Is It Finally Time to Get Government Out of the Marriage Business?
Elected officials cannot be fired, which makes it that much harder to hold them accountable.
Americans everywhere learned this week just how hard it is to hold accountable an elected official who flagrantly violates the law.
Kim Davis, the duly elected clerk of Rowan County, Kentucky, has been held in contempt of court by a judge and sent to jail for continuing to refuse to issue marriage licenses to same-sex couples. Many onlookers, including Reason's Scott Shackford (who, needless to say, supports gay marriage), are discomfited by this. Not only does it seem needlessly heavy-handed to bring the carceral state to bear, but it has transformed Davis into a martyr in the eyes of many same-sex marriage opponents. (And if you doubt, as I did, the extent to which that's true, take a look at this screed from Christian blogger Matt Walsh and be enlightened.)
Consider that the reason the federal judge in question felt compelled to have Davis jailed is that so few other remedies were available. Davis disobeyed two court orders and a (non-binding, apparently) command from the governor to hand out marriage licenses to all eligible couples. She explicitly refused to carry out one of the key functions of her job. But elected officeholders are not employees and cannot, therefore, be fired. Kentucky makes no provision for a recall election, so the people would have to wait until her term expired to punish her at the ballot box, and no other official has the authority to remove her from office, even for breaking the law. Impeachment proceedings, while theoretically possible, turn out to be vanishingly rare in that state and, in any case, do nothing to resolve the issue in the short term.
The whole foofaraw should serve as a reminder that putting government in the marriage business was probably a bad idea to begin with.
It's exceedingly easy to hold private organizations and individuals accountable for their actions. Business owners can (or ought to be able to, anyway) terminate employees. Workers can walk out on employers. Donors are free to alter their giving patterns, and consumers are free to organize boycotts and public relations campaigns to punish or reward businesses and other civic organizations. If you don't like a particular church's definition of marriage, you can go to another one. If a service provider won't accept your definition of marriage, you can take your money elsewhere.
The more of the business of life we can place in the sphere of voluntary relations, the less likely will be messy situations like the one unfolding now in Rowan County.
I won't go so far as to say that getting rid of government marriage licenses is the libertarian position—there are dissenters, including Reason Foundation's Shikha Dalmia, and skeptics including Shackford—but it's a pretty common one that Reason has written some about over the years. Maybe it's time to start seriously thinking about how to make it happen.