Kurt Mitman | ’Til Constitution do us part

The news cycle this week has been dominated by hearings at the Supreme Court debating the constitutionality of Proposition 8 — the gay marriage ban in California — and the Defense of Marriage Act, which, for the purposes of the federal government, defines marriage as between one man and one woman.

There are a host of benefits that we, through things like DOMA, confer on married couples. For example, in terms of the estate tax — the point of contention in the DOMA case before the court — bequests left to spouses are taxed preferentially. There are a host of other benefits — the commonly quoted number is that there are over 1,000 federal statutes that relate to marriage, including taxes, benefits and immigration.

But what power does the state have to regulate marriage and civil unions between people in the first place?

Marriage is not mentioned in the Constitution, and the power to regulate it is generally construed to fall under the police powers of the states, guaranteed by the 10th Amendment of the Constitution. The police powers allow states to regulate matters related to health, safety and morality. But the First Amendment guarantees freedom of religion and the 10th Amendment also reserves some powers to the people. Marriage, however one chooses to define it, should be the purview of the people as protected by those two amendments. The state should abstain from taking any morally dubious stance.

This issue goes beyond the question of straight and gay marriage currently before the court. Some religions and individuals practice polygamy or polyamory. Those individuals, along with gays, should have the freedom under the Constitution to live their lives in that way.

Presumably, one of the main arguments against polygamy has to do with the protection of children produced from such unions (similar to one of the arguments against gay marriage). However, I doubt there is much evidence on the effect of raising children in non-traditional marriages. And, to paraphrase Justice Anthony Kennedy, don’t all children have the right to have the unions of their parents recognized?

Unconventional doesn’t always mean bad. A friend of mine in high school was raised by four parents — two gay couples that cross-married and lived together. They chose that living situation as a way to take advantage of benefits and to raise children. But doesn’t that say something about our benefits system, if two gay men married two lesbians just to take advantage of the benefits?

By providing benefits specifically to married couples, we are perverting the normal behavior that people would choose. Instead, we should extend benefits that are currently accrued to spouses to the individuals who earn them and make them transferrable. This would allow people to enter into whatever type of risk-sharing or mutually beneficial agreements that work for them.

The first step would be to abolish joint taxation, with its perverse effects on the female labor force participation rate, and the so-called “marriage penalty.” This is already the norm in other parts of the world, and is a throwback to a bygone era where men worked and women stayed at home.

Beyond taxation, there are a host of other benefits that should be applied to all individuals. For example, imagine two single retired people who have no plans of getting married. They should be allowed to sign a contract assigning Social Security survivor’s benefits to each other. Nor should we restrict medical visitation in intensive care units to only spouses or family members — individuals should be able to specify whom they would like to be able to visit them.

We already have some ability to influence who can make decisions on our behalf through living wills and powers of attorney, but we should expand the ability for people to assign these rights and encourage them to do so.

The government should get out of the marriage game — whether it’s defining marriage or granting benefits to married couples. Whatever constructs the government creates won’t fit all individual situations. We should let people make the commitments and arrangements that they want without intrusion from the state.

Kurt Mitman is a 6th-year doctoral student from McLean, Va. His email address is kurt.mitman@gmail.com. Follow him @SorryToBeKurt. “Sorry To Be Kurt” appears every other Friday.

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