The Libertarian Golden Age and Gay Marriage


As part of a a round of Internet chatter over the notion that the 1880s might constitute a lost libertarian golden age, The Atlantic's Megan McArdle writes:

As Tyler Cowen has pointed out, the laws of the time reinforced that social structure in many, many ways.  Take divorce, which could only be obtained for cause.  Now, as I understand it, if both parties wanted one, a "correspondent" could be hired who would be caught with the man in a compromising position.  But if he didn't want a divorce, well, what was she to do?  Divorce was shameful—but a woman caught in adultery was a moral outrage.

There are also ripple effect.  If no one you know gets divorced, then it becomes that much more unthinkable for you—especially since the social system to deal with divorce won't exist.  There was no place in American society of 1880 for a divorced woman, and that matters….

You cannot simply snip the legal system neatly out of its social context.

Along those lines, a couple of pieces of relevant news about the elimination of small legal barriers for gay couples that could make a big cultural difference:

The bigger news is that all hospitals accepting Medicare or Medicaid must now recognize the decision-making rights of gay partners. (Note: While I have reservations about attaching those kinds of strings to federal health funds, the new arrangement—that patients should simply be able to designate who is a decision-maker rather than being bound by ties of blood or state-recognized marriage—is preferable for a variety of reasons.)

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans….

The new rules will not apply only to gays. They also will affect widows and widowers who have been unable to receive visits from a friend or companion. And they would allow members of some religious orders to designate someone other than a family member to make medical decisions.

The smaller news, which perhaps illustrates the point better, is the possibility that congressional ethics disclosures will now include gay married couples.

The House ethics committee has drafted rules that for the first time would define gay married couples as "spouses" for the purposes of filling out their annual Congressional financial disclosure forms.

Activists on both sides of the gay marriage issue said the reporting requirements, if adopted, would mark the first time Congress has recognized a gay partner as a spouse….

The new instructions include the following paragraph under a new heading, "Same-Sex Marriages": "In 2009, there were a total of four states which issued marriage licenses to same-sex couples: Massachusetts, Connecticut, Iowa and Vermont. (New Hampshire and the District of Columbia began issuing such licenses effective in 2010). If you and your spouse were issued a marriage license by any of these states and were subsequently legally married in that state, you must disclose all required spousal information on your Financial Disclosure Statement."

Note that according to the Roll Call account, absolutely everyone is unhappy with the proposed disclosure rules. Gay activists see this as imposing the costs of marriage without giving the full benefits. Gay marriage opponents see this as a violation of the Defense of Marriage Act, which prohibits the federal government from recognizing gay marriages. But the new rules acknowledge the reality of gay relationships: If your spouse is getting kickbacks from somewhere unsavory, you're just as likely to be inappropriately influenced in a gay relationship as you are in a straight one.