Marriage

Privatizing Marriage Is a Terrible Idea

It won't end the culture war but will lead to even more government interference in families

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If Republican presidential candidate Rand Paul is (politically) from Mars, then the leftist feminist writer Naomi Wolf is

Gay Marraige
Elvert Barnes Foter

from Venus. But there's at least one thing this odd couple agrees on here on Earth: The government should get out of the marriage business.

Following the Supreme Court's gay marriage ruling, Sen. Paul argued that Southern states that want to stop issuing marriage licenses were right. The government shouldn't "confer a special imprimatur upon a new definition of marriage," he said. It should leave marriage to churches and temples, regardless of how these institutions define marriage, and let consenting adults of all sexual proclivities write their own civil union contracts.

Likewise, along with fellow liberals such as Michael Kinsley and Alan Dershowitz, Wolf opined some years ago that "dress and flowers" blind women to the reality that, at root, marriage is a "business contract" that the government should stay out of.

Today, the idea of privatizing marriage is gaining popularity. But it is an incoherent concept that, if anything, will actually increase—not decrease—government interference in marriage.

At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage "deed." It won't—and can't—simply accept any marriage performed in any church—or any domestic partnership written by anyone. Suppose that Osho, the Rolls Royce guru who encouraged free sex before getting chased out of Oregon, performed a group wedding uniting 19 people. Would that be acceptable? How about a church wedding—or a civil union—between a consenting mother and her adult son? And so on—there are innumerable outlandish examples that make it plain that government would have to at least set the outside parameters of marriage, even if it wasn't directly sanctioning them.

In other words, this kind of "privatization" won't take the state out of marriage—it'll simply push its involvement (and the concomitant culture wars) to another locus point.

Furthermore, true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples. In other words, letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent. Inter-faith couples could choose one of their communities—but only if it allowed interfaith marriages. But here's what they couldn't get: a civil marriage performed by a justice of the peace. Why? Because that option would have to be nixed when state and marriage are completely separated.

This would mean that couples would be subjected to community norms, many of them regressive, without any exit option. For example, a Muslim man could divorce his Muslim wife by saying "divorce" three times as per sharia's requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere). Obviously, that would hardly be an advance for marriage equality. The reason calls to "abolish marriage"—to quote liberal columnist Michael Kinsley—lead to such absurd results is that they are based on a fundamental misconception about the function marriage serves in a polity.

Cato Institute's Jason Kuznicki notes that marriage, properly understood, is a negative, pre-political right that in the liberal understanding of things the government doesn't grant, it guarantees. It makes as much sense, therefore, to abolish marriage in the name of unshackling it from the government's clutches as it would to, say, abolish property rights to "free" them from the government.

Just as property rights (at least in principle) establish the scope and limits of state power over an individual, marriage does something similar for couples. It basically establishes their right to jointly own property and inherit it from each other, keep and raise their children, and make medical decisions for the other when one is incapacitated. The government can't grab their children or their property without a compelling interest—and it must prevent others from doing so as well. For example, in-laws can't simply take away children because they think their daughter-in-law is an unfit mother or overrule her end-of-life decisions for their son. Couples can voluntarily—and jointly—cede some of their authority to others in special circumstances. But marriage creates a default presumption of their rights—as well as their responsibilities: For example, just as no one can take away their children, they can't abandon their kids either.

Without marriage, every aspect of a couple's relationship would have to be contractually worked out from scratch in advance. This may—or may not—prove to be an onerous inconvenience (some people speculate that companies would start marketing canned contracts to couples). But without licenses or registration for marriages, many things, including establishing paternity, would get really messy. When a couple is in a recognized marriage, the children in their custody are presumed to be theirs—either because they bore them or adopted them.

Privatizing marriage, maintains Kuznicki, would mean giving up this presumption. This would create havoc, especially if a marriage breaks up. "[You'd] get a deluge of claims and counterclaims about child custody and paternity, as parents fought either to establish or relinquish custody without any clear advance guidance from the government about how they will be treated," he insists. "It is hard to imagine the state being more in a private family's business than this." This is not mere speculation. Partly to avert such problems and ensure that children are taken care of, pre-liberal communities that govern marriage by religious norms give a great deal of say to family, neighbors, and village elders in every aspect of a couple's life.

If libertarians want to expand marital freedom, they ought to try and spread the Las Vegas model where licenses are handed out to consenting adults on demand with minmial regulations and delay.

Privatizing marriage can't sidestep the broader questions about who should get married to whom and under what circumstances. In a liberal democracy, those who want to expand the scope of marriage have no choice but to fight—and win—the culture wars by slowly changing hearts and minds, just as they did with gay marriage. There are no cleaner shortcuts.

If they want a different reality, they will just have to move to Mars—or Venus.

This column originally appeared in The Week.

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  1. Individuals should be free to form all manners of (voluntary) contractual relationships with others as they desire. Likewise, individuals should be free to not recognize another’s contractual relationship if they so desire?regardless of whether such decisions are seen as unfairly discriminatory. In other words, a societal right to voluntary association implies a right to voluntary disassociation. Advocating for anything less than this standard wouldn’t be a very Libertarian POV.

    Whereas this article proposes that people forever prostrate themselves before the altar of the state, petitioning it for a ‘right’ to have their relational preferences recognized and thus mandated into acceptance.

    1. You missed the point entirely. And added irrelevancy.

      1. You missed the point entirely. And added irrelevancy.

        no u

      2. I think he got the point. Shikha clearly just doesn’t get the point of libertarianism, if she is advocating that the state should be the arbiter of voluntary contracts between sovereign individuals.

        1. Yeah, but few libertarians would us the word arbiter.
          And your tribe of anarcho-libertarians are a small minority.

          1. I agree with whatever Hihn says. He’s been a libertarian since at least the Spanish-American War.

            1. You know who else was kind of cool when he was young and then turned into a windbag semi-senile statist?

              1. Barry Goldwater?

        2. I wonder if most libertarians get the point of libertarianism. But at least they’re consistent, whatever that means…

    2. I agree with you completely.

  2. “Suppose that Osho…performed a group wedding uniting 19 people. Would that be acceptable? How about a church wedding?or a civil union?between a consenting mother and her adult son?”

    A better question would be why such contracts between consenting adults would be *unacceptable*, yes?

    “here’s what they couldn’t get: a civil marriage performed by a justice of the peace. Why? Because that option would have to be nixed when state and marriage are completely separated.”

    Are we assuming that neutral private options will never exist once the government is out of the way?

    “to abolish marriage in the name of unshackling it from the government’s clutches as it would to, say, abolish property rights to ‘free’ them from the government.”

    No-one is arguing that we should “abolish” marriage.

    ‘”[You’d] get a deluge of claims and counterclaims…without any clear advance guidance from the government about how they will be treated”

    What ever happened to hiring private mediators? Using notaries to add legitimacy to documents and contracts? There’s an effective private answer to almost everything government does, and there’s no reason to assume that private answers won’t arrive to meet the needs of the new “havoc” created by allowing individuals to draw up their own marriage contracts.

