms for any marriage contract. Marriage is obviously an exceedingly common arrangement, and rarely do both spouses have the level of sophistication – nor, historically, reasonable equality of bargaining strength- needed to fairly negotiate many/most essential terms of the marriage contract. Special civil recognition of marriage often amounts to the state supplying a set of default terms to that contract, much as it does in other common contracting situations such as the Uniform Commercial Code. Much as with the UCC, many default terms provided by civil recognition of marriage can be modified by agreement, which is effectively the purpose of a pre-nup or post-nup; but for all but the wealthiest or most sophisticated people, the default terms provided through special state recognition of marriage are going to be quite useful and/or necessary.
Of course, some of the terms provided by virtue of special civil recognition of marriage are inalterable. In these instances, that recognition acts to serve as a baseline for establishing a valid marriage contract. Given the historic power imbalances between spouses in purely religious marriages, such inalterable terms provided by virtue of special civil recognition can act (though we can debate how often they historically have in fact so acted) as bulwarks against certain forms of abusive and exploitative religious marriage.
So that brings me to the tax treatment issue. Now, I’m not enough of a tax historian to know what the actual rationale for such treatment originally was. But my point here is just to provide a potential rational basis for preferential tax treatment for married couples. I can think of several: (1). Preferential treatment encourages people to enter into civil marriage rather than potentially abusive, purely religious-based marriages that historically have often differed little from some forms of slavery. (2) Two parent households are preferable to single parent households from a public policy perspective, both because of the benefits to children and also because single parent households are highly likely to require significantly more government assistance than two parent households (and maybe never-married single parent households are likely to require more public expenditures than previously-married single parent households?) so providing a strong incentive to enter into civil marriage at least arguably serves a compelling public interest; I would also note here that even in the absence of children, single people may be more likely to require more government assistance than married people due to economies of scale. (3) To the extent civil marriage (a) provides a social good, (b) requires one or both of the spouses to sacrifice rights they would have in the absence of civil recognition, but (c) requires both spouses to enter into it freely, then some form of government incentive is necessary to make it worthwhile for both spouses to enter into it.
Is this tax policy discriminatory against single people? Perhaps. But, particularly as the battle over SSM is gradually won, it is not discriminatory on the basis of any innate characteristics of single people. There has never been anything to prevent a single man and a single woman from entering into a sham civil marriage in order to obtain tax benefits, at least not as as long as they both agreed to make the sacrifices and take the risks required by civil marriage. As SSM spreads, the innate characteristic of gender is made irrelevant to eligibility for this benefit – if two otherwise heterosexual best friends wish to enter into a sham civil marriage with each other to obtain some fairly modest tax benefits, they increasingly can do so, as long as they’re willing to make the sacrifices that requires. Absent a limitation based on an innate characteristic, that makes it no different from any other tax benefit. My guess is that few people will take advantage of this, though- as the divorce rate (decreasing as it may be) continues to show, real marriages require enough work to maintain as it is; I can’t imagine a sham marriage based solely on tax benefits would be any easier to maintain.