A contractual agreement
Thursday, 28 January 2010 12:33
I’ve fallen behind in my reading lately, so I am only now getting to “Uncommon Sense” by Gary Becker and Richard Posner. As some readers may know, Becker is a professor of economics at the University of Chicago and Posner is a judge on the 7th Circuit Court of Appeals and a lecturer at the University of Chicago Law School.
The book reprints some of the essays from their blog on a wide variety of topics — from doping athletes, file sharing and capital punishment to CEO compensation and eminent domain.
But no doubt the most interesting to many readers will be the essays on gay marriage.
Posner suggests ending the special status of “marriage” and letting contracting parties choose the form of partnership that works best for them. There could be a “default” contract for couples who did not want to bother with the details of such contracting.
It could be up to religious sects whether to recognize such contracts and offer ceremonies.
Posner points out that marriage has taken different forms over the centuries, from the purchase of a husband (dowry) or a wife (“bride price”) to the arranged marriages of children, temporary marriage (often a cover for prostitution in some counties) and polygamy. So the arguments that marriage has always been as it is now lack merit.
While this seems a significant change, Posner points out that marriage is moving toward contract, as exemplified by pre-nuptial agreements and no-fault divorce.
In light of such considerations such, Posner says, “I imagine that if the homosexual-rights lobby dropped marriage from its agenda and put all its effort into lobbying for civil unions, many states would soon recognize them and eventually the federal government would follow suit.”
Becker and Posner sometimes disagree, but in this case Becker agrees. “I have long argued that heterosexual unions should (also) be based on contract.… If married heterosexual couples also had to base their relations on contract, gay couples may not feel strongly they suffer from discrimination if they cannot be considered legally ‘married.’”
Both also prefer legislative enactments rather than court decisions that might produce a strong backlash against the courts.
Although both men take advantage of the book’s publication to append some “afterthoughts” to their essays, they do not do so on gay marriage. However, things have changed a bit in the four and a half years since the first publications of these essays on the Web.
More states have legalized gay marriage, as have more foreign countries. And Washington state now allows full civil unions, lacking only the word marriage.
David Boies and Theodore Olson are arguing a lawsuit seeking not to allow gay marriage but to disallow legislative or voter approved prohibitions of gay marriage. They seem quite optimistic about the outcome, although I cannot share their optimism.
Support for gays and gay marriage or civil unions continues to rise by one-half to 1 percent a year. More heterosexual couples are choosing to live together without being married. The offer of a contract-based “civil union” to heterosexual couples could have a clarifying effect on their opinions about marriage — gay and straight.
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