Comments Elsewhere

Brandon:

I’m sympathetic to arguments about courts capriciously (or systematically) ignoring contracts, but this is a problem for everybody, not just for homosexuals.

Well, come on now; this isn’t “a problem for everybody” any more than, say, lynch law in the South was “a problem for everybody” rather than Blacks specifically (there are a few cases of white people being lynched in the 1920s and 1930s). It’s a problem for gay people specifically because partners in gay relationships are particularly vulnerable to having their express agreements arbitrarily disregarded by courts; they’re often treated in ways that straight couples would almost never be treated because they are gay. That there’s an “almost” in front of the “never” doesn’t really affect the point that this is a politicized class structure that needs serious attention.

Brandon:

And as a libertarian, I’m obviously not moved by claims that gay couples can’t force taxpayers, employers, or other private entities to give them various material benefits or “social respect.”

I certainly agree with you here, but oughtn’t we be more concerned about the fact that straight couples today are already forcing taxpayers, employers, and other private entities to give them various material benefits or “social respect”? I mean, why dick around about expansion to gay couples specifically when the issue is that nobody at all should have access to government marriage privileges?

Speaking of which, here’s Micha:

I think people here are focusing on abstract freedom to contract without giving enough attention to the transactions costs of contracts. Even if it were true that gays could get all the various contractual benefits a married couple currently enjoys by using a mishmash of contractual arrangements, it still would be a violation of their freedom to contract since they cannot enter into a boilerplate marriage contract that includes all of these benefits without prohibitive transaction costs.

Come on, Micha, this is frankly silly. If transaction costs were the only issue, it wouldn’t be hard for someone to draw up a fill-in-the-blanks bundle of lifetime-partner contracts and sell it or give it away to anyone who wanted it. But civil marriage is neither a contract nor a bundle of contracts; it’s a change in legal status and it confers a number of privileges and obligations that are not and could not be privately contracted. The issue here isn’t transaction costs; it’s that the State is using coercion to grant special privileges to straight couples through civil marriage. But of course the proper reply to that is not expanding, but rather dismantling, the coercive entitlement.