Monday, December 01, 2008

The Privatization of Marriage

Richard Epstein recently trotted out an old libertarian talking point after the victory of Proposition 8 in California, effectively banning gay marriage. He suggested that marriage should be a wholly private activity and that there's no need for government involvement. Indeed, for most of American history, marriages were church, not government activities, and there was no need for a marriage license.

Why not go back to those halcyon days of yore and let individuals decide for themselves how to define their marriages?

One reason: divorce.

A couple might have a church or other commitment ceremony to publicly announce their permanent relationship to family and friends, and this can be a non-legal transaction.

But divorce -- the disposition of estate and custody of children, is inextricably a legal activity. And because divorce is a legal action, the marriage necessarily proceeds it is also a legal activity -- or else a person could escape a negative divorce settlement by simply claiming to have never been truly married in the first place. Or, for that matter, than various causes for divorce (e.g. adultery) are inapplicable because fidelity is a not accepted as a requirement for marriage in the opinion of the divorcee.

Like any good Pavlovian libertarian, I start salivating whenever I hear the word "privatize", but I just don't see how the privatization of marriage is feasible.

But what I would like to see is a Constitutional amendment removing marriage from being subject to the Full Faith and Credit Clause of the U.S. Constitution (Article 4, Section 1) so that individual states can define marriage as they like. This way, states that want gay marriage can have it, and those that don't, won't. And homosexuals who want to get married can move to a state that permits it. States that allow gay marriage can be laboratories of democracy, testing whether or not it has positive, negative, or no consequences for society at large.

HT: Instapundit


The Bass Player's Wife said...

I would like to see the two aspects of marriage (social contract and covenant) wholly removed from each other. Frankly, our current model smacks of clericalism.
Why not have a model not unlike what is used in The Netherlands, where a couple would have a civil ceremony (to satisfy the legal requirements) and then a church ceremony (should they choose). I think it would also protect churches who choose not to marry homosexual couples.

Kenny said...

John - The thing being missed in your analysis is that what creates the legal problems with divorce is that there are already legal aspects to marriage. If there weren't legal aspects to marriage, there wouldn't be legal aspects to divorce. Why? Two items: join assets, and joint custody of children. These sorts of things must be established by contract, and the contract must specify under what circumstances (if any) it can be dissolved and, if it is dissolved, what happens to any property or children. Right now, people can write pre-nuptial agreements, but, by and large, marriage is a one-size-fits-all legal institution.

In my particular version of libertarian utopia, civil marriage would be effected by signing a contract. The state might draw up a generic 'secular marriage' contract template, and religious and other groups would be free to draw up their own templates based on their understandings of, e.g., the conditions for permissible divorce, and couples could customize the contracts as they saw fit to establish the terms for their marriage they chose. The state would still have to play arbiter in contractual disputes on a regular basis, but every good libertarian acknowledges that we need the state for that purpose.

John B said...

I know a clergy couple who did exactly what Bass Player's Wife suggests. They went to a Justice of the Peace and were legally married. Then they had a completely separate ceremony at the church were the consecrated their vows before God and their friends.

I always have couples sign their marriage licence at the rehearsal. That way the religious & the legal are separated. One of the things I hate about the way we do weddings is that I forced to be an agent of the state. I'm only concerned about being an agent of the Kingdom of God. So I'm all in favor of two ceremonies.

John said...

Yeah, I guess that we could have that Kenny. But I wouldn't like for myself for marriage to be reduced to only a prenuptual agreement.

Of course, the notion that one should marry for love is fairly new in human history, so a purely contractual arrangement would not be entirely alien to the human experience.

Kenny said...

Well, we wouldn't be reducing marriage. We'd just be reducing civil marriage, and the only difference between civil marriage now and in my picture is really that right now it's 'one size fits all', and it isn't neatly separated from religious marriage. But it's not like civil marriage, as such, is really any more than a contract.