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Getting the State Out of Marriage

A brief history of love, money, and power

We recently got married. Well, technically, we got married twice.

One fine day this spring, we put on nice clothes and publicly performed the rites and rituals recognized by our families and community as a wedding ceremony. As part of the day's events, we signed a Ketubah, the traditional Jewish wedding contract. Historically, the Ketubah included the groom's promise to provide "food, clothing, the necessities of life, and conjugal needs" for the bride, along with a statement of the dowry the bride brought to the marriage. Modern versions are often more egalitarian. Ours included a mutual promise to "work for one another," "live with one another," and "build together a household of integrity." Ketubot are typically beautifully calligraphed works of art, and we spent a lot of time choosing the right text and design for ours. It was witnessed by our rabbi and by two beloved friends. It hangs in our bedroom as a reminder of the commitment we have made to each other.

We also got married in the eyes of the law. Our state marriage license was printed at the city-county building on cheap paper after the clerk checked our IDs, filled our names into the anonymous blanks in the same text every other couple has to use, and gave us a pamphlet about syphilis. We had no say in the wording or the witnesses. We keep that license in the safe deposit box at the bank with our mortgage and the titles to our cars.

The contrast in the thinking behind our two marriage documents, and in how we have treated them now that we have them, captures the difference between thinking of marriage as a mutual contract and thinking of it as a license from the state. It's the difference between a relationship that requires consent and one that requires permission.

If you hang around with libertarians long enough, you'll almost certainly hear someone ask, "Why can't we just get the state out of the marriage business entirely?" Until two years ago, when Obergefell v. Hodges settled the question, you'd occasionally hear a certain stripe of libertarianish conservative call for privatizing marriage too, sometimes on principle and sometimes as a dodge around the question of whether the federal government should recognize gay unions. Sen. Rand Paul (R–Ky.), for instance, has long said, "I don't want my guns or my marriage registered in Washington." The Alabama state legislature has considered proposals that would more or less end the licensing of marriages in the state, presumably not because of a deep commitment to limited government.

As libertarians, we would prefer to deal with the government as little as we can, yet we still chose to involve the state in our marriage. The reasons we did so can shed light on the challenges involved in extracting the state from this institution, and also on why such a change might be worthwhile.

Cupid by Contract

What does it mean in practice to say we want to get the state out of marriage?

One problem is that state marital provisions are one-size-fits-all, as with our fill-in-the-names-and-sign-here marriage license. Actual 21st century marriages are much more idiosyncratic—the wide range of pre-nuptial agreements demonstrates this, as does our personalized Ketubah. Many people might want the flexibility in marital arrangements that privatization allows. Writing in Slate in 1997, the Cato Institute's David Boaz imagined a kind of standard contract, much like a standardized will, that would work for many as-is but would also allow for more detailed arrangements. One can even imagine marriage contracts that are renewable at 5- or 10-year intervals, allowing couples to part ways amicably without many of the financial and emotional costs of divorce.

Economic arrangements could be varied along a number of dimensions, including considerations for children, agreements about how money will be spent, and worst-case-scenario planning for illness, death, or divorce. People could choose to have a religious wedding, with a contract designed by the institution in question, along with specifications for divorce and the rest. All of these kinds of contracts would be enforced through common-law mechanisms, with judges interpreting the texts and building up a body of legal precedent about how to resolve disputes. We could also imagine marriage certification services (Marital Underwriters Lab? BridalZoom.com?) who check over simple contracts for those who don't want to use a lawyer or a church.

Full privatization also implies that marital status must be irrelevant to the provision of government benefits. Otherwise, the state would still have an interest in how marriage is defined. Truly private marriage would allow for whatever variety of arrangements people desire.

Privatization of this sort might be especially attractive to those whose relationships currently do not have legal status. Plural marriages are the obvious example. Religious institutions might also support privatization, as it would enable them to have their own set of marital rules without fear that the state's requirements would force them to act against their beliefs. Tailored contracts, especially if such contracts became relatively standardized for particular kinds of partnerships, might be appealing to the very wealthy or to those with child custody complications. If such contracts included provisions for private arbitration (or even marital counseling), this might reduce some of the costs of divorce, making them attractive to all kinds of married people.

Marriage Without the State

Historically, human beings have found a variety of ways to define and regularize marriage that don't require a license from the state. Such systems had the usual advantages of stateless orders: They offered more variety, they were more flexible, and they were more responsive to local needs. The problem was that these forms of marriage worked at a time when others in the community played a much larger role in determining not just what counted as a marriage but who could get married. Could the regularity and social enforcement required for functioning informal institutions exist in a 21st century context, when marriage is considered a much more private institution? It's an open question.

