Hard Cases Make Bad Law

If one’s stand on a political or social issue is principled, then it ought to be maintained even when it is emotionally difficult to do so, and in the case of Pat Baker, it is certainly difficult.
Baker was recently diagnosed with terminal lung cancer, and she is now spending her days advocating for a change in law that would make the woman whom she married in Massachusetts in 2005 eligible for survivor benefits through Social Security:

“I worked for those benefits. And when I say worked, I worked hard. You name it, it’s happened. I’ve found inmates hanging; I’ve found inmates dead from suicide. I’ve been traumatized mentally and physically, only to get to this point in my life when I’m terminally ill … and I find out my wife is being begrudged $1,861 a month,” Baker said.

The circumstances highlight both the rationale for the survivor benefits and the risk in expanding marriage to same-sex couples. On the first count, throughout most of the time that Social Security has been around (and even more of the time before it was), it was understood that, typically, one spouse had been less active economically and more active domestically. Depriving the non-working spouse of retirement benefits because the working spouse had died ignored the very notion of marriage as a means of creating a single entity of two people, who then spend their lives working as a team, particularly with the activity of raising children.
To be sure, frequent divorce and remarriage has decreased the confidence with which such assumptions can be made, but the cultural understanding of marriage is still very much intact, and our society should be looking to bolster it, not modify it further.
It’s quite predictable that allowing two people of the same sex to marry and, thereby, gain the benefits of spouses will change the culture of the institution. Why, for one, would it not become common for marriage to develop into a relationship for late-life companions, even if they are only what used to be known as “friends”? The incentive to pair up for the purpose of maximizing retirement and other benefits would be tremendous. If that’s something that we want to encourage — and there are definitely worthy arguments for it — then why have any restrictions at all, such as those against marrying near kin and multiple people?
Of course, as I’ve said before, if same-sex marriage were to arrive in conjunction with tighter laws against divorce, then the calculation would change. I’ve yet to find, however, an advocate for SSM who thinks that spouses shouldn’t be able to dissolve their marriages very easily.
In the specific case of Social Security, the easier solution would be to transition it toward a defined-contribution plan that creates an asset capable of being bequeathed.

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mangeek
mangeek
10 years ago

“then why have any restrictions at all, such as those against marrying near kin and multiple people?”
That’s actually a good question, as far as I’m concerned.
Why not?
If the government ONLY issued ‘civil unions’ between ‘two or more people’, it would open up possibilities for all sorts of arrangements, maximizing freedom. Obviously, you’d want to tweak the benefit structures of society to prevent fraud, but that should be trivial.

Max Diesel
Max Diesel
10 years ago

Who would decide what is fraud? We can’t even figure that one out when it comes to immigration.

mangeek
mangeek
10 years ago

Well, I like the idea of 401k-style personal defined contribution plans. I also like the idea of using some sort of taxation stick/carrot combo to encourage companies to supply a hefty match on it. Mostly I like the idea of doing it state-by-state, so we can see what variations have the best outcomes.
If three gay brothers are ‘civilly united’ to each other and want to pass their 401k around, who am I to say they can’t? I couldn’t care less.
So… Eliminate Social Security survivor benefits entirely (not all at once, but going forward), offer an option to reduce contributions if you’re contributing enough to a qualified defined-contribution plan, and force those plans to be entirely transferable. That gives conservatives a wedge to get more middle class folks off of the Social Security mindset and into the realm of personal responsibility, while preserving a limited SS for folks who can’t or won’t participate in a personalized plan.

Tommy Cranston
Tommy Cranston
10 years ago

How many TRILLIONS of dollars in SS, pension, health care and other costs will an already bankrupted US be burdened with if these sick creatures (criminals in many countries) are extended the same marriage rights as sane people? Fiscal note PLEASE. Maybe this Irish “couple” from yesterday’s news should be given taxpayer paid benefits too?– Reunited father, daughter expecting baby A 28-year-old woman who tracked down her long-lost father last year has revealed that she is pregnant with his baby. Penny Lawrence went in search of her father Gerry Ryan following the death of her mother and grandparents. The Irish Sun reports that she eventually found Dublin-born Ryan in Houston, Texas. After meeting, the pair embarked on a sexual relationship which resulted in Lawrence becoming pregnant. However, they have insisted that their attraction is the result of Genetic Sexual Attraction, a term previously created by Barbara Gonyo to describe the feelings between parents and their children – as well as siblings – who meet as adults. “We are not committing incest, but are victims of GSA,” Lawrence told the paper. “We’ve never experienced a father-daughter relationship, so we’re just like any other strangers who meet in adulthood.” Ryan expressed fears that laws could see the couple separated, but added: “It’s no different than if I met Penny in a bar. I’d have fallen for her as I have now. It doesn’t feel [like] we are doing anything wrong.” The pair said that if the three-month scan of their baby shows no birth defects, they will remain together and raise the child. Discussing GSA, Lawrence explained: “I did some research into it. I was stunned that some brothers and sisters, daughters and dads and mothers and sons were actually living happily as man and wife.” However, her father pointed out: “GSA… Read more »

bella
bella
10 years ago

Here we go again, comparing gays to participants in incest.
Sorry, Tom – people of intelligence and reason are no longer buying that. I’m sure you can a flight from Logan to Uganda with a connection at Heathrow.

Mario
Mario
10 years ago

I agree with your last sentence, but disagree with some of the rest. First, I would consider myself a SSM supporter but, as I come to it from what I consider to be a conservative angle, I would definitely support making divorce a little harder. At the very least, we would probably be better off by having a mandatory waiting period before remarriages. It might be more politically palatable as well. I also support making marriage contracts civilly enforceable (like making adultery tortious), but that’s another matter.
What surprises me, though, is that you don’t see this, as I do, as another reason to support SSM. One way or another, empathetic politicians will find a way to give gay couples many of the benefits they would receive through marriage when those marriages are banned. The problem becomes that there is no way to do so to specifically target unmarried gay couples (who would otherwise be married) without also giving the same rights to less involved gay couples and unmarried straights. As I see it, politicians finding a way around gay marriage bans do more harm to the institution of marriage than you would have if you simply allowed them to marry and kept those benefits marriage-specific.

Sully
Sully
10 years ago

“Why, for one, would it not become common for marriage to develop into a relationship for late-life companions, even if they are only what used to be known as “friends”?”
Why is this only a concern for Same sex couple? Hetero couples are free to do this.

Swazool
Swazool
10 years ago

It seems like it will pass soon. Yesterday a bunch of groups came out and voice support, groups don’t usually put out press releases to support something they think isn’t going to pass.

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