Why the United States Can’t Divorce Marriage

Forget the tax code: Completely private marriage contracts could make a mess of America’s common law system

Supreme Court Justice Beyonce approves.Credit: Lisa F. Young, Dreamstime.comToward the end of March, libertarian Republican Rep. Justin Amash of Michigan tweeted that the “[r]eal threat to traditional marriage & religious liberty is government, not gay couples who love each other & want to spend lives together.” The comment prompted a Twitter exchange with Jennifer Bendery of the Huffington Post about the Defense of Marriage Act, which Amash supports repealing. Amash’s spokesman later explained the congressman’s position that the government should not be involved in marriage at all:

"I think in his ideal world, the governments – at all levels all together – would get out of marriage," [spokesman Will] Adams told HuffPost's Chelsea Kiene on Wednesday. "Much like we don’t want the government involved in my church’s communion or we don’t want the government to regulate my church’s baptism, we don’t want to have government regulate another sacrament in my church, which is marriage. That’s then his position."

Getting the government out of marriage entirely is a fairly common libertarian solution to the thorny question of recognizing non-traditional relationships. It’s seen as a path for helping simplify a complex tax code that results in absurd incentives and penalties. It robs the state of its paternalistic authority to put its stamp of approval on private relationships and places them firmly in the hands of citizens.

But as a legal matter, separating marriage from the government entirely may be just too much, at least in the United States. Helen Dale, a three-time fellow at the Institute for Humane Studies and a classical liberal trained in different types of legal systems, wrote a brief in defense of same-sex marriage recognition for the Reason Foundation (the non-profit that publishes Reason.com and Reason Magazine). As a “libertarian aside” in her brief (pdf), she detailed how America’s significant use of common law in family courts—that is, the accumulation of case law built up over years of precedents—may be a huge hurdle to such a broad libertarian goal:

[I]t may just be more difficult to privatize marriage in any common law jurisdiction. At common law, the law of marriage and the family is part of public law — and always has been — even when in the hands of the Church. This is why there was no ‘common law marriage’ in England. In civilian countries, by contrast, family law is private law, and thus much more amenable to manipulation via private law mechanisms. That is why there was ‘marriage by habit and repute’ in Scotland.

Dale, who lives in Edinburgh, Scotland, compares England and Scotland to demonstrate the differences between common law (as practiced in America and England) and civil or Roman law (as practiced by Scotland), which relies more on legislative statutes and not legal precedents determined by case rulings. In a phone interview, Dale said such distinctions are important because of America’s use of common law. Libertarians may see privatizing marriage as simplifying and liberating the system. But the reality may end up being the opposite. She sees the difference between common law and civil law and warns of huge consequences for those who do not.

“Common law of contract has built up over thousands of years,” she said. “It’s not just something you can sweep away. It’s very expensive, very awkward. It leads to lots of litigation and pain. All the people who advocate for this need to go into it with their eyes open and be aware of how much change is involved. There would be fundamental changes to families and contracts.”

For example, Dale asked, what would happen in a system where marriages were treated as entirely private contracts if a couple decided to enter in a relationship defined by Sharia Law? What would happen if parts of the contract contradicted rights recognized by constitutional precedents or case law?

Richard Epstein, libertarian legal scholar at University of Chicago and New York University and author of Simple Rules for a Complex World, also argued those who want to completely privatize marriage do not appreciate the severity of the legal tangles that would arise. At the conservative-libertarian blog Ricochet, Epstein responded recently to a column at National Review Online about serious legal consequences when the government is unable to clearly track relationships between people:

One notable gap in the [John] Fund column was any reference to the status of children of this union. That covers issues dealing with child support and inheritance rights. It also deals with issues of guardianship and divorce. It is hard enough to deal with these questions when it is known who is married to whom. It is even harder to deal with them when the nature of these private relationships resists standardization.

Things do not get any easier when the subject turns to external attribution rules that are commonly tied to spousal status. Do your shares and mine count as a single holding sufficient to create a control block under tax or securities law? Or are they to be considered separately so that this designation cannot be applied? What about reporting rules for various kinds of conflict of interest situations in business or biomedical research? If there are intermediate statuses that people can adopt, all of these external groups are going to have to develop criteria to apply their own provisions. It will prove to be messy, costly, and inefficient.

Epstein’s preference is to expand legal recognition to include same-sex partners and even potentially polygamous relationships, not to try to completely change the relationship between laws and families.

In a phone interview, Epstein expressed frustration at libertarians pushing such extreme changes without considering all the consequences.

“A libertarian has to sort-of understand that he’s not making it in a first principles world,” Epstein said. “We can make the world more libertarian in general by opening the licensing procedure.”

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  • Fist of Etiquette||

    ...what would happen in a system where marriages were treated as entirely private contracts if a couple decided to enter in a relationship defined by Sharia Law? What would happen if parts of the contract contradicted rights recognized by constitutional precedents or case law?

    Sounds like an unenforceable contract, just like if they tried to pull that shit with a marriage license in hand.

  • Pro Libertate||

    That's a good point. Even if marriage were reduced to a pure contractual relationship, the courts would clearly still treat some provisions as contrary to public policy and therefore unenforceable. Like, say, incest.

    So it might not entirely resolve the issue to take government out, since the courts would still play some role in it all.

  • Marshall Gill||

    Epstein’s preference is to expand legal recognition

    So he isn't a Libertarian.

  • ||

    I never understand how some people conflate expansion of legal protection with expansion of government. If this means some gay couples can keep more of their own money, can immigrate legally and can be at each others' deathbeds, in what form or fashion is removing the ability for government to discriminate on the current privileges it already provides unlibertarian?

