Gay Marriage

Will a Politician Seriously Argue How to Get Government Out of Marriage?

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Can we not make the guys look like twins? That introduces a whole new problem.
Credit: Photographerlondon | Dreamstime.com

Early in the year, a conservative state representative in Oklahoma proposed dealing with being ordered to recognize same-sex unions by ending the state's practice of giving out marriage licenses entirely. In short, there would no longer be any state-recognized marriages in Oklahoma. He was criticized by gay marriage supporters for his "taking the ball and going home" approach and Think Progress compared the move to Virginia shutting down schools entirely to try to avoid desegregation orders.

In the wake of gay marriage coming to Idaho recently, now a Republican state senator there is suggesting they'll do the same. In an interview with WorldNetDaily, Steve Vick said, "If we're not allowed to determine the standards for a marriage license, then maybe we should just not issue them."

He said he hasn't drafted any sort of bill and is still in discussions over the idea. Oklahoma Rep. Mike Turner said something similar back in January. Turner declined to be interviewed by Reason last spring and nothing has apparently come of his efforts.

Think Progress may well be right that these men are trying to find some new way to somehow deny marriage to gay couples. But the comparison to school desegregation makes no sense. Marriage isn't some sort of government-mandated ongoing service provided (poorly) by states. It's a license simply declaring that the state acknowledges your relationship. What matters is what benefits and privileges (and penalties!) the state extends to you on the basis of your recognized relationship.

So if a state eliminated all marriage recognition, what would it do about all its regulations that are tied to marital status, not to mention family laws? That may well be the reason why this push from the right doesn't go anywhere. If they're trying to reconstruct certain marriage rights or privileges in another way and leave the gays out, they're just going to hit the same problem again. If they're genuinely trying to eliminate marriage-based regulations in the state, how would that play to social conservatives who believe that government should be pushing marriage as the family structure for the benefit of a stable social order?

But the "government shouldn't be involved in marriage" argument is so strong as to nearly be an axiom for many libertarians. If that's the case, will there be a point in this libertarian movement where somebody (or several people) actually get to work on the brass tacks on how this government marriage divorce is supposed to look and what sort of outcomes to expect? Otherwise, statements like those from Turner and Vick above end up being tarred as pro-discrimination. When libertarians make a similar argument, they risk being lumped in with these guys, even though libertarians may be suggesting very different outcomes.

Here's Cato Institute's David Boaz back in 1997 talking about some of the basics of privatizing marriage and what it might look like. But there are a significant number of state and federal regulatory changes that would have to happen, beyond simply declaring marriage licenses to be private contracts. It would be interesting to see a state actually try to tackle these reforms.

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  1. But the “government shouldn’t be involved in marriage” argument is so strong as to nearly be an axiom for many libertarians.

    BUT UNFORTUNATELY NOT ALL.

    If it can be done through licensing (essentially here a contract between the state and a pair) then it can be done through contracts. But there are simply too many married people who enjoy this easy entitlement to ever give it up.

  2. According to Tonio no one is seriously considering this.

  3. Those “family laws” are written completely for the benefit of women. Any politician who advocated getting rid of them and going to a pure “contract any way you like system” would be subjected to a “war on women” beat down the likes of which we have never seen.

    You might as well believe in the tooth fairy as believe that any politician from either party is going to advocate for such a system. It is just not going to happen, ever. Family law is going nowhere. So Libertarians would be better off thinking of ways to make it better than jerking off fantasizing about getting rid of it.

    1. How does “no fault” divorce benefit women?

      If anything, seems a huge benefit to a middle aged man wanting a 20 something 2nd wife.

      1. It doesn’t. But that is not all there is to family law. Things like community property and alimony most certainly benefit women. And you are shreek level stupid if you think the feminists and really women voters in general are going to give up those things.

        1. But that is not all there is to family law.

          Those “family laws” are written completely for the benefit of women.

          I will just leave this here.

          1. It is true. And for that reason no politician in his right mind is going to advocate getting rid of them. Jesus Christ, you can’t get away with telling Sandra Fluke to close her fucking legs or pay for her own birth control and you think that any politician is going to be able to advocate repealing family law?

            You guys are delusional. Such a politician would in a single stroke manage to unit both the feminists and the SOCON moms in one giant beat down.

