Marriage is society’s primary institutional arrangement that defines parenthood.
–Jennifer Roback Morse
The idea of marriage privatization is picking up steam. And it makes strange bedfellows.
There are old-school gay activists suspicious that state marriage is a way for politicians to socially engineer the family through the tax code. There are religious conservatives who are upset that a state institution seems to violate their sacred values. Don’t forget the libertarians for whom “privatize it” is more a reflex than a product of reflection.
But they all agree: it would be a good idea to get the government out of the marriage business. Principle, it turns out, is pragmatic.
First, let’s disentangle two meanings for one word that easily get confused. When we say “marriage,” we might be referring to:
A. a commitment a couple enters into as a rite or acknowledgment within a religious institution or community group (private); or
B. a legal relationship that two people enter into, which the state currently licenses (public).
Now, the questions that follow are: Does the government need to be involved in A? The near-universal answer in the United States is no. But does the government need to be as involved as it is in B? Here’s where the debate gets going.
I think the government can and should get out of B, and everyone will be better for it. This is what I mean by marriage privatization.
Some argue that marriage is “irreducibly public.” For Jennifer Roback Morse, it has to do with the fate of children and families. For Shikha Dalmia, it has to do with the specter of increased government involvement, a reinflamed culture war, and a curious concern about religious institutions creating their own marriage laws.
First, let’s consider the issue of children. According to Unmarried.org:
- 39.7 percent of all births are to unmarried women (Centers for Disease Control, 2007).
- Nearly 40 percent of heterosexual, unmarried American households include children (Child Protective Services, 2007).
- 41 percent of first births by unmarried women are to cohabiting partners (Larry Bumpass and Hsien-Hen Lu, 2000).
Does the law leave provisions for the children of the unmarried? Of course. So while state marriage might add some special sauce to your tax bill or to your benefits package, family court and family codes aren’t likely to go anywhere, whatever we do with marriage. This is not a sociological argument about whether children have statistically better life prospects when they are brought up by two married parents. Nor is it a question about gender, sexuality, and parental roles. It’s simply a response to the idea that marriage is “irreducibly public” due to having children. It is not. (I’ll pass over the problem for this argument that some married couples never have children.)
Dalmia is also concerned that “true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples.”
It’s true. Couples, as a part of free religious association, might have to accept some definition of marriage as a condition of membership in a religious community. But, writes Dalmia, “This would mean letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent.” And all of this is could be true up to a point.
But Dalmia overstates the case. Presumably, no religious organization would be able to set up codes that run counter to the civil and criminal laws in some jurisdiction. So if it were part of the Koranic sharia code to beat your wife for failure to wear the hijab at Costco, that rule would run afoul of laws against spousal abuse. Mormon codes might sanction polygamy, but the state might have other ideas. So again, it’s not clear what sort of magical protection state marriage conjures.
What about Dalmia’s concern that in the absence of state marriage, “every aspect of a couple’s relationship would have to be contractually worked out from scratch in advance”? Never mind that some people would see being able to work out the details of a contract governing their lives as a good thing (for one, it might prevent ugly divorce proceedings). There is no reason to think that all the functions normal, unmarried couples with children and property have in terms of recourse to “default” law would not still be available. Not only would simple legal templates for private marriage emerge, but states could establish default civil unions in the absence of couples pursuing private alternatives.
There is no reason to think that all the functions normal, unmarried couples with children and property have in terms of recourse to “default” law would not still be available.
Indeed, if people did not like some default option — as they might not now — there would be better incentives for couples to anticipate the eventualities of marital life. People would have to settle questions involving cohabitation, property, and children just as they do for retirement and for death. Millions of gay couples had to do this prior to the Supreme Court’s ruling on marriage equality. Millions of unmarried couples do it today. The difference is that there would be a set of private marriage choices in a layer atop the default, just as people may opt for private arbitration in lieu of government courts.
In the debates leading up to marriage equality, an eminently sensible proposal had been that even if you don’t like the idea of hammering out a detailed contract with your spouse-to-be, simply changing the name of the entire statutory regime to “civil unions” would have gone a long way toward putting the whole gay-marriage debate to bed. The conservatives would have been able to say that, in terms of their sacred traditions and cultural community (as in A), “marriage” is between one man and one woman. Gay couples would have to find a church or institution that would marry them under A. But everybody would have some equal legal provision under the law to get all the benefits that accrue to people under B. You’d just have to call it a “civil union.”
And that’s fine as far as it goes.
But I like full privatization because “marriage” is currently a crazy quilt of special privileges and goodies that everybody wants access to — unmarried people be damned. But marriage should confer neither special favors nor goodies from the state. We can quibble about who is to be at the bedside of a dying loved one. Beyond that, marriage (under definition B) is mostly about equal access to government-granted privileges.
Not only does the idea that marriage is irreducibly public represent a failure of imagination with respect to robust common law, it also resembles arguments made against privatization in other areas, such as currency, education, and health care. Just because we can’t always envision it doesn’t make it impossible.