  • ||

    Marriage often carries a tax penalty and gay couples can already be at each other's death beds. Immigration and spousal immunity are the only areas where the expansion of legal privilege would benefit gay couples. Most libertarians are in favor of immigration reform that would render the former null, and of a dramatic re-alignment of the functions of the state that would withdraw any monetary benefits. So you're down to spousal immunity, which could be dealt with by recognizing private marriage contracts for the purposes of criminal law.

    Generally, libertarians "conflate" the expansion of special privileges to a very slightly larger class of people with the expansion of the state for the same reason that they "conflate" state privilege with state expansion in the first place.

  • ||

    I would add (I don't know that you agree) that most of the pro marriage movement are fair weather libertarians and are better described as big-PRO big-GAY little-marriage.

    If you point out that there is no definition of marriage in the constitution preventing polygamy most expose themselves as socially conservative (expressing moral disgust at the idea) or populist (there aren't enough vocal polygamists so it's okay to deny them their 'right'). The issue only gets worse if you ask them about the governments' role in anti-homosexual discrimination or other practices of religious and/or social liberty. In my experience many, claiming to be libertarian, will invoke the government to prevent anti-homosexual discrimination (intentional or not) of religiously-owned businesses. They dawn the mantle of libertarian only when laws, constitutional or otherwise, are obstructive to their ideals.

  • rollcast||

    -So, if someone is "big-PRO big-GAY little-marriage", the PRO GAY part makes their views on marriage somehow less valid? I am big-PRO big-2A. Does that make my views on, say, free markets or jaywalking less relevant?

    -Religious discrimination is not something most libertarians give a shit about. One is free not to associate with them.

    -Uhh...Constitutional law that is contrary to libertarian ideals? Them's scarce in these parts, friend.

  • ||

    So PM, you're basically arguing for contracts that are recognized (And privileged) by the state but carry few benefits in lieu of the current marriage structure. Would this not just be the civil-unions for-all, option?

  • The Original Jason||

    So he isn't a Libertarian.

    Epstein could still be a libertarian… you gotta remember that we have to think of the short term, the medium term, and the long term.

    Abolishing many laws and regulations will have to be a long term goal — we'll have to give enough time for the legal and private structures to develop that would support our long term goals, like abolishing the government institution of marriage.

    Social Security is another example of something that can't be replaced in the short term — those who retired or are near to retire expecting Social Security should continue to get it while those young enough to start building a new system would be transitioned to it.

  • jamson74||

    Start working at home with Google! It’s by-far the best job Ive had. Last Monday I got a new Alfa Romeo from bringing in $7778. I started this 9 months ago and practically straight away started making more than $83 per hour. I work through this link, Mojo50.com

  • CE||

    So your that other guy's mailman's aunt's boyfriend!

    Kinda tough to be a new Alfa Rome for 7778 when the Alfa Romeo 4C MSRP will be around 60,000.

  • ||

    No no, he's MayaJan's cousin's classmate.

  • Sam Grove||

    Egads, they sound like lawyers.

    Can't all issues be addressed by contract?

  • Brandybuck||

    Lawyers. Contracts. How are they related? Both are part of our legal system! Short of dumping our legal system, there's no way in hell to keep lawyers out of our contracts.

  • entropy||

    Gay marriage is positive rights bullshit for (what they want to be) a government favored class.

    Straight marriage is also positive rights bullshit for a government favored class.

    If you wanted me to be realistic and practical, I wouldn't be a libertarian to begin with. Seriously. The whole philosophy is unrealistic.

  • ||

    At the end of the day, isn't everyone being equally favored by government the same thing as nobody being favored by the government?

    The common law justification for state marriage on arbitration and property rights does not presume we must treat married couples favorably via the tax code to non-married couples.

  • Tulpa (LAOL-PA)||

    At the end of the day, isn't everyone being equally favored by government the same thing as nobody being favored by the government?

    No, because somebody has to pay for the favors.

  • entropy||

    Are you going to favor everyone?

    Or just the current favored crop, plus gay people?

    Tell me really, why the hell can't or shouldn't 3 people have access to marriage bennies? Why is the government legislating monogamy?

  • entropy||

    How the hell can a libertarian justify outlawing polygamy when they advocate for legalization of prostitution, drugs, gambling, discrimination and satanism?

  • CE||

    We don't.

  • ||

    You must be new here. Those of us that support gay marriage usually also agree the state should have fuck all to say about polygamy.

    Kaythxbi.

  • ||

    Are you going to favor everyone?

    Yes.

    why the hell can't or shouldn't 3 people have access to marriage bennies?

    They should. As should adult siblings.

  • entropy||

    And what have you left?

    A federal government Bureau of Relationship Status? What's the point of the certificate then, or the meaning of any of those clauses in the legal system and special privileges (like not testifying) that it is so unrealistic and impossible to suggest undoing?

    The problem I have with this is, I don't think you know your own movement. You'd be just doing what I think you should do - privatizing marriage, but calling it something else. You think you can co-opt the progressive agenda for liberty maybe?

    I think if you could pull that off you wouldn't have to call it something else, you could just privatize marriage instead of intentionally incrementally hollowing it. Once you get the federal Bureau of Relationship Status hollow you will find out the left wingers have other uses for it.

  • ||

    Until you've expanded those benefits to everyone, including single people of any sexual orientation, you don't have "equality". Try again.

  • Mickey Rat||

    We don't necessarily favor married couples in the tax code, often they are penalized. The idea that marriage is some kind rent seeking tax avoidance scheme is one of the Big Lies going around our culture today.

