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29 Harv. J.L. & Pub. Pol'y 949 (2005-2006)
An Economic Assessment of Same-Sex Marriage Laws

handle is hein.journals/hjlpp29 and id is 957 raw text is: AN ECONOMIC ASSESSMENT OF SAME-SEX
MARRIAGE LAWS
DOUGLAS W. ALLEN*
This Article argues that marriage is an economically efficient
institution, designed and evolved to regulate incentive prob-
lems that arise between a man and a woman over the life cycle
of procreation. As such, its social and legal characteristics will
provide a poor match for the incentive problems that arise in
the two distinctly different relationships of gay and lesbian
couples. Forcing all three relationships to be covered by the
same law will lead to a sub-optimal law for all three types of
marriage.
I. INTRODUCTION
Marriage is a word familiar to toddlers, and yet so compli-
cated that most adults cannot articulate its real meaning.' Mar-
riage is an institution.2 It is a complex set of personal values,
social norms, religious customs, and legal constraints that regu-
* Burnaby Mountain Professor, Simon Fraser University. Thanks to Leigh
Anderson, Dean Lueck, and the participants of the Federalism and the Law of
Marriage conference, Harvard Law School, August 2005, for their comments.
1. This is hardly a failure of those attempting to defend marriage:
Many of the institutions of society which are indispensable conditions for
the successful pursuit of our conscious aims are in fact the result of
customs, habits or practices which have been neither invented nor are
observed with any such purpose in view. We live in a society in which we
can successfully orientate ourselves ... because [we] are also confined by
rules whose purpose or origin we often do not know and of whose very
existence we are often not aware.
1 F.A. HAYEK, LAW, LEGISLATION AND LIBERTY, RULES AND ORDER 11 (1973).
2. Douglass North defines institutions as the humanly devised constraints that
shape human interaction. DOUGLASS NORTH, INSTITUTIONS, INSTITUTIONAL
CHANGE, AND ECONOMIC PERFORMANCE 3 (1990). Economists often mischaracter-
ize marriage by calling it a contract. Although there are contractual aspects to
marriage, its details go well beyond this description.

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