            It will never happen. People like their government marriage and they are not giving it up no matter how much Libertarians tell them getting rid of it is good for them.

            1. Jesus Christ, you can’t get away with telling Sandra Fluke to close her fucking legs or pay for her own birth control

              More so because it’s possible to tell a woman that her political philosophy is misguided and destructive without suggesting that she only wants free birth control and ‘bortions to liberate her libertine lifestyle.

      2. “How does “no fault” divorce benefit women?”

        One word: community property.

      3. How does “no fault” divorce benefit women?

        If anything, seems a huge benefit to a middle aged man wanting a 20 something 2nd wife.

        Come to Washington, get married and find out.

        Oh… ok, technically, it doesn’t favor women. No fault/community property states hurt the breadwinner.

        What really…really excites me? Women are increasingly becoming the breadwinners and I can’t WAIT to see how divorce laws change when they start getting hit in the wallet.

    2. Alimony not tied to cause but rather to spousal income and prior lifestyle. Since women tend to earn less and file most divorces, it provides a financial incentive to split with the partner’s money. I think Gary Becker covered it in a paper.

  4. I think Mike Turner had the right approach in proposing withdrawing State involvement in marriage. His reasoning for such is a little short, but still I agreed completely with his argument. Admittedly there’s thousands of state/federal regulations having to due with marriage in some way, but introducing civil unions for everybody is a decent run around the problem. Marriage itself would be a religious and individual matter.

  5. The disconnect is that we believe that society is not government but the kind of people who write for ThinkProgress are fundamentally incapable of grasping such an idea. There’s nothing to talk about with them here.

    1. Well, also to the ThinkProgress/prog crowd, what is actually proposed doesn’t matter, only who said it. Since these were proposed by socon politicians who are miffed at gay marriage, the value of the proposition is not considered separate from the source. Progs are incapable of making that separation, and so will never, ever consider it. Not for a second.

  6. If that’s the case, will there be a point in this libertarian movement where somebody (or several people) actually get to work on the brass tacks on how this government marriage divorce is supposed to look and what sort of outcomes to expect?

    (1) You can marry anyone you want.

    (2) If you want state recognition of your marriage, do what people do when they want state recognition of their, just to pick one example, property ownership: simple, fast, and cheap “notice” filings with the state.

    There. You don’t need to make the filing to be the property owner/married person. You don’t a “license” (which is an old word for “permission”). Deeds don’t have to registered to be valid, and neither should marriages. But its usually a good idea.

    Was that so hard?

    1. It is hard because it is not about being married. You don’t even need public registration to be married. Marriage is a private relationship.

      It is about two things. It is about how you divide your shit if your marriage ends and about how you force other people to recognize your marriage. That is all “government marriage” such as it is is about. And anyone who claims to want the right to get a “government marriage license” wants those two things. If they claim any other reason, they are stupid or lying.

      1. It is about how you divide your shit if your marriage ends

        That can be handled by the terms of the marriage contract.

        how you force other people to recognize your marriage

        Bingo.

        1. I agree with John and rob, however, children born of the marriage present another sticky point.

          Still, most everything could be resolved through arbitration. In fact, it is in Texas from what i can remember of my law clerk days.

          1. Family law has historically been written to benefit women. That is totally antiquated in this day and age. But it being antiquated isn’t going to mean women will want to give up their benefits. And women vote too.

        2. Sure it can. But you miss the point. What family law does is make those contracts no good and gives each side the opportunity to opt out and take the government mandated property split.

          You can settle anything via contract, provided you can get a court to enforce it.

          1. That is the point. If the courts would stop ignoring marital contracts (including oral vows, which should be legally binding, being made in front of witnesses and all), lots of problems go away. Under the current system, they could have “default” terms for those who dont have their own. But the defaults shouldnt replace the actual terms.

            Default terms are basically what common law is anyway.

            Telling the courts to enforce the damn contracts is one of the goals.

            1. Yes. That is how it would work. But your explaining it doesn’t make it any more appealing to people or any more likely it will ever happen.

              Libertarians think its great but literally no one else does. And that includes about 95% of the population.