  • Tony||

    If you wanted me to be realistic and practical, I wouldn't be a libertarian to begin with.

    We have a winner.

  • ||

    Thanks for whetting Tony's appetite with the No True Scotsmen fallacy.

  • Tony||

    As in, "No true libertarian would be realistic and practical!"?

    Ugh these logic 101 droppings really foul up some occasional good wit here. Best to avoid.

  • entropy||

    Eh, it is what it is. Anytime anyone even uses terms like practical and realistic to argue politics, they're probably acting just like Tony does when he does it. And they ain't talking about us.

    If Tony's disapproval bothered me, I'd let him have practical and realistic and say I'm more concerned with accurate and correct.

    North Korea is realistic and practical. Starving kids? Kill half the kids, feed them to the other half. Very realistic. Very very practical.

  • Tony||

    We do mostly talk about the role of government and public policy, right? Between pragmatism and ideology, it's the latter that tends to result in such horrors. It's a very easy thing to append "for the purpose of maximizing individual well-being" to "be practical." You're saying you can't even get to considering that purpose because the point is to be "correct" inside your own head and nowhere else.

  • entropy||

    Between pragmatism and ideology, it's the latter that tends to result in such horrors.

    No offense, but if you believe that you are a fool. And you are normal.

    For the very same thing you accuse me of, here:

    You're saying... the point is to be "correct" inside your own head and nowhere else.

    And you're saying the point is to be practical inside your own head and nowhere else.

    At least I know what I'm doing.

  • Tony||

    But I believe I'm correct too, in part about how societies should be run, and in part about how I don't know everything.

  • entropy||

    Yes, that's the point.

    These words don't mean all that much. You can appeal to objectivity, but that does not make you objective.

    Everyone thinks their own ideas are practical, unless they're the type of person who finds dangerous sexy. Kind of like "bad" is bad, unless you want it to mean really really good.

    It's a statement of personal satisfaction/dissatisfaction. A marketing appeal aimed at a specific method of value.

    In real life this is not how societies are run. This is a bugs bunny sketch.

    So if someone says they disapprove of my opinion, I am free to reply that I still approve of it.

    And if they use 'impractical' to signal their disapproval, it's no more or less valid or worthy - except for a matter of taste and opinion - than when I use 'accurate' to signal my approval.

    And that's part of the reason why I don't care much for 'practical'. The kind of people who make a big deal out of it are usually the people that seem overly impressed they managed to convince themselves of their own opinions.

    It's practical, or it's impractical, as you please to describe it.

    How would you choose to debate with a statement like "I like pudding"?

  • Tony||

    It's just that if I felt I were allowed to completely ignore practicality when it comes to forming political views, I'd be talking about Star Trek-style socialism or something. I feel that libertarians are always in a fantasy world, and at some point it does matter what's actually politically possible in this place and time. Means to achieve something are just as important as what you want to achieve. Otherwise it's just sort of mental masturbation.

  • Calidissident||

    I love how Tony pretends to not have an ideology, and yet he adopts the standard liberal POV on literally every issue

  • Rock Action||

    It will prove to be messy, costly, and inefficient.

    Principle often is.

  • Robert||

    Then it's not a good principle. What's the point of picking principles if they aren't simple?

  • Rock Action||

    They might be simple principles, messy in application. It's a simple principle: Get the government out of the marriage business.

  • elfprince13||

    I can write down classical electrodynamics in less space than it took to write this sentence. Good luck with that plasma physics ;)

  • ||

    Ask Tony.

  • rollcast||

    You're generalizing...

  • Knoss||

    In Canada, the Supreme Court ruled that common law marriage could not be entered into without applying.

  • Paul.||

    The more I hear of this Canada, the more I like of it.

  • Gorilla tactics||

    clearly you know nothing of our Human "Rights" Commissions.

  • mtphrs||

    I think a good first step would be ending the state licensing scheme, and instead instituting a system akin to the recordation system for security interests in personal property. In other words, the marriage would be created by private contract, and a form would be filed with the state government memorializing the contract. However, the state would have no discretion to reject the form on account of opposition to the marriage. This would leave the legal benefits of marriage in place (like I said, this is only a start) while avoiding the need for the state to give its blessing to marriages that a majority of residents oppose.

    On the question of marriages based on Sharia law, such contracts could be invalidated as contrary to public policy, if push came to shove (e.g., if the contract permitted the husband to push and shove the wife or whatever).

  • Robert||

    You should understand that marriages were recognized legally looooonnng before there was any licensing of them. And licensing of them serves only one purpose akin to real estate records, which is the reason that was given for licensing in the first place: to prevent fraudulent marriages in the form of polygamy by clandestine marriage. And that's just if you want to make polygamy illegal; if you only wanted to provide a means for prospective spouses to check on such things, a private marriage registry would suffice. Marriage is required to be a public act, with witnesses.

    I've long been for getting rid of marriage licensing, and I'm not for having polygamy illegal either, but I'm still against according recognition to same sex couplings as "marriages".

    It's interesting that this is the one subject which really is "for the children"!

  • ||

    It's interesting that this is the one subject which really is "for the children"!

    Is it "for the children" or "for passing on my seed", cause if it were "for the children" you would adopt and give those kids a loving home instead of arguing that marriage has anything to do with "the kids".

    Incorporate for Caesar, marry for the Creator!

  • TommyCelt||

    *I've long been for getting rid of marriage licensing, and I'm not for having polygamy illegal either, but I'm still against according recognition to same sex couplings as "marriages".*

    Why, to the latter?

