October 21, 2005
More Thoughts on Partnerships and Marriage
Posted by Christine Hurt

Maggie Gallagher has finished her guest stint at VC, and I have to say that I am unpersuaded.  I am probably in the demographic that her arguments would persuade, but they did not.  Most of her posts seemed much like retellings of the last post, with some sections repeated (repeatedly):  "Sex makes babies. Society needs babies. Babies need mothers and fathers. This is the heart of marriage as a universal human idea."  (Maybe if you chant it like a football cheer, it would actually convince me that then marriage (i) can't be an institution for people who can't make babies using sex as the method but (2)can be used as an institution for people who theoretically can, but practically can't or choose not to have babies using sex as a method.)

Enough about that -- that argument is for another blog.  We're all about corporate law here (and Miers and football and baseball. . . .)  What really bothered me today was the complete absence all week of any talk about the historical use or consequences of marriage with respect to property.  Nada.  Gallagher is either ignorant of this issue or purposefully avoids it.  I would say that she's too smart to be ignorant of property law and corporate law, but then she throws away this statement as a strawman in her last post

Or take the fact that marriage is an economic partnership. Suppose we expand the definition of marriage to include two business partners? How could that possibly hurt marriage? After all we aren't running out of marriage licenses, are we?

Actually, we already have business marriage statutes -- take a look at the UPA and the RUPA. Two business people couldn't get any more protection or commitment from most state marriage statutes. In fact, it's much easier to form a partnership by default than a common law marriage. Do we do this because we want to throw the state interest around the intimacy of business relations? No. We do this to decide who has duties to whom and who owes what property. Hmmm. Just like marriage.  If Gallagher is against civil unions as well as SSM, then maybe she's against partnership statutes as well?

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October 17, 2005
What is the Purpose of Marriage?
Posted by Christine Hurt

The VC is showcasing guest bloggers talking on the pros and cons of same-sex marriage.  This week's voice belongs to Maggie Gallagher, the author of The Case for Marriage: Why Married People are Happier, Healthier and Better-Off Financially.  I thought from the title of the book that she would be a proponent of same-sex marriage (if marriage is so important, then it should be available for the most people), but Eugene Volokh introduces her as the "con" voice in the debate.  Her latest post, here, frames the debate by first stating the governmental (not individual) purpose of marriage -- "to create sexual unions in which children are (practically) guaranteed the loveand care of their own mother and father."  Although individuals may have other reasons for being married, the state is not interested in creating avenues for public recognition of intimacy or symbolizing commitment or whatever any more than the state cares about high school sweethearts breaking up before the senior prom. 

That seemed rational to me, but here's another idea.  Marriage laws outline obligations and rights as to children, but also to property.  Marriage may also serve a state interest of formalizing the owning and distribution of property.  When two persons join together for a business purpose with an intent to share profits, the state likes to step in and call that a partnership so as to delineate rights and obligations.  Perhaps marriage is the not-for-profit partnership.  I'm sure others have thought about this before, but I hope that Ms. Gallagher addresses it in her comments as well.

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October 12, 2005
Happy Anniversary
Posted by Christine Hurt

My parents were married on October 12, 1965, and unless something has happened today that I don't know about, they are still married.  Happy 40th Anniversary!

And Grandma said it would never last!

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July 18, 2005
The Economics of Symbolism
Posted by Will Baude

In this week's blog post, Professors Becker and Posner confront the economics of gay marriage, in an effort to make utilitarian sense of the current battles. Both of them conclude that apart from the symbolic power of the word "marriage" there is little difference between gender-neutral civil unions and full-fledged same-sex marriage. They also conclude that we might be better off privatizing the status of marriage altogether. Finally, they wonder why there is so much hooplah in fighting over a mere word. The trouble is, as valliantly as one tries, one can't really analyze this without figuring out "(w)hy so much passion is expended over the word 'marriage'," a question that both of them disclaim.