    1. What ever happened to hiring private mediators? Using notaries to add legitimacy to documents and contracts? There’s an effective private answer to almost everything government does, and there’s no reason to assume that private answers won’t arrive to meet the needs of the new “havoc” created by allowing individuals to draw up their own marriage contracts.

      Was thinking that too.

      A lot of this kulturkampf nonsense could be mediated by private courts, and the results would likely be more conducive to social harmony for all.

    2. You ignored everything in the article. Inconvenient?

      Are we assuming that neutral private options will never exist once the government is out of the way?

      Depends which ones. And as long as government remains, the assholes can’t deny equal rights, with the lame excuse of states rights — like the southern racists (and Orval Faubus in Little Rock.)

      private answers won’t arrive to meet the needs of the new “havoc” created by allowing individuals to draw up their own marriage contracts

      Fine. But why force it on everyone? Like the Rothbardians, we’d lose voluntary arrangements entirely. Ruins the narrative. It’s like the goobers who say communes are anti-libertarian.

      If government is entirely out of marriage, would we lose equal, unalienable and/or God-given and rights? Would the 9th and 14th Amendments no longer apply to “marital” relationships? Rand Paul, like his dad, is a raging bigot,

      1. Fine. But why force it on everyone?

        You mean you think it is using “force” against someone to not have government define marriage for everyone? Is a privately generated marriage contract template too hard to make/fill out?

        Like the Rothbardians, we’d lose voluntary arrangements entirely.

        Nothing in a marriage contract precludes voluntary arrangements, even arrangements without contracts. I am also curious (as in I really don’t know where) Rothbard spoke against such things.

        If government is entirely out of marriage, would we lose equal, unalienable and/or God-given and rights? Would the 9th and 14th Amendments no longer apply to “marital” relationships?

        Hopefully not, but the government has ignored the 9th amendment for a ridiculously long time (since it was ratified). Either way, that would be an argument against getting government out of anything at all.

        Rand Paul, like his dad, is a raging bigot,

        (I don’t mean to say this AGAIN, but…) Non Sequitur.

    3. There is no effective private answer to the individual who says: “I refuse to go along with what the contract says, or what you think it says” except government, in which we have solely granted the ability to use force.

  3. Uh-oh, you pissed off the goobers again. The same folks who believe Medicare Vouchers would control healthcare costs through more competition. Yeah, like we can control automobile costs with more competition between Allstate and GEICO Medicare already has completion in the REAL market. But seniors have no skin in the game. duh.

    Cato’s (and Ryan’s) vouchers simply insert a costly middleman who adds nothing to the government financed program.

    On marriage, when the Paulista Cult says get government out, it REALLY means don’t allow government to defend equal rights …. which is the only legitimate function of government. Ron even co-sponsored a bill to deny homosexuals any defense of the constitutional rights, the worst abuse of liberty since FDR’s concentration camps, They pander to bigots with liberty-sounded rhetoric that defies the Constitution.

    When will Reason report that Rand Paul fucked up his campaign even more, by joining the wackos who want to defund Planned Parenthood. Is that before or after his religious tent revivals? How shameful that a doctor lies about Planned Parenthood — or is brainwashed by such an obviously dishonest video?

    1. Wow. Ad-hominem attacks, straw men, false assumptions, off-topic talking points AND hyperbole. You call *others* “goobers” and then proceed to type out a barely-coherent diatribe. Ever heard of the Dunning-Kruger Effect, buddy?

      1. But “false asumptions” and “strawmen” aren’t ad hominems?
        Anything specific or just rock throwing.
        Or are you just confused?

        1. Sure. Calling people goobers isn’t ad hominem. This really isn’t a place for you. You are like the retarded younger sibling who stumbled into a mensa meeting and keeps asking everyone to pull their finger. Huffpo is probably more your speed.

          1. Well put!

    2. So what exactly is your objection to the government not issuing marriage licenses? Is it your position that people have a fundamental right to a license from the government? If so, were people’s rights being violated back when licenses weren’t being issued?

    3. On marriage, when the Paulista Cult says get government out, it REALLY means don’t allow government to defend equal rights …. which is the only legitimate function of government.

      “Defend equal rights” against who? The only institution that can deny equal rights is the government itself.

      When will Reason report that Rand Paul fucked up his campaign even more, by joining the wackos who want to defund Planned Parenthood.

      Maybe you can explain based on what libertarian principle Planned Parenthood should be funded by tax dollars.

      Ron even co-sponsored a bill to deny homosexuals any defense of the constitutional rights

      You mean the Marriage Protection Act and the We the People Act? Again, as a libertarian and as a gay man, I don’t see why these issues should be federal issues to begin with. Perhaps you can explain on what libertarian grounds you object to these pieces of legislation?

  4. I thought that reason supported SSM because “we will never get government out of the marriage business”. Now that we have SSM, there is no reason that Libertarians wouldn’t want government picking and choosing favorites based upon their personal relationships?

    At the risk of causing a certain mentally ill person to have another stroke, a government permission slip does not equal “Liberty”. Not even close. Government benefits based upon personal relationships is explicitly anti-Libertarian, even if you have ruled the movement since the 90’s.

  5. Here is a little primer of the use of the comma.

    http://www.grammarbook.com/punctuation/commas.asp

  6. I have not finished my coffee and am a bit hung over, but am i reading on Huffington Post or Salon this morning? This is the most misinformed nonsense i have seen in quite some time.

  7. Did I stumble into a Huffington Post article? The sheer idiocy here is probably unprecedented for an article on reason.

    “At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity”

    No it doesn’t.

    “he Rolls Royce guru who encouraged free sex before getting chased out of Oregon, performed a group wedding uniting 19 people. Would that be acceptable? How about a church wedding?or a civil union?between a consenting mother and her adult son? ”

    Yep acceptable and not in need of regulation. Is this really a reason writer arguing that we should regulate things we find icky?

    “It would mean giving communities the authority to write their own marriage rules and enforce them on couples”

    So getting the government out of marriage gets the government into marriage? Makes sense.

    “Without marriage, every aspect of a couple’s relationship would have to be contractually worked out from scratch in advance. ”

    Oh the horror. We would have to do this without gubmint help.

    “But without licenses or registration for marriages, many things, including establishing paternity, would get really messy. ”

    Yes because there are no instances today of paternity getting worked out with people who have children out of wedlock.

    Please reason fire this moron. They are better suited to be writing for Gawker.

    1. After having read a number of Ms. Dalmia’s columns, it is painfully obvious that first of all, she is no libertarian (pretty standard left liberal). Second, her concern for freedom of marriage is limited only to SSM. She has no overarching standard of liberty. It is just “love” or something.
      Third, I really don’t think she is all that bright anyway.

