David R. Henderson  

Sunstein Backs Down on Libertarian Marriage

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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.

In short, I thought it made a lot of sense.

But now, in his article "The Statements I Most Regret," Sunstein writes:

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.


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CATEGORIES: Regulation




COMMENTS (16 to date)
Thoma writes:

Sunstein's early proposal did make a lot of sense. But then the state delivered what faux libertarians like Sunstein want: a push (not a nudge) in the direction of same-sex marriage. I call him and his ilk faux libertarians because they're perfectly happy to endorse state intervention when it delivers results that they favor. I am cynical enough to believe that his yearning for the imprimatur of the state is an after-the-fact rationalization of his change of heart in the wake of Obergefell v. Hodges. Related: https://politicsandprosperity.com/2017/06/06/another-case-of-cultural-appropriation/

Andy S writes:

I recall Jonathan Rauch making the argument that a "privatized marriage" solution would cause gays to be blamed for the loss of official marriage, and therefore was not a feasible political solution. Regardless, Sunstein hasn't justified why marriage is precious, indispensable, or even important.

Jon Murphy writes:

I understand Sunstein's new view, although I may not agree. I've not read Nudge since my undergrad about 10 years ago, so maybe they addressed this and I've forgotten but:

With issues like Social Security, HIPAA laws, and medical care in general, having an "official" state marriage can clarify and expedite things in general. Without it, spouses have a much harder time hanging onto their partner's property should the inevitable happen, talking with doctors, handling finances, and so on (if memory serves, this was an issue with gay marriage). Reforms to those institutions would need to occur before marriage is privatized.

Amy Willis writes:

While not on the issue of marriage, Sunstein and EconTalk host Russ Roberts have a quite lively discussion as to what constitutes the meaning of "libertarian" in this episode on his latest book:
http://www.econtalk.org/archives/2017/05/cass_sunstein_o.html

David R. Henderson writes:

@Andy S,
Regardless, Sunstein hasn't justified why marriage is precious, indispensable, or even important.
I don’t think he needs to. It’s self-evident to most of us who are happily married; certainly it’s self-evident to me.
But what he does need to justify, and hasn’t, is why the state’s imprimatur is so important. Maybe that’s what you meant.
@Jon Murphy,
With issues like Social Security, HIPAA laws, and medical care in general, having an "official" state marriage can clarify and expedite things in general. Without it, spouses have a much harder time hanging onto their partner's property should the inevitable happen, talking with doctors, handling finances, and so on (if memory serves, this was an issue with gay marriage). Reforms to those institutions would need to occur before marriage is privatized.
Right, and they talk about that in the chapter with the idea of civil unions.

Hazel Meade writes:

The best argument I have seen for official marriage is that it allows the state to establish default rules for inheritance, child custody, visitation, and divorce in the absence of any official marriage contract. Not having any government recognition of marriage might create confusion as to who legally owns what property after a death or divorce, especially in a society with diverse cultural and religious practices.

That said marriage recognition does not necessarily entail licensing. Common law marriage should be recognized everywhere, and the state should assume common law rules as the default if there's no formal contract.


Rob writes:

It recognizes a status, and it does so in the distinctive way that comes from the state itself.

One of the least libertarian things I have ever seen from someone claiming to be some sort of libertarian.

I generally oppose the entire "nudge" concept, but they were dead on with marriage, although I don't see the need for the default contract (actually, I thought the default was "til death do us part"), but whatever.

Rob writes:

One of the biggest things needed wrt marriage is to eliminate no-fault divorce UNLESS specifically contracted to.

Getting rid of that returns to the legal system treating marriage more like a contract and thus easier to separate marriage and state.

SS, HIPAA etc would adapt quickly if state marriage went away, if not by legislation then via the courts.

