Following today’s Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, there’s been some predictable noise in the libertarian blogosphere in favor of “privatizing marriage“. Normally, I’m pretty sympathetc toward libertarian utopianism, but I’d like to throw a bit of cold water on this idea.

As Michael Kinsley observes in this pro-privatization article, government sanctions of marriage serves as a “bright-line rule” in legal and employment matters. It generates the right answer in the vast majority of cases, while minimizing economically inefficient negotiations.

If I decide to get a new job, I can ask one simple question regarding benefits: Do you offer health insurance for the spouses of employees? If they say no, I can walk out of the interview right then, since this is a benefit I will not negotiate away. And the employer is free to say “yes” without prying into my spouse’s medical history, because it knows that I’m not just trying to get insurance for some relative or casual friend who has a medical problem. (That is, government sanctioned marriage staves off the problem of adverse selection for the health insurance market.)

If I die from an aortic dissection tomorrow, there will be no costly legal wrangling over who inherits my vast fortune. My wife will. This is exactly what I want, as do most married people. And I didn’t have to hire an attorney to draft a will.

In other words, a universally recognized standard for who is “married” is economically efficient.

Now maybe the question of employer-subsidized health benefits could be solved by an oligopoly of private marriage companies. But the legal questions cannot be. The legislature will have to decide which marriage companies to recognize as legitimate, and then we’re right back to government-sanctioned marriage. Homophobic bigots will try to pass laws saying that their state, or the federal government, will not recognize any marriage sanctioned by a company that sanctions marriages between two individuals of the same sex.

In short, privatizing marriage is not going to work unless we privatize the rule of law itself.

And even if I’m wrong here, and privatized marriage might work in theory, it’s never going to happen. What are you going to tell the millions of couples who are already married? “Sorry, you’ve got to go pay $75 to a company to have your marriage recognized by your employer and by courts of law. And since we don’t know how this business is going to pan out, you should register with all three of the major marriage companies, until the natural monopoly kicks in and picks a winner.” Sorry, libertarians, but you’ll have a much easier time abolishing Social Security and Medicare.

So here’s my challenge to the libertarian proponents of privatized marriage. As Will Baude so eloquently put it, you’re in a second-best world. The lines have been drawn in this particular battle of the culture war, and you didn’t get to draw them. But you have to pick a side.

Will you be with the bigots, or against them?

Update: Lower taxes? What are you talking about, Chris? I'm pretty sure that the marriage penalty is one aspect of marriage that gays are not clambering for.