Part-Time Pundit

The Health Care Crisis and Why it was Inevitable

Since 1970, the health care industry has undergone a revolutionary change. Before that time people were overwhelmingly (about 70%) in traditional indemnity plans where patients pay a certain percentage of health care costs. With the passage of the Health Maintenance Organization Act written by Ted Kennedy (D-Mass), very quickly over 70% of Americans were covered by HMOs.

The structure of HMOs was also largely different than traditional indemnity plans. HMOs require primary care physicians to act as gatekeepers of advanced care and it empowered insurance companies to challenge the medical judgment of doctors. It restricted choice to those doctors and providers “in the network” and any care provided by outside providers, care that didn’t follow the right regulations or didn’t have the right referrals was simply not paid.

It is indisputable that we are currently in a health care crisis with skyrocketing costs and extreme customer dissatisfaction. It is never a good sign when medical providers have to market themselves on customer service. No other industry has to try to convince consumers that “we won’t abuse you” and that “you matter to us”. The current argument is that health care needs to be socialized because the free market hasn’t worked.

First, the central principle of the free market is that the individual parties of a transaction are able to negotiate the terms of that transaction themselves. For instance, if I want to buy a car, I can negotiate with the dealer the terms of the transaction and the dealer can do likewise. If neither of us wishes to proceed, we can move on. Without free choice on both the provider and consumer in deciding terms of the transaction, there is no free market. There is no free market without choice.

The health care system in this country, developed by Democrat Ted Kennedy who now campaigns against his own creation, all but eliminates choice in both doctors and patients.

Limiting the Choice of Patients

Let’s say you, Joe Consumer, want health insurance. Because of the structure of the tax system that enforces what is basically an historical accident, you will probably get this through your employer. Your employer is limited by tax law to only let you make decisions about your health insurance provider at certain times, basically when you are hired and once a year thereafter. You will likely get a few choices, an HMO with higher deductibles and lower premiums, an HMO with lower deductibles and higher premiums (from the same company), and a traditional indemnity plan. If your employer chooses Blue Cross Blue Shield, you’re only going to be able to choose Blue Cross Blue Shield.

Employers decided which insurance company to work with. Their motivation is clear, to save money. As a secondary objective, they want happy employees. However, the insurance company is selling insurance to your employer, not you. So they craft policies that are lucrative to your employer. Maybe 60% of employees are happy with what they get, but the other 40% are pretty much hosed. If they want a different insurance company they need to pay full price and the employer is not allowed to compensate the employee on what their portion might have been. End result: consumers do not choose their insurance company, their employer does. If they want to change their insurance, they can’t until the next benefit choice period dictated by the IRS.

Now you, Joe Consumer, want to go to the doctor. You take your handy dandy provider directory (or go online) and you select from the list of doctors your HMO allows you to go see. You may know you need an orthopedic doctor to deal with your knee problems but that’s too bad, you need to go to a primary care physician first (and pay for that useless appointment that you don’t need). This primary care physician’s job is to limit the amount of advanced care patients receive. In fact, in some cases, primary care physicians get a bonus based on how few referrals they give.

Let’s say you do get a referral. Then you go to where the HMO tells you to go to with even more limited choices in the provider directory. Let’s change the scenario, let’s say instead of knee problems you have cancer. You hear good things about the Mayo Clinic and you want to get care there. Too bad, you need to go where your HMO tells you to go to. You may have a better shot at survival at Mayo, it doesn’t matter.

You may wish to explore alternative treatments, however, your doctor who knows what your insurance company will and will not pay for better than you ever will, simply will limit you to those choices which your insurance company has already decided you will have. He knows that they won’t pay (and he probably won’t get paid) if his plan of care deviates from the dictates of the insurance company’s accountants. These people have never seen you, have no information about you but have near complete control over your health care decisions based on some sparse paperwork sent back and forth. The patient will never get the opportunity to talk to much less negotiate with these people.

