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.