Get the State Out of Marriage Let's try a thought experiment about privatizing marriage


How often do you have knock-down, drag-out fights with your neighbors about what church to attend or what car to buy? Never, right? The reason: You are free to attend any church you choose or buy any car that you prefer. So is your neighbor. In a world of free choice, you might have a friendly or even heated argument at the picket fence (or concrete wall, this being California!) over systematic theology or the virtues of Hondas vs. Mazdas. But, at the end of the day, it doesn’t matter who wins the argument. Your neighbor can’t force you to become Catholic, and you can’t force him to choose an S2000 over an RX-8. You each do as you please.

Now compare that situation to the world of government action and politics. For some reason, many folks believe that decisions made in a democratic manner — i.e., by voting — are preferable to those made in the world of private transactions. But political decisions entail one side winning and imposing its will on the other side. When 55 percent of your city’s voters choose to float a bond measure to fund a community center, the other 45 percent of the voters also are forced to endure the traffic and pay for the project. It is a winner-takes-all situation.

That win-or-lose nature of the process becomes even more contentious when we’re dealing with deeply held social, religious and cultural issues. Religious conservatives like to talk about (and wage) what they call the "culture war." Personally, I have no interest in fighting any type of war with my neighbors. But in their view, they are the guardians of traditional values who are battling it out with leftist elites who want to impose a new set of cultural values on the nation. In the view of their opponents, the conservatives are trying to cram their sectarian values down everybody else’s throat. Both sides have a point, as each side does use the government to promote certain values.

The latest ongoing culture-war battle involves gay marriage. Conservatives, who claim to believe in states’ rights, are promoting federal bans on same-sex marriages. Liberals, who tend to favor federal solutions, are claiming that pro-gay-marriage states such as Massachusetts have the right to set their own marriage terms.

There is one way to keep this battle from becoming as nasty and divisive as other such battles. In a column in the Nov. 26 New York Times, Evergreen State College Professor Stephanie Coontz revived the sensible libertarian argument for privatizing marriage: "Why do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity."

It wasn’t until modern times (the late 1800s) that the state began to dictate the terms of marriage, Coontz explained. In the 1950s, she added, the state used the "marriage license as a shorthand way to distribute benefits and legal privileges." But these days, with so many prevalent family situations and obligations, a marriage license no longer is the easiest way to sort out financial and familial obligations. The easiest way to sort out such matters is through private contracts, not by having the state impose one particular vision of marriage on everyone.

"Each state has tended to promulgate a standard, one-size-fits-all formula," argues the Cato Institute’s David Boaz. "Then, in the past generation, legislatures and courts have started unilaterally changing the terms of the marriage contract. Between 1969 and 1985 all the states provided for no-fault divorce. The new arrangements applied not just to couples embarking on matrimony but also to couples who had married under an earlier set of rules. Many people felt a sense of liberation; the changes allowed them to get out of unpleasant marriages without the often-contrived allegations of fault previously required for divorce. But some people were hurt by the new rules, especially women who had understood marriage as a partnership in which one partner would earn money and the other would forsake a career in order to specialize in homemaking."

Why not just let individuals choose their own terms of marriage, based on the dictates of their religious group or their conscience? Advocates for state-sanctioned marriage argue that marriage is a public good that needs to be protected. Well, good marriages are good for the nation, no doubt, but it’s not as if states can make people more moral by imposing certain rules on them. People already live in every sort of moral and immoral way, inside and outside of marriage. That’s the nature of humankind. And, in my experience, the public usually gets the opposite of whatever it is that the government tries to impose. I’d argue that the best way to encourage solid marriages is to let individuals choose the terms of them. Most people will no doubt opt for a rather traditional model.

I’m a traditionalist on such matters, but it’s not up to me to decide how other people should live. My marriage is not dependent on the state, but on my church (I’m Eastern Orthodox), which would never approve of gay marriage. But some other religious groups do. What they do is not my business, as I am not a member of them. Public "benefits" and legal responsibilities should be handled by contract, not state decree.

Opponents of this arrangement argue that marriage is necessary to handle important family obligations. But, as Anthony Gregory wrote for the libertarian Web site, "If people wish to consider themselves married to each other, let them do so, draw up any relevant private contracts to handle the details of the arrangement and live their own lives in peace. If third parties wish to consider any given pair (or larger number) of people married, that should be their choice. No one, heterosexual or homosexual, would have any special rights under the law. Hospital visitation rights and other such matters would be handled contractually, and decided by the private individuals and institutions involved — not the state. No one would have to see the government give marriage licenses to some but not others, and no one would have to see the government legitimize any marriage he or she doesn’t personally approve."

A final argument from opponents: People will choose all sorts of odd marriage arrangements, such as polygamy, or perhaps even those "line" marriages detailed in Robert Heinlein’s novel The Moon is a Harsh Mistress. Perhaps they will, but some people already choose odd types of relationships. I doubt that, all of a sudden, after marriage is privatized, significant numbers of Americans will wake up and say, "Heck, what I really want is to be involved in a group marriage," or, "Gee, I wonder whether Fido would like to tie the knot?"

Conservatives are most likely to oppose this idea, but they ought to consider this point: Given changing cultural attitudes, it’s only a matter of time before gay marriage is approved by the government. Isn’t it better to embrace this private route than to let the Left use the state to transform another cultural institution? Then again, modern conservatives have become as accustomed as modern liberals to viewing the state as the arbiter of all things moral. And although privatization is the right idea, too many people have too much vested in continuing the culture war.

Steven Greenhut (send him mail) is a senior editorial writer and columnist for the Orange County Register. He is the author of the book, Abuse of Power.