I posted “Marriage: Privatize It and Revitalize It” on July 14, 2015, in the wake of
the U.S. Supreme Court’s Justice Anthony Kennedy’s decision in Obergefell v. Hodges. I said that
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….
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 … :
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.
The legislature of Alabama seems poised to enact the privatization of marriage in that State, according to this report. The privatization bill (SB20) has been approved by the Senate of Alabama and has been referred to the Committee on the Judiciary of the Alabama House of Representatives. The bill, as it stands now, would
abolish the requirement that a marriage license be issued by the judge of probate and replace existing state statutory marriage law; to provide that a marriage would be entered into by two parties; to provide that the judge of probate would record each marriage presented to the probate court for recording and would forward the document to the Office of Vital Statistics; to provide for the content of a properly formed marriage…
Two persons desiring to unite in marriage may do so by submitting the affidavits, forms, and data specified in Section 30-1-5 and Section 2 of the act amending this section for recording with the office of the judge of probate. The recording of the affidavits, forms, and data establishes legal recognition of the marriage as of the date the affidavits and forms were properly signed by the two parties so long as such documentation was provided to the probate office within 30 days of the signatures of the parties. Each marriage filed with the probate office shall be filed and registered with the Office of Vital Statistics….
On the effective date of this act and thereafter, the only requirement for a marriage in this state shall be for parties who are otherwise legally authorized to be married to enter into a marriage as provided herein….
A civil and independent or religious ceremony of marriage, celebration of marriage, solemnization of marriage, or any other officiation, or administration of the vows of marriage may be conducted or engaged in by the parties by an officiant or other presiding person to be selected by the persons entering into the marriage. The state shall have no requirement for any such ceremony or proceeding which, if performed or not performed, will have no legal effect upon the validity of the marriage….
All requirements to obtain a marriage license by the State of Alabama are hereby abolished and repealed. The requirement of a ceremony of marriage to solemnize the marriage is abolished.
There’s language about the conditions that enable or prohibit parties to enter into a marriage contract (e.g., minimum age, degree of relationship). And State law regarding “divorce, spousal support, child custody, or child support” still stands. But the thrust of the bill is to take the State of Alabama out of the business of authorizing and approving marriages.
The bill doesn’t specifically forbid coerced participation in homosexual “marriages.” There will undoubtedly be law suits aimed at coercing such participation (e.g., requiring private wedding chapels to perform same-sex “marriages”).
Those suits will land in the U.S. Supreme Court. I hope that Justice Kennedy vanishes from the Court before that day (see this), and that the day of his disappearance comes long before January 20, 2021.
“Equal Protection” and Homosexual Marriage
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
The Myth That Same-Sex “Marriage” Causes No Harm
Getting “Equal Protection” Right
Posner the Fatuous
The Writing on the Wall
The Beginning of the End of Liberty in America
Marriage: Privatize It and Revitalize It
Equal Protection in Principle and Practice