Lastly, you want to choose a doctor among the choices that are provided to you in your provider directory. If you want to “price shop”, well, you aren’t provided pricing before hand. This may be difficult in some cases, but patients simply have no pricing information with which to judge before they’ve already committed themselves to care (some exceptions, not many).

The net balance of all of this is that in every single step of the health care system, the consumer is removed from the decision-making loop. The only health care decision the consumer gets to make is whether to have the insurance company pay or to do what they think is right and pay full price out-of-pocket and risk bankruptcy, even if it is the right decision.

Limiting the Choice of Doctors

On the other side of the transaction we have doctors that also have their choices restricted and taken out of the equation. Before a doctor sees his first patient, before he gets an office or buys any equipment, he needs liability insurance. The premium he is charged will be identical to other providers with similar practices no matter what training, experience, qualifications or differences exist between them. A Saturday-night hack artist pays the same as a doctor who has won the Nobel Prize. In Illinois, the premium for an OB-GYN before they see their first patients is about $240,000. In surrounding states it is about one-fourth as much which is why Illinois in particular has a health care crisis. Providers are fleeing the state. Take a look near any state border and you will see a thriving health care practice just on the other side of the Illinois border with that state.

The terms of this insurance policy (in addition to the price) are non-negotiable and designed to do one thing, prevent lawsuits or make them easier to win. For OB-GYN’s the terms are the most notorious. For instance, a woman who has had 2 children already without complications, is having a third low-risk pregnancy needs to go through the same regimen of care as a first pregnancy. If you’ve had children you know how this works. Started second trimester or so, you go for bi-weekly checkups (that become weekly as you get closer to birth). You pee on a stick, you get weighed and they ask you if you have any questions. There’s an ultrasound in there and a couple of blood tests.

With my first child, after a few of these appointments, I began to wonder what was the point. We didn’t have questions. In, out, 15 minutes: that’s $50 (the copay in this case). Why do I bring up this story? Because if you, the patient, decide that these visits are superfluous, your provider is required to drop you as a patient. You may have no complications, you may have no questions and there may be absolutely no reason for these visits, but your provider is required to mandate that you go, regardless of medical need or you can’t be their patient anymore. By the way, you, the patient, pay for this decision made not by your doctor, but by some lawyers at a liability insurance company. The United States has the highest C-section rate in the developed world because liability insurance companies insist that if anything is “abnormal” a C-section must be performed. Not because of medical need, but because of “limiting liability”.

In addition to liability insurance companies dictating the terms of care, doctors then have to deal with health insurance companies (or even worse, Medicaid). About 30% of medical bills sent to private individuals (not insurance companies) are paid. Doctors know that they are being paid by the insurance companies, not the patient. They know that if the insurance company isn’t going to pay them, they probably won’t be paid. The only exception to this is patients who walk into an emergency room or doctor’s office with a Platinum American Express card. Providers know these people are paying cash and they get treated with far more respect than insurance carrying patients do.

Before the question of the “bonus checks” for limiting referrals even comes in to play, doctors know that the insurance company is calling the shots. They know they won’t get patients without joining a “network” of some providers in a given insurance company. The insurance company will then dictate what rates they can charge, what services they can provide, what drugs they can prescribe and in some cases how many patients they can see.

A doctor that practices without taking a major insurance policy will have a hard if not impossible time earning a living. A doctor that practices without a liability insurance policy (even in places where that’s legal to do and that isn’t many) can be considered certifiably insane.

Conclusion

Both doctors and patients have their choices and ability to negotiate their health care severely limited. There is some competition in a very limited sense where employers can choose from a small selection of HMO companies. Doctors can choose too and there is a small subset of liability insurance companies they can choose from as well. One of the major plans for “health care reform” is to simply have the government serve as the HMO instead of private companies. It is unfathomable to believe that taking away the trivial amount of choice in the health care system that is left will result in a better system that is more responsive to patients.

The solution to the health care system is to let those who are part of the transaction, doctors and patients, have the freedom and latitude to decide their own plan of care. Removing the patient from the decision-making loop has only created a health care system that thinks of the patient last. Let’s give the free-market and freedom of choice a chance.