      1. So why in flying fuck is reason giving her a platform?

        1. The standards here have been deteriorating for years, and are approaching rock bottom.

          1. Cool, maybe I should apply for a job as a writer.

  8. “…there are innumerable outlandish examples that make it plain that government would have to at least set the outside parameters of marriage, even if it wasn’t directly sanctioning them.”– Like Bob and Steve want to get married. Or Lisa and Jennifer.

    “In a liberal democracy, those who want to expand the scope of marriage have no choice but to fight?and win?the culture wars by slowly changing hearts and minds, just as they did with gay marriage. There are no cleaner shortcuts.” — Sure there are, 5 SCOTUS Justices and a handful of Federal judges. In most states where the voters got to vote and redefining marriage, SSM failed. California even passed an amendment to its state constitution.

    And for the record, Orthodox Jews DO live by the “Old” Testament (and the Talmud). Like Catholics, and unlike Muslims, they understand the difference between religious law and civil law.

    1. And for the record, Orthodox Jews DO live by the “Old” Testament (and the Talmud). Like Catholics, and unlike Muslims, they understand the difference between religious law and civil law.

      Are you completely ignorant of history? The Catholic church ran large parts of Europe for centuries, with many parts of Europe run by “prince-bishops”, and many other rules only ruling at the discretion of the church. The Catholic church forced conversions and committed numerous genocides against people who disagreed with its dogma.

      Catholics only started making a distinction between religious law and civil law when they were forced out of government, often as late as the 20th century. Even today, many European countries have “Christian parties” whose declared objective is to impose the rules and laws of their religion on society, “for the good of society” of course. And make no mistake about it: if the Catholic church ever regained its power, it would go back to its corrupt, theocratic, genocidal ways.

      For Judaism, I suggest just reading the Old Testament; it’s pretty clear that the original Judaism also wasn’t shy about imposing religious law on everybody.

  9. All you need to do is look at Common Law marriages. There is no contract, no pre-determination by the state or any religion or other institution. And yet courts manage to legislate disputes when such couples break up just fine (figuring out to what to do with property when purchased with pooled money, custody of children, etc.).

    If the state is not giving any special treatment to married couples, there is no harm in the state not being involved in the establishment of marriage. If, on the other hand, the state is still involved on the one hand – tax breaks, telling insurance companies what they can and can’t do, etc. – but not on the other – issuing the licenses – then many of the claims in the article are true. But that’s just a limited perspective, ignoring the best option of getting the state out of all aspects of marriage.

    1. Before anyone else can jump in, let me clarify. Common law marriage is just the lowest hanging fruit example. Anyone sharing resources, with or without a contract, can legislate or go to arbitration based simply in the fact of their sharing resources. What that contract is called is/should be irrelevant. If it’s got marriage written at the top, great, but it could just as easily say “community shared resource agreement” (think commune, or plural “marriage”), “familial non-dependent arrangement” (the silly mother/son arrangement described in article, or such without romance) or “friendly agreement for cohabitation and division of certain responsibilities” (friends living together and sharing/splitting some responsibilities). If the state doesn’t give marriage any special standing/meaning, then the court doesn’t/can’t care if a contract (verbal or written) does or doesn’t mention the word.

      Also glossing over the fact that courts can and should be private as well, as that adds certain subtleties and, unlike the state defining what marriage is and defining what it’s benefits are, is separable.

      Tangentially, the sharia law example is asinine. If the woman freely entered into a contract where she has no out and the other party gets everything by saying a few words, that’s her own (imo stupid) “fault”. If, however, she was coerced or forced, that is another issue entirely – one relevant to all contracts and having nothing whatever to do with marriage specifically.

      1. “If the woman freely entered into a contract where she has no out and the other party gets everything by saying a few words, that’s her own (imo stupid) “fault”. If, however, she was coerced or forced, that is another issue entirely – one relevant to all contracts and having nothing whatever to do with marriage specifically.”

        We also have laws that prevent one-sided agreements. If you look around, you will find plenty of examples of pre-nuptial agreements being voidable if it is found that they lack consideration, among other things (this is found outside of marriage in all contract law if you look). So, to come to point, it’s not as if under current law such women would be without recourse in our country. (or in most western nations)

        1. Very true. Although, I would say laws governing what a contract can and cannot say/enforce – so long as the participants are competent and willing – I think are fundamentally non-libertarian.

          1. no, no they’re not.
            Contracts are amazingly useful things, the parameters of which should not be defined by government, and there needs to be all kinds of social-related contracts which would help socioety.
            But ultimately they can’t be a forever-cudgel against someone for no reason. They have to have their limits. Think of the Human centIpad South Park episode.

  10. It won’t?and can’t?simply accept any marriage performed in any church?or any domestic partnership written by anyone.

    What compelling interest does the state have in making certain unions are of an acceptable, romantic variety? Or a union of only two?

  11. This would mean that couples would be subjected to community norms, many of them regressive, without any exit option. For example, a Muslim man could divorce his Muslim wife by saying “divorce” three times as per sharia’s requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere).

    So my freedom of association needs delimitation because someone else might enter into a marriage under the dictates of sharia?

    Brilliant argumentation!

  12. Breaking news: Dipshit is still a dipshit.

  13. But we can’t privatize marriage, because homophobia, or racism or something.

    FREEDOMZ IS HARD!

    1. But we can’t privatize marriage cake baking photography ring making employment, because homophobia, or racism or something.

      FIFY

  14. At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage “deed.”

    Why does Dalmia even write for a libertarian magazine? I mean, this is really basic shit. A contract between people is enforced by government through civil courts because otherwise you defrauded someone. That is aggression. It does not need be so complicated. I bet Shikha takes as fact that government must build the roads.

    1. But, without roadz, how is the chiltunz going to get to school?
      Why you hate chilrunz, PaulW, why?

    2. “Why does Dalmia even write for a libertarian magazine? I mean, this is really basic shit.”

      I don’t know, and yes, it is.

      That Dalmia would even presume that the state has to have a license system to adjudicate contract disputes is bizarre. She might as well proclaim that private property is dependent on a state that dictate borders via violence.

  15. So Reason writers support gay marriage as its own end and not a path to getting the government out of marriage? At least one writer admits it.

  16. I don’t mind dissenting voices with the libertarian ideological spectrum, but this article is crap.

    It’s like we’re being trolled.

    1. This article should make it plain as day that Dalmia is not a libertarian. Not even close. She doesn’t even understand the basic concepts.

      I’m not for purity tests, but after reading this, there is really no way in hell Dalmia should even be writing for Reason.

  17. I’m still wondering what freedom is being denied to whom by the existence of standard-issue government marriage licenses. Are we forced to get married?

    The point seems quite valid that if we abolish these, we’d simply have an infinite patchwork of government-enforced contracts that amount to the same thing, only with increased bureaucracy and more confusion on everyone’s part.

    But then we’re still pretending that this entire issue isn’t predicated on the desire of assholes to deny gay people equality.

    1. Tony, I’m pretty sure as a gay man you’ve stuck around here so long because you KNOW we’re on your side and have been for over 50 years.