  • Sigivald||

    "One notable gap in the [John] Fund column was any reference to the status of children of this union. That covers issues dealing with child support and inheritance rights. It also deals with issues of guardianship and divorce. It is hard enough to deal with these questions when it is known who is married to whom. It is even harder to deal with them when the nature of these private relationships resists standardization."

    Unmarried people have children now. Is there a significant difference? Knowing who the parents are isn't all that hard, is it?

    (Likewise, I am unmoved by the difficulty in the tax code and other laws that treat "married" differently than "not married" [and interestingly contra Dale's point, note that Common Law marriage is not recognized by the IRS unless also recognized by the State of residence, is it?].

    Oh, no! The State might have to remove special treatment of the marriage tie from some laws!

    So? I think they ought to remove something like 90+% of all the existing laws anyway. It'll be more than worth the cost.)

    (I also agree with Epstein that for practical reasons we're not getting that, and that opening the existing procedure to Any Two Adults or Any N Adults is better than not doing that, as being "more liberty" than not doing so.

    I just don't think I need to say that's my goal rather than "what I'll take on the way to what I think is actually far more proper".)

  • Robert||

    Knowing who the parents are isn't hard as it is now. But what happens when you have a woman married to a woman, and one of them then has a baby by a man? What's the default determination as to who hir parents are?

  • Eric Hanneken||

    What happens when you have a woman married to a man, and she then has a baby by another man? I'm not a lawyer, but I believe that the biological parents are the default legal parents. In any case, it's not as though the problem you refer to is new.

  • mgd||

    Though it might vary by jurisdiction, I believe the married couple are by default the legal parents. Children born during a marriage are presumed to be legitimate.

  • MisterDamage||

    Legitimacy was a serious issue, once upon a time. That time is not now. Legal parenthood is entirely about child support, the notion that a man should have a legal obligation to a child purely because the woman who bore the child is his wife is equally outdated. It existed due to the difficulty of establishing paternity. This difficulty no longer exists. Time for it to pass into history along with issues of so called "legitimacy"

  • ||

    In ref to taxes and children, has anyone actually calculated the difference in cost?

    1) Draft up a married_filing_joint tax return
    2) Draft up a tax return where both parties file as married_filing_separately
    3) Draft up tax returns with both parties file as single and assuming 1 bread winner, the bread winner gets the tax write off for the kids
    4) Draft up tax returns with both parties file as single and assuming 1 bread winner, and have the non-breadwinner claim the kids.

    I would bet money that option 4 generates the smallest tax burden/largest tax return. but I am not a tax professional, have no way to prove this and I may be chewing on my foot and not realize it.

  • Tulpa (LAOL-PA)||

    The govt won't get out of enforcing anti-discrimination laws, either, but you wouldn't know it from reading Reason's SSM advocacy articles.

  • christopher fisher||

    What is next Reason? Saying we shouldn't reform drug law because it is embedded into our system? We shouldn't change Social Security because no one would buy off on it? We should crack down on political speech because there is strong precedence?

    This article is more proof that Reason is just a tool of State enforced pro-homosexual culture change.

  • ||

    This article is more proof that Reason is just a tool of State enforced pro-homosexual culture change.

    Whether or not we are pro-homosexual culture change, if the government creates privileges and immunities, they have to grant them to all adults equally. Anything else is arbitrary preferential treatment and political social engineering.

    Your false analogies are incorrect because we ARE calling for reforming state marriage laws and removing preferential treatments wherever possible, just like we how support realistic plans that transition us away from Social Security and the WoD, even if gradually.

    The "all or nothing" stances radical libertarians take fail on pragmatic and political scopes, rendering themselves counterproductive to libertarian efforts at reform.
  • ||

    Argh... forgot to close the blockquote.

  • christopher fisher||

    Here is my problem with that. You have a large number of people (even a majority) who have strong feelings on what marriage is. Remember the Jeremy Irons interview. He makes a valid point; homosexuals could be fighting for "civil unions" having all the same rights without the name. But that is not what they are trying to do. Instead they want culture change. They wish to accomplish this through using the state to redefine a relationship that means a lot to many people. This is downright fascism. Hear the boot heels clicking?

    Myself, I was not legally married for at least the first year of my marriage. The only reason I got it state recognized was my deployment to Iraq, the legal processes if I were to die. Wouldn’t it be nice if I never had to get state recognition and still be able to assign all my benefits through contract?

  • ThatSkepticGuy||

    "You have a large number of people (even a majority) who have strong feelings on what marriage is"

    And those Mob Rule jockeys can go fuck themselves. Yourself included. Definitions are ever-changing and utterly meaningless.

    "This is downright fascism. Hear the boot heels clicking? "

    No. All I see is some douchebag who wants the government to treat entire groups of people as different because he has some rigid, idiotic and authoritarian conception of what marriage should be.

  • christopher fisher||

    You seem to have an acute literacy problem. It is either that, or your public schools failed to teach you reading comprehension. Re-read my post, you group-think fascist. You are the mob rule, wanting the government to impose more privileges instead of less.

  • entropy||

    If the State is going to control and legislate people's interpersonal, familial relationships, at least with a right wing institution the meaning is text bound and reactionary, therefor limited and largely unchanging.

    You free up the State to make it's regulations pertaining to romantic relations 'ever-changing', and you can bet it will change to serve the interests of the State, dressed in whatever fad the idiots from Harvard think up to amuse themselves.

    Meanings do change, I wouldn't question it coming from nature. But this is the State. You're not treating everyone equally, you're just talking about adding gays to the privileged class and finishing off the old notion that government's involvement in relationship regulation had to do with anything other than it's own interest.