February 20th, 2008 Posted by John Bambenek | Columns, Law / Legal Issues, Politics | 2 comments

The Case for an Illinois Constitutional Convention

Governor Rod Blagojevich has done something remarkable in Illinois. He has managed to unite people across the political spectrum to create consensus that he absolutely stinks as a governor. Illinois deserves better than Rod Blagojevich.

Because of his low approval in both parties and the budget fiasco of last year, legislators (even those in his own party) are talking about amending the constitution to allow recall votes of sitting politicians. The timing for such talk is opportune because on the November ballot this year there will be a question on whether to have a constitutional convention for Illinois to rewrite or amend the state constitution.

The ability to throw a politician out of office after he or she has be shown unwilling or unable to govern according to the public interest is popular among the voters and is growing popular among politicians who want to take revenge against Blagojevich. Yet a convention should include more than just recalls. While throwing public officials out of office that has shown themselves to be a complete failure is a good start, revising the constitution should produce an overall solid framework for good governance.

There are many good reforms that should be considered and factor into a complete rewriting of the Illinois Constitution. The practice of gerrymandering needs to be eliminated. There are disturbingly few uncompetitive races throughout the state. Democrats have their seats, Republicans have theirs and often they do not even try to compete for the other party’s turf. Politicians should not be able to choose their voters; it should be the other way around. Take a look at the map of Illinois Congressional District 4 to see how ridiculous gerrymandered maps can be.

Along with gerrymandering, it is time to consider term limits for every elected and appointed office in the state. Far too many politicians rule “for life” without any real means for the voters to make them responsive to their needs. Every elected office on all levels should be limited to a maximum of 2 terms or 8 years. Likewise, appointed officials who hold a great amount of power who are not directly accountable to the people need to have their terms of office limited as well.

Open ballot access should be implemented. Every person should have equal ballot access regardless of political affiliation or non-affiliation and a true democracy requires nothing less. The freedom to vote does not mean much if there is no real choice. Independents and third-parties often have to get over 10 times the amount of signatures as established parties do. This system has led the federal courts to repeatedly rule against our election system.

Citizens should be allowed to put binding referenda on the ballot. When state lawmakers refuse or are unable to come up with solutions to problems, the citizens should have a means to bring them up directly. Such referenda, to be effective, need to be binding and not subject to overturning except in rare circumstances.

There are those who are against a constitutional convention because they think the current constitution is fine. To show how the current constitution is not “good enough”, take a look at Article VIII Section 2 of the Illinois Constitution which requires that the budget for the state be balanced.

Yet, according to the Commercial Club of Chicago, a prominent business group, the State of Illinois is in about $106 billion worth of debt. Being thoroughly disabused of the notion that a balanced budget requirement in the Illinois Constitution has produced a balanced budget, we can go forward with discussing rewriting the document.

This November, the citizens of Illinois have a great opportunity to take bake their government from the corrupt and entrenched politicians who rule with their “pay-to-play” politics. A convention, however, should not touch on solitary reforms but to reform the entire constitution to create a foundation and framework for good governance in Illinois. Illinois deserves better than this.

January 27th, 2008 Posted by John Bambenek | Columns, Illinois, Illinois Consitutional Convention, Illinois Constitution, Law / Legal Issues, Politics, con-con | no comments

Is the Daily Kos’ Marko Moulitsas encouraging voter fraud?

originally posted at Illinois Review

Yesterday, I filed a complaint with the Michigan Attorney General against Daily Kos’ blogger Markos Moulitsas, requesting an investigation into whether Moulitsas is encouraging voter fraud in next week’s Michigan GOP primary.

The idea of the freedom to vote is part of the bedrock foundation of this nation.  Vote fraud is not a new concept; likely it reaches back even to the time of the founders.  However, once vote fraud is discovered, it should be prosecuted aggressively like all flagrant violations of the law. Daily Kos’ call, under the direction of Markos Moulitsas himself, for a conspiracy to commit massive vote fraud during the Michigan primaries may be one of those serious attempts to circumvent election law.

