Coronavirus

Do COVID-19 Complications With Marriage Licenses Show It's Time To Get the Government Out of Marriage?

Post-pandemic deregulation will be more complicated than it looks.

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At the end of April, New York City announced "Project Cupid," an emergency measure which moves the process of obtaining a marriage license online via video conference. Normally, New York state requires couples to obtain these licenses in person, but the COVID-19 pandemic has required a workaround. "We need moments of joy now more than ever," said Mayor Bill de Blasio, "and we won't let a pandemic get in the way of true love." 

Touching stuff. Unfortunately, more than two months later, New Yorkers are still struggling to book their licensing appointments since the city clerk's office has a huge backlog. For couples with an urgent reason to wed, this is untenable: A couple profiled in The City's report on the situation finally eloped to Maryland, à la The Philadelphia Story, because the husband was set to lose his health insurance and the wife worried her work visa would no longer be enough to avoid deportation. They couldn't wait on a local license.

This sort of delay isn't unique to New York. In Galveston County, Texas, marriage license requests have more than tripled because nearby cities and states are simply not licensing quickly enough, if at all. Likewise, some local governments have delayed issuance of pet licenses and tree-trimming permits; more seriously, some have halted building inspections, prolonging or effectively suspending construction work.

All such coronavirus-induced malfunctions of governance should occasion reexamination of whether we actually need many of the regulations shaping our daily lives. The pandemic has already prompted fresh scrutiny of alcohol laws, medical testing rules, occupational licensing, and more. But marriage licenses, the most intimate of the lot, deserve particular attention. The state should not be involved in marriage—not licensing, conducting, or defining it.

The practical case is obvious: There are likely thousands of people in America right now who want to be married and can't be because they can't get in to see their city clerk. Even amid such unique circumstances, this is absurd and unconscionable. No one should incur medical debt or deportation solely because the state is unable or unwilling to dole out official marital legitimacy.

The bigger principle of privatizing marriage, however, is that it concerns a fundamental and pre-political human right. The decision of whether and whom to marry must be made by those who are marrying "before God and these witnesses," which is to say, in the context of their families, friends, and religious communities (if they have them). It is not for the state to determine, but historically, marriage licensing was a blatant tool of social control.

These licenses in America date to the 19th century, when they were developed as a means of forbidding unions deemed undesirable, which often meant interracial unions back then. With bans on interracial marriage gone and gay marriage legalized, the licenses today may seem but a rubber stamp on the free choice of two consenting adults. Yet, as many couples are learning now, that stamp is not guaranteed. Unforeseen circumstances may interrupt. New or renewed restrictions on who may marry certainly seem unlikely, but they're not wholly inconceivable. (See, for example, Bermuda's ongoing gay marriage whiplash.) With state authority over marriage intact, there's always a chance that authority could be misused.

But saying "privatize marriage" is not the simple solution it may sound. Any credible argument for it must begin with concession of the point, often raised by skeptics, that so much of our government and financial system uses marriage as a legal shorthand. Eliminating the state's regulatory authority here—which at the federal level alone entails "more than 1,100 rights [and] responsibilities," to say nothing of state and local regulations and layers of common law—would throw all that into disarray.

Calling for privatized marriage in a meaningful sense is ultimately determining to dismantle regulations until state control over marriage wouldn't be needed to make the transformed system work. We shouldn't downplay the scale of this idea—there's an entire libertarian agenda crammed inside this horse.

It's an agenda which reflects the reality of changing attitudes toward marriage: Visions of privatization (in retrospect, including my own from before Obergefell v. Hodges) don't always recognize just how many spheres of life and law the proposal would affect, but critics who focus on how marriage now fosters stability and protects children seem to forget marriage rates are plunging, and nearly four in 10 babies in America are born out of wedlock already.

This agenda also has the merit of sidestepping many of the culture war fights over religious liberty and gay marriage which continue apace five years after Obergefell. Coexistence between Americans with deeply held, differing views on sex, gender, and marriage could be less fraught, and fears about curtailment of religious practice much allayed, were the sanction and force of the state removed from play. 

But what if you assume, as I do, that the entire libertarian agenda stuffed into "privatize marriage" isn't in our near future? Well, we could at least address the immediate problem: Smooth the application process for the duration of the COVID-19 pandemic, and then keep it that way. Let people obtain marriage licenses online or by mail. Nix waiting periods and interviews—which aren't universally required—and make the fee as small as possible. We may not disentangle the state from marriage any time soon, but we could limit the harms perpetuated by its licensing scheme.

NEXT: Conviction of 17-Year-Old Girl for Threatening Her Mother Reversed

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  2. At this point if you don’t want government in your marriage you need to not let them in and forego the government bestowed “benefits” of the marriage.

    A license to marry!! And we think we’re free in America….

