In support of same-sex marriage

Due to the recent Supreme Court argument friends have been asking me for an opinion regarding same-sex marriage. So here it is…

The word “marriage” has some different meanings. If the idea is “lifelong commitment” or at least “commitment to stay together until children are reared through age 18,” this is purely a personal/religious matter. The government cannot prevent two people from staying together if they have committed to (a) each other, and (b) the institution of two-parent child-rearing. At the same time in our age of no-fault divorce the government has no role in keeping two people together. In fact, as outlined in Real World Divorce, the government provides substantial cash incentives for one partner to initiate a divorce, or just get pregnant after a one-night encounter, based on the simple principle that one can be wealthier by tapping into the incomes of multiple co-parents rather than just one.

Having a federal court decide an issue of marriage is a little problematic because the definition of civil marriage is different in every state. Given that nearly all of the states have settled into a “no-fault” system, however, in reality the Supreme Court is rendering a decision regarding which Americans can avail themselves of the financial opportunities presented by civil marriage.

The supposed financial advantages of getting and staying married presented by same-sex marriage proponents are, at best, slight. For most Americans the potential estate tax savings are irrelevant (people with less than $ 5 million in assets don’t pay estate tax; people with substantially more than $ 5 million in assets typically come up with a workaround). For American couples with a modern lifestyle, in which both partners have an income, the tax “savings” from a marriage are actually in a negative direction, particularly with the new Obamacare taxes (i.e., there is a marriage tax penalty). There are no significant financial advantages for two working Americans who stay together. Compared to the informal partnership alternative, civil marriage offers one partner enormous financial advantages only if one partner decides to cash the partnership in.

The principal financial advantage of civil marriage is that, properly structured and planned, an American adult can become a dependent on another American adult without that person’s continuing consent. Here’s an except from the Introduction:

“When young people ask me about the law as a career,” said one litigator, “I tell them that in this country whom they choose to have sex with and where they have sex will have a bigger effect on their income than whether they attend college and what they choose as a career.”

Consider Jennifer, an Indiana or Wisconsin resident with $ 2 million in premarital savings. “Pat” can marry Jennifer on a Sunday morning, sue her for divorce on a Monday morning, and be presumptively entitled to $ 1 million. “Pat” can repeat this every time that cash runs short and the profits are limited only by the wealth of the targets of these short-term marriages.

Consider Fiona, a Florida resident with a $ 400,000 per year income. “Chris” can marry Fiona for a short time, get a psychologist to certify that “Chris” is disabled, and then collect “permanent alimony,” remaining Fiona’s dependent for the rest of their respective lives. “Chris” can subsequently get together with a love interest and possibly benefit from that person’s income as well (and/or use Fiona’s wages to support the new lover).

Short-term marriages to Jennifer and Fiona are financial opportunities much better than what is available in the U.S. labor market. How can it be fair that whether or Pat and Chris have access to these financial opportunities depends on their sex? What would it mean for our society to present “equal opportunity” if not equal financial opportunity?

A separate reason for my support of same-sex civil marriage is that medical technology has advanced to the point that it is practical for a mixed-sex married couple to become, post-marriage, a same-sex married couple. If state law does not provide that such a couple is automatically divorced once a gender reassignment surgery is complete then how is it reasonable to deny granted civil marriage status to people who start out in the same sex? An activity shouldn’t be allowed or disallowed depending on when a medical procedure is accomplished.

What about religious objections? Religious groups that object to same-sex partnerships can simply recognize that civil marriage as offered by U.S. states is (1) not the same thing as religious or traditional marriage, and (2) not intended to be permanent or binding beyond the point where one participant can advantage him or herself by unilaterally dissolving the legal union. Thus religious groups opposed to same-sex marriage and/or opposed to mercenary marriages would withdraw from their role in creating legally recognized marriages and tell adherents “If you want to make a lifelong commitment in our religion, you can do that in our church; if you want to participate in the financial opportunities presented by civil marriage, you can go to City Hall and go through a separate and parallel procedure.” If the temporary-by-current-design civil/legal situation of marriage is not something that religious groups endorse then it shouldn’t be upsetting to them who is entering into or departing from this situation.

“Marriage and divorce is primarily a way to get paid without working,” is how one divorce litigator put it. How can a state say that some Americans are more entitled to get paid than others?

Philip Greenspun’s Weblog

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