Roger Levy writes:

As many of the comments note, government's role has little to do with marriage and more to do with contractual issues. So the original Thaler/Sunstein proposal is in fact on target. The state's role should be limited to civil contacts between any two individuals. All tax code and other federal/state regulations that condition benefits or costs on 'marriage' should be removed. Individuals, regardless of sexual orientation,should then be allowed to pursue a 'marriage' be it through a church, synagogue, mosque, temple, or retail outlet. This approach solves the LGBTQ issues while simultaneously addressing the state contractual interests.

David Seltzer writes:

"Nudge" suggests "choice architecture" can be used to recommend policy. Of course policy comes from the feds and it may be that a nudge soon becomes a shove.

Andy S writes:

@David R. Henderson

But what he does need to justify, and hasn’t, is why the state’s imprimatur is so important. Maybe that’s what you meant.

Yes, that's what I meant. In particular, the "indispensable" claim is refuted by his own book. First, he must dig himself out of a hole.

GregS writes:

I actually think that Sunstein was right before and is wrong now, but it’s interesting that he quickly changes his mind about how an institution should be controlled by the government once he joined that institution. He’s a thoughtful guy, but I think he’s often far too quick to favor government regulation when he thinks people are “irrational.” I wonder if his “conversion from personal experience” will cause him to rethink government regulation more generally. Obviously he had this huge blind spot that was filled in by personal experience (according to his own telling). I’m curious if he had the thought, “I wonder if I’m wrong about these other institutions that I’m not intimately familiar with? Maybe those irrational consumers actually know something that I don’t know.”

Steve S writes:
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.

Wow. This is a slap in the face to thousands of years of persecuted gay people. Problems exist before they get a hashtag on Twitter, Mr. Sunstein.

Extraordinarily short time, jesus...I'm speechless.

T Boyle writes:

"They advocate a nudge: a default contract that favors the weakest parties, typically women."

This is what state-recognized marriage does now, except that I'd quibble with the phrase "the weakest parties". I'd say it favors the sex affiliated with the higher degree of political power, which explains the marriage laws of both the present day and pre-20th Century quite nicely.

The problem, indeed, from a libertarian (or human rights) perspective is that when the parties try to enter a non-default contract, too many states (and/or judges) refuse to recognize it - and instead go back to the default contract that favors the politically powerful (currently, women - and a similar hazard affected a wealthy married woman divorcing before the 20th Century, when men were more politically powerful). Consider California, where family law will recognize marriages - but very likely not prenups - entered into in other states, because other-state prenups often will not meet the significant additional requirements of California law. This sort of thing - state actors bending over backwards to allow a party (usually the woman) to wiggle out of private marriage agreements and benefit from the default that favors her - is common. You also see it in relation to agreements regarding children, which - even if entirely reasonable - are completely unenforceable, precisely because the default so strongly favors the mother (and women are politically powerful).

To suggest, by the way, that women are "weaker" in the marriage is ludicrous. On average, men PAY to be married, and women ARE PAID to be married. The weaker party, clearly, is the man, not the woman, which is why he compensates her. And the current default law, far from protecting the weaker party from this situation, perpetuates the situation even when the paid-for relationship is ended.

Musca writes:

Can a Ronald Coase-type argument be made about state-sanctioned marriage reducing transaction costs and therefore being more efficient than common-law marriage?

After all, a relatively inexpensive state license allows fairly quick and cheap resolution to all the custody, estate, visitation, etc. questions noted above, which would otherwise have to be resolved in courts or through arbitration, even for common-law marriages.

Not that this addresses critical questions about the proper role of the state. But the efficiency argument needs to be addressed.

David R. Henderson writes:

@Musca,
Can a Ronald Coase-type argument be made about state-sanctioned marriage reducing transaction costs and therefore being more efficient than common-law marriage?
I don’t think so.
After all, a relatively inexpensive state license allows fairly quick and cheap resolution to all the custody, estate, visitation, etc. questions noted above, which would otherwise have to be resolved in courts or through arbitration, even for common-law marriages.
The license is cheap, but you’re measuring the wrong cost. With government setting the rules, it’s hard for people to contract out of them. Indeed, such contracts are typically unenforceable. They would be more likely to be enforced if the government got out of the marriage license business.

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