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.