In Daily Kos’ January 10 posting entitled "Let’s have fun in Michigan," Moulitsas called on Democrats to cross party lines and vote in the Republican primary for the express purpose of helping Mitt Romney win.  Romney, he says, will be a "weak" opponent for the Democrats in November.  Daily Kos makes no attempt to hide the fact they are influencing Republican primaries as Democrats to benefit Democrats. 

Moulitsas’ call could be felonious. Michigan state law clearly indicates that unqualified electors voting in elections is a felony.  It also specifies that counseling or aiding someone to vote in an election they are unqualified for is also a felony.  Election law clearly specifies that to vote in a party’s primary, one must actually belong to that party. 

Compromising the power of the vote in this country is a direct attack on the very foundation of our freedom. While much can be said about the closed primary system of which I am no fan, it is the law of the land and undermining that system for partisan gain is an invidious attempt to disenfranchise voters, and simply cannot be allowed to stand.

The parties do have free association rights which allow them the constitutional right to declare who are and are not members and, by extension, those who cannot interfere in the workings of that political organization.  Republicans alone should choose Republican candidates.  Democrats alone should choose Democrat candidates.  The same goes for third parties.

Markos, posting under his own name, may have engaged in a conspiracy to commit vote fraud by counseling Democrats to vote in the Republican primary for Mitt Romney.  The motto for this campaign is "Democrats for Romney: Because the Republicans Deserve the Very Worst." 

That motto says something about those who claim to love America as they so frequently display their hatred for other Americans. More importantly, it advertises the fact that Democrats — who have no intention of changing parties — may attempt to interfere with the Republican Party’s internal workings. 

While appearing to encourage vote fraud, the Daily Kos may also be encouraging an attempt to subvert Republicans’ constitutional right of free association and, at the same time, could be perpetuating a conspiracy to disenfranchise Republican voters and dilute their votes.

Vote fraud happens, and living in Illinois, I am no stranger to it.  Make no mistake, the Daily Kos’ posting could be a direct attack on the democratic elements of our Republic, which is exactly why I have filed a criminal complaint in the matter. 

Such public and flagrant disregard for not only Michigan’s election laws, but the rights of fellow citizens cannot be overlooked or tolerated.  Doing so will simply encourages a state of lawlessness in our election system.  While monikers such as "they can’t cheat if it’s not close" may be emotionally satisfying, any such alleged attack against our Republic and its laws should not be shrugged off.

If you agree that the integrity of the vote should be protected and that every vote should count, please contact the Michigan Attorney General, Mike Cox, at miag@michigan.gov and encourage him to look into these allegations.  Cox’s office may also be contacted at (877) 765-8388.  Additional contact information may be found here.

January 15th, 2008 Posted by John Bambenek | Around the US, Columns, Elections, Law / Legal Issues, Politics | no comments

ACLU Brings War on Christmas to Fort Collins, Comes Up Short

Much like the Christmas shopping season, the ACLU's War on Christmas begins earlier and earlier every year. This year in Fort Collins, Colorado, the city council decided to revise their policies to honor appropriately the holiday that almost ninety percent of America celebrates as Christmas. A task force was drawn up, given their task, and put to work.

Like most task forces set up by governing bodies, the result is only as good as the people you put in charge. In this case, the head of the ACLU in Fort Collins was tasked with running the committee. The result was obviously predictable.

The task force recommended no Christmas lights, no recognition of Christmas, no use of the colors red and green, no Christmas trees, and to otherwise squelch anything even remotely connected to Christmas. Instead, they suggested decorations of icicles and prominent use of the color brown. In short, they suggested returning Christmas to its millennia old pagan roots.

At the city council meeting to vote on the proposal, hundreds of people showed up to voice their concern (instead of the 10-15 people who usually show up) and the proposal was shot down 6-1. The lone dissenting voice protested saying that residents would feel left out and alienated by the city recognizing that the overwhelming majority of citizens are celebrating Christmas.

