Balkinization: Richard Posner: Marriage Socialist

Richard Posner: Marriage Socialist

Mark Graber

Richard Posner is a marriage socialist. When explaining why a right to same-sex marriage can be distinguished from a right to polygamy, he wrote:

[P]olygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

This seems nonsense for numerous reasons and for libertarian reasons in particular. Implicit in Posner’s preference for two person marriage is a preference for equality over liberty, a commitment to powerful anti-trust laws, and an admission that the Constitution protects at least quasi-positive rights to government benefits.

Posner’s math does not add up and not just because if the society allows for polyandry, then maybe the five wealthiest women get 50 husbands between them, leaving 45 marriageable and 45 marriageable women to compete for spouses. Marriage markets can be bad even in a world populated entirely by heterosexuals in which the only legitimate form of marriage is one man and one woman. Think of a western mining camp or a contemporary senior citizens development. Moreover, no a priori reason exists for thinking that anti-trust laws that limit marriage to two people maximizes the persons who experience marital bliss or otherwise improve marriage markets. Imagine a society of ten men and ten women, in which the first nine men and women pair off. M10 and W10 do not want to be married to each other. M9 and W9, however, are willing to be in a polyamorous relationship with M10 and W10. We might further complicate matters by postulating that in this society, four of the women are lesbian and two of the men are gay, that three of the women will only marry a Jewish man, while only one of the men is interested in marrying a Jewish women, that four of the men but only one women wants to marry a Dallas cowboy fan who likes Wagner operas, that two men but only one women do not want to be married at all, etc. In short, given the distribution of preferences in this and every society, some people will be left out of the marriage market or, if their preference for marriage is powerful, be forced to abandon other central features of their identity. Whether anti-trust laws enable more people to get marital services is doubtful.

As important, why should a libertarian care whether competition creates imbalances in the marriage market. Imagine an analogous world in which ten people really want to run bookstores, one hundred people really want to buy books, and bookstores need at least ten customers to survive. One of the booksellers is able to offer cheaper prices or better books or better tasting coffee in the reading room or the like. The result is that this bookseller attracts fifty book buyers, leaving the other nine booksellers to fight for the business of the remaining book buyers. At least five of them must abandon a profession vital to their identity. Libertarians believe such arrangements increase the overall utility of a society, even if the first bookseller is able to attract all 100 book buyers. Why are marriage markets different? If A, B and C would rather be in a polyamorous relationship with each other than in an arrangement where two of them are married to each other and the third is married to D, why should anti-trust laws limited the number of spouses one has stand in the way.

Posner’s concern about problems of monopoly seem anti-libertarian and misplaced. To begin with, I suspect that in practice, we should be far more concerned that monopolies can develop in markets for books, cars and computers than in markets for marriage. Of course, inequities in marriage markets might spill over into politics, but the Koch brothers are all about how inequities in other markets spill over into politics. If libertarians are going to worry about monopolies, the first place to start imposing anti-trust laws and preventing power in other markets from spilling over to political markets is almost certain not in marriage markets.

At bottom, Posner’s antipathy to polygamy reveals his deeper commitments to socialism and positive rights. Society should prefer equality to efficiency with respect to the things that really matter to people’s lives, relationships. Strong anti-trust marriage laws that prevent polyamorous relations ensure that all married people are equal in that one other person is legally committed to their well-being. Whether the anti-trust laws Posner celebrates promote liberty or efficiency is doubtful. Moreover, given marriage is a fundamental right and there is no realistic possibility that the state will get out of the marriage business, Posner has delivered a powerful refutation to claims that American constitutionalism is committed only to negative rights. The constitutionally enshrined institution of marriage that he celebrates is one that requires government to provide married couples with certain benefits and enforce strong anti-trust laws to make sure that the blessings of two person marriage are as equally distributed as the regulated marriage market will permit. And once he recognizes that marriage is a positive right that requires strong government anti-trust regulations, Posner will no acknowledge that such practices might be important and perhaps even constitutionally mandated in other areas of social life.

Posted 8:25 AM by Mark Graber [link]