Don’t Privatize Marriage

Government involvement is necessary—and unavoidable.

Should we privatize marriage? Many libertarians say yes. So do a few progressives. And now, importantly, so does Sen. Rand Paul, R-Ky.

On June 26, all of the Kentucky senator’s rivals for the 2016 Republican presidential nomination denounced the historic Supreme Court decision in the marriage cases. The court, as everyone knows, discovered a hitherto undetected constitutional duty of all states to issue marriage licenses to same-sex couples and to recognize such licenses from out of state.

Most candidates expressed outrage at the decision. Sen. Ted Cruz, R-Texas, took the hardest line, calling for public resistance and judiciary reform. Others, including Sen. Marco Rubio, R-Fla., and Gov. John Kasich, R-Ohio, sounded a more subdued tone, as if relieved that the divisive issue has now been taken out of voters’ hands.

Paul remained silent. For two days.

Then he issued a statement, which seems carefully worded – very carefully – so as to offend no one. While he clearly rejects Justice Anthony Kennedy’s reasoning in the 5-4 decision (“reasoning” is a polite term for it), Paul somewhat surprisingly, and counterintuitively, calls on Americans to abolish civil marriage altogether:

While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract. The Constitution is silent on the question of marriage because marriage has always been a local issue. Our founding fathers went to the local courthouse to be married, not to Washington, D.C. … The 14th Amendment does not command the government endorsement that is conveyed by the word “marriage.” State legislatures are entitled to express their preference for traditional marriage, so long as the equal rights of same-sex couples are protected.

And finally the punchline:

Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party. … Since government has been involved in marriage, they have done what they always do – taxed it, regulated it, and now redefined it. It is hard to argue that government’s involvement in marriage has made it better, a fact also not surprising to those who believe government does little right.

Translation: Marriage “equality” should occur by way of privatization rather than redefinition. Or to put it more clearly: We must burn the village to save it.

It’s undeniably a radical proposal. Is it also a political winner? Doubtless many libertarians love it. But what about non-libertarians? I suspect the vast majority will never warm to it, for four reasons, which become clearer the more one studies the issue:

1. It’s needlessly complicated and uncertain. How would things actually work in a post-civil-marriage world? For example, how would we handle divorce, alimony, child custody and property disputes? To these questions libertarians respond in unison: According to the rules of contract law.

I’m not so sure it’d so simple. But for the sake of argument, let’s grant the point. What happens in those cases where no contract exists or the contract’s validity is challenged? Do we default to the rules of common-law marriage (meaning an informal marriage lacking a written license or contract)? The very concept of common-law marriage assumes an existing body of law governing marriage and family. Surely that body of law can have no standing in a world of pure contracts. The couple lacking a written contract must be, for legal purposes, regarded as mere strangers. What, then, happens to the traditional legal privilege whereby a spouse may refuse to testify against his or her spouse in court? Or the privilege that protects the secrecy of husband-wife communications (similar to the attorney-client privilege)? How, in short, is a court to know who is really a spouse? The answer would seem to be: It won’t, absent a valid, written contract. Now, perhaps the more sophisticated libertarians might suggest that the traditional marriage rules should remain in force and be the default setting, but that people would now be free to opt out of them via private contracts. That would create an environment more complicated and uncertain than the status quo.

2. It’s potentially harmful. How would we regulate, in a contract-based system, such things as bigamy and polygamy, consanguineous marriages (e.g., those between first cousins, or between an uncle and niece), and incestuous marriages (e.g., a father and daughter, or two siblings)? The answer would seem to be: We won’t. Those things will now be legal for consenting adults – anything goes, because everything’s private. Live and let live. But of course, that policy, by unleashing the universally recognized selfishness of masculine sexuality, will tend to degrade the safety, happiness, and dignity of women and children. (Or at least the burden of proof should be on those who would claim otherwise.)

3. It’s more intrusive, not less. A contractarian approach will, paradoxically, be more intrusive than the traditional one. The beauty of a marriage license is it makes it relatively easy for the government to leave people alone. The government knows what a “marriage” is and can act efficiently on that knowledge. It doesn’t need to keep inquiring into the nature of a couple’s unique private arrangements. It can treat the couple as a unit, rather than having to assume they’re legal strangers. By contrast, with private contracts, it must keep reopening all the familiar questions, couple by couple, case by case. In this respect, traditional marriage is less intrusive and more privacy-respecting than “privatized” marriage would or ever could be.

4. It’s a blind alley. Even in Paul’s vision, government still plays a decisive role. Government enforces the private marriage contracts. Government decides which individuals are eligible to make a contract. Government decides which contract provisions are legally enforceable (bringing us back to things like polygamy and incest).

The traditional way of regulating marriage is traditional for a reason. If civil marriage did not exist, we would have to invent it. A marriage certificate may be “just a piece of paper,” but so is a private contract. The same issues arise under both. Changing the form or name of the paper can’t change the nature of the questions the paper raises.

Unlike a private contract, a marriage certificate is a known quantity, a convenient boilerplate agreement between the couple and the larger community: incredibly compact, useful, and beneficial. It reflects the collective wisdom and common sense of the community, based on millennia of lived human experience – often painful experience.

Marriage has always been public. Some libertarians imagine government involvement is a recent historical development. Not so. Government regulation of marriage can be seen all the way back to the Roman Republic. During the Christian centuries, governments did not issue marriage licenses, but there was a good reason for that. Prior to the latter half of the 18th century, there was no separation of church and state. Churches were part of the government and acted as the government’s agents, registering unions and taking the lead in enforcing marriage and family law. After the American and French Revolutions, state churches were disestablished, and for the first time in a thousand years government became directly and visibly involved in marriage for the simple reason that it had to. It is not government involvement but the idea of total privatization that is historically novel.

A few questions for privatization supporters:

Wouldn’t it make sense for the government to refuse to enforce unwritten marital agreements as well as private partnership contracts that were never filed or registered with the government in advance of the dispute (if only, for example, to avert forgery and fraudulent backdating)?

If yes, then wouldn’t it make sense for a couple to have a copy of its private partnership contract notarized or filed with some public official, to ensure it can be enforced?

If yes, then wouldn’t it make sense for the government, at the time of the notarization or filing, to consult a short checklist of criteria to confirm the partnership’s lawfulness (for example, to ensure the two parties are both legal adults and not closely related by blood)?

If yes, then wouldn’t it make sense to give the couple a formal receipt confirming the date of the notarization or filing?

If yes, then wouldn’t it make sense to let that receipt serve as an official proof of the relationship’s existence?

If yes, then wouldn’t it make sense to call the receipt – to coin a phrase – a marriage certificate?

Privatization is a blind alley.

Dean F. Clancy, a former senior official in the White House and Congress, writes on U.S. budget and constitutional issues. Follow him on Twitter: @DeanClancy.


[Originally published at USNews.com, July 11, 2015. @USNewsOpinion. Reposted at DeanClancy.com.]

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