        3. It’s about considerably more than that. Specifically custodial rights and responsibilities, i.e., who they have to let in to visit you in hospital, who has to be consulted for medical decisions — up to and including end-of-life, hospice care — etc.
          Those are the key aspects of marriage equality that originally drove the legalization push, and that somehow never get talked about.

          1. That too. Unless you want to let people effectively sell their children, you are not getting government out of marriage.

            A true contract based marriage system would be loathed by most of the country. Libertarians refuse to accept that and live in this fantasy world where some day the world will see the light and give up their government marriages and take their new Libertarian contract marriages.

            Since its generally harmless, its pretty funny to watch.

            1. What is the connection between children and marriage?

              Have you not noticed how many people dont even consider the connection?

              They are all but separate concepts already.

              1. The connection is that married people have children and then divorce. And family law determines who gets the kids and who pays support. So even if you went to a true contract based marriage system, those couples who have children would still have to go to court and get their property and support arrangements made by the judge.

                Beyond that, no one wants to give up family law and have risk getting screwed under a contract. No matter how bad family is, people are not going to go to a system where getting married is like making a will and requires drawing up long and detailed contracts governing any future split.

                If it wasn’t so pathetic it would be funny. You guys remind me of Sheldon Cooper and his roommate agreement. You honestly seem to think people want to and enjoy drawing up contracts and will be happy to agree to a system requiring them to do so. You just have to laugh.

                1. What’s requiring them to do so? It would just make the dissolution of the relationship simpler, but it wouldn’t be necessary.

                  1. What’s requiring them to do so? It would just make the dissolution of the relationship simpler, but it wouldn’t be necessary.

                    Exactly. John responded to it, but Im not sure he actually read my 5:09 post.

          2. It’s about considerably more than that. Specifically custodial rights and responsibilities, i.e., who they have to let in to visit you in hospital, who has to be consulted for medical decisions — up to and including end-of-life, hospice care — etc.

            All of that can be settled with simple private contracts.

      2. It is about two things. It is about how you divide your shit if your marriage ends and about how you force other people to recognize your marriage.

        Unfortunately if you keep pointing this out, you’ll be considered cynical.

        Ever notice how easy marriage is to get into, but how difficult* it is to get out of?

        *Expensive and complex

    2. I prefer a slightly more difficult approach…eliminate all references to marriage in the state laws.

      They can still exist in Federal Law, as the states cant change those, and people in Idaho or Oklahoma can travel out of state if they want to take advantage of the federal marriage laws.

      1. I would like a unicorn that rides a pet dinosaur. I am about as likely to get my wish as you are yours.

        1. Dinosaurs still exist, some people even keep them as pets.

          I will take half of my wish.

  7. As far as taxes go it would be a relatively simple matter of everyone filing as an individual. No ‘head of household’ bullshit and no deductions or penalties for being married since being married wouldn’t be a thing as far as the government is concerned. Househusbands who sat around eating bonbons and watching Rikki Lake all day would earn no income and thus have no tax liability.

    Ideally this would also be accompanied by eliminating deductions for anklebiters, mortgage interest, and charitable contributions, and a general lowering of tax rates across the board.

    1. Simple tax systems don’t provide jobs to thousands and thousands of sub-par accountants or allow for special interest deductions and giveaways, Hugh.

    2. Now your just spoutin crazy talk.

  8. Flat tax. 3% of income, no recognition of special relationships. Marriage can be contractual or informal, but gets no recognition or special treatment from government. I’m negotiable on the percentage, with 3 as a ceiling.

    1. 6% SLT. I cant morally abide any income tax, no matter how awesome a flat 3% tax would be compared to today.

      Not that I would turn down a 3% flat tax, but if we are going to dream, Im goint all the way.

      My percentage is also negotiable.

        1. Single Land Tax.

          Single being a key aspect of it.

          1. I don’t see the moral difference between taxing income and charging rent on land that is supposedly “owned.”

    2. Sales tax. Income tax is immoral.

      1. Sales tax would be better.

  9. Social conservatives who are all up on marriage ought to be more worried by the decline in marriage among heteros than by gay marriage. In essence, people are already “voting with their feet.” In another decade or two, this entire issue may seem quaint, since teh gays will be the only people still bothering to get married.