It's an interesting argument. Tolerance requires that people practice their faith in such a way that never leaves anyone out. Even if you took this argument at face value; that would effectively mean that no one could practice religion because the moment you identify with a group, you tacitly isolate those who are not part of that group. The idea that the First Amendment, designed to protect citizens from government, requires a destruction of all uniqueness is odd indeed.

However, it isn't a matter of simply suppressing religion from public life. These calls simply do not exist (even in the Fort Collins matter) when the religion in question is Judaism or Islam. The ACLU's goal, based on their track record, appears to be to prevent the public proclamation of Christianity in the name of the First Amendment. The bastardization of the Establishment Clause far beyond its intended meaning to require the government to enforce secular humanism on the people is to get the entire Bill of Rights backwards.

Horace Cooper, senior fellow with the American Civil Rights Union stated that it is inappropriate for "the government to pick and choose with faiths it will support and denigrate." The Establishment Clause, followed immediately by the Free Expression Clause, does not allow the suppression of a religion in the name of "diversity." In this case, the champions of diversity aren't really interested in what they preach; they simply want to redirect hate and intolerance to their desired targets. It's using the government to play the game of power politics. However, in this case — because of the efforts of the ACRU — the effort failed.

The ACLU generally uses intimidation to achieve victories that even the courts won't provide. By intimidating local officials with the threat of the ACLU, many simply cave and give the ACLU what they want. It is telling indeed that the Fort Collins ACLU head was in charge of this task force. In this case, it was the vigorous opposition of the local people combined with the ACRU that prevented the suppression of free speech and expression of an overwhelming majority of the community.

This intimidation has led to groups being formed to counteract the far-reaching agenda of the ACLU to build and impose a societal view outside the framework of the democratic process. Examples include the ACRU, which also has a courtwatch project to monitor Bush's judicial nominations, and other groups like the Thomas More Law Center and the American Center for Law and Justice.

One fact that should give everyone pause is that these debates about society now take place in courtrooms, argued by lawyers and decided by unelected judges. While there is a degree of balance with these groups, the wholesale removal of large social questions from the people has done much to not only undermine the notion of American self-government, but also call into question whether this country is really a republic anymore.

While this latest battle in the War on Christmas has subsided, the removal of the battle from the people to lawyers and courtrooms, and the fact that free expression of Christianity is under fire by the largest "civil rights" group in the country, should make us all think. This year, we can at least be thankful those who celebrate Christmas can still do so publicly as those who celebrate Ramadan or Hanukkah can do. Time will tell if the ACLU will succeed in telling us which religions and holidays we're allowed to recognize.

November 27th, 2007 Posted by John Bambenek | Around the US, Columns, Freedom of Speech, Law / Legal Issues, Politics, Religion, StoptheACLU | no comments

Satire: ACLU Files Suit to End Federal Recognition of Christmas

Today, in the United States District Court in San Francisco, California, the ACLU has filed suit against the United States over the holidays that are designated as federal holidays where the federal government is closed. They argue that Christmas is the only religious holiday on the list and that it does not recognize religious holidays of other religions and it leaves out atheists.

The suit, filed by the ACLU on behalf of several San Francisco plaintiffs, states that those individuals were unfairly discriminated against because they either would not get their religious holiday off or that as atheists, they were given second billing.

Federal holidays are set by 5 U.S.C. 6103 and for 2007 there were ten designated holidays. Many are rather neutral such as Independence Day, New Year's Day, and Thanksgiving. However, Christmas is the only religious holiday where the federal government is closed and its employees get a paid day off. The effect of the lawsuit would be to strike Christmas as a federal holiday and to force the government to stay open on that day.

The suit was originally the idea of Charles Rust-Tierney, the former head of the Virginia chapter of the ACLU and the filing of the suit was the culmination of years of work. Tierney was unavailable for comment because he is currently serving seven years for possession of child pornography. The plaintiffs, who include Richard Dawkins and Christopher Hitchens, released a statement saying, "Christianity is the source of most if not all of the suffering in the world. The federal government recognizing this holiday is akin to celebrating holidays lauding the Holocaust. Prefabricated man-made religions have no place in a civil society."