      Problem is, you don’t understand why we’re on your side. You don’t get that a love for all people means a respect for all people’s rights. Being a self-centered dickbag, it is beyond your comprehension.

      Freedom of Association is limited every time the government sticks it’s nose in it. Now that you’re a protected class, you could care less. Why? Because you’re an immoral fuck.

      1. I don’t know how often you venture out into nonlibertarian circles, but other than the cousinfucking bigots who live under rocks, you are the least tolerant, most dickish people in the world. You wouldn’t last a day in the type of society you claim you want. That’s presuming that the type of society you claim you want isn’t a child’s fairy tale.

        Try answering the question. What specific freedom is eroded by government marriage licenses? I’m actually willing to be convinced. I’m not willing to entertain the idea that we should have left gays without equal access to them because that would only add to the unfreedom in the world–a prevailing sentiment from all you universal love types.

        1. gays, or anybody, wouldn’t need a marriage license from the government if all people were treated equally by the government. As it is, we have to lay open our lives, showing our marital status and justifying every dollar we made and spent just to pay our taxes. Fuck that. Just have them take their cut, and leaves us be.

          When we are at that point, the marriage license is irrelevant.

        2. Considering only 2% of us human beings are libertarian, I would guess I venture out into a non-libertarian world pretty often.

          Least tolerant of what, Tony? Stupidity? I’ll take that as a badge of honor.

          To answer your question, Tony, for one; the freedom of every other type of marriage that is not government approved and regulated. Remember when you were on the other side of that just a few weeks ago? DIdn’t think so, because again, you’re a self-centered, immoral fuck.

          There are other reasons, but I’ll leave it at that one, since there is a slight chance it would get through your thick narcissistic skull.

          1. the freedom of every other type of marriage that is not government approved and regulated.

            Wouldn’t those exist in exactly the same form with or without government marriage?

            I can seriously get behind abolishing marriage. I don’t give a shit about marriage. I’m not one of the many hypocrites here who are arguing against an institution they willingly entered. I have no intention of ever being married, because I think it’s dumb. My only political position in this debate has been equality under the law.

            So this is another discussion entirely, one that is rather pointless and quite minor, but a little interesting. If people are going to continue having government enforce relationship-based contracts, it’s hard to see how we get to less government by abolishing the standard-issue form of those contracts that the vast majority of people by tradition utilize.

            1. Of course, and so did gay marriage before the SCOTUS ruling. Any gay man or woman was free to have a ceremony and claim they were married.

              You answered your own question, Equality under the law. The only way you get there is by abolishing government involvement in marriage completely except as an arbiter in contract disputes.

              The other alternative is to have government say that it will recognize any form of marriage equally, but at that point, we’re basically saying the exact same thing. For all intents and purposes there is no difference besides the moral one, which is that you need a government to recognize your marriage. Why not that you simply need a government to recognize the contracts you enter in to?

              1. Obergefell was specifically about whether gay people have the same rights as straight people to get married in the US. If other forms of partners want to have their day in court, they can knock themselves out. As I indicated, marriage is incidental to me. The main issue is US law treating gay citizens as equal to straight citizens.

                1. The main issue is US law treating gay citizens as equal to straight citizens.

                  Exactly, and fuck everybody else in between, right Tony?

                  You got what you wanted for your group.

                  Typical leftist scum. It goes back to how everyone is a libertarian when it comes to themselves, but most people can’t help but be busybody assholes or self-centered pricks looking for their own advantage.

                  That is the difference between a libertarian and everyone else. That you haven’t figured that out by now speaks volumes of your intelligence. If you have figured it out and don’t give a shit, it speaks volumes of your integrity and morality.

                  1. Calm down Susan. Which other group is lacking equal protection and due process rights currently? I’ll start making my placard right away.

                    1. Take your pick, Tony. Blacks, Mexicans, Polygamists, Asians, Small Business Owners, etc, etc.

                      Problem is that you don’t understand the problem. And where you can identify a specific problem, you want more of the thing that caused the problem in the first place to fix it.

                    2. Islam specifically allows polygamy. So, why can’t Muslims in America have more than one wife if everyone consents?

                      Love is love. Consenting adults. Freedom of religion.

                      The only reason we don’t allow polygamy is we were founded as a Christian nation, and frankly, that doesn’t fly anymore.

                      If polygamy would cause hassles for the state, well, we have to change all the forms now for gays, and that’s not a good excuse either.

                      But what about the children? Well, we allow divorce.

                2. So Tony, is it your position that all behaviors should be treated equally by government?

                  1. No, just humans.

        3. What specific freedom is eroded by the government issuing marriage licenses? Do you have dementia? Less than a month ago, the freedom of gay couples to marry was “eroded” because the government that issued the licenses said they couldn’t have one. Or how about the freedom to have a group marriage?

        4. Try answering the question. What specific freedom is eroded by government marriage licenses?

          Government marriage licenses confer specific privileges, privileges that are paid for by the rest of society and that are denied people who don’t have (and can’t get) marriage licenses.

          Here is a list. It’s long:

          http://www.nolo.com/legal-ency…..30190.html

    2. Go through a divorce with a vindictive spouse, and you’ll find out really quickly what freedoms are eroded by having the government sanction marriages.

      In a recent discussion, I had someone tell me that state sanctioned marriage also supplied with it a framework during divorce to make ending the marriage easier, and that I should see what kind of battle that a gay couple could endure trying to end their 10 year relationship because they couldn’t get married and subsequently divorced.

      Horseshit. The worst one partner can do is walk away with nothing but the clothes on their back. I know several men that got divorced and would have PREFERRED that option but couldn’t get it. Instead, they got nothing but the clothes on their back, and a ton of debt that they didn’t even know existed, and for which they couldn’t even file bankruptcy to get relief.

    3. I’m still wondering what freedom is being denied to whom by the existence of standard-issue government marriage licenses. Are we forced to get married?

      What freedom is being denied the serfs by their feudal lord? The feudal lord is subject to exactly the same restrictions as the serfs, except that he also has a few privileges.

      The point seems quite valid that if we abolish these, we’d simply have an infinite patchwork of government-enforced contracts that amount to the same thing, only with increased bureaucracy and more confusion on everyone’s part.

      They don’t amount to the same thing. There is no reason in the world why rights and responsibilities should be bundled in the bizarre way that they are being bundled for marriage; somehow, sexual relations, child rearing, retirement funds, medical decision making, inheritance, immigration, etc. are part of an all-or-nothing bundle? Why?

      But then we’re still pretending that this entire issue isn’t predicated on the desire of assholes to deny gay people equality.

      I seriously doubt that “gay marriage” is an issue for you, Tony. But if it is, I don’t see why the law should specifically cater to a gay man who wants to live in a white picket fence fantasy. Believe it or not, both gay and straight folks have a much richer and more varied set of relationships and experiences than that.