For starters, I tend to agree with Becker, Posner, and Ribstein that it would be good if we moved "marriage" out of the bureaucratic realm and made it a religious, social, or cultural status that people could attain according to whatever religious, social, or cultural practice they shared. We would then handle what is currently government-run marriage by allowing people to create form- and custom- contractual arrangements to deal with joint assets, children, powers of attorney, testimonial privileges, inheritance, and so on. But because this marriage-privatization argument sounds so simple, it is worth emphasizing two major flaws. 1, given the vast number of ways that state, local, and federal laws, cases, and regulations touch on marriage, cleaning all of them up would be a Herculean task. 2, despite my, Posner's, and Becker's inclinations, a great many people do seem to care that their sacred union be recognized by the state. This can change and be changed, but in the mean time, it is unfair to give this feeling short shrift.

Which brings us to the marriage/civil-union debate. Becker finds "incomprehensible" and Posner finds "baffl(ing)" the amount of passion that is expended on a mere word. Is it really so baffling? First of all, insisting on sharing not just a set of government benefits but also a title ("marriage") can entrench today's political gains. I suspect that when things retain different names it is politically easier to treat them differently (compare regulations of D.C. and the states, or of limousines and taxicabs). Second, insisting on the name "marriage" allows SSM advocates to tap into the store of federal and state constitutional case law that refers to the institution of marriage, protecting it against various forms of governmental infringement &c.. But third and most important, people care about a word because they care about symbols in and of themselves.

Symbolism may be hard for an economist to formalize, but it should hardly be surprising or baffling. People die to raise American flags. They expend serious sums of money and time to erect Christmas trees, wrap gifts, bury the dead, erect and engrave monuments, and buy wedding dresses they will never wear or use again. The uneconomic symbolism surrounding wedding and engagement rings is well-known.

It is embarrassing for an economist to have to say "we care just because we care" but sometimes that is the right answer. People care about being married for all sorts of incredibly important, ritualistic, personal, emotive reasons; societies have cared about some form of marriage or another for as long as we have had the word. And many people care about being "really" married, not just having civil-unions that are colloquially known as marriage (as Posner suggests) because marriage is about formalities and people like to get their forms right, as the vast number of formal wedding books can attest.

I tend to agree with Posner and Becker that it might be wise for those who believe in same-sex marriages (as I do) to fight for substance now and symbols later, but I might have it backwards. Perhaps the power of fighting for a symbol is what gives people enough energy and cohesion to win the substantive battles. One does not found a nation-wide grass-roots movement about creating a broader power of attorney or wrongful-death tort.

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June 24, 2005
Six Years
Posted by Christine Hurt


Six years ago today I went from being a well-adjusted normal person to being a mom.  It was the best day of my life, hands down. 

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June 07, 2005
Posted by Gordon Smith

Ann is talking about activists for breast-feeding rights. Aside from being really clever, "lactivism" stands for a long-overdue effort to make breast-feeding in public more acceptable. Ann tries to explain how to think about balancing the competing interests of breast-feeding mothers and those who are near them:

As a rough comparison, imagine if you needed to blow your nose and you were in the middle of a store or a restaurant. We'd think it was outrageous if the owner kicked you out for doing it and rude if the other customers gave you dirty looks -- assuming you did it discreetly. But it would be rude of you and you'd deserve those dirty looks if you blew your nose loudly and sloppily right next to someone.

Well, it's only a rough comparison, but pretty apt, I think.

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April 06, 2005
Happy Birthday, Twins!
Posted by Gordon Smith

My two youngest children are twin boys. Fraternal. (I knew you were going to ask.) My wife and I have had six children. Our first child died when he was three months old from a rare neurological disorder called Werdnig-Hoffman Syndrome. I have written about that experience here. As I wrote there, our pediatrician advised us against having more children because Werdnig-Hoffman Syndrome is hereditary. But we felt strongly that we should have more children, and we have had them. Now, our oldest is 16 and our youngest are nine. We have a 14 year old and an 11 year old in between. Today was the birthday of my twins. Happy Birthday, Christian & Conrad!

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