In the most recent Econ Journal Watch, Cass Sunstein states that he has changed his mind about one of the most libertarian proposals he and co-author Richard Thaler make in their book Nudge: Improving Decisions About Health, Wealth, and Happiness. I reviewed their book in the Summer 2008 issue of Regulation. My review is titled "A Less Oppressive Paternalism."
Here's what I wrote on their chapter on marriage:
In a chapter titled "Privatizing Marriage," Thaler and Sunstein advocate, quite sensibly, moving in a libertarian direction by separating marriage and state. They point out that, despite the evidence, almost 100 percent of people who get married think that they are highly unlikely to get divorced. This is one of those systematic, but wrong, biases that people have. People also think that arranging pre-nuptial agreements will "spoil the mood." The result? Most people are vulnerable to "a legal system that has an astonishing degree of uncertainty." They advocate a nudge: a default contract that favors the weakest parties, typically women. Then, people would be free to avoid the default by tailoring a contract to their desires. They also suggest that taking marriage away from the state would, with one fell swoop, solve the thorny problem of gay marriage. Let churches and other organizations choose whatever marriages they want to approve and let people choose their churches. Interestingly, their nudge is a small part of this proposal, just as with their proposal on malpractice.
What a terrible idea. For countless people (including the present author, married in 2008, after chapter 15 was done), official marriage is important, even precious. It recognizes a status, and it does so in the distinctive way that comes from the state itself. Abolishing that status would impose a serious loss--and it might well have unintended bad consequences for spouses and children alike.
To be sure, Thaler and I were trying to solve a particular problem: the intense and seemingly intractable debate over same-sex marriage. We thought that privatization would be a way to make that debate disappear. We failed to foresee the immense power of the movement for same-sex marriage, which was able to achieve its goals in an extraordinarily short time. But even if that movement had turned out to fail, our proposal would throw away an indispensable institution.
So his rejection is not mainly due to the success of same-sex marriage. It's about his unwillingness to give up the government's imprimatur on marriage. This is more evidence that Sunstein, as I have said elsewhere, is the less libertarian of the Sunstein/Thaler pair.
What about his argument that the abolishing the legal status of marriage "might well have unintended bad consequences for spouses and children alike?" He and Thaler actually deal with that argument in their Chapter 15. They wrote:
Its [official marriage's] benefits are surprisingly low; in many ways it is an anachronism. The most that can be said is that official marriage might contribute to a kind of commitment that benefits both couples and children." (emphasis their's)
Later in Chapter 15 they come up with good solutions that deal with children but don't require the government's recognition of marriage.