  18. Hmmmmmm… what?

  19. My home state of Pennsylvania did not issue marriage licenses, or keep a register of who was married, until 1885. Before then, marriage was a private affair, and we survived.

    1. Don’t bring the historical record and reason into an article on Reason.com! You sound like one of those “radicals” who needs to be segregated. I will need you to fill out this 47 page form so I can report you to the Ministry of Loyalty.

    2. Most states didn’t have marriage licensing until after the civil war. The reason why should be pretty obvious based on that timing.

      The ONLY purpose the government has in licensing marriages is to discriminate. That’s it.

      1. ^THIS^

        Gotta know who to favor and punish you know. Some of those “wrong thinking” folks might get tax benefits they shouldn’t, or get some privileges they don’t deserve!

        1. Yep. In an effort to keep teh negroes from marrying our white wimmens, here we are.

          https://www.youtube.com/watch?v=jGQ-ISsDm8M

          1. I believe it was more related to money. Once there were more and more government checks to be handed out, they had to decide who was qualified.

            Pa also did not do birth certificates until 1905. People were signing up for Social Security who were born before there were birth certs, and had to get affidavits from friends and neighbors.

            Civil War pensions were a big item in the second half of the 1800’s. Widows filed applications, “The soldier and I were married on Aug. 1, 1859, by the Rev. Smith. Here is a copy of the certificate. Our children were born…delivered by the midwife Sally Jones.” and they got their pensions.

            Oprhan’s Court (still called that) handled guardianships for minors and the execution of wills.

            It was making sure everyone abided by their contracts.

    3. BUT THE MARRIAGEZ DID NOT EXIST THEN!? AND WHO BUILT THE ROADZ?1

      1. The chilrunz built the roadz.

  20. As long as there are government granted “rights” associated with these unions, the government will have to be involved in determining who qualifies.

    These rights are built into our civil code and will not be changed overnight. As much as I wish to see government limitation in areas like this, I can accept the Supreme Court’s decision from a practical standpoint. And as usual, the SoCon’s will lose the battle for the long arc of history here…because we know this isn’t about limiting government for them.

    1. And gay rights wasn’t about liberty or rights for the Dems.

      I could care less at this point why anyone wants anything. If it fits with the goals of expanding liberty, I’m going to side with them on the issue.

      1. Actually gay rights was all about liberty for some, and about positive rights for others. And what about removing government from marriage while still tying marriage to government handouts expands liberty?

        1. What about it? I think as libertarians we all understood that point. Our issue was equality under the law. It is one of the few instances that my fellow libertarians are able to prioritize and take baby steps, of which I am proud.

          Gay rights was about liberty for a tiny minority, positive rights for some, and political expediency for most.

          1. The problem is that those proposing that the govt no longer issue marriage licenses are denying citizens a Constitutionally guaranteed (according to SCOTUS, who makes the rules) right to marry the person they wish. This would be temporarily acceptable from a legal standpoint if said citizens could get their marriage recognized legally from another body, but they cannot. And hence, they will not qualify for the associated marriage rights also guaranteed by the government.

            I’d agree that this is a fine conversation that is being sparked, but our societal institutions (both legal and civil) are so intertwined with the current concept of marriage that simply refusing to grant marriage licenses reeks as short-sighted temper tantrum by bigots, rather than a principled stance for liberty.

            1. Interesting argument you’re making, but I think you’re over-stating it.

              List the “rights” of marriage you’re thinking of. I assume you mean financial benefits; Social Security, Medicare. From a tax perspective, there’s a marriage penalty not a benefit. All federal law. Not state law, federal law.

              “Refusing to grant a marriage reeks as short-sighted temper tantrum by bigots.”

              How could you possibly claim that after DOMA was struck down? The federal government HAD to recognize the validity of what states and their people decided to do.

              Wasn’t the fundamental issue concerning gay marriage, who gets to decide?

              A legal status that a state (previously) was under no compulsion to create it is now under compulsion to create, but it is not permitted to define. That is absurd.

              SCOTUS did NOT find that laws excluding gays from marriage violated equal protection. You know why, because they previously rejected that notion that exclusion of gays violated equal protection.

              SCOUTS instead declared that gay marriage is a fundamental liberty protected by substantive due process…24 months after it based its DOMA decision squarely on the authority of states to define marriage.

              There is no law. 5 people usurped the authority of 330 million people. Expect them to do that over and over and over.

              1. relating what you said to Hobby Lobby, there are parallels – employers were required to purchase a product, without being allowed a say in the process.

                People were screaming that their health care was none of their boss’s business, at the same time they were demanding that their boss pay for it.

              2. so let me see if I have this right –

                in DOMA, the court ruled that the states have the authority to define marriage, and the feds had to abide by that definition

                in this care, the court rules that the states don’t have the authority to define marriage, they all must adopt the court’s opinion

                1. Basically, yes.

                  Substantive due process is a judicially-invented right to individual liberties not listed in the bill of rights. It’s a misnomer, too.

                  Under the ***theory*** of substantive due process, a state cannot deprive a person of the “right” that the justices have just pulled of their rear ends…period.

                  There is no process by which the states are permitted to deprive same sex couples of their right to marry; not a ballot initiative, not a state legislature, not a court.

                  The states giveth “marriage” but the states may not constitutionally taketh it away, even were a state to taketh it away from everyone. So says Obergefell v. Hodges. That is totally absurd.

                  I see two possibilities: you and I are smarter than the supreme court, or we’re more honest. If the country had popularly “evolved” on the issue as so many claim, then why destroy the constitution and your own credibility. Why not just wait for the states to legalize it one by one as is their right?

                  Will you be treated as a subject and infant? Will you tolerate being told, “Do as I say and not as I do. Obey the law, although I obey none.”

        2. Actually, “Gay Marriage” as a political movement is mostly about getting access to government subsidies in various ways.

          The legal premise is interesting. Apparently, it is completely wrong (unconstitutional in fact according to the SC) to use taxation, government fees (taxation), and government handouts (Social Security, etc.) to favor heterosexual relationships, but perfectly ok to use those things to favor green energy, various forms of investment, hybrid or electric cars, and home ownership.

      2. You don’t “expand liberty” by maintaining a privileged status for politically powerful groups like churches.

  21. May 3 gay guys get married?

    May 3 straight guys get married, or must they be gay?

    May 1 female marry 3 males?

    May three brothers get married, or just two?

    May a mother marry her two daughters, or just one?

    If not, please explain why not?

    1. Because Society = Government.

      And we can’t have a society that allows those sorts of things, or the fabric of society will rupture!

      1. So, is the fabric of society more of a lyrca, cotton, wool, polyester, or something more like a Kevlar vest?

        1. 75% cotton, 25% linen, and a touch of green dye.

          1. yikes, don’t put that sucker in the dryer

          2. Or, according to Seinfeld: Half silk, half cotton, half linen.

            https://www.youtube.com/watch?v=ZuCiB9EnjZU

    2. well, I know a family that has one husband and two wives (only one legally, but they both wear rings), and it got started when the wife had an affair with the other woman. A three way, FMF marriage – and three kids

      1. Both of the women I’m with wear matching rings too. The first one (the “legal wife”) would dearly love to be with the second one, but the latter isn’t interested in such a relationship.