    You make a deal with the State, you can only pray they do not alter the terms. But they will. Ever-changing.

    The original xtianist progs made a deal with the state to make marriage biblical, a century later how did that work out for them? Really though? I don't get how they don't even see that. Governments are djinns. They will find a way to make you regret getting what you asked for. It's institutionally imbedded.

  • DarrenM||

    Definitions are ever-changing and utterly meaningless.

    You're half right.

  • Calidissident||

    So is it not fascism when the government defines marriage as between one man and one woman, regardless of what others may think? Is it not fascism if the government promotes an anti-homosexual culture?

    "Wouldn’t it be nice if I never had to get state recognition and still be able to assign all my benefits through contract?"

    It would be. And I think the vast majority of people here would agree with you on that. In the meantime, homosexual couples should have the same rights and privileges as heterosexual couples

  • christopher fisher||

    I am definitely not saying it isnt fascism for the government to define marriage as one man and one woman. There are different levels of fascism, though. Trying to enact cultural change through Douplespeak is far more fascist than recognizing popular understandings of words. That being said, the government should get out of the marriage business, completely.

  • Calidissident||

    What if the popular understanding of that word changes?

  • ||

    Well then we should obviously change the entire legal structure. Duh. It makes total sense to do that at any expense or inconvenience. Addressing the problem at its core by re-defining the government's role in our personal lives though - why THAT is just a bridge too far! IMPOSSIBRU!

  • DarrenM||

    the government should get out of the marriage business, completely.

    The government is required to enforce the contractual elements of marriage. This includes a lot: inheritance, benefits, children, property, etc.

  • ||

    This article is more proof that Reason is just a tool of State enforced pro-homosexual culture change.

    Only 1 religion practiced in America has any of it's holy days celebrated as a federal holiday. Does that make the federal gov't pro that religion?

    Even though Christmas IS a federal holiday and Christmas is only celebrated by 1 religion practiced in America, do we REALLY celebrate Christmas as a Christian holiday or has it become commercialized and corrupted by the secularists?

  • mgd||

    Only 1 religion practiced in America has any of it's holy days celebrated as a federal holiday


    I believe you have forgotten MLK Jr. Day, holy day for the Church of the Sacred Identity Politics.

  • CE||

    Enforcing contracts -- not that tough. LegalZoom would probably give you a range of options for your prenup. Just another pseudo-libertarian wanting the state to "defend their liberties" while it takes their money and their children and controls their lives.

  • UCrawford||

    That was my impression as well.

    To me, this entire article reeked of the problem John Stossel pointed out when he talked about privatizing roads. The problem isn't that private roads are impossible, it's that most people are simply incapable of envisioning private roads. In this case, it's not that marriage is incapable of being divorced from the state except as a contract...it's that the people in the article are simply incapable of envisioning stateless marriage.

    "Common law" marriage for example...they say lack of a state would screw it up. I say that lack of state involvement in the absence of a contract means that fewer people stupidly enter into long-term live-in relationships expecting that some benevolent politician or bureaucrat is going to sort it all out for them if things don't work out. Basically, they're going to be responsible for their own lives. If that means an archaic "institution" dies, oh well...it's not one worthy of sentimentality.

  • UCrawford||

    About the only things the government should be involved in, as far as I'm concerned, are 1) enforcing the terms of the contract (assuming that the contract doesn't violate laws...as a Sharia marriage probably would) and 2) sorting out the visitation rights and child support in the absence of that being in the marriage contract, since children don't really fit in the same boundaries as property or wealth.

    Beyond that, I don't think it should be the state's role to figure out an equitable division of assets in the absence of a contract. If some woman marries a guy with a lot of money and a great job, stays home and raises the kids, then gets dumped when he upgrades her for a trophy wife, the husband may be a jerk, but that's her fault for not considering the possibility of divorce and protecting her interests. Ditto, if some woman with a great job carries a leech of a guy for years and they split up, why is he entitled to anything that she's earned if he didn't put it in writing in a contract before the marriage.

    The state arbitrating contract-less marriage creates a moral hazard that encourages people not to think about the long-term.

  • Robert||

    What you seem to be saying is that the state should not have courts.

  • UCrawford||

    How on Earth did you come to that conclusion?

  • Kevin47||

    If only there were highly educated people who were capable of navigating the law, and producing documents protecting the rights of those entering into a particular contract. That person could be familiar enough with our system of law to anticipate potential hurdles, and even work from standardized language to address them.

    Some formal training would be required for such an undertaking, though. The question is, would there be young people willing to submit to years of schooling in order to address the new need for experts in matters of the law. Perhaps the free market would forge an as yet unheard of solution to this conundrum.

  • CE||

    Only if said profession could somehow set a standard, a bar if you will, for qualification to their esteemed ranks.

  • Pro Libertate||

    We have that already--Statebardome.

  • Kevin47||

    Two lawyers enter. One lawyer leave.

  • Paul.||

    Scott covered my tip in 24x7 (no hat tip, but I'm not bitter or anything). Looks like the government is going to make sure you're involved in gay marriage, whether you like it or not:

    State sues florist over refusing service for gay wedding

    The state attorney general has filed suit against a florist in Eastern Washington, claiming her refusal to provide floral arrangements for a gay couple’s wedding amounted to discrimination.

    http://seattletimes.com/html/l.....itxml.html

  • Scott S.||

    That wasn't me!

    Though I have written up the silliness of these suits before in my "Why not force somebody who hates you..." miniseries.

  • ||

    This is just a repeat of the New Mexico suit over photography. The only difference is that New Mexico doesn't even have civil unions.

