Is discrimination obscured when the gates of marriage are opened?
Posted May 23, 2012
“Marriage Fraud.” That’s the title of a 2012 California Law Review article by Kerry Abrams. The article begins by reviewing the specifics of what counts as marriage fraud in the law, and ends by asking sweeping questions about fairness and deservingness.
In the 19th century and the beginning of the 20th, Abrams notes, marriage fraud was mostly about broken promises: Hey, this thing comes with sex, you know! Wait, you said you wanted kids! The defrauded party was the sex-starved, child-deprived spouse.
Then starting in the mid-20th century, lawmakers started piling it on. Got a benefit? Let’s give it to married people. Often only married people. The beckoning benefits, among many others, include “a tax break, immigration status, health insurance, social security benefits, military benefits, even a gym membership.” Dangle all those goodies in front of your citizens, and guess what? Some will be tempted to marry just to cash in. So now the defrauded party is not the spouse, but the public. Why should we be handing our government-funded, taxpayer-financed prizes to people who are skipping the love part and just marrying for money and perks?
Significantly, Abrams recognizes that the real issue is much more fundamental than that. Why should marriage – even “legitimate” marriage – be the gateway to so many rewards, including some basic human dignities? As she puts it, “Why do married people deserve more than other people?”
In many instances, she says, they don’t.
Yet, elected representatives continue to add more and more perks to the pot. In so doing, they are the ones who are weakening marriage:
“Marriage currently functions as a default status that lawmakers use reflexively when allocating benefits. As such, it is an ever-expanding pot of benefits with no symmetrically increasing burdens…The public benefits grafted onto marriage have made marriage lopsided, largely because people receive enormous benefits for being married, but no longer have to do much in return. The more benefits lawmakers add, the more they should expect people to use marriage instrumentally to attain them. Hence, it may not be the spouses ‘fraudulently’ seeking benefits who are weakening marriage, but the lawmakers who have asked marriage to do more than it can.”
The issue of marriage fraud also offers a cautionary note to those politicians who too often decide that the way to balance budgets and reduce deficits is to dump on the poor. From reading Abrams, I learned about Kristen Collins’s observation that the federal government “redistributes far more money to women by way of marriage-based entitlements such as Social Security than through need-based welfare.”
I have often argued that the many benefits available only to officially married people add up to discrimination against people who are single. By letting more people in on official marriage (with same-sex marriage rulings, for instance), the scope of singlism is narrowed, but about 100 million single people (including many LGBT people) are still unfairly excluded from more than 1,000 federal benefits.
Abrams argues that opening the doors of marriage to more people does not just rein in the reach of discrimination, it actually helps to obscure the fact that discrimination is occurring:
“Marriage obscures the arbitrariness of who gets the benefits by expanding the number of people who get them and thus preventing a public clamor for benefits for all.”
For Abrams, that is not an argument against same-sex marriage. She likes Suzanne Kim’s concept of “skeptical marriage equality,” which Abrams explains as recognizing “the importance of equality for same-sex couples while simultaneously taking a hard look at the substance of the right sought.”
So what does Kerry Abrams propose? Marriage, she argues, should “no longer be the reflexive depository for government largesse.” She does not advocate abolishing marriage, but instead downsizing it:
“Many of the benefits currently associated with marriage could be severed from marriage, and either made available to everyone, regardless of marital relation; to some people if they were willing to enter into a publicly recognized (but not necessarily marital) relationship with another person or persons; or to no one at all.”
[Notes: Thanks to Bobbie Spellman for the heads-up about Kerry Abrams’ work on marriage fraud. Another carefully-argued philosophical perspective comes from Elizabeth Brake in her new book, Minimizing marriage: Marriage, morality, and the law. I really like what I read in the first chapter, and will write more after I’ve finished the book. Finally, in a previous post, Rachel Buddeberg and I compiled excerpts from dozens of skeptics arguing that marriage should not be a ticket to privilege.]