  3. >>For couples with an urgent reason to wed

    lol marriage already meant very little. add “administrative necessity”

    1. They just can’t wait to get totally fucked on their taxes

  4. Gee, if only marriage was a religious institution that government is not allowed to “establish”.

  5. I think Privatizing Marriage is what should have been the correct result of Obergefell v. Hodges. Yes, it would have thrown a bunch of laws & regulations into confusion pending correction. These should never have been established this way in the first place.

  6. “we won’t let a pandemic get in the way of true love.”

    “But the government response to a pandemic — well, our hands are tied.”

  7. “Git the government out of marriage” suddenly stops making any goddamn sense when it’s not being used as a fig leaf for homophobia, doesn’t it?

    So people are still free not to marry and not deal with any of the government trappings of it? People can call themselves married nonetheless and nobody’s gonna throw them in jail for it? Oh, okay, just like always.

    So what we’re talking about is government getting out of the business of government-recognized marriage, I guess.

    1. What we are talking about is the mass of laws and tax rules that we passed on the assumption that a ‘family’ was a mother, a dad, and a few kids. And of course the ridiculous thought that the government needed to “help” marriages out for the good of the children/community.
      You know; trivial things like inheritance, medical decisions, property, and all that jazz.

      1. You want to get government out of disputes over inheritance and property?

    2. Tony, it was my undying love for gay men that caused me to warn against gay marriage. Why do this to yourselves! Our gays are too precious for marriage!

      1. Marriage is a patriarchal relic that seems to cause more misery than joy, but I don’t fancy buck-toothed breeders having more rights than I do.

        1. Matriarchal in my culture and religion. It was the only thing women had to have property and rights for offspring.

          Does not matter so much these days.

          Long been a libertarian principle that government should not be in the marriage business. I still agree with it.

          I tell anecdotes. When we got married, long time ago, you filled out a bunch of papers, went for a blood test, went personally together to the clerk of courts and presented them all.

          We were there and the clerk puts up her reading glasses, looked at us, looked at the papers, stamped a few things, and handed us something back. I said “so are we married now?”

          She looked back exasperated over her glasses. “No you are married when (she looks back over the forms) Rabbi G… says you are”

          We still are. End of story.

        2. > buck-toothed breeders
          That’s racist

  8. Yes, get government out of the marriage business. It would require a re-write of all the laws that surround the benefits of marriage, but I am ok with that.

  9. Marriage should be looked at as a contractual partnership between two people. They agree on the marriage contract and are bound by it. The contract terms will confer what we now consider the benefits of marriage.

    1. And, what happens when the contract is to be broken and the two parties disagree on how the divisions should be made?
      That’s right, it will have to go to – you guessed it – the government, namely the courts, whose first question will be “was the contract done properly, in the first place” – AKA government approving how the marriage began.
      That’s one of the reasons government is involved in the beginning of marriages – because it is definitely involved in how they dissolve.

      1. Disputes would be settled by the courts just like any other contract case. The question of if the contact was done properly is important, but not in any way different then other contracts.

  10. We just got the government into Gay Marriage and now you want to take it out? I feel like a compass near north!

  11. You should be able to marry whoever or whatever you want. IDGAF if you marry your dog, but don’t get my tax dollars involved when that bitch cheats on you.

    1. Can a father marry his son, to avoid inheritance taxation?
      Don’t forget; marrying someone doesn’t mean you have to have sex with them.
      In literal terms, homosexuals never have sex. All they do is forms of mutual masturbation.

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  13. Why can’t people just tell the state they’re married and claim whatever consequences and benefits that entails? Permits aren’t required for the legal architecture around marriage to persist, simply witnesses (which all marriages have – at the very least, whomever performs the marriage for the couple). After all, before creating marriage licenses in the 19th century, common law still recognized a lot of rights and obligations accompanying marriage, even though the state wasn’t involved in regulating who was married.

    Dismantling any or all of that legal architecture is a separate topic.

  14. ” . . . free choice of two consenting adults . . . ”

    Why only two? Haven’t we progressed yet?

  15. Government can and should get out of marriage licensing. But it can’t get out of all involvement in marriage unless courts refuse to take cases on the subject, and family law is eliminated. If you want anomistic anarchy on the subject, consider the consequences.

  16. Repeal and abolish all marriage laws. Ron Paul addressed the issue well:

    “I think the government should just be out of it. I think it should be done by the church or private contract, and we shouldn’t have this argument,” he said recently. “Who’s married and who isn’t married. I have my standards but I shouldn’t have to impose my standards on others. Other people have their standards and they have no right to impose their marriage standards on me.”

  17. “…critics who focus on how marriage now fosters stability and protects children seem to forget marriage rates are plunging, and nearly four in 10 babies in America are born out of wedlock already.”

    This doesn’t even make sense. Of course the “critics” mention the illegitimacy crisis.

  18. Marriage seems like a great place to start getting rid of government. Think of the all the trouble we could have avoided if we had done this in the 1990s. If instead of “Marriage is between a man and a woman” we had said “Marriage is not the business of the government”. No court cases, no county clerks trying to prove a point, no pointless referendums to excite the base. This is a wedge issue we did not need.

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