  • SusanM||

    I know this comes from Think Progress (one small step up from linking Satan around here ;) ) but the article contains a few rather interesting bits about the incident.

    http://thinkprogress.org/lgbt/.....x-wedding/

  • ||

    Though he was extremely hurt by her rejection, Ingersoll expressed his regret for posting about it because he does say he respects her right to her views. Numerous attorneys have reached out to him because she blatantly violated Washington’s laws protecting against discrimination based on sexual orientation.

    That's actually really pleasing to read, I've read a few articles on it, but none of them really clarify how the case got on the AG's desk. It's nice to see someone not being litigious.

  • Knoss||

    Could common law apply in cases with children if and only if there is not a written contract?

  • Brandybuck||

    Then we're back to arguing whether courts (government) must recognize two cohabiting homosexuals as married. Two step forward, two steps back.

  • Knoss||

    Not really if a man and woman produce a child their the parents, otherwise there's custody involved.

  • Paul.||

    I'm not sure I understand your question.

    What do the courts do know when there are children and there's no marriage/written contract?

  • Knoss||

    I'm saying that if two people argue over custody common law could be used to settle the dispute over care of a child if there is no marital contract that specifies how a child is to be cared for.

  • Knoss||

    adoption I mean. The child would have to be adopted by one person or couple.

  • JDMont||

    "She sees the difference between common law and civil law and warns of huge consequences for those who do not."

    The privatize marriage position doesn't advocate adopting a civil law system, so her rebuttal to it is irrelevant.

  • Brandybuck||

    One fundamental right in this nation is that your spouse cannot be compelled to testify against you in a criminal court. This right only exists because government recognizes marriage as being something other than a contract. And yes, this is a positive right. You only get it by being married, you don't get it by cohabiting or signing a contract.

    In a stateless society it wouldn't matter, because no one would be compelling no one. But we don't live in that society. Getting government out of marriage completely would get rid of this right. I suspect most of you would be righteous indignant if your spouse was subpoenaed to testify against you.

  • ||

    Subpoenas are usually a violation of freedom of speech anyway (or its reciprocal right to remain silent).

  • Brandybuck||

    Yeah, but we live in a society that has subpoenas. One day we will get our libertopia and there will be no more problems, but in the meantime we have to worry about it. Giving this right to one couple but not another based solely on the lack of gender diversity in the marriage is anti-liberty.

    Go back fifty years and apply "get government out of marriage" argument to a mixed race couple.

    "I'm sorry, but you are required to testify against your spouse-of-a-different-race because it would immoral to expand the statist marriage privileges. But we disagree with you being subpoenad, so we are really on your side after all. Good luck in prison."

  • JDMont||

    "...because no one would be compelling no one."

    Double negative... that's tricky.

  • Brandybuck||

    Faaking grammar, how does it work?

  • David McElroy||

    Only someone who loves the state —and is dead-set against fundamental change — could make the bizarre argument that government can't get out of the regulation of marriage. Government also had a long role in regulating slavery. It was even built into the U.S. Constitution. But that didn't stop the elimination of slavery in the long run when enough people agreed it was immoral.

  • Tony||

    So convince a democratic majority that marriage, like slavery, is immoral, and you can have your little spoonful of utopia. It's kind of a separate question to whether current law should be applied equally.

  • ||

    Tony is absolutely right here. As long as a discriminatory legal institution exists, all that matters is that everyone can have equal access to it. That means if you own yourself a nigger, you can't deny that nigger his right to own his own nigger. You want to do away with the right of one person to own another? Well, fine, you fucking bigot! Go convince the rest of the country that slavery is immoral and change the constitution! Until then, you either support the expansion of access to slavery, or you're a bigot.

  • Tony||

    Logic so airtight you could store leftovers in it for weeks.

  • Brandybuck||

    OMG! I'm agreeing with Tony!

  • Tony||

    *Alternatively, you can fight a long, bloody civil war on the issue. Bonne chance!

  • ThatSkepticGuy||

    You're confusing your own fetish for mass murder, coercion and Big Brotherism with Libertarianism, again.

  • ThatSkepticGuy||

    "what would happen in a system where marriages were treated as entirely private contracts if a couple decided to enter in a relationship defined by Sharia Law? What would happen if parts of the contract contradicted rights recognized by constitutional precedents or case law?"

    It would be an utter catastrophe, much in the way that Freedom of Religion has led to daily ritualistic human sacrifice in the streets.

  • Flynn Parish||

    What if an individual privately and voluntarily enters in a contract to be a slave to another individual given a period of time? Does she really think she can really police the action of each individual?

  • Agile Cyborg||

    The federal gubment Guarantees Orgasms. And we all knowz orgasms makes kiddies... and kiddies with orgasmee parentals are legit. And traditional relationships makes feminists, conservatives, Leftist simpletons, Jesus fucks, and the rest supra fuckin happy right?

  • Agile Cyborg||

    What sorta goddamn carp logic iz this ya fuckin foo? Gubment is God and God wants us all ta just live 80'n roll into the iron grave right?

  • Agile Cyborg||

    Methinks yo ass iz slammin down sum good stuff ya god hater.

  • Agile Cyborg||

    Fuk YOU! NITWIT from the hellz! The bottle is as the bot does! Relationships last like a dust particle... Before yo have a chance to git pissed at da mailperso you ass izzz food fo worms, biATCH!

  • Agile Cyborg||

    Don't KNOW what a FUCKIN MAILPERSO IZZZZZZZZZZ Ya fuckin whore!!! So what you sez is if you the man or da woman fucks shit OUTside legal DOCUMENTS she/he is a literal wasted human flesh fuck?