The suit will likely spark outrage from Christian and other conservative groups who will see this as another chapter in the left's "War on Christmas". Previous years have seen organizations targeting schools for Christmas plays and targeting cities for having nativity displays. The suit to end federal recognition of Christmas marks an escalation in the culture wars. Bill O'Reilly is said to be planning to devote ten minutes of his nightly news show every day until New Year's to air his grievances on the culture wars.

O'Reilly wasn't the only one to get in on the criticism. Pat Buchanan, a staple of Christian Conservatism was quick to blame the "radical left" and Hollywood: "Who is in your face here? Who started this? Who is on the offensive? Who is pushing the envelope? The answer is obvious. A radical Left aided by a cultural elite that detests Christianity and finds Christian moral tenets reactionary and repressive is hell-bent on pushing its amoral values and imposing its ideology on our nation. The unwisdom of what the Hollywood and the Left are about should be transparent to all."

Critics were quick to point out that one of the plaintiffs, Paul Addis, was recently arrested trying to burn down a church. This only fanned the argument that this suit was truly about censoring religion and not about pluralism.

It is unclear exactly how the courts will rule in this case; however, both judges in San Francisco and the appellate judges in the Ninth Circuit would likely favor the view that recognizing Christmas as a federal holiday and closing the government is a tacit endorsement of Christianity which is prohibited by the "Separation of Church and State Doctrine".

Most legal scholars believe that the ACLU's argument has merit and if the same standard is used that has been used in previous church-state cases that Christmas will have to be removed from the list of federal holidays. Time will tell if the ACLU will become known as the law firm "that stole Christmas".

November 17th, 2007 Posted by John Bambenek | Columns, Culture, Freedom of Speech, Humor, Law / Legal Issues, Politics | no comments

FEC Evasion and the Regulation of Political Committees

The Federal Election Commission has recently ruled on the complaint filed against Kos Media (of DailyKos.com fame) that alleged it was running a political committee and did not file the required disclosures. The case was MUR 5928 and the documents are available via the Commission's Enforcement Query System (put 5928 in the case field). The interesting point of the dismissal is how it avoided answering the complaint.

The FEC, in their ruling said "First, the complaint does not allege, nor does publicly available information indicate, that Kos Media is owned or controlled by a political party, committee, or candidate." (Page 5, lines 17-18). They state this because if there was such an allegation or if Kos Media was a political committee, the media exemption doesn't apply. The problem is the entire complaint's sole focus is the fact that Kos Media is a political committee. That was exactly what I alleged. They simply ignored that, pretended I was alleging something else, and dismissed the complaint. This means with about a two-page long pleading and a $350 filing fee, this decision could be overturned trivially on appeal.

The more important issue, however, is the idea that FEC regulation is censorship. This is indefensibly false and every single blogger who claimed that it was goes to show that most bloggers aren't about facts; they are about hysteria and fear-mongering. It simply is not reasoned commentary but rants coming straight from the black helicopter crowd. To prove this answer the following questions:

Are the RNC and DNC political committees?

Do they have hundreds of thousands (if not millions) of members?

Are they regulated by the FEC?

How, in the decades of such regulation, have those hundreds of thousands (if not millions) of people been silenced?

The fact is, they haven't. Disclosure is not censorship by a long shot. We could argue about McCain-Feingold, but even if this complaint succeeds that law doesn't apply in this case anyway. FEC regulation has not shut down the RNC and DNC, I certainly get enough of their mailings. People still talk about politics even though they are members of a party. Western civilization as we know it has not collapsed. For an organization like Kos Media to whine on one hand about censorship, but on the other call for actual censorship in saying FOX News doesn't have a right to be on the air is the pinnacle of hypocrisy. Apparently they believe the government shouldn't control who has the right to be on the air… they believe they should have that editorial control.

In between posting agitprop worthy of a Michael Moore movie and posting the victimologies about how a well-funded, well-connected multi-million dollar corporation is oppressed because a private citizen legally petitioned his government, there are some other interesting facts. Namely, Kos' attorney keeps issuing sometimes overt, sometimes vague threats. If they're so right, why do they need to keep threatening to file SLAPP suits when they know full well there is absolutely no cause of action. It's likely because they have something to hide.