    3. Sure. You can marry your dog for all I care. Just don’t expect a social security check for your bitch.

  22. it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity

    Why? Most contracts are not “registered” with the government.

    Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage “deed.”

    No. Even if such contracts were to registered with the government, they could still say whatever they wanted to (within the bounds of usual contract law).

    Suppose that Osho, the Rolls Royce guru who encouraged free sex before getting chased out of Oregon, performed a group wedding uniting 19 people. Would that be acceptable?

    Performing a group wedding doesn’t imply a contract. If he wrote a contract binding those 19 people together in some financial and legal way, those 19 people all signed it, and they were competent adults, what reason does the government have to interfere?

    How about a church wedding?or a civil union?between a consenting mother and her adult son?

    What possible problem is there with an adult son and his mother making a contract about anything? If you’re concerned about them having sex with each other, that wouldn’t be any more or less legal after a private marriage contract than before.

    1. agreed. the government, more specifically the courts, only need to be brought in when there’s a dispute about the terms of a contract and they need an impartial third party to issue a binding ruling. and that court doesn’t even need to be the government, it can be Judge Judy (private binding arbitration)

    2. Can a mother and son, father and daughter, mother and daughter, father and son etc, etc, etc make a contract that grants tax-free inheritance of an estate?
      That could be a possible use of the “anyone can marry anyone” newly defined “right”.
      I’m waiting to see how Kennedy’s “love and dignity” fits in with federal laws regarding a marriage between a citizen and a foreigner to obtain residency or citizenship.

      1. Can a mother and son, father and daughter, mother and daughter, father and son etc, etc, etc make a contract that grants tax-free inheritance of an estate?

        Getting rid of such arbitrary rules is the point of privatizing marriage. That is, under privatized marriage, either these tax exemptions go away entirely, or you get to designate tax-free inheritance independent of any notion of marriage.

        I’m waiting to see how Kennedy’s “love and dignity” fits in with federal laws regarding a marriage between a citizen and a foreigner to obtain residency or citizenship.

        Again, rationalizing this nonsense is exactly what privatizing marriage is supposed to accomplish. For example, a rational rule could be that every American can sponsor one foreigner for immigration, and that they are required to be legally and financially liable for the actions of that immigrant for the next ten years. Whether you enjoy fucking the foreigner you’re sponsoring for immigration should be irrelevant.

  23. As soon as I saw the headline linked from another HnR post, I immediately knew this was a Dalmia piece.

  24. For example, a Muslim man could divorce his Muslim wife by saying “divorce” three times as per sharia’s requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere).

    That sounds like an incentive for people marrying Muslim men to get a contract in writing then, spelling out their legal property rights and the division of property in case of divorce.

    You seem to be of the opinion that if the government isn’t there to make the decisions about marriage, people are incapable of making them for themselves.

    1. or if you are a woman who wants more rights, don’t marry a Muslim man via sharia law.

      I guess the assumption is that the woman doesn’t have the reasoning faculty to think that through when she’s in love.

      1. There is one thing all conservatives, liberals, and feminists all agree on: women are weak, helpless stupid, and in dire need of protection. Thank God I’m a libertarian.

  25. I disagree vehemently with several points in this article.

    Why in the world would “Partnership Contracts” need to be registered with the State?? This is an amazing assumption. The attempt at drawing a parallel between life partner contracts and real estate title is not very well thought out. Contracts absolutely do not need to be “registered” anywhere to be perfectly valid and enforceable.

    It would hardly be a burden to flesh out a life partner contract. Remember when prenups were new? Most life partner contracts would become fairly boilerplate with customization as needed.

    On Rand, I have a feeling he is trying to serve multiple masters. Not alienate the liberty crowd without pissing off the religious social conservatives. A tough line to walk but I think he has found the correct answer here even if it’s self serving.

    The Government has no place in approving or disapproving the relationships of free people.

    1. Exactly. A single word invalidates almost everything she argues here: boilerplate. Anyone who has ever drawn up as legal document knows that almost all the wording is standardised and that the attorney’s main job is filling in a few blanks. Given that the overwhelming majority of people would be choosing heteronormative, monogamous relationships and don’t have a ton of assets to protect, most of these contracts would simplicity itself: walk in, fill out the personal info sheet, walk out with a freshly minted contract. Even for someone like me, who’s been in a plural marriage for years, drawing up wills that protect the whole family is just a matter of adding a couple paragraphs and tweaking a clause here and there. It’s not a big deal at all.

  26. What? Has Dalmia always been like this?

    She’s basically saying that removing government’s role in marriage licensing will cause government to become more involved because of the way that government is involved in marriage. That’s pretty much like the textbook example of “begging the question”, no?

    1. Has Dalmia always been like this?

      Yes.

    2. Exactly: The author took statist assumptions into the article and very quickly “deduced” a need for statist policies (circular argument or begging the question).

      If she would look through the other end of the telescope, she would clearly see that if states stop licensing marriage, then they should also remove all of the statutory privileges and duties attached to it. Issues such as tax-free inheritance would either vanish or be offered to everyone (I vote for the latter).

      In other words, instead of having two separate legal classes of citizens (married and unmarried), we could actually treat all citizens equally under the law — What a concept!

      And that word (“unmarried”) tells us what the real elephant in the room is, doesn’t it? If you think the gay community has been influential, imagine the much larger demographic of *all* unmarried adults getting organized!

  27. Given the lack of sense that Shikha Dalmia displays, sending her to Mars or Venus has definite upsides.

    This is about as anti-libertarian as it gets. When she says “those who want to expand the scope of marriage have no choice but to fight?and win?the culture wars by slowly changing hearts and minds, just as they did with gay marriage.” what she says is that the choice is only about whom will impose upon whom.

    She says the entire ideal of non-violence is nonsense that should be given up in favor of imposing “my”, “right thinking” views on everyone else. We need to “change hearts and minds” to get a democratic majority we can use to impose our view on everyone.

    So, why is she being published here? If this is the best we can do we might as well shut Reason down.

  28. This article made my dick soft.

  29. This would mean that couples would be subjected to community norms, many of them regressive, without any exit option. For example, a Muslim man could divorce his Muslim wife by saying “divorce” three times as per sharia’s requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere). Obviously, that would hardly be an advance for marriage equality.

    Thank you for confirming once and for all that Shikha Dalmia is Reason.com’s resident satirist.

  30. I’m not sure the author has actually listened to anyone’s ideas on how we might go about privatizing marriage. It wouldn’t really be that difficult at all.

    New law:
    Article 1: Replace all instances of current law where “marriage” as a word is replaced with “civil union”.
    Article 2: All parties which sign the new “civil union” registration document (the old marriage registration document) shall be assumed to be valid for the purpose thereof.