For most of human history, for most people, marriage was a way to ensure that they and the communities they inhabited were able to survive economically. When most humans lived at the margins, ensuring that there was sufficient labor to work the fields or run the family business was essential. Marriage provided an economic partnership for organizing production, and the ability to raise children together meant that those children could contribute to that production process.

Because of the community's interest in ensuring good marital matches, what counted as being married was decided in decentralized ways by particular communities, especially among the poor. Marriage was much more a matter of custom than of formal rules. Permissions came not from a magistrate, but from neighbors and kin. Arranged marriages can be seen as an extremely strong form of permission, where parents or others possess an exclusive right to contract a marriage for their heirs, even when it overrides the desires of young people. More commonly, that right to grant permission was used to veto a marriage rather than to force one.

But in the West at least, marriage has been a matter of consent between partners for a very long time. As far back as the Magna Carta we find specific language protecting widows—a particularly vulnerable category—from forced marriages. But consensual marriage still required permission from parents, relatives, and community. What's more, consent is not the same thing as love. Consensual marriages based on economic and political concerns were the standard up until the last 200 years or so.

Until then, customary practices predominated, especially in remote areas where the reach of the state was limited. The practice of "jumping the broomstick" as a public indication of intent to marry was common among slaves in the American south, but also had a long history in other communities as well. Some communities recognized jumping backward over a broomstick as an intent to divorce. Medieval Ireland's rules for marriage were part of a legal system that operated outside of a formal state. There were 10 different forms of Irish marriage, most of which depended on what each partner brought to the union in terms of property. Property mattered, as it did elsewhere, because it defined the rights the person had with respect to divorce as well as the rules governing inheritance. There were also a series of fines for a variety of classes of illegal marriages, including marriage by stealth, abduction, or rape. Scotland's famously relaxed marriage laws allowed for a much lower age of consent than in England, and permitted nearly any adult to perform a marriage between two consenting individuals. Dramatic scenes of elopements to Gretna Green thus became a feature of the English novel and of English life.

There is no specific moment when marriage became defined by the state rather than private institutions. In part, this is because church and state were so intertwined for so long.

Going to the Chapel

Today we think of churches as being part of civil society, and those who propose the privatization of marriage are generally insistent that houses of worship should be able to determine their own rules for the marriages they will chose to sanctify. If houses of worship do not wish to marry same-sex or interfaith couples, that's up to them.

But through much of history, the line between church and state that allows for such nuance was nearly nonexistent—in part because the church frequently acted like a state. The church's rules covering marriage enjoyed the force of law, so much of what the church did was equivalent to state involvement. And the church's numerous rules about who could marry, divorce, remarry, and adopt often were designed to work to the church's material benefit.

For example, for a long time one could not marry a relative closer than a seventh cousin. There is no biological justification for such a rule, and you can imagine how difficult it was to provide proof that a couple wasn't breaking it. So the church sold indulgences to waive the rule, which was a convenient source of revenue. Similarly, the church's centurieslong prohibition on adoption was a way to ensure that childless couples did not have heirs and would be more likely to will their property to the church. Rules against remarriage for widows also made it more likely that property would go to the church while creating a class of women who could become nuns. This is likewise why the church prohibited the Jewish practice of levirate marriage, where a widow would be expected to marry her dead husband's brother to keep her property in his family.

It's tempting to simply propose that governments accept as valid any marriages performed by other private institutions, but this only shifts the battle one level higher. Which institutions would count? Are evangelicals going to stand for plural marriages in the Church of Satan? Will progressives accept arranged marriages between much older men and very young girls?

In the 12th century, the Catholic Church attempted to require that marriages be solemnized in a church, but that was unenforceable in a world where tradition saw, in the words of historian Stephanie Coontz, "mutual intent or the blessing of a parent sufficient" for that purpose. What constituted mutual intent varied across time and communities, early on requiring mutual promises followed by sexual intercourse, but later requiring only the exchange of vows. By 1215, the Church required three things for a marriage to be valid: (1) a bride with a dowry; (2) announcements beforehand of the intent to marry; and (3) marriage in a church. Even here, however, the state played no official role, and other religious groups had their own traditions for what constituted a valid marriage.

The Protestant Reformation meant that states were increasingly closely identified with the particular sacramental practices that were legal within their borders, so the distance between church and state narrowed. No longer competing institutions, the church and state were often nearly synonymous. Enlightenment thinkers' insistence on creating separation between church and state pulled the two apart again, but the more secular world of the Enlightenment meant that the balance of power had shifted. Modernity meant that, in the West, the state took primacy over the church in many matters that had previously been primarily theological—including marriage.