    As to John’s concerns, there are already laws in place dealing with child support for unmarried parents. A private marriage contract could substitute alternative arrangements, as well as alternative inheritance and property division arrangements. There’s no need to have these things mandated by the state.

    Politically, I don’t see this happening–ESPECIALLY in the red states.

    1. Politically, I see it much more likely to happen in the red states.

    2. “Social conservatives who are all up on marriage ought to be more worried by the decline in marriage among heteros than by gay marriage.”

      With all due respect,

      http://i.imgur.com/iWKad22.jpg

  10. The biggest benefits to marriage are federal in nature. Get rid of married tax status and the rest will follow. If spouse is unemployed, they are claimed as a dependent. If employed, they file their own taxes. Children can be claimed as dependents on both forms and cross-referenced to split child credits between parents.

  11. So finally, an elected official actually suggests government deregulation of marriage – and it’s a SoCon!

    The SoLibs were *never* about deregulating marriage, they were all about changing the definition so their gay constituents could get the govt benefits and be able to conscript businesses into serving their wedding services, etc.

    Now, nobody has actually explained to me how the deregulation of marriage would actually work. For instance, what about forcing spouses to testify against each other? The current rule looks at your marital status to see if you can be forced to testify. If the government no longer cares about your marital status, does that mean nobody can be forced to testify about their boyfriend/girlfriend? What if they’ve been dating two weeks? What if they dated on and off a couple years ago? Mustn’t consider whether they were married or not…what alternative system will be have to decide who has to fink on their partners, or do we eliminate the spousal exemptions altogether now that we no longer recognize marriage?

  12. If the woman gets pregnant and then wants to give the kid up for adoption, will it no longer matter whether the father and mother are married? We’ve already had a case where a wife gave the child up for adoption, bypassing the father, and the father had to fight like the dickens to get his paternal rights recognized. If in the eyes of the law the husband is equivalent to some guy the wife met in a one-night stand, giving away the children of the marriage becomes easier.

    1. Here’s the case I referred to:

      http://www.dailymail.co.uk/new…..ghter.html

      1. The husband’s attorney sums up the coming brave new world: “‘Children are being bought and sold. It is one thing what [adoption agencies] have been doing with unmarried biological fathers. It is in a new area when they are trying to take a child away from a married father who wants to have his child.'”

  13. This is not difficult.

    Civil unions for all.

    Marriages existed long before the State existed. Let people get married however they want (to fire-hydrants if they want).

    And if two friends want to get a civil union, so what?

    The M word is a big part of the problem and the goofs on both sides want their mommy-daddy-royal government to recognize/approve/bless their worldview. If your marriage is so shitty that you need the blessing of the state, then your marriage is trash.

    1. The M word is a big part of the problem and the goofs on both sides want their mommy-daddy-royal government to recognize/approve/bless their worldview.

      This. So much this. All this haranguing over a simple little word. If people still want to call it a marriage and have their church bless it, feel free. If the state is to stay involved in a personal union (and that appears to be inevitable), just remove all reference to the loaded term.

  14. Reason: SLD, of course we support deregulating marriage! But until then, we must support equal access for teh gais (but nobody else).

    Well, you can’t just deregulate marriage. That’s ridiculous! Come back when you’ve got a serious proposal.

    It seems like we’ve actually had this conversation before, at least among the commentariat. Same as it ever was. The gays got their pony, nobody’s doing away with marriage, see you in 50 years when the fundie Muslims get enough political power to have this same argument all over again vis-a-vis polygamy.

  15. This is another issue we can use to forge our place in the political system. Both sides are clouding the issue by focusing on the moral side of the argument. The Courts are not overturning bans because they agree with the left, but because the bans violate the equal protection clause. What better issue to educate the public about Libertarian views and why we need to return to a Constitutional government than this one? Conservatives object on moral grounds and progressive are fighting from the same position. When did the government become the final word on what private behavior is and is not moral? What we have defined as crimes impact society as a whole. There is no evidence other than personal moral values that same sex marriages help or hinder society as a whole. Therefore, the only issue left is legal and legally, the bans are unconstitutional, period. We have the chance to become a major third party by seizing the sane middle and grabbing all those social moderates/fiscal conservatives who feel neither party represents them.

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