REVISED 07/15/15 (AS NOTED BELOW)
Privatize marriage. That’s the standard libertarian response to the dispute about same-sex marriage. The idea is to get government out of the marriage business by letting couples (and larger groups, I suppose) enter into contracts without government licensing. Such contracts might be styled marriage contracts, civil unions, cohabitation agreements, domestic partnership agreements, or what have you. But they would be private contracts, entered into by consenting adults without government’s permission or imprimatur.
I used to oppose the privatization of marriage because I believed, naively, that it would be protected by government. By “marriage” I mean the ages-old institution through which heterosexual couples conjoined their lives — an institution that arose without benefit of government, and which government has subverted.
I now believe privatization to be a good idea because a majority of the Supreme Court has made a mockery of marriage with its ruling in Obergefell v. Hodges. As a private institution, marriage would be accorded more respect than it will be accorded as a definitional whim of five justices.
That’s only the latest bit of damage caused by government. Consider the state of affairs in the United States: a high divorce rate (even if it’s somewhat lower than a few decades ago), rampant serial cohabitation, and a rising out-of-wedlock birth rate. All of this, and more, can be laid to the easing of divorce laws, programs that encourage mothers to work outside the home, and programs that encourage illegitimacy and discourage parental responsibility (e.g., AFDC, CHIP, SNAP, PPACA, and extended unemployment benefits).
Marriage — “thanks” to government — is a far cry from what it was and should be: a lifetime commitment to a spouse; the raising of children to be moral, hard-working citizens; the creation and continuation of family ties that bring with them the joy of belonging and understood obligations to help each other through hard times, unto death. Marriage is (or was), in other words, a binding force for good — a force that has been undermined by government through actions ranging from no-fault divorce laws to welfare for unwed mothers to the orchestrated attack by federal courts that culminated in Obergefell v. Hodges. Given the abdication of its responsibility to preserve, protect, and defend a vital institution, government should get out of the marriage business.
Marriage will be better served if loving couples reject government’s (now irrelevant and destructive) role and enter into private marriage contracts. Such contracts should be so thoroughly drawn that government wouldn’t have to approve or be a party to separations, divorces, property settlements, custodial arrangements, or any of the other messiness that goes on in family courts. Couples would carefully consider and agree ahead of time how to deal with certain contingencies, and make contractual provisions for them — including private counseling and arbitration. Perhaps the covenant marriage contract, which fosters marital and familial stability, would become the model for a large fraction of contracts. (Catholics, Orthodox Jews, and others would enter into even more stringent contracts, of course.)
How can government exit the marriage business? Rather easily, I believe. Each State still has the power to regulate marriage within its borders. A State could simply repeal its extant constitutional provisions and marriage laws and replace them with a fairly simple statute; for example [revised to eliminate the possibility of polygamy, and to remove all traces of governmental involvement]:
Marriage in this State is a private contractual arrangement between two mentally competent, adult persons whose consanguinity is of the 5th degree or greater, and who are not currently in a marriage.
This State shall not dictate the terms and conditions of marriage contracts, but each marriage contract must specify:
- conditions (if any) for separation and divorce
- provisions for financial support, the division of property, and the custody of children in the event of separation or divorce
- obligations of the parties with respect to any children from a previous marriage
- provisions for private counseling, and the arbitration of disputes arising under the marriage contract. (If the parties are still in dispute after private proceedings, either or both of them may initiate a civil action, but there will be no special courts devoted to marital disputes and related matters.)
Every marriage contract shall be witnessed by two mentally competent adults.
The signing of a marriage contract, in the sole discretion of the parties thereto, may be preceded, accompanied, or followed by a ceremony and/or celebration, which shall be held in a private home, other private location, or place of religious worship. In accordance with the First and Fifth Amendments to the United States Constitution, neither this State nor the government of the United States may require any person, organization, or religious institution to perform or host a marriage ceremony and/or celebration.
No marriage ceremony or celebration shall be held in or on property owned, leased, or otherwise controlled by this State or any political subdivision or entity of this State.
No official of this State or of any political subdivision or entity of this State, acting in his or her official capacity, shall witness a marriage contract or perform or host a marriage ceremony or celebration.
In accordance with the First, Ninth, and Tenth Amendments to the United States Constitution, neither this State nor the government of the United States may require a person to witness a marriage contract against his or her will. It shall be the responsibility of the parties to a contract to obtain willing witnesses.
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The Marriage Contract Libertarianism, Marriage, and the True Meaning of Family Values Same-Sex Marriage “Equal Protection” and Homosexual Marriage Marriage and Children Parenting, Religion, Culture, and Liberty “Family Values,” Liberty, and the State The Myth That Same-Sex “Marriage” Causes No Harm Surrender? Hell No! Posner the Fatuous Getting “Equal Protection” Right The Writing on the Wall How to Protect Property Rights and Freedom of Association and Expression Judicial Supremacy: Judicial Tyranny The Beginning of the End of Liberty in America