Marriage, American-Style

In the United States, family law, including marriage law, has long been the purview of individual states. But in 18th and early 19th century America, those laws were difficult to enforce in the face of communities where established customs defined marital status and where clergy were often rare visitors.

Historian Nancy Cott reports that despite marriage laws, "informal marriage was common and validated among white settlers from the colonial period on." Couples who met community standards more or less married themselves, demonstrating the continued importance of consent rather than the law. Cott adds that "cohabitation and reciprocal economic contributions" also mattered for indicating that a couple was married, but that "consent was the first essential." Before the state's reach became sufficiently great, communities were much more concerned about whether pairs were functioning as married couples were expected to function than whether they had followed the formal rules of the state or even the church.

Even in these situations where the state was mostly absent, marriage was not a matter of "anything goes." The standards for determining a valid marriage were self-policed by the communities in question. Where law and customary practice conflicted, even to questions of tolerating divorce or sex outside of marriage, customary practice that permitted such things under the right conditions often won the day. Some of the communal norms about defining marital status were strong enough that they became codified by judges in case law. "Informal marriage was valid unless it was specifically prohibited," writes Cott. In cases where judicial intervention was needed to determine if a couple was married, judges generally deferred to community norms about what counted as married, operating on the assumption that couples who were cohabitating and otherwise acting like a married couple were properly considered one, absent clear evidence to the contrary.

It's tempting to think that a 21st century version of privatized marriage could simply recreate this world. However, the increased heterogeneity of human beings and their romantic relationships has made a single, common norm of marriage unsustainable, requiring that society move from informal, communal norms to some more explicit and formalized contractual relationship.

To this day, states and comparable jurisdictions have wide latitude in defining the rules for marriage and divorce. Until 2008, for example, the District of Columbia required a blood test for syphilis in order to get a marriage license, while neighboring Virginia and Maryland did not. Alimony and child support rules differ widely from state to state as well. In a fashion not unlike those Gretna Green elopements, it was common for couples to cross state lines to marry or divorce in states whose laws were more amenable to their individual circumstances. Several dozen movies between 1910 and 1947 focused on the infamous ease and convenience of the divorce laws in Reno, Nevada. And one of the reasons the economist F.A. Hayek took a job in Arkansas when he first moved to the U.S. in the 1950s was to take advantage of the state's liberal divorce rules.

Marrying Like a State

We got married for a complex but fairly ordinary list of reasons.

We wanted to spend more time enjoying life with the person we loved best. Steve wanted someone to edit his prose. Sarah wanted someone to organize her chaos. We wanted to raise our two sets of kids together, to work together, to be there for the other in case of emergencies, and to ensure that we had a legally acknowledged relationship for financial and medical reasons. We also wanted to model a committed and loving relationship for our children by formalizing our promises to one another. We wanted to combine our households and our lives for fun, for pleasure, for efficiency, and for the sake of our budgets.

Given all these self-interested reasons that we, and other people, get married, why should the state determine who counts as wed? Even if we agree that marriage is good for the people getting married and that maintaining the institution is good for society because it contributes significantly to better child raising, why is it licensed and controlled by external authorities?

For an answer, look to the self-interest of state actors. The power to define the terms of marriage is the power to raise revenue, incentivize behavior that benefits the organization, and determine who is eligible to receive the benefits the organization provides. In Seeing Like a State, his study of the state's power to organize and manipulate its citizens, James Scott argues that governments and similar institutions need to impose categories and rigid, artificial organizational schemes on people in order to accomplish the institutions' various goals. Once the state imposes those categories, they become part of how we think about what those categories are organizing.

The state's increased role in defining what counts as marriage, even as the state has reduced restrictions on who one can marry, has happened in parallel with the growth of state involvement in many other aspects of people's lives. The state's interest in defining and approving of marriages is entangled with the role marital status plays in a host of government programs. When privatizers call to remove the state from marriage, it sounds as if there's only one plug to be pulled; in fact, there are thousands. As long as those programs exist, and as long as they depend to some degree on a clear definition of marital status, the state is unlikely to get out of the business of defining marriage.

This becomes the dilemma. The battles over marriage, including future debates over plural marriage, can indeed be defused if they are de-politicized. But as long as marriage matters for so much else, it cannot be de-politicized.

It's tempting to simply propose that governments accept as valid any marriages performed by other private institutions, but this only shifts the battle one level higher. Which institutions would count? Are evangelicals going to stand for plural marriages or weddings in the Church of Satan? Will progressives accept arranged marriages between much older men and very young girls? When governments need to know marital status, marriage cannot be de-politicized.

