Privatize Marriage
A simple solution to the gay-marriage debate.
By David Boaz (993 words; posted Thursday, April 24; to be composted
Thursday, May 1)
From the Slate (http://www.slate.com/)
In the debate over whether to legalize gay
marriage, both sides are missing the point. Why should the government be
in the business of decreeing who can and cannot be married? Proponents
of gay marriage see it as a civil-rights issue. Opponents see it as
another example of minority "rights" being imposed on the majority
culture. But why should anyone have--or need to have--state sanction for
a private relationship? As governments around the world contemplate the
privatization of everything from electricity to Social Security, why not
privatize that most personal and intimate of institutions, marriage?
"Privatizing" marriage can mean two slightly different things.
One is to take the state completely out of it. If couples want to cement
their relationship with a ceremony or ritual, they are free to do so.
Religious institutions are free to sanction such relationships under any
rules they choose. A second meaning of "privatizing" marriage
is to
treat it like any other contract: The state may be called upon to
enforce it, but the parties define the terms. When children or large
sums of money are involved, an enforceable contract spelling out the
parties' respective rights and obligations is probably advisable. But
the existence and details of such an agreement should be up to the
parties. And privatizing marriage would, incidentally, solve the
gay-marriage problem. It would put gay relationships on the same footing
as straight ones, without implying official government sanction. No
one's private life would have official government sanction--which is how
it should be.
Andrew Sullivan, one of the leading advocates of
gay marriage, writes, "Marriage is a formal, public institution that
only the government can grant." But the history of marriage and the
state is more complicated than modern debaters imagine, as one of its
scholars, Lawrence Stone, writes: "In the early Middle Ages all that
marriage implied in the eyes of the laity seems to have been a private
contract between two families. ... For those without property, it was a
private contract between two individuals, enforced by the community
sense of what was right." By the 16th century the formally witnessed
contract, called the "spousals," was usually followed by the
proclamation of the banns three times in church, but the spousals itself
was a legally binding contract. Only with the Earl of Hardwicke's Marriage
Act of 1754 did marriage in England come to be regulated by law. In
the New England colonies, marriages were performed by justices of the
peace or other magistrates from the beginning. But even then common-law
unions were valid.
In the 20th century, however, government has
intruded upon the marriage contract, among many others. Each state has
tended to promulgate a standard, one-size-fits-all formula. 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. Privatization of religion--better known as the separation
of church and state--was our founders' prescription for avoiding
Europe's religious wars. Americans may think each other headed for hell,
but we keep our religious views at the level of private proselytizing
and don't fight to impose one religion by force of law. Other social
conflicts can likewise be depoliticized and somewhat defused if we keep
them out of the realm of government. If all arts funding were private
(as 99 percent of it already is), for instance, we wouldn't have members
of Congress debating Robert Mapplethorpe's photographs or the film The
Watermelon Woman.
So why not privatize marriage? Make it a
private contract between two individuals. If they wanted to contract for
a traditional breadwinner/homemaker setup, with specified rules for
property and alimony in the event of divorce, they could do so. Less
traditional couples could keep their assets separate and agree to share
specified expenses. Those with assets to protect could sign prenuptial
agreements that courts would respect. Marriage contracts could be as
individually tailored as other contracts are in our diverse capitalist
world. For those who wanted a standard one-size-fits-all contract, that
would still be easy to obtain. Wal-Mart could sell books of marriage
forms next to the standard rental forms. Couples would then be spared
the surprise discovery that outsiders had changed their contract without
warning. Individual churches, synagogues, and temples could make their
own rules about which marriages they would bless. And what of gay
marriage? Privatization of the institution would allow gay people to
marry the way other people do: individually, privately, contractually,
with whatever ceremony they might choose in the presence of family,
friends, or God. Gay people are already holding such ceremonies, of
course, but their contracts are not always recognized by the courts and
do not qualify them for the 1049 federal laws that the General
Accounting Office says recognize marital status. Under a privatized
system of marriage, courts and government agencies would recognize any
couple's contract--or, better yet, eliminate whatever government-created
distinction turned on whether a person was married or not.
Marriage is an important institution. The modern mistake is to think
that important things must be planned, sponsored, reviewed, or licensed
by the government. The two sides in the debate over gay marriage share
an assumption that is essentially collectivist. Instead of accepting
either view, let's get the government out of marriage and allow
individuals to make their own marriage contracts, as befits a secular,
individualist republic at the dawn of the information age.
Links
SLATE offers two "Dialogues" on matrimony: Andrew Sullivan vs.
David Frum on
gay marriage; and Katha Pollitt vs. David Blankenhorn on heterosexual
divorce. What would same-sex couples gain--or lose--if "officially
recognized by the government"? "The Gist" examines the question.
U.S.
News & World Report provides a "Citizen's Toolbox" on gay
marriage. A
May 1996 New Republic article questions the purpose of marriage (it's
"stigma as social policy," says the author--but that's actually
a good
thing). For an eclectic assortment of materials on marriage and divorce,
try the U.S. House of Representatives' Internet Law Library section on
Domestic Relations. David Boaz is the author of Libertarianism: A Primer
and editor of The Libertarian Reader. Illustrations by William L. Brown.
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