Strengthening Constitutional Self-Government

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The Family

The Sham Vow

At a Bar-b-que yesterday, I found my self talking with a family law expert.  I asked him a question which has been troubling me for a while: what prevents two people who are otherwise unattached, and not closely related from marrying for tax purposes, and then divorcing.  He said, nothing.

Transfers between husband and wife, or perhpas we should say between Partner A and Partner B are tax free.  Hence it is possible for two businesspeople who wish to sell a business to marry, transfer cash for stock, and divorce.  Voilla, a tax-free sale.

Such actions were, of course, always possible, but with the rise of gay marriage, they become much more possible, perhaps even more likely.  There are many more people who are now eligible.  In addition, now that the definition of marriage is now in play, the social pressure to view marriage as anything other than a status in positive law is reduced.

On what grounds would such marriages be illegal?  We can't say that love is essential to marriage. In fact, marrying for money is an ancient tradition.  (And how would we test it anyway?) We can't say that the desire to have children is essential, since that idea has already been rejected, at least in states where gay marriage is legal. Etc.

For the time being, the Defense of Marriage Act might mitigate the federal tax element, but I fear that law is not long for this world.

Categories > The Family

Discussions - 15 Comments

"Such actions were, of course, always possible, but with the rise of gay marriage, they become much more possible, perhaps even more likely. There are many more people who are now eligible. In addition, now that the definition of marriage is now in play, the social pressure to view marriage as anything other than a status in positive law is reduced."

You know that's ridiculous, right?

Maggie Gallagher and others have made the same point: it puts government in the love business, having to prove the relationship is erotic.

People flout the intent of marriage law for purposes of immigration; a friend who married to allow a friend to remain in the country legally found the government trying to establish intimacy between them. It was almost funny. They were not intimate: he would have been pleased, it was she who was resistant. He would joke about, "What good is a wife if...." The INS seemed to agree.

If our laws change to make any marriage between any persons legal then marriage for any purpose can be the result. Marriage is already the easiest of contracts to break. It is also easy to get into, but if law makes it even easier to contract a marriage -- then while government claims it wants to turn a blind eye to such human intimacy the result will be either to look more carefully or remove all legal preferences for the relationship.

In that case, wouldn't we rather have government out of the marriage business altogether?

So recognizing gay marriage would undermine the government's power to tax? I'm still looking for the downside....

OK, John, the reason our society sanctions marriage and indeed grants benefits for engaging in it is because it produces the next generation of citizens (and taxpayers). If our society sanctions gay marriage, we are essentially subsidizing biological cul-de-sacs -- a classic free-rider problem (which you libertarians should understand). Any social benefit granted to same-sex "families" is a form of income transfer from biologically productive individuals to those who aren't.

Of course, libertarians often argue that government shouldn't be in the "love business." Stupid argument, really, because the government sure as hell becomes involved in the "divorce business" just as it becomes involved in the "lawsuit business" when the free market fails to settle its own disputes.

Let's face it -- government has a compelling UNIQUE interest in heterosexual marriage, one that has nothing to do with individual rights or the pursuit of happiness.

Redwald, I know that was addressed to John Moser, but I have a response, which is that when government behaves irresponsibly in relation to its authority in the matter of marriage, that is, exercising its authority as foolishly as it has been doing for at least a generation, now, then we should remove that responsibility from it. It may have inescapable legal responsibility in the matter of contracts, but it ignores morality and is allowing (and sometimes encouraging) a destruction of culture and tradition that anyone who calls himself a conservative has to deplore.

If you are saying that government has no moral interest, but only a legal one that is removed from moral understanding, then law becomes rootless. Government cannot judge. Anything goes.

I guess, Dainwald, that means you favor ending the tax exemption of the Catholic Church, since its clergy take vows of chastity, and hence cannot participate in the grand task of perpetuating the Race.

Clergymen pay taxes, as do religious on their meagre stipends. The Catholic Church as a corporation does not pay taxes. Neither does the Red Cross, or, indeed, any corporation not erected to engage in commerce.

No he doesn't, because it isn't.

What is your definition of marriage Craig Scanlon? [standby for question dodge]

Dain? Again? Is this some kind of inside joke at NLT? News flash - it's only funny if people get the joke.

Religious exemption is a completely different issue, John. The rights/privileges our government grants to religious institutions is to protect religious freedom. It's not a compelling governmental investment in the same way as family/marriage benefits.

Kate, fair enough. I completely agree that our government needs to reflect Judeo-Christian values, and this is something we need to keep fighting for. Nonetheless, removing marriage from the states' domain isn't practical or desirable. Who cleans up the mess when marriages fall apart, or protects children from abuse? You need law and courts for that, Kate.

A fellow who had similar perspectives to yours used to write in this section of the blog. Often, your comments are remarkably reminiscent. Perhaps you could be pleased that you are not alone in your views? His tone was angrier than yours; I think I exasperated him because he couldn't bring himself to write with a lady with the same terms he freely used with men.

As far as I can tell, extended family or local government do what they can to clean up the mess after marriages fall apart. Marriage reflects Judeo-Christian mores, or did before the state liberalized divorce law. What we have now is bizarre and looks likely to be more bizarre shortly. I go to many weddings and while some are full of ideas of covenant and the purity of marriage, others are about partnership and friendship for life and niceties without depth. "Till death" seems an anachronism and we have both seen many marriages where that was promised that have not lasted.

Marriage is what we make of it, these days. That was probably always true, but there was a form to follow once. Just because people like me and maybe you still follow the form doesn't mean that is or will be normal. Marriage statistics as to the facts in the cases; there are many serial marriers. But states are caving on "gay marriage" which speaks volumes about the state of the institution. But its a fact that "a clean, no-fault divorce" is one of those phrases like "a death with dignity" that is purely euphemism.

I see, so Dain was an actual poster. Ok, fair enough. I'm glad that my opinions are shared by at least some people. Thanks for the clarification.

My only point was that the state has always been in the marriage business, and must continue to be. After all, Utah had to give up polygamy to win statehood, and it's only the power of the state that prohibits all kinds of alternatives to heterosexual monogamy. This is one of the biggest differences between conservatives and libertarians; conservatives have a fuller appreciation of power and the need for (enforced) social responsibility. Admittedly, the conservative vision isn't as tidy or as monomaniacal as libertarianism (faith in markets) or left-liberalism (faith in government power), but then again life is seldom tidy or philosophically consistent.

Truth be told, however, I'm so frustrated by Federal overreach that I'm tempted to root for the libertarians (indeed, I voted for Ron Paul in a 2008 primary as a protest against business-as-usual GOP'ers). Maybe it takes one form of extremism to abolish another.

Given the necessity of political compromise in a democratic republic, even a Libertarian could not be fully libertarian and might end up merely conservative.

Anyone with an extreme stance on politics gets pulled back and in the case of our current president, what a relief that is. I am reading things about the joy of divided government and that maybe the president will remain while the Congress becomes Republican and how that might be the best thing to slow the federal overreach you speak of.

Right now, we seem to be leaving the definition of marriage to the states. Since many conservatives wished that to be the way the nation should have abortion be legal, on by-state-basis, maybe that is something conservatives could live with.

Kate, no doubt that complexity forces compromise on all but the most ideological leaders. And it's a good thing, too. Although, I sometimes wonder what Ron Paul would really do in office.

As for State-by-State, I'm down with that SO LONG AS one State's marriages don't necessarily have to be recognized in other States. If you don't have that rule, then State-by-State is just window-dressing.

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