At the end of the day, the issue is still not about regulation of blogs. It's about regulation of political committees who organize online. If Kos Media wants to be in the business of electing Democrats, that's fine. They just have to register like every other political committee doing the same thing.

On Business Law Matters

There’s a lot of different regulations to keep track of as a business. That’s why it’s important to have a business
lawyer who can take care of any legal issues that come up. You can also find a corporate lawyer who work for larger businesses and a banking lawyer can help with financial issues.

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With carpet come the issues of carpet cleaning. Earlier, they used to be washed and placed on window sill for drying. With time , as a replacement window went out and carpet maintenance control came on the scene. The outdoor carpet still has the dilemma of carpet beetles though.
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September 8th, 2007 Posted by John Bambenek | Elections, Law / Legal Issues, Politics | 3 comments

The Absurdity of the Marriage Debates

This week a study came out that shows how unilateral divorce laws make divorce more frequent. The empirical research shows what any sensible person would already guess — easy divorce laws make for more divorces. This is only magnified by the fact the divorcing party usually has great incentives to divorce and few incentives to stay (independent of whatever marital problems may exist). The fact that this is even a debate in academia shows how politicized and irrational the academy has become. Sure, there are plenty of other reasons to divorce that also drive the high rate of marriage failures, but government incentivizes failure, not success. That certainly doesn't help.

Add into this debate on divorce law the current debate on gay marriage. With easy divorce, marriage has been demoted to the status of a contract. If it's just a meaningless contract, why can't any combination of participants enter into it? A good question that cannot be easily answered when framed that way.

First off, marriage in this society (independent of its religious roots) is not even a contract. Contracts are designed to be enforceable in the event of a breach. Divorce rewards the breaching party most of the time. None of the terms of marriage are enforceable in any real way. There are no options for a spouse to rein in an adulterous partner and the few laws still on the books against adultery are waiting to be declared unconstitutional.

Further, easy divorce ends up putting the entire lives of the parties into the public record and under the control of a judge. One can walk to any courthouse in this country and start reading detailed accounts of broken marriages. Judges have tremendous power to allocate assets, assign living arrangements, and exercise large amounts of control over the parties. This should greatly worry any libertarian.

One wonders why gay people want a piece of that action. Straight couples are putting off marriage because many wonder if it's really worth all the risk. Gay couples certainly aren't immune from divorce either. Marriage is a loaded term devoid of any meaning behind it. It appears that gay marriage is an attempt at social acceptance, not any desire for benefits. Any real look at marriage shows that on the balance, marriage confers a net liability, not a net benefit.

Before discussing who can participate in marriage, the discussion that we should be having is what the institution of marriage should mean. Right now, the institution currently in place in the United States (again separated from its religious roots) is bordering on meaningless. There is certainly no shortage of people who think so considering every time a government program comes down to support marriage, the usual suspects try to stop it.

The fact is, any serious look at the history of the institution of marriage will show that it is a religious institution. Governmental recognition was not only a later development for marriage, but it also is a secondary aspect. The argument that marriage is a legal institution, a mere creation of government, is a profound mutilation of marriage. One would think that the myriad of governmental forms throughout history would have produced a myriad of forms of marriage, but it has not.

If there is going to be public recognition and support of marriage, there needs to be a corresponding public good and duty. Government shouldn't give out money simply because someone wants a paycheck. What public good is fostered by the recognition of gay marriage? The same could be asked of marriage in the way it is practiced here also. The fact is, until the promises made and the obligations uttered on the wedding day are actually binding in any real way, it's hard to find much of a public good.

Instead of arguing the particulars of marriage and haggling over the petty details, it's time the question of marriage in its fundamentals enters the public discourse. What should marriage mean? Should its obligations be actually binding? What public good is to be fostered? These are the questions that really matter.

July 23rd, 2007 Posted by John Bambenek | Columns, Law / Legal Issues, Politics, Religion | 4 comments