The American government's burgeoning role in marriage has always been driven by a succession of social issues where control over defining marriage was a trump card. In the 19th century, the most obvious examples were slavery and race. Roughly half of the original 13 colonies prohibited interracial marriage. By the end of the Civil War, the vast majority of states did so. Far more states criminalized interracial marriage than interracial sex, and interracial marriages were one clear exception to the law's deference to community-based informal norms. Even if interracial couples met all of the local expectations, they did not get the exemption from the law that white couples usually did. Maintaining this racial inequality even as social norms worked to change it required the full force of the law. Over the course of the 20th century, some states rescinded their laws and many others enforced them only selectively until the Loving v. Virginia decision overturned them all in 1967.

In the 20th century, as always, the definition of marriage was closely tied to economics, but with the new twist that the state was providing many more incomes. "Marriage bar" policies of both governments and private employers early in the century prohibited hiring married women, making marital status a way to control women's behavior and enforce a particular vision of married life. A number of New Deal programs (including Social Security) used marital status as a way of determining benefits, so individual states had to clarify their marriage procedures and ensure that they were followed. A federal policy during the Depression that no family could hold more than one government job made marital status more of a concern to Washington.

The history of the U.S. tax code has been deeply entangled with marital status. In his history of the tax code's effects on women, Taxing Women, tax law scholar Edward McCaffery explains how various changes in rates and filing status have reflected the attempts by politicians and others to privilege the "traditional" male-headed single-earner household. Joint filing under the current tax code creates a "secondary earner bias" that causes the spouse whose labor force participation is more marginal to have his or her first dollar taxed at the same rate as the last dollar earned by the primary earner.

As women are far more likely to be the secondary earner, this feature continues to discourage married women from working even as it encourages marriage among people with higher earning capacity. For high-earning couples with relatively equal incomes, getting married means a higher tax bill than staying single, while high-earning couples with disparate incomes see lower taxes if they marry. These features create incentives, at least on the margin, for a particular type of marriage.

On the spending side, marriage matters for eligibility and benefit levels for a large number of government programs. In the mid-1990s, the General Accounting Office reported 1,049 federal government laws that recognize marital status. To the extent that marriage reduces benefit levels and increases the tax burden for poorer couples, the combination of the two discourages marriage among the poor.

The structure of the Earned Income Tax Credit (EITC) means that for many poor couples, marriage means a reduction in benefits. Unmarried parents can both take advantage of the family EITC, and the one without the resident child can also get the childless worker EITC. Married parents, meanwhile, are not eligible for all three credits. The power of the state to define who is and is not married has implications not just for the financial situation of potential partners, but for the viability of the institution of marriage and the corresponding social benefits it brings.

The fight over same-sex marriage illustrates many of the same themes as the shift of heterosexual marriage. The broader cultural move of marriage from permission to consent, and from economic to companionate unions, gave same sex-couples even more grounds to wonder why their partnerships remained unsanctioned. But the consent of marital partners still required exogenous permission from the state, so the same-sex marriage question was inevitably a political question.

As the political battle grew, libertarians were quick to suggest that such battles were unavoidable as a result of the state's role in defining marriage. A number of libertarians argued for eliminating the state's role in marriage entirely as a way to cut the Gordian knot.

Recognizing that such a radical solution was a non-starter politically, other libertarians—including Reason and the Libertarian Party—backed state-sanctioned same-sex marriage as a second-best option as early as the 1970s. Given the long-standing classical liberal commitment to equality before the law, this position was a legitimate one. The state's involvement in marriage was hardly likely to disappear in the near future. We should expect the debate over plural marriage to raise all of these issues again.

Getting the State Out of Everything

If the problem with getting the state out of marriage is that marriage matters for so many other things that the state does, why not focus on the state doing fewer of those things? Reducing the state's role in other areas is already a good idea, but all of those policies can also be seen as intermediary steps, part of eliminating the state's role in marriage.

For example, an anti-poverty agenda that includes things like ending occupational licensure, reducing or eliminating the minimum wage, removing restrictive zoning laws that raise housing prices and discourage people from starting small businesses, and introducing meaningful competition into K–12 education could reduce the need for government welfare programs. Such programs rely on marital status to categorize benefit recipients even as program incentives often work to undermine marriage and its social benefits. Transforming anti-poverty policies reduces the political importance of marital status at the same time it strengthens marriage as a social institution.

One could make a similar argument about policies from taxation to health care. Reducing and flattening tax rates are already part of most libertarian thinking about taxes, but they've rarely been seen as a tactic to reduce the state's role in marriage by reducing the scope of government policies that rely on marital status. Similarly, freeing up health care markets from government regulation and ending the tax-favored treatment of employer-provided health insurance are good ideas in themselves, and such changes will also have the side benefit of reducing the importance of marital status for public policy.