    That’s it. That’s all we need to do. On nothing but the say-so of any given two people who want to enter into a legally protected relationship status they can both sign a civil union contract and it’s done immediately. No witnesses needed or anything beyond possibly having a third party act as a witness to the signing.

    What I’ve never seen anyone saying is that government should recognize only marriages that private institutions recognize. That would, indeed, be stupid, but more than a little of a straw man.

  31. “it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds.”

    This is horseshit. Do you have to register your lease with your landlord? Do you have to register your car payment? No, contracts do not have to be registered to have validity.

    Author is a dipshit.

  32. Seriously, are you out of your friggin mind? Why would any marriage need to be registered with the government? That is putting a middle man into an equation that needs none. Jesus Christ, there is literally nothing the government does (minus the monopoly on force) that cannot be replicated in the Free Market.

    1. A claim that requires extraordinary evidence.

      If you don’t want a government marriage I don’t see why you have to get one.

  33. I do not think the author’s arguments or those she quotes hold up.

    We are supposed to be against “privatization” of marriage, where couples need to actively opt into contractual terms rather than having contractual terms imposed upon them by default – terms which can right now be altered by the parties by drafting their own pre-nuptial or post-nuptial agreements, doing private adoptions, etc. Why?

    Author says, “For example, a Muslim man could divorce his Muslim wife by saying “divorce” three times as per sharia’s requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere).”

    That’s the “marriage” the woman consented to – that’s the risk she accepted. Why should the state seek to alter that arrangement?

    The other argument is that the states and the people should be allowed to refuse to honor marriage contracts that involve incest?

    Oh, did she miss Obergefell v. Hodges? Did she miss that marriage has been cast as a substantive due process right? That is, a POSITIVE ENTITLEMENT, not an equal protection claim, and that now only federal judges have authority over whom MUST be given that entitlement and WHOM may be excluded???

    Chaos is the author’s third argument. It suggests, rather incredibly, that divining paternity is guesswork. No, it’s not. Divorce has always been a shit show. Privatization changes nothing.

  34. This is a pretty sad article to be appearing on the pages of Reason. The author seems to think the state needs to be involved in registering and defining marriages, lest they devolve into man+sheep+woman+woman unions of moral decrepitude.

    I don’t see why the state, or anyone else, should give a crap if a dozen people want to sign a private contract delineating various marital obligations to each other. Do businesses have to register every business contract with the state? Obviously not. There’s no reason that marriage contracts can’t operate under the exact same rules of jurisprudence that every other private business contract in America operates under.

    The state has no business conferring privileges or benefits to any group of people based on licenses or contractual obligations. The state has no business defining what marriage is “valid” or “moral.” As long as everything is consensual between all parties, there’s no reason for the state to become involved at all.

  35. The link at “Popularity” is the article that should be filling this space (and David Boaz, not Shikha Dalmia, is the author whom Reason should be publishing).

  36. Ouch, Reason magazine. Ouch. How could you be so ungrateful? So soon after my struggle to defend your good name within the left-leaning youth rights movement, you post Shikha Dalmia’s unthinking acceptance of the enslavement of the youth by their elders. She writes, “When a couple is in a recognized marriage, the children in their custody are presumed to be theirs?either because they bore them or adopted them.” Why should she leap to the conclusion that a child must be owned by somebody? Now that John Holt’s 1974 manifesto Escape From Childhood: The Needs and Rights of Children has been republished, Dalmia and her fellow libertarians have no excuse for their lingering hypocrisy about “minors” and the law.

    1. And why is it necessarily a good thing that parenthood is presumed anyway? How many men have been fucked over by the marital presumption of paternity? Even when a paternity test proves that the child was conceived in infidelity, the husband is usually still on the hook for child support, because the best interests of the child reign paramount.
      .
      Although that’s obviously not as unjust as the courts holding that a woman who conceived while raping a minor boy is entitled to child support because, well, it’s not the child’s fault its father’s semen was obtained though sexual assault. (Funny, that’s the same argument I make when I say a child shouldn’t have to die just because its father was an asshole rapist, but that argument doesn’t gain much traction.)
      .
      Under a system of private contract, the parties could stipulate that in the event of a conception through infidelity, the mother’s only recourse would be to sure the biological father for child support. Or the husband could choose to overlook the indiscretion and support the child if he wished.

  37. I has a sad. I signed up specifically to comment on this abysmal excuse for a hack job, only to discover that every point I had intended to raise had already been convered by my brethren — and in a far more breathtakingly eloquent strain of snark than I could have managed.
    .
    But seriously, I’ve been reading Reason over a decade at least, and though there have been plenty of times when I disagreed with the views expressed by authors here, never have I been as outraged by a piece as I piece as I was by this one. No, “outraged” isn’t the right word. Appalled is better. Appalled and embarrassed that a pile of fetid dreck this poorly written, this factually inaccurate, and this philosophically off base was actually dignified with a reprint here.
    .
    Worst of all, this puerile, facile twunt is a senior analyst at the Reason Foundation? That’s an abject humiliation to anyone who identifies as a libertarian. This author clearly has not the faintest conception of what libertarianism means or stands for. My opinion of Reason took a significant hit today, and that grieves me.
    .
    P.S. How do you insert line breaks here?

    1. This is absolutely the most ridiculous, ill-informed, ignorant article I have ever read on Reason.

      But you expressed my thoughts far better than I.

  38. Religious organizations refusing to sanction a particular marriage is not somehow onerous. You have the right to a ceremony with a loved one – but you do not have the right to compel anyone to provide it. Every ceremony that requires a third party is and ought to be conditional on finding a third party who will consent to fill the proscribed role. The situation with private marriage would be no different from the situation now – you would have some organizations who are essentially a-religious and willing to perform a ceremony for virtually any consenting adults. You would also need the approval of your rabbi, imam, or priest if you wish for that individual to participate in your ceremony. This is not some great tyranny but instead the highest form of freedom for both the priest (who can choose to participate or refrain) as well as the couple (who can choose this priest or that or none of them).

    If a priest choosing to marry only those who match his religious views is tyrannical, so is a father refusing to walk his daughter down the aisle to a scoundrel, a great aunt who is terribly busy and unfortunately cannot attend, and even the annoying younger sibling who refuses to sit still and be quiet for the ceremony.

    1. Agreed with everything, except I think you mean “prescribed role.”

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  40. I don’t know anyone that wants to “privatize marriage”. What Alabama & Mississippi have suggested is simply getting the government OUT of the marriage business. That doesn’t mean privatizing it. It just means the government would no longer be involved. Then people can go to their church, a notary, an attorney or they can simple declare themselves married between themselves.

    Where does this “privatization” concept come from? All anyone wants to get the government out of the marriage business. Then people can do whatever they like to call themselves married or call themselves not married. It has nothing to do with privatization.

