Is It Possible to Get the State Out of Marriage?

John Fund has raised a trial balloon on National Review Online with his suggestion that the best response to the huge dispute over gay marriage is for the state to get out of the marriage business altogether and leave it solely to private contract to create and define marital relationships. As a good libertarian, it is tempting to support this proposal. But that temptation ought to be resisted. Here is why.

One notable gap in the Fund column was any reference to the status of children of this union. That covers issues dealing with child support and inheritance rights. It also deals with issues of guardianship and divorce. It is hard enough to deal with these questions when it is known who is married to whom. It is even harder to deal with them when the nature of these private relationships resists standardization.

Things do not get any easier when the subject turns to external attribution rules that are commonly tied to spousal status. Do your shares and mine count as a single holding sufficient to create a control block under tax or securities law? Or are they to be considered separately so that this designation cannot be applied? What about reporting rules for various kinds of conflict of interest situations in business or biomedical research? If there are intermediate statuses that people can adopt, all of these external groups are going to have to develop criteria to apply their own provisions. It will prove to be messy, costly, and inefficient.

There is an easier way to deal with this. Keep the designation of marriage so that this full range of regulatory provisions do not have to be redone from the ground up. Then allow the parties to shift between themselves (by contract) those incidents of marriage that do not alter relationships with third parties. A couple could decide which property is separate or common, and could decide who is the primary caregiver. But they could not escape the rules that require reporting of separately held interests; nor could one spouse escape their support obligations when the primary caregiver has refused to discharge that obligation.

There is next the question about the role of religious institutions. For that, the proper response is that they do not have to recognize marriages, including gay or polygamous marriages, for their own internal purpose. This caveat is essential to preserve their rights to function as autonomous institutions.

When on the path of reform, minimal adjustments generate many fewer surprises than radical, uncharted changes. So let gay marriage come, even if it ends the stranglehold that traditional marriage has on the term. Once that is done, the libertarian ideal is honored by allowing all social institutions to decide how they wish to deal with these unions, so long as they are subject to a uniform set of public duties.

It is a lot easier to slot gay marriages into the current system than to undo the public system with consequences that could prove unintended, disastrous, or both. The correct rules on marriage are clearly path-dependent, and in this context we are not writing on a blank slate, but on a historical institution that long antedates the creation of the state

  1. Monty Adams

    Laws against theft, murder, assault, battery, fraud, etc. are all laws promoting basic morality.

    Zoning laws prohibiting certain types of activity in certain areas promote basic morality.

    Regulations governing what media content can go over the public airwaves promote basic morality.

    Laws prohibiting or strictly regulating certain activities like gambling and use of inebriants and controlled substances promote basic morality.

    Of course we want and need laws that promote basic morality. There are questions of degree and about what penalties should apply, but to say we don’t want laws promoting basic morality or that doing so causes more harm to society than good is foolish.

  2. Tommy De Seno
    C

    Richard I strongly disagree with your assertion of complexity.

    To rid government control of marriage will require only three simple changes.

    1.  Have a registration requirement for marriage in the same fashion that one registers deeds.

    2.  Allow nuptial agreements to govern the private contract, with the current marriage law to govern in the absence of agreement or silence of the agreement on any issue, in the same fashion that we deal with corporate agreements today.

    3.  Remove all government benefits/burdens related to marriage.

    FREEDOM!

  3. Frank Monaldo

    As far as religious institutions go, would they have recognize non-traditional marriages for pedestrian purposes?  For example, if there is dorm at a Catholic college for married couples, would these be open to gay partners?  Would such institutions be required to offer family medical plans for marriages they do not recognize?

  4. Frank Monaldo

    As far as religious institutions go, would they have recognize non-traditional marriages for pedestrian purposes?  For example, if there is dorm at a Catholic college for married couples, would these be open to gay partners?  Would such institutions be required to offer family medical plans for marriages they do not recognize?

  5. Butters

    Tommy, I’m with you, but how do you address the issue of child guardianship Richard raised?

  6. Tommy De Seno
    C
    Frank Monaldo: As far as religious institutions go, would they have recognize non-traditional marriages for pedestrian purposes?  For example, if there is dorm at a Catholic college for married couples, would these be open to gay partners?  Would such institutions be required to offer family medical plans for marriages they do not recognize? · 0 minutes ago

    Of course not.  Those arguments are a ruse of distraction which require self-afflicted amnesiac oversight of First Amendment protection.

    We keep gays out of the boy scouts and St. Patrick’s day parade so there is no fear of the keeping them out of our churches.