Getting the state out of marriage requires that we get the state out of a whole number of other things first. Then the only marriage contract we'll need will be the one we made between ourselves, and not the one between ourselves and the state.

Photo Credit: Joanna Andreasson

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  • Fist of Etiquette||

    We recently got married. Well, technically, we got married twice.

    Ugh. Both days sound awful. You people who insist of formalizing your unions are doing little more than collecting gifts from people forced to waste a perfectly good Saturday, and furthering the notion that marriages are events that need communal involvement.

    And let's acknowledge that a marriage license isn't a contract between two people but a contract between those two people and the state. The state agrees then to use its power to enforce against others certain special rights, to certain arbitration starting points and to grant exclusive financial benefits.

  • Jay Dubya||

    Dude, you need to read the articles if you're going to criticize the articles. You do this constantly and it's not a good look. The authors *explicitly* refer to marriage in it's current govt entagled context as "a contract between those two people and the state" in the last paragraph. Your comments here are like jumping into the middle of a conversation between two other people to spout context free nonsense. It comes off as desperate attention seeking and adds nothing to the discussion other than aggravation.

  • BestUsedCarSales||

    He probably has Narcissistic Personality Disorder. You'd know this if you read the damn wiki.

  • Tionico||

    so what does their decision to "waste a perfectly good Saturday" the ay they and their close friends and family did have to do with you? And where did you read they did this, twice, on a Saturday?

    Get a life. You sound like you'd make a "great" government official. You seem to delight in poking your schnozz into other peoples' affairs.

    Your second paragraph was effectivel and thoroughly dealt with in their article, if you took the time to READ it before you popped off. Kibbitzing has its place.... but this isn't one of them.

  • Fist of Etiquette||

    Recognizing that such a radical solution was a non-starter politically, other libertarians—including Reason and the Libertarian Party—backed state-sanctioned same-sex marriage as a second-best option as early as the 1970s.

    Thus approving of a public policy that would continue a government entitlement club whose membership as a result would simply grow slightly, leaving still many ineligible for entry.

    Such libertarians couldn't even be counted on for framing the debate correctly. "Recognizing same-sex marriage" gave way to imprecise phrasing like "legalize gay marriage" for the sake of being seen as landing on the right side of history. When same-sex marriage actually was illegal, that framing could be seen as accurate, but not when it was simply the matter of not getting a marriage license. I'm all for pragmatism but at least try to educate while you acquiesce, at least get your digs in.

  • BestUsedCarSales||

    This is the most serious I've seen you.

  • Fist of Etiquette||

    YOU GUYS HAVEN'T BEEN TAKING ME SERIOUS THIS WHOLE TIME?

  • BestUsedCarSales||

    I take you seriously.

  • Longtobefree||

    Half of a wedding vow, but Seriously is not in this thread.

  • Tionico||

    Seriously?

  • Bra Ket||

    And as if same-sex marriage recognition wasn't also radical? It only took, what, 40 years?

    I think it's more likely that libertarian-minded folks weighed the two possible policies and chose the one that had the added benefit of ingratiating them with the modern liberalism movement, since that was where all the hip youth culture was.

  • EscherEnigma||

    I think it's more likely that libertarian-minded folks weighed the two possible policies and chose the one [...]

    Nah. "libertarian-minded folks" decided that if they go for "marriage equality", that means they don't actually have to do anything because gay people were already doing the hard work there.

    If they had chosen to go the "marriage-agnostic government" route, that would have either meant lots of hard work to bring people around, come up with realistic solutions to extricate the government from all it's marriage-minded entanglements, and so-on (in short, a fuck-ton of serious and hard work). And if there's one thing libertarians do not want to do, it's the hard work of convincing people that libertarian solutions are superior.

    That said? We still have "libertarian" folks coming out and bashing gay people over marriage equality, complaining that non-libertarian gay people didn't do the hard work of getting government out of marriage for libertarians. So I'm not sure that "libertarians" ever really "chose" anything.
  • HillTown Trader||

    As noted in the article above, community consent has been seen as a tool to strengthen marriage.

    How many really foolish marriages have been avoided by the community weighing in between the license/bans/jumping the broom and the ceremony. The young and randy can make really silly decisions; a forum for advise from elders is not such a bad thing.

  • Fist of Etiquette||

    I don't see the value of crowdsourcing romantic decisions. You know your own heart. We have no way of knowing how many unions full of potential have been queered by village elders projecting their own baggage onto couples mistakenly believing experiences are one size fits all.

  • Eidde||

    Mazel tov to those recently married!

    "Full privatization also implies that marital status must be irrelevant to the provision of government benefits."

    These "benefits" would include laws by which a person doesn't have to testify against his/her spouse.