  41. The idea of marrage as a buisness contract is very missleading but not entirely wrong. Despite all the baggage that has been attached to it, marrage has existed for melinea for onne simple reason. It is not about rights or priveliges but an agreement to mutuial and reciprical obligations – to each othe and ttheir offspring. Society says that theose who create human liives should care for those lives untill maturity. It is related to the very long time of human maturation from birth to independence. That means that for men it is entirely pointless, but due to reproductive technology it makes sense for women. The simple fact is that women do the “heavy lifting” of reproduction.

    Kneal Knott

  42. Stupid.
    There would be contracts – private contracts. Also powers of attorney and such. They would typically define the conditions and apportionment in Divorce which would be superior to the Misandry from the family courts.
    We already have probate for when someone doesn’t have a will. There would be similar guidelines or a more equal negotiation. No more no-fault frivorce.
    For Catholics, Muslims, and Mormons, no one is forcing either party into marriage against their will – no more than the student loan slavery which seems acceptable to many. Things hard to undo ought not to be entered into lightly.

  43. Other people have said it on here, but I’ll say it against, because it’s so egregiously false it needs a correction.

    Marriage contracts do not need to be “registered” with the state in order to be valid. Pre-nuptial and post-nuptial agreements do not need to be registered with the state to be enforceable.

    The states enforce all contracts under general and already established principles of contract law provided the state has not made such contracts non-enforceable as a matter of public policy.

    Example: a contract for prostitution services (outside of Nevada) is not enforceable by the court; “illegal” contracts just mean the contract is void as against public policy and if one party violates it, the other party cannot go get enforcement from a court.

    Sorry, but Reason needs to print a correction or clarification. Or don’t. But this shit is straight embarrassing for its falsity.

  44. “We can’t give people rights, it’s too complicated. ”

    I think that’s the gist of it.

  45. Every time I’ve rented an apartment, I’ve signed a contract. If we can come up with standard rental contracts, I don’t see why people are so flummoxed by the question of how to create standard marriage contracts. It’s not that hard.

    The idea that if we get government out of marriage then religions will be able to enforce oppressive marriage regimes just betrays a fundamental lack of understanding of libertarianism. Religions don’t get to initiate the use of force just because they’ve done so in the past.

    That said, Dalmia is right that some people are only bringing this up now because of homophobia. But you have to distinguish between libertarians who have been saying “get the government out of marriage” for decades and “libertarians” who have just taken up this cause when SSM became inevitable.

  46. There are so many uninformed, ridiculous comments and conclusions made by this author, that for the first time I registered with Reason to comment, rather than continue lurking as I have for years now.

    After completing the process of signing up and logging in, I reread the article; realized this article is so poorly researched regarding the concept and the history of marriage that wasting my time to respond to any bit of nonsense written by Dalmia here was giving it too much of my time.

    Writing in from Colorado: common law, common law marriage,common law agreements, common law wills and on. (ie, keep the government, and the lawyers, out of our PRIVATE lives, and out of our pockets.)

  47. This author is just plain wrong. There is no requirement to ‘register’ contracts with the government. A marriage isn’t a deed for real property, nor is it remotely analogous to it. The only involvement the government would have is in the event of a breach of contract when it went to court. So the analysis is a little silly and ignorant of how contract law works.

  48. This article is anathema to basic libertarian principles of self-ownership and personal freedom. I would refer others to David Boaz and the Cato Institute’s position on this issue.

    I’d like to see an article describing the process by which content is approved for this web site — who approves it. I’ve read Reason since I was a teenager and am well versed in libertarian philosophy. The article does not even note or concede that this is an unconventional position in libertarian circles.

    Marriage has also become an unequal proposition typically, between the sexes. How many women have been ‘taken to the cleaners’ vs how many men? How many women are paying child support?

    Why don’t you generate an article on MALE reproductive rights? A woman can choose to carry a child and force a man to support it through the State for 18 years; the man has no veto right to support the child, if she simply decides not to take a pill. Is this what we should have by default?

    Common Law marriage is WRONG — just because you cohabit doesn’t mean you should be forced into a one-size fits all Marriage 2.0 contract. Marriage 2.0 = marriage after 1970’s no-fault ‘reforms’ to divorce laws. Marriage is typically a raw deal for men, so they are opting out of it.

    1. Cohabitation is not common law marriage.

  49. The essential problem here is that, widespread assumptions/misrepresentations notwithstanding, marriage is not a “contract” at all in the common law sense of the term in that it is unenforceable — the sine qua non of any valid legal agreement.

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    http://www.jobnet10.com

  52. The author forgets, at one time in history government had NOTHING TO DO WITH MARRIAGE. So its possible, the state needs to get out, sorry. End of story. The only reason why state governments started licensing marriage in the first place was to keep races from intermarrying.

  53. I can write all manner of contracts with someone else and as long as they are able to consent to the terms of the contract, I can then take that individual to a court if they do not abide. I don’t need a government-standardized contract form to make sure it’s legal and enforceable. All I need is a standard definition of what constitutes the ability to consent.

    But that’s really a moot point, because marriage is not a contract unless there’s a prenuptial agreement. In other words: marriage isn’t a contract, but you can make a contract with someone that begins when you perform the act of marriage. Absent that, the only reason I can think of to see it as such in and of itself is because of the preferential treatment that married couples get from the government. Which is a problem created by the government, not by marriage.

    In essence, you’re saying that because the legislature has created a holy shit storm of fucked-up loopholes and regulations regarding all personal interactions from business to the bedroom, and having a marriage license can help groups of consenting adults navigate that shit storm with a tiny bit more ease, that the only solution is to pile on more fucked-up loopholes and regulations.

  54. The author does not know the law. In many states, general partnerships can be created without government intervention. No registration or permission is necessary. In those situations, the government only gets involved in determining what evidence is required to prove that a partnership exists, and establishing the default rules for the rights and obligations of partners, which partners can mostly agree to modify. See Texas’ current law at the link below.

    http://www.statutes.legis.stat…..tm#152.052

    A better alternative to the culture war would be advocating a truce aimed at achieving freedom of conscience in each state, and then in the US at large.

  55. to the people saying that current corporate and contract law can cover for marriages

    you’re wrong.
    Any terms of a contract involving sex, fidelity, child rearing/custody or other social things are outside the realm of contract law and will not be upheld.
    There really is no framework for contractual marriage

    Of course, that’s a problem of the stubborn state, not contracts and libertarian ideas generally.

  56. I think privatising marriage is a great idea. I want to see a contract in front of me, spelling everything that I want to know about what I’m getting into. I want to see what responsibilities I have and what benefits I’m getting, or be able to negotiate the marriage terms

  57. The comparison to property is nonsense. As is the “issue” of community standards (including religions). Marriage would be a contract like any other (inter partes), not a right in rem. The state would enforce whatever the parties agreed to. Whether the couple (whatever the number) want to use standard form contracts (community standards), recombine and create something ecclectic, or formulate each clause themselves is of no import. That’s simply choice of law, as when business partners decide bewtween German, Swiss, US, or Chinese law.

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