  7. Tommy De Seno
    C
    Butters: Tommy, I’m with you, but how do you address the issue of child guardianship Richard raised? · 3 minutes ago

    See #2.  The nuptial agreement controls and in it’s absence state law controls. 

    That actually works now with pre and post nuptial agreements, and in other areas of law like wills and trusts and corporate governance.

    That’s why I disagree with Richard’s naked assertion of complexity.  Very little will change when government is summarily disposed from marriage contract formation.

  8. Monty Adams

    I think Ryan Anderson pointed out nicely why, whether we like it or not, government has a role in helping shape the form of heterosexual relationships.

    Read it here.

    In short,  if people don’t form the type of relationships that traditional marriage promotes, children, in the aggregate, don’t get cared for properly. Poorly raised children only create bigger problems that the state will have to deal with later.

    If you don’t want big government, people in your society need to engage in the traditional behaviors institutionalized in marriage. Therefore, the state has an interest in encouraging them to do so.

  9. mask
    Tommy De Seno

    Frank Monaldo: As far as religious institutions go, would they have recognize non-traditional marriages for pedestrian purposes?  For example, if there is dorm at a Catholic college for married couples, would these be open to gay partners?  Would such institutions be required to offer family medical plans for marriages they do not recognize? · 0 minutes ago

    Of course not.  Those arguments are a ruse of distraction which require self-afflicted amnesiac oversight of First Amendment protection.

    We keep gays out of the boy scouts and St. Patrick’s day parade so there is no fear of the keeping them out of our churches. · 26 minutes ago

    Edited 25 minutes ago

    I like your general approached outlined in your first post but…

    What about Catholic adoption services that have already been shut down because they refused to serve gay couples?

    We’ve already seen Christian’s religious rights violated in pursuit of health care and we’ll see it in the further pursuit of “equality”.

  10. mask
    Tommy De Seno: Richard I strongly disagree with your assertion of complexity.

    To rid government control of marriage will require only three simple changes.

    1.  Have a registration requirement for marriage in the same fashion that one registers deeds.

    2.  Allow nuptial agreements to govern the private contract, with the current marriage law to govern in the absence of agreement or silence of the agreement on any issue, in the same fashion that we deal with corporate agreements today.

    3.  Remove all government benefits/burdens related to marriage.

    FREEDOM! · 42 minutes ago

    Who would be disqualified from registering a partnership?  For example, only two people?  What about siblings or college roommates who want a contract for whatever reason?

  11. PHenry

     The government getting mixed up in the marriage relationship is exactly why we are about to destroy its definition.  Once you bring the government in to it, it will unavoidably become perverted and meaningless. 

    Let the church define marriage for its membership.  If it is necessary for the government to define a relationship for inheritance or taxes or whatever, let it be done in a secular manner, and why in the world would it be based upon who you sleep with?  If my brother is my closest family member, and I wish him to be treated as next of kin, why not?  We don’t need federal marriage definition, we need a next of kin civil union, and it should be open to anyone. 

  12. Tommy De Seno
    C
    mask

    Tommy De Seno

    Frank Monaldo: As far as religious institutions go, would they have recognize non-traditional marriages for pedestrian purposes?  For example, if there is dorm at a Catholic college for married couples, would these be open to gay partners?  Would such institutions be required to offer family medical plans for marriages they do not recognize? · 0 minutes ago

    Of course not.  Those arguments are a ruse of distraction which require self-afflicted amnesiac oversight of First Amendment protection.

    We keep gays out of the boy scouts and St. Patrick’s day parade so there is no fear of the keeping them out of our churches. · 26 minutes ago

    Edited 25 minutes ago

    I like your general approached outlined in your first post but…

    What about Catholic adoption services that have already been shut down because they refused to serve gay couples?

    We’ve already seen Christian’s religious rights violated in pursuit of health care and we’ll see it in the further pursuit of “equality”. · 5 minutes ago

    I wouldn’t be against legislation/constitutional amendment to strengthen the religious defenses at the same time, which, as you correctly point out, we could use anyway.

  13. Frank Soto
    In short,  if people don’t form the type of relationships that traditional marriage promotes, children, in the aggregate, don’t get cared for properly. Poorly raised children only create bigger problems that the state will have to deal with later.

    This reasoning is so inconsistent with everything a conservative should belief.  

    The idea that the state is the best mechanism for promoting the proper care of children, leaves you with no grounds to oppose virtually any part of the progressive agenda on the same grounds.