    What replaces these laws if the government no longer takes note of who is and isn't married?

    "jumping the broomstick"

    That was when the state did *not* recognize slave marriages.

  • Longtobefree||

    These "benefits" would include laws by which a person doesn't have to testify against his/her spouse.

    Also called the fifth amendment, and available regardless of any religious ceremonies.

  • commentguy||

    The fifth amendment does not protect you from having to testify against someone else.

  • Eidde||

    Also, the state will recognize some marriages which weren't licensed.

    At least in some jurisdictions, getting married without a license is subject to a penalty (especially against the officiant), but the marriage itself is still recognized.

    A few states still recognize "common law marriage" - living together as husband and wife (or now, I suppose, husband and husband), and publicly claiming to be married - in the states I mentioned the government may recognize you as married if you do this, even without a license.

  • StackOfCoins||

    Marriage is dead. Divorce has rendered it pointless. Especially if you have a penis.

  • Eidde||

    Yeah, there's that, too.

    To keep custody over your kids, it's not enough to observe your legal duties to your kids and spouse - your spouse can still divorce you on a whim and still win a judicial decision that (s)he is the superior parent entitled to custody, or primary custody...forgive me if I don't have the details, but I think I got the gist.

  • Eidde||

    I recall reading about some guy who banged another chick and ended his marriage, and the judge still awarded him custody of his son because he was the better parent. Maybe he was from the judge's point of view, but since the wife hadn't violated any of her marital and maternal duties, I fail to see the justice of terminating her parental rights.

  • StackOfCoins||

    Peter Hitchens summarizes it well. Granted he's speaking about marriages in the UK, but the essence is this: if marriage is a contract, then why is it that when a person initiates a divorce, it is often the party that does NOT want to divorce that is made to forfeit their possessions and children? It is hard to imagine of another contract where the breaker of that contract is not at fault.

    https://www.youtube.com/watch?v=5e2vFc1AIOA

  • Eidde||

    Yeah, what Peter Hitchens said.

  • HillTown Trader||

    Until not that long ago, Fault was required to obtain a divorce.

    A wandering wife got neither children or support; an unfaithful husband lost the kids and had to pay.

    "No Fault" divorce is not more then 30 years old.

  • retiredfire||

    If the contract had been specific about those subjects, then it would have been enforced as such.
    If the contract wasn't specific about something, the courts will decide that for you, using precedent, whether the judge was in a bad mood, didn't like men, didn't like women, etc.

  • Eidde||

    And I can't find it now, but there was a case where a wife - who had gotten tired of her husband - gave their child up for adoption, and the state simply gave the kid to another couple, and the father had to fight like the dickens to get his child back. At first he was simply treated like a random sperm donor with no rights.

  • EscherEnigma||

    As hospitals repeatedly have shown over the last forty years, there is very much a point, even when there are no children or significant assets involved.

  • Eidde||

    Let me try again:

    Should wives and husbands be forced to testify against each other?

    If not, how would that work if the state takes no notice of marital status?

  • BestUsedCarSales||

    Should wives and husbands be forced to testify against each other?

    Why should a wife get special treatment over a child? Over a parent? Over a best friend? Why should, in general, the state force someone to testify?

  • EscherEnigma||

    Broadly speaking, it's the concept of "privileged communications". Similar to how you're supposed to be able to say damn-near anything to a doctor or lawyer (in their professional capacity) without worrying about it being used against you, we (meaning "community standards") feel that a husband and wife should not be obligated to keep secrets from each other.

    Keeping secrets from and lying to your children or parents, on the other hand, is a tradition as old as time.

  • John||

    Since people will always break up and have disputes over property and such and go to court to resolve these disputes, the government will always be involved in marriage. The issue is should we go to a pure contract form of marriage. And Libertarians in many cases walked away from that cause so the sacred gays could get their ponies. Sorry but claims that the government should be out of marriage ring a bit hollow when made by people who spent years demanding the government get involved in gay marriages.

  • StackOfCoins||

    Well said John.

  • Elias Fakaname||

    Good point.

  • John||

    And government marriage is not a benefit. It is a government imposed restriction of contract. The only benefit of government marriage is the ability to use the force of law to coerce people into recognize your marriage. Family law is about coercion

  • Bra Ket||

    It does allow one to confer permanent residence and eventually citizenship on someone else relatively easily. And similar for sharing other govt related benefits.

    But yes the point of marriage is social engineering, whether to restrict things from the right or to force acceptance of someone idea of progress from the left. Libertarians who jump in bed (so to speak) with the left on gay-marriage, are essentially no different than any others picking their idea of the lesser evil between the two parties on some policy.

