Marriage privatization

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Marriage privatization is the concept that the state should have no authority to define the terms of personal relationships such as marriage. Proponents of marriage privatization, including certain minarchists, anarchists, libertarians, and opponents of government interventionism, claim that such relationships are best defined by private individuals and not the state. Arguments for the privatization of marriage have been offered by a number of scholars and writers. These arguments are most often raised in the context of same-sex marriage. Traditionally arguments surrounding the topic of same-sex marriage tend to be in support of same-sex marriage or against same-sex marriage. A third option involves a policy of allowing civil unions for same-sex couples while maintaining marriage exclusively for heterosexual couples. Proponents of marriage privatization often argue that privatizing marriage is a solution to the social controversy over same-sex marriage. Arguments for the privatization of marriage span both liberal and conservative political camps.

Advocacy

Libertarian advocacy

In 1997, libertarian David Boaz wrote an article for Slate titled “Privatize Marriage: A Simple Solution to the Gay-Marriage Debate." In the article, Boaz suggests privatizing marriage in a way that models the nature of standard business contracts. Boaz's idea is to allow two (possibly more) individuals to set the terms of their own private marital contract in a way that is best for the individuals involved. "When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties."^[1] According to Boaz the government could be called upon to enforce the contract but may have no other role in developing the contract and setting the terms.

In 2002, anarchist Wendy McElroy echoed Boaz's business contract model in an essay for Ifeminists titled "It's Time to Privatize Marriage."

Marriage should be privatized. Let people make their own marriage contracts according to their conscience, religion and common sense. Those contracts could be registered with the state, recognized as legal and arbitrated by the courts, but the terms would be determined by those involved.^[2]

In 2003, political columnist Ryan McMaken, writing on LewRockwell.com, raised the issue of marriage privatization arguing that the rise of state-sanctioned marriage coincides historically with the expansion of government. In his article titled "Married to the State," McMaken wrote:

The question we are then left with today is one of whether the churches and individuals should be looking to privatize marriage yet again and to begin making a distinction between secular contracts between private citizens and religious unions that should be kept beyond the power of the State. Such a move, of course, would bring with it new assumptions about the role of the State in divorce, children, and a variety of other aspects of family life. The State will not give up control over these things easily, for the assertion that the importance of marriage makes it a legitimate interest of the State is only true from the point of view of the State itself, for as the foundation of society, marriage and family cannot be entrusted to governments just to be blown about by the winds of democratic opinion, for the same government that has the power to protect can just as easily destroy.^[3]

In a similar libertarian vein, the radio talk-show host Larry Elder has also spoken out to endorse the privatization of marriage. In "The State Should Get Out of the Marriage Business," a 2004 article published in on the website Capitalism Magazine, Elder wrote:

How about government simply getting out of the marriage-license-granting business? (Ditto for government licenses necessary to cut hair, drive a taxi, open a business or enter a profession.) Leave marriage to non-governmental institutions, like churches, synagogues, mosques, and other houses of worship or private institutions. Adultery, although legal, remains a sin subject to societal condemnation. It's tough to legislate away condemnation or legislate in approval. Those who view same-sex marriage as sinful will continue to do so, no matter what the government, the courts or their neighbors say.^[4]

In 2006, law professor Colin P.A. Jones wrote an article appearing in the San Francisco Chronicle titled "Marriage Proposal: Why Not Privatize?" following the business model for privatization Jones writes:

Subject to certain statutory constraints, businesspeople have long been free to form whatever sort of partnership they felt appropriate to their needs. Why not make the same possible for marriage, which is a partnership based on one of the oldest types of contractual relationships? ^[5]

