Editor's Note: Max Borders responds to this piece in "On Privatizing Marriage."
If Republican presidential candidate Senator Rand Paul is politically from Mars, then the leftist feminist writer Naomi Wolf is from Venus. But one thing the two agree about here on Earth is the desirability of getting the government out of the marriage business.
Following the Supreme Court’s gay marriage ruling, Paul argued that Mississippi and other states that want to get out of the business of issuing marriage licenses are right. The government shouldn’t “confer a special imprimatur upon a new definition of marriage.” The government should leave marriage to churches and temples, regardless of how they define it, and let consenting adults, regardless of sexual orientation, write their own civil union contracts.
Likewise, echoing fellow liberals such as Michael Kinsley and Alan Dershowitz, Wolf some years ago opined that a wedding dress and flowers blind women to the reality that, at root, marriage is a business contract that the government should stay out of.
But even though “privatizing marriage” is gaining popularity, it is an incoherent concept that, if anything, will actually increase — not decrease — government interference in marriage.
At the most basic level, even if we can get the government out of the business of issuing marriage licenses, it still has to record and register these partnerships (and/or authorize the entities that perform them) before they can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government will need to set rules and regulations as to what counts as a legitimate marriage “deed.” It won’t simply accept any marriage performed in any church — or any domestic partnership contract signed by anyone.
Suppose that Osho, the Rolls Royce–collecting guru who encouraged sexual freedom before getting chased out of Oregon, performed a group wedding uniting 19 people. Maybe the government should register all 19 as a married unit. But it’ll require a culture war to get it to do that. Ditto for a marriage or a civil union between a consenting mother and son. And what should the age of consent be — or should there even be one at all?
In other words, this kind of “privatization” won’t take the state out of marriage — it will simply push its involvement (and the concomitant culture wars) to another locus.
Furthermore, 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. This would obviously mean letting Mormon marriages be governed by the Book of Mormon, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own religious institution or nonreligious equivalent. But what if an individual in one of these faiths rejects its marriage tenets? Where would they go to get married? A civil marriage performed by a justice of the peace would be out because that option would have to be nixed when state and marriage are completely separated.
“Privatization” won’t take the state out of marriage.
Libertarians would argue that these people could embrace another faith or simply declare themselves in a union. But giving communities the right to set their own marital rules also means giving them the right to control any possible exit options for couples. If the state tried to define when and how individuals could exit, it would be back in the business of regulating marriage.
Consider another problem: allowing communities to set their own marital norms would mean giving, say, a Muslim man the right to divorce his Muslim wife by saying “divorce” three times as per sharia law’s requirement, while leaving her with minimal financial support (this actually happens in India and elsewhere). Obviously, that would hardly be an advance for marriage equality. The reason that calls to “abolish marriage” — to quote Kinsley — lead to such absurd results is that they are based on a fundamental misconception about the function marriage serves in a polity.
The Cato Institute’s Jason Kuznicki notes that marriage, properly understood, is a negative, prepolitical right that, in the liberal understanding of things, the government doesn’t grant; it guarantees. It makes as much sense, therefore, to abolish marriage in the name of unshackling it from the government’s clutches as it would to, say, abolish property rights to “free” them from the government.
Just as property rights (at least in principle) establish the scope and limits of state power over an individual, marriage does something similar for couples. It basically establishes their right to jointly own property and inherit it from each other, to keep and raise their children, and to make medical decisions for the other when one is incapacitated. The government can’t grab their children or their property without a compelling interest, and it must prevent others from doing so as well. For example, in-laws can’t simply take away children because they think their daughter-in-law is an unfit mother, nor can they overrule her end-of-life decisions for their son. Couples can voluntarily — and jointly — cede some of their authority to others in special circumstances. But marriage creates a default presumption of their rights, as well as their responsibilities. For example, just as no one can take away their children, the couple can’t abandon them, either.
Without marriage, every aspect of a couple’s relationship would have to be contractually worked out from scratch in advance. This task may — or may not — prove to be an onerous inconvenience (some people speculate that companies would start marketing canned contracts to couples). But without licenses or registration for marriages, many things, including establishing paternity, would get really messy. When a couple is in a recognized marriage, the children in their custody are presumed to be theirs — because they either bore them or adopted them.
Privatizing marriage, maintains Kuznicki, would mean giving up this presumption. This would wreak havoc, especially if a marriage breaks up.
“[You’d] get a deluge of claims and counterclaims about child custody and paternity, as partners fought either to establish or relinquish custody without any clear advance guidance from the government about how they will be treated,” he insists. “It is hard to imagine the state being more in a private family’s business than this” (emphasis original).
This is not mere speculation. Partly to avert such problems and to ensure that children are taken care of, preliberal communities that govern marriage by religious norms give a great deal of say to family, neighbors, and village elders in every aspect of a couple’s life.
If libertarians want to expand marital freedom, they ought to try and spread the Las Vegas model, where licenses are handed out to consenting adults on demand with minimal regulation or delay. Opening the licensing procedure and deregulating marriage so that it covers ever more consenting adults would hand individuals far more marital freedom with far less state involvement than privatizing marriage would.
Privatizing marriage can’t sidestep the broader questions about who should get married to whom and under what circumstances. In a liberal democracy, those who want to expand the scope of marriage have no choice but to fight — and win — the culture wars by slowly changing hearts and minds, just as they did with gay marriage. It would be tantamount to replacing today’s complicated IRS tax code with a simple flat tax, notes the Federalist’s Stella Morabito. There are no cleaner shortcuts.
If libertarians want a different reality, they will just have to move to Mars — or Venus.
Note: A version of this article was originally published at The Week.