    We constantly argue that private institutions and arrangements are more effective than government controlled ones. But on this one issue, it’s too big to be left to free people.  Too important for the government to not be at the wheel.

    Then why not government control of healthcare, or manufacturing, or any other vital part of society or the economy?   

  14. Frank Soto
    It is a lot easier to slot gay marriages into the current system than to undo the public system with consequences that could prove unintended, disastrous, or both. The correct rules on marriage are clearly path-dependent, and in this context we are not writing on a blank slate, but on a historical institution that long antedates the creation of the state 

    I’m about to eat a doughnut.  Now the results of this action could prove unintended, disastrous, or both (I could choke to death here at my desk).  Or I may just enjoy a delicious doughnut.

    This fear of possible, unnamed consequences of removing state involvement in marriage is the standard response from critics.  Can we get an actual possible consequence?  I’m not terribly afraid of the unknown.

    All of Richard’s specific criticisms come down to the legal system being somewhat less efficient.  It’s going to take more than that to swing my opinion on this issue.

  15. Keith

    I think that the State has a stake in the civil union of couples and their offspring. (not saying I really think they should, but they do)

    The Church has a stake in the Marriage of couples.

    So, civil unions for gay and hetero couples.

    Couples being wedded per their church doctrines. If anyone doesn’t want a church wedding, they are still in union for tax, child welfare, and dis-union matters.

    That is how I see getting the State out of marriage. I don’t see how it is hard to do from a legal standpoint.

  16. Herbert Woodbery

    so long as they are subject to a uniform set of public duties.—— examples of what this means, please?

  17. Zach Franzen
    Richard Epstein:  So let gay marriage come, even if it ends the stranglehold that traditional marriage has on the term

    What a hilarious and weird sentence.  Men and women committing to love and honor each other in front of God and witnesses is really choking the life out of the term “marriage”.  That poor term!

    With regard to Chief Justice Roberts’ example, we might say:

    So let compulsory friendship come, even if it ends the stranglehold that voluntary friendship has on the term.

    All of these slights and jabs at traditional marriage (assuming that its current definition represents something oppressive and unjust) put me in mind of G.K. Chesterton’s argument “If you draw a giraffe, you must draw him with a long neck.  If in your bold creative way you hold yourself free to draw a giraffe with a short neck, you will really find that you are not free to draw a giraffe.”

  18. Daniel Jeyn

    There are lots of married moderate to left-wing Democrats we want to persuade to vote Republican.  Suddenly, a part of their lives which they have never thought about has been nullified by government action requiring them to go fill out more paperwork from here on out.  That is, at the very least, counterproductive.

    You also hand the Democrats the ability to seize the middle and the right-of-middle ground by talking about how marriage is good for society,  and those dastardly Republicans would rather see it destroyed than extended to loving same-sex couples.  The spin writes itself.

    If the republicans decide to completely moot themselves out of existence, I won’t be there to cheer them on.

  19. Eric Hines

    Richard: You’re overcomplexifying things and attributing existing overcomplexity to the wrong items.  For instance,

    Do your shares and mine count as a single holding sufficient to create a control block under tax or securities law?

    This complexity exists only because government wants to clear up a corner case.  Your shares and mine sums it up: they belong to two independent adult human beings.  Their comprising a voting block or or existence as a tax dodge is a factor created by government’s securities and tax regulations.

    …the question…of religious institutions. [T]he proper response is that they do not have to recognize marriages [of which they disapprove] for their own internal purpose.

    Exactly.  Government has no role here.

    Community property?  Child rearing?  The Federal government has no role here.  The states, individually, already have adequate laws for their citizenry with which to handle these, and the other questions raised.

    Certainly, no system is perfect, and there always will be corner cases that need special treatment.  But the first step in dealing with these is to reduce their number by reducing the laws and regulations that by their own complexity create so many corner cases.

    Eric Hines

  20. Palaeologus
    Tommy De Seno: Richard I strongly disagree with your assertion of complexity.

    To rid government control of marriage will require only three simple changes.

    1.  Have a registration requirement for marriage in the same fashion that one registers deeds.

    2.  Allow nuptial agreements to govern the private contract, with the current marriage law to govern in the absence of agreement or silence of the agreement on any issue, in the same fashion that we deal with corporate agreements today.

    3.  Remove all government benefits/burdens related to marriage.

    Regarding 3, do you have a list of these handy? The first thing that came to my mind was SS survivor benefits. Assuming you could manage that feat, what else needs to go?