  • Agile Cyborg||

    YEs, ya fuckin loser pot smokin person who doesn't suk LIMBAUGH DICK!!!! Cuz, US neos LIKE SKANKY SMELLY COCK!!

  • Agile Cyborg||

    So, NEOS LIKE skanky smellish COCK? FuKIN Wankers... Got plennnnnie o dat on CAP HILL... HAHAHHA

  • Agile Cyborg||

    Ehhhhz... Leftistz like SUPER FAT cocks SHUVED down their throats WRAPPED in the semen of a NORTH KOREAN RETARD!!!!

  • Sevo||

    Mary finds ways, doesn't she?

  • RightNut||

    “Common law of contract has built up over thousands of years,” she said. “It’s not just something you can sweep away. It’s very expensive, very awkward. It leads to lots of litigation and pain. All the people who advocate for this need to go into it with their eyes open and be aware of how much change is involved. There would be fundamental changes to families and contracts.”

    I don't want to be a douchebag and point out the obvious, but the article never mentions that if you go from a common law perspective, gay marriage had never been recognized until the 1990s. So relying on the thousands of years of common law traditions would mean never legalizing none-traditional marriages.

  • Mickey Rat||

    Well, traditions are good when it is Shackford's ox being gored.

  • Sevo||

    "“Common law of contract has built up over thousands of years,” she said"
    Cite missing

  • RightNut||

    I'm not a legal historian but I assume she means Magna Carta(1215) forward. That is not thousands of years but it is a long period of time.

  • Sevo||

    Yes, it is a 'long period of time', but if you base an argument on "thousands of years", you've just blown your argument.
    And I'm not sure the Magna Carta had a word to say about marriage contracts.
    She made the claim; she gets to prove it.

  • RightNut||

    I meant common law in general with Magna Carta, but I believe it goes a little bit further back than that even. I would be surprised if marriage laws were not some of the earliest examples of english law.

  • Pro Libertate||

    Romans had marriage laws.

  • RightNut||

    Romans were not English.

  • Blake||

    How is removing a complex arbitrary system a problem but the complex arbitrary system exiting not a problem in and of itself? The number of rules are finite so moving to the new system is entirely possible and could even be done on a case by case basis with no central planner. The courts that currently deal with marriage would be the ones to deal with moving people over to the new system, they would have a lot of free time after all and they best know the legal framework. Not only would this create a more efficient legal system but it would likely increase economic growth as these resources shift into more useful sectors.

    "Perfection is achieved, not when there is nothing more to add, but when there is nothing left to take away."

    -Antoine de Saint-Exupery

  • ||

    It's beyond hilarious to see a libertarian publication arguing about the practicality of amending a legal institution rendering the amendment impossible. Using this exact same logic, it becomes totally impossible to change the size and scope of the state in any of the myriad areas where libertarians would like for it to shrink. This is why there is a "ratchet effect" as it regards government policy, but the ratchet effect has never been recognized by serious libertarian thinkers as a justification to abandon all hope of meaningful reform. This more or less amounts to arguing that since you cannot currently open a bank account or file taxes without a social security number, doing away with the social security system is impossible. I'm really fucking glad people with more balls than this were on the side of abolishing slavery.

  • Tony||

    You do get that--outside bad standup routines--you might be the only person in the country who views the right to marry as equivalent to slavery?

  • gaoxiaen||

    Make that one of two.

  • rxc||

    If we decide that marriage is all about people who love one another, and not about children, which seems to be the main argument made in support of gay marriage, then we should also be able to enable siblings to marry one another, and parents to marry children. If there is no question about whether these people can produce children (and that is pretty easy to ensure, if the parties involved really want to do it), then we should allow anyone to marry anyone else, no matter what their relationship.

  • DarrenM||

    If we decide that marriage is all about people who love one another

    I think this may be the disconnect. Some view marriage this way. Others see marriage as primarily about providing an environment for raising children. If we didn't reproduce by having children, there would be no biological attraction between the sexes anyway. In fact, there would be only one 'sex'. The concept of 'marriage' would not even exist.

  • buybuydandavis||

    Thank you, Reason, for an article that added a relevant fact to the discussion on gay marriage.

  • Floyd Alsbach||

    Note: I am not a lawyer nor do I play one on TV. I could care less which way anyone swings. I am trying to understand the implications of these issues and here are my rather frustrated questions:

    1. Didn't the Federal Gov't recently take over 1/6 of the economy (among the most vital portions, after maybe agriculture which it has controlled for decades) essentially overnight, yet the argument seems to boil down to; It's just too complicated to wrestle control of the most personal portion (marriage) of our personal lives back from the Federal Gov't?

    2. Doesn't the Federal Gov'ts forcing of churches to perform gay and polygamous marriages seem inevitable?

    3. Won't all of these rapidly evolving versions of 'legal' marriage speed up the time when the lives of our children are completely controlled by the state and we parents are mere interim caretakers?

    4. When do the Sheep/man marriages begin?

  • Floyd Alsbach||

    OOPS forgot one.
    5. If the Feds were out of the wedding business, wouldn't the simplest legal form for marriage be a version of an LLP?

  • rollcast||

    Frustrated? Why?

    1)Yes, that is the argument. Not that it's a good one.

    2)No.

    3)No.

    4)Absurd. Then again, you're frustrated. And good luck finding a ring to fit your beloved ungulate.

    5)Why not, if it both parties' estates, and child custody if applicable?