  • John||

    You can't spend years claiming access to government marriage is a natural right whose importance demands rewriting the constitution and then expect anyone to believe you when you later claim government marriage is a bad thing that should be eliminated. That train left the station when libertarians decided gays were the only people who mattered

  • HillTown Trader||

    Similarly, rectors/priest used the power to announce or not announce the bans to extract all manner of promises and behavior changes from randy young things.

    The government "license" is a pale immigration of the power tool of the church and community to restrict foolish marriages and extract promises. A state license is classic replacement of community and church with all powerful government.

  • Robbzilla||

    If you've ever had to deal with end of life decisions, then you'd probably understand that having a legally recognized marriage is also a protection against other people making decisions that affect the partner... (Assuming that partner is the person the patient wants making those decisions).

    Until gay marriages were legalized, there were plenty of instances of life partners being shut out of medical decisions by families who didn't necessarily have the best interest of the patient in mind... or didn't care about the wishes of that patient.

    And yeah, I know. Have a living will. I do. But that's worthless the second you're dead. Then, the person with the medical power of attorney is no longer in charge. Next of kin is. Whether it's a distant 1st cousin, an estranged mother, or even a brother who hates the fact that his "fag brother" existed.

    I'm drawing from real life examples, as my wife is a Chaplain at a very large hospital in Dallas. This is the sort of thing that a marriage contract can and will (And has) protect a person from.

  • SIV||

    Byline Horwitz and Skwire?

    Reason, you done reached peak cuck.

  • BestUsedCarSales||

    Any reason for this comment other than the that you felt the need to scream JEW at the writers?

  • taker||

    Rarely have I encountered thoughts and research so well articulated. It's encouraging to know that Libertarians are the kings of logic and reason with an unequalled intellectual base of brilliant thinkers of which Dr. Steven Horwitz is a primary example.

    I will be following his work. And I appreciate the book plug "Seeing like the State"? Now on my top ten read list.

  • Longtobefree||

    But are you married? And if so, how many times?

  • Longtobefree||

    The government is involved in marriage because the legislature was too lazy to write laws that did not need to lean on a religious institution to resolve conflicts and award tax dollars to individuals directly or through the tax code.
    If the historical records of marriage being a religious institution, recognized by governments as a matter of fact, are correct, then any law including references to marriage "establishes religion", and is null.
    And the moon is made of extremely edible green cheese.
    Marriage should be a religious institution, of interest only to people of that religion. It should be whatever that religion says it is.
    If a number of persons wish to co-mingle their assets and future earnings, then a true contract defining their desires can be drawn up by a competent lawyer, and filed with the courts. The number of those persons, and their respective sex/gender/whatever is of no consequence to the government or any one else.
    Live free or post whines!

  • John||

    No. Marriage is a civic institution that can involve religion but does not have to. Otherwise, atheists could never be married. All government marriage is is a recognition and formalization of existing human relationships

  • EscherEnigma||

    Marriage should be a religious institution, of interest only to people of that religion.


    I'm not sure about the "should be" part, but if the second part were true then most of the fight over same-sex marriage wouldn't have happened, just the intra-denominational struggles which, frankly, I only care about because it isn't just a "religious institution".

    That said...

    If a number of persons wish to co-mingle their assets and future earnings, then a true contract defining their desires can be drawn up by a competent lawyer, and filed with the courts.


    Not true. Quite simply, the full responsibilities, rights and priviledges of marriage, as they are currently recognized in the US, cannot be granted by contract. I know, because the gay community tried that and it didn't really work out.

  • Tionico||

    Oh they tried it all right, and it DID work to get them the things they claimed they could not because they were sodomites.

    The "reason" it did not work are two-fold: first, they insisted on being "married", an impossibility biologically and otherwise. Nevertheless, "marriage" is what they insisted upon. And second, they reeally are about taking down the significance of family as God has designed it. "Redefining" the word "marriage" the way they think they have done is an attempt to effect that destruction. They decided back in 1969 that they would not rest until they'd attained full reversal.... they who were persecuted, marginalised, excluded, attacked, financially harmed, ridiculed, punished, etc, vowed to see those whom they believed were doing these things to them switch roles with them. They've come a long way, Baby..... to where someone not caring to participate in their "lifestyle" would become the persecuted, marginalised, outcase, financially harmed, etc. SO we now have Baronelle Stutzman, Melissa's Sweet Cakes, Jack the Video guy now before the Supreme COurt (where even if he wins, he still loses a ton of time and money) and so forth.

  • HillTown Trader||

    Mr Horowitz should swing by his local county courthouse and pick up his Marriage Certificate, which is the document that creating the legal standing before the law showing that he is married.

