More on Privatizing Marriage

Here's a list of questions that libertarians ought to ponder.


Over at The Federalist Stella Morabito picks up on my piece pointing out the logical inconsistencies in proposals to

Gay Marraige
entrelec / Foter / CC BY-NC-SA

privatize marriage and asks five additional questions that serious libertarians ought to seriously think about (with the exception of Number Four). She notes: 

1. How does lack of state recognition of marriage—replaced by a system of domestic partner contracts—actually shrink government involvement? As Dalmia notes, these partnerships still need to be authorized, recorded, and registered by the state, all according to government regulations. Trading in the simple marriage license for a system of contracts seems akin to trading in a simple flat tax for today's Internal Revenue Service tax code. The government is and will be deeply involved in the law, rules, regulation, and enforcement of contract law. So, please explain and demonstrate how the government's role in our lives would be minimized by ending state-recognized marriage. (Emphasis added.)

2. How would you deal with possible legislation to license all parents, including biological parents, once the state no longer recognizes any union, including that of biological parents, as marriage? As stated above, the loss of state recognition of their union as anything more than an ordinary contract will deprive biological parents of the presumption of custody. This scenario seems to open us up to more state meddling in family life, as well as meddling by other parties—particularly when it comes to the child custody.

3. How does privatizing marriage preserve spousal immunity? At present, the government cannot force you to testify against your spouse. That is currently the law in all 50 states. But once the state no longer recognizes you and your spouse as a family unit—only as partners in an ordinary business-style contract—the case for spousal immunity significantly weakens. After all, what's the rationale for immunity if a "marriage" is no more special than an ordinary contract, and "spouses" are merely associates, individual parties to ordinary contracts? It seems clear this would invite more state intrusion in family relationships, not less. It would invite less privacy, not more. If you disagree, please lay out your plan for preserving spousal immunity in a system without state-recognized marriage.

4. What do you make of the fact that Sunstein, the Obama administration's regulator-in-chief from 2009 to 2012, argues for essentially the same plan? Sunstein is a long-time advocate of policies that grow government. He's a big fan of nanny-state style "nudging" intended to modify everyone's behavior. Clearly, your intent for limited government deviates about 180 degrees from his intent for big government. (Ditto with Fineman's project to end state-recognized marriage.) So it's worth connecting a few dots and figuring out what actual path the abolition of civil marriage puts us on. Sunstein has thought this issue through for a very long time and he no doubt sees a road to bigger government. Explain how he is incorrect.

(My response: Even a broken clock is right twice a day. In any case, it is by no means clear to me that Sunstein et al's sole purpose in life is to increase the size of government. I think he in particular and liberals in general view limited government instrumentally not normatively. They'll use it when it advances their preferred social ends and discard it when it doesn't. So I do doubt that he necessarily sees it as a "road to bigger govenrment.")

5. How would abolishing state-recognized marriage promote freedom of association for all? The family serves as a buffer zone, or mediating institution, between the individual and the state. But logically, if the government does not have to recognize your marriage, it does not have to respect it. It does not have to recognize your family relationships at all, or your family as a unit. You are merely a separate party in an ordinary contract with someone else, as far as the state is concerned. While the contract with your associate might mutually recognize one another as a "spouse," and claim that your biological children are "yours," the state isn't bound to do the same. And this legal separation in the eyes of the state is destined to reverberate through every other personal association in society. Please explain how abolishing state-recognized marriage protects the family and helps insulate individuals from an increasingly Leviathan state.

Excellent questions. My own feeling, as I noted previously, is that those who think that privatizing marriage would eliminate the culture wars by absolving individuals from gettting a social buy-in for their marital choices will be disappointed. Privatization won't take the state out of marriage, it'll simply push its involvement — and the concomitant culture wars — to another locus point.

In other words, turning marriage into a contractural arrangment between consenting adults might seem good for limited government in theory. In practice, however, it will eliminate those aspects of marriage that keep the state out of our hair — and introduce those aspects that invite it in.

Read Morabito's full piece here.

Update: Those of you engaging in vicious name calling, Dear H&R readers, because I don't engage in ad hominem reasoning and dismiss good arguments simply because a social conservative is making them, might also want to look at this excellent 2013 post by Scott Shackford, "Why the United States Can't Divorce Marriage," in which he quotes the uber-smart legal libertarian scholar Richard Epstein voicing his frustration over the simplisticness of libertarian calls to privatize marriage. They do not appreciate the severity of the legal tangles that would arise, he said.

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

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

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

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

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

OK — back to your name calling!