    And quid pro quo:

    1.Where are the legal "benefits" of marriage that would "cost" the public if they were afforded to a broader definition of marriage?

    -Do we have claim to homosexuals' stuff in the sense that their estates should be taxed because they can't be transferred to a surviving spouse in the same manner as straight spouses?

    -Do we want to support the surviving spouse because we took their spouse's estate?

    -Do we want to take/support their children when one parent dies/loses custody?

    2.If the word "marriage" is a problem for some,why is it unfair to give nit-picky straight couples the freedom to choose another (or just sound like douchebags and call their union a "straight/traditional marriage")?

    3. How is it complicated to allow the State jurisdiction only over the contract between two people?

    And finally- Who the fuck would enter into such a dangerous, onerous contract solely to 'reap the vast fiscal advantages' of marriage? A warning to those contemplating such a foolish endeavor: Justice will be swift, disproportionate, and automatic.

  • rollcast||

    *edit: 5)Why not, if the contract addresses both parties' estates, and child custody if applicable?

  • DarrenM||

    When do the Sheep/man marriages begin?

    People can already get married to animals. They just don't get a tax writeoff.

  • gaoxiaen||

    Interesting. How many tits does a sheep have?

  • eyeroller||

    Justice? Screw it, it's too complicated!

  • Floyd Alsbach||

    hat is exactly what I suspect and fear.

  • gaoxiaen||

    I'm a little leery of hats too.

  • Beezard||

    I may have missed the plot, but You can't legally contract yourself to be a slave either. I'm sensing more lawyers prattle than actual legal consequences. Maybe more and better examples are in order for us lay folks?

    Also, none of this is actually the reason government won't get out of marriage. Im pretty sure it's the usual manifest destiny and myopic tyrannical majority that will gaurentee that.

  • rollcast||

    ^This.

  • DarrenM||

    I would have thought a more pragmatic proposal would be a standard contract defined by the government (like an LLC, a general partnership, or something) that anyone could engage in. There would presumably be a primary 'partner' ('spouse'). There would then be possible secondary partners if someone chose to engage in polygamy or polyandry. Anything regarding children would also be in the contract 'package'.

  • Sebastian||

    I don't care what problems arise I don't need the government to tell me if my marriage is legitimate or not, if there are legal issues then they should never have existed in the first place to support marriage is to move against the libertarian movement, I don't care what the "official" party states.

  • Sebastian||

    *...to support government marriage is to move against the libertarian movement...

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  • Marcus75||

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  • AgrarianBarbarian||

    I never really got the gay marriage thing. It reminds me of that scene in "Life of Brian" where Eric Idle insists he can be a woman and yells "Don't you oppress me, Reg!" So I just kind of tuned it out, not really having a dog in the fight and all. But the more I watch gay marriage advocates, the more they creep me out. This isn't about getting a more favorable tax rate, its about using "government approval" as a sort of bludgeon to force religious types to accept and affirm a lifestyle that is diametrically opposed to their worldview. So sorry, I'll have to sign up in the "opposed" column until I see a little more tolerance from the Forces of Tolerance."

  • Chesteracorgi||

    The estimation of the unintended consequences and/or complexities of getting the government out of the marriage business is a mere excuse to keep the status quo. While a total recission of the common law would be unwise, there are vast measures which would have a salutory effect, and a start down the path to the rationalization of government's role in marriage.

    The isssue is which governments have a role in marriage. It should be left to the states to make determinations about marriage. The federal tax code should be amended (and simplified) to reflect that any unit of individuals may pool their returns to take an aggregate of individual deductions, and that the rights and responsibilities of marriage are to be left to the individual states. No state should have to give full faith and credit to any other states laws. If New York wants to recognize polygamous polysexual marital units with allowance for the participation of other species, so be it; but it should not encumber Pennsylvania from refusing to recognize such marriages.

    Mr. Epsteins' position is hardly a libertarian position: it calls for the interference of the federal government in matters that are best left to the states. Part of the freedom of libertarianism is being able to seek out communities and rules of law with which the indvividual agrees. . The proper role of the federal government in relation to marriage is: NONE.

  • AgrarianBarbarian||

    I'm with you. Get government out of the "marriage defining" business. This will get both sides to shut up, so we can go back to discussing important stuff, like Obama's jump shot.

  • AgrarianBarbarian||

    And one more thing...Gay marriage isn't illegal. If Adam-n-Steve want to find a gay church they can gay marry to their heart's content and introduce each other as "the ole ball and chain" until they decide they hate each other and separate, just like "normal people". The jackbooted marriage police are not going to kick in their door and haul them off to hetero-reeductation camp. No, this is about extending a few government benefits to a group that isn't currently receiving them - that's it. This is not a courageous struggle against oppression. It's a battle to get wealthy interior designers and Hollywood make-up artists a more favorable tax rate. The incessant comparisons to "slavery" and "civil rights" aren't just over-the-top, they are a textbook example of the kind of hyperbolic nonsense that has destroyed any sort of rational debate in this country.

  • DarrenM||

    No, this is about extending a few government benefits to a group that isn't currently receiving them - that's it.

    That's only the first part and I doubt many people are really opposed to this. It's more about official validation by government of homosexual/lesbian lifestyles.

  • joeedick||

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  • unchained||

    What Helen Dale and Richard Epstein are saying appears to suggest that government and the law have to be privatised before marriage can be privatised

  • donettagreenhill||

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  • Jayburd||

    Last I checked, child support and inheritance happen regardless of marital status.

  • crystal415||

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  • Conrad97||

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  • Divorce Quotes||

    Thank you, Reason. I absolutely agree with getting the government out of marriage entirely.

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