    The "License" is the equivalent to a community notice/announcing the bans/jumping the broom. Having the License in most states is does not mean you are married. Only the document that the Officiate files with the state does that.

  • Robert||

    When & how did sovereign permission to get/be married become confused with the factual state of being married? It doesn't work that way w a fishing or dog license, does it? A fishing license doesn't get you a fish, a dog license doesn't make an animal you have a dog.

    Was it something like the trick that allowed the substitution of a promise to pay a dollar for a dollar itself, & then the elimination of the promise to pay? The way the promise on the bill got turned to fine print, & then the fine print erased?

  • Robert||

    AFAICT, the license to be married doesn't dispose of the factual question of whether a couple is actually married, but is only one fact in evidence.

  • Tionico||

    Knew a couple years ago who had gotten married in a quiet private ceremony before some minister in their church at the time, just a few friends and family present. Life want on, as it always does, and a decade or so later he took off and left the Mum and three girls. Disappeared for some years. SHE decided to file for divorce.... went to the county to get a copy of that marriage license... could not find it. Tried to find the minister, he had died. They still lived in the county where they were married. Checked with the state, no record. The only thing they could figure is that the minister had "forgotten" to file his paperwork. So, under the eyes of the law, they were not married. Can't divorce if you're not married, now, can you? So she shrugged her shoulders and carried on, not married. Never did learn whether she'd changed her name on her driving license, and if so, what proof the licensing folk had inspected.
    Saved her the time and hassle of a divorce she really could not afford.

  • Myshkin78||

    Marriage is primarily a religious construct and should not be a role of government. This is a separation of church and state issue and the only reason it's come to that is the government isn't smart enough to stay out of it's own way.

    Grant civil unions to any two people of legal age to enter a contract (for legal purposes) and leave marriage to the priests, pastors, high priestesses, shamans, greeters at Wal-Mart or whoever else the individuals see fit to bless their union.

  • Myshkin78||

    Marriage is primarily a religious construct and should not be a role of government. This is a separation of church and state issue and the only reason it's come to that is the government isn't smart enough to stay out of it's own way.

    Grant civil unions to any two people of legal age to enter a contract (for legal purposes) and leave marriage to the priests, pastors, high priestesses, shamans, greeters at Wal-Mart or whoever else the individuals see fit to bless their union.

  • EscherEnigma||

    As the anti-marriage crowd demonstrated, time and time again, they weren't just concerned about the "sanctity of marriage", and they opposed any recognition of gay couples. They opposed civil unions, domestic partnerships, death registries, wills, etc.

    Quite simply, they were/are opposed to recognizing gay relationships, regardless of what word you use.

    So yeah, it's a cute idea, but given the nature of folk's objections to same-sex marriage, it's not an actual compromise.

  • Robbzilla||

    Why just two?

  • Robbzilla||

    I don't necessarily want the state to get completely out of the marriage business.

    What I actually want is for the state to enforce the contract that the person or persons that I've signed with.

    I'm a minarchist, and frankly, don't have any major problem with using government as a contract enforcement entity, although I don't really want government to do much more. Yeah, I know... it's still force. But at the end of the day, force is sometimes called for. People don't always respect others' rights after all.

    If we could get to the place where government was actually meeting my minarchist standards, I'd certainly be open to anarchist experiments to see if we could live under an anarchist system. But hey, let's get there first.

  • Ned Netterville||

    How nice to see two of my favorite libertarian authors getting together and working together for greater individual liberty. Best wishes for a long, happy and productive marital relationship. Too bad the state had to butt in.

    "Steve wanted someone to edit his prose." Since this article is attributed to both of you, who was responsible for editing? No one, perhaps? IMHO, it is way too long.

    "When privatizers call to remove the state from marriage, it sounds as if there's only one plug to be pulled; in fact, there are thousands. As long as those programs exist, and as long as they depend to some degree on a clear definition of marital status, the state is unlikely to get out of the business of defining marriage."

    Actually, I think there is only one plug to be pulled, and it will not only solve all the problems associated with marriage under statist laws, pulling it will drain the swamp--completely. That is why I am a voluntaryist rather than a minarchist. Until state's inevitable demise, I believe a firm resolve to have nothing to do with the evil empire, to ignore its laws and regulations; and when you can't ignore 'em, pretend they don't exist. It takes work.

    Whatever, my best wishes are more pertinent by far than my mild criticism of involving the state in your blessed union..

  • mehndi designs||

    Marriage so important things for each people.A milestone.But you should be careful in the wedding ceremony.In my wedding, I hire a henna artist for bridal mehndi designs
    for my wedding.But she use black henna and my arm blushed
    So be carefull for your wedding :-).Great read by the way