Also in 2006, Orthodox Jewish libertarian Michael R. Paley (author of Orthodox Judaism, Liberalism, and Libertarianism: When Secularism Becomes a Religion (PublishAmerica, 2006)) advocated the privatization of marriage, saying that the expression "holy matrimony", and the Hebrew word for "marriage", viz. kiddushin (from the root word kadosh, "holy"), ought to place marriage in the sphere of church, not state, and that Orthodox Judaism agrees with the separation of church and state, at least until the Messianic Era; religious matters such as marriage (including its very definition) ought to be within the jurisdiction of private religious officials, not public, civil ones. Paley also argued that because a same-sex marriage does nothing to harm or impede heterosexuals or interfere with their marriages, it is wrong to punish homosexuals for a victimless crime. He added that if the state wants to promote marriage, it should do so by allowing a totally laissez-faire, free-market economy, so that a family can live on the husband's wage alone, letting the wife stay home with the children. He pointed to Protestant temperance movements and Prohibition as an example of an improperly close relationship between church and state, and warned that if the state remains in the business of marriage, the result will be similar to the mafias and crime produced by Prohibition. Additionally, state regulation of marriage will merely result in further bloat of the overgrown bureaucracy, as laws against homosexuals will require more regulations and police to enforce them. Paley concluded,

Marriage, ultimately being a religious institution, shouldn’t be part of the civil code, except to the degree that courts must adjudicate disputes implied by the contractual nature of marriage (which, by the way, is an integral component of Jewish matrimony). Religious groups and people who freely associate with them are perfectly capable of formulating their own definition of marriage and of performing and regulating those marriages.^[6]

In 2009, author and journalist Naomi Wolf wrote about getting the state out of marriage in The Times:

Let’s also get the state out of the marriage union. In spite of the dress and the flowers, marriage is a business contract. Women, generally, don’t understand this, until it hits them over the head upon divorce. Let’s take a lead from our gay and lesbian friends, who, without state marriage, often create domestic partnerships with financial autonomy and unity spelt out. A heterosexual parallel: celebrate marriage with a religious or emotional ceremony — leave the state out of it — and create a business- or domestic-partner contract aligning the couple legally..^[7]

Professor Gary S. Becker, a winner of the Nobel Memorial Prize in Economic Sciences, has said that:

With marriage contracts that set out the couple’s commitments, there is little reason why judges should retain their current involvement in marriage.^[8]

According to author and journalist Wendy Mcelroy:

Why is marriage declining? One reason is that it has become a three-way contract between two people and the government.^[9]

Religious advocacy

In 2008, an article published in the Boston Globe, "Episcopal Diocese May Quit Marriages: Same-Sex Debate Drives Mass. Plan," reported a debate within the church that would amount, in practice, to a church led privatization of marriage:

A group of local Episcopal priests, saying that the gay marriage debate has intensified their longtime concern about acting as agents of the state by officiating at marriages, is proposing that the Episcopal Church adopt a new approach. Any couples qualified to get married under state law could be married by a justice of the peace, and then, if they want a religious imprimatur for their marriage, they could come to the Episcopal Church seeking a blessing from a priest.^[10]

The article mentions that the practice is common in Europe, but it is perceived as a radical move by most United States congregations.

Pepperdine University law professor Douglas Kmiec, an influential Roman Catholic commentator, told the Catholic News Agency that churches that do not accept same-sex marriage have a genuine concern that they be subject to penalties such as losing public benefits or receiving lawsuits. He argued that the state should just allot people "civil licenses", with the terminology "marriage" left "as a religious concept" for groups to debate outside the scope of government.^[11]

Stuart Koehl, writing for the Catholic periodical First Things, referred back to the early history of the church:

"In the pre-Constantinian period, the Church had no legal standing, and sacramental marriage was utterly distinct from legal marriage. Even after Christianity was adopted by the Roman Empire in the fourth century, one still had to obtain a civil marriage from a magistrate before presenting himself in church for a sacramental union. A Church marriage only became one of the criteria for recognition of a union as a legal marriage in the sixth century. Because Church and civil marriage were separate and distinct, the Church was absolutely free to follow its own doctrine with regard to marriage and its disciplines."^[12]

He advocated for a return to this status, in which couples wanting to marry would have to get a license from civil magistrate first that would then be "sacramentalized" if a church so chooses. He argued that this would leave churches freer to be a "witness to truth" separate from corrupting government influence.^[12]

Liberal advocacy

Though often introduced from conservative commentators, marriage privatization has received attention from advocates on the left. In 2003 left-leaning political columnist and journalist Michael Kinsley wrote a second essay to appear in Slate on the topic. Kinsley’s essay is titled "Abolish Marriage: Let's Really Get the Government out of Our Bedrooms." Kinsley follows the model set by his conservative counterparts Boaz and McElroy; like Elder’s he emphasizes marriage privatization's potential to end the controversy over same-sex marriage:

If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and are entitled to. And if the other side is sincere in saying that its concern is not what people do in private, but government endorsement of a gay "lifestyle" or "agenda," that problem goes away, too.^[13]

Marriage privatization received attention from the legal scholar Alan Dershowitz in 2003 when Dershowitz wrote a Los Angeles Times editorial titled "To Fix Gay Dilemma, Government Should Quit the Marriage Business." More so than commentators from the right, Dershowitz frames his view on the topic in terms of church-state separation; unlike libertarian leaning discussions Dershowitz maintains that the state does have an interest in the secular rights of marriage. Dershowitz proposes that civil-unions as a secular replacement for state sanctioned marriage, be extended to both same-sex and opposite-sex couples. Under Dershowitz's conception of privatization, couples have a choice as to whether or not they wish to be married by a clergy willing to perform a marriage ceremony or to exclusively partake of secular/state-sanctioned civil unions. Dershowitz writes:

Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control.^[14]

Public policy advocacy and academia

In 2007 the Center for Inquiry, a secular think tank, released a position paper authored by analyst Ruth Mitchell titled "Same-Sex Marriage and Marriage." The paper argues from the separation of church and state that as long as marriage is available to heterosexual couples it ought to be equally available to LGBT couples. Nevertheless, the position paper claims that state endorsement of civil unions for both types of couples is the most appropriate policy in light of separation of church and state.^[15]

The argument for marriage privatization has also been formulated in academic scholarship. In 2008 an argument for marriage privatization appeared in the public policy journal Public Affairs Quarterly. In that issue philosopher Lawrence Torcello offers a detailed model of marriage privatization based on the later political writings of the 20th century political philosopher John Rawls. The article is titled "Is The State Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model.'

In the 1993 book Political Liberalism, Rawls argues that arguments in a pluralistic society must be hashed out in terms that all members of that society can understand if not endorse. This means that in making public claims one must refrain from religious or otherwise controversial metaphysical claims that cannot, in principle, be equally endorsed by reasonable persons. In doing this, one is relying on what Rawls refers to as public reason.

In his article, Torcello claims that any state endorsement of marriage represents an inappropriate public endorsement of a comprehensive religious or otherwise metaphysical doctrine, which underlies any particular definition of marriage. Accordingly, taking public reason seriously leads to the idea that legalization of same-sex marriage may be just as neutrally unbalanced as its ban.^[16] In place of the public institute of marriage, Torcello, like Dershowitz, argues that civil unions providing the full extent of marital benefits under law ought to be instituted for both heterosexual and homosexual couples.^[16] According to the argument, such civil unions ought to replace the current legal institute of marriage. Once privatized, marriage is open for individuals to define and embrace or ignore as they see fit, within the scope of their private religious or philosophical belief systems:

No religious model that rejects same-sex marriage would be required to perform same-sex marriages under this privatized model. Under this model a couple, either heterosexual or homosexual, would obtain a civil union in order to have public and legal recognition of their partnership; they would have a private marriage ceremony if they so chose in order to honor their private religious or philosophical concept of marriage.^[16]

In a July 2008 article appearing in The Monist titled “Privatizing Marriage” Harvard Law Professor Cass Sunstein and University of Chicago economist Richard H. Thaler offer arguments for the privatization of marriage. Thaler and Sunstein also take up the topic in their co-authored 2008 book Nudge: Improving Decisions about Wealth, Health, and Happiness. Sunstein and Thaler argue for marriage privatization among other positions under the heading of what they call “Libertarian Paternalism.”

Arguments opposing the privatization of marriage

Opposition to marriage privatization, like its endorsement, is equally likely to be found arising from conservative or progressive sources and a wide variety of objections are made.

Some opponents of marriage privatization can argue that such a policy will simply shift the current debate over same-sex marriage to civil unions.^{[citation needed]}

Liberal opponents of marriage privatization, favoring same-sex marriage, can argue that privatizing marriage does not sufficiently address the historical injustice of excluding same-sex couples from the public institution of marriage.^{[citation needed]}

Conservative religious opponents of same-sex marriage may feel that privatizing marriage is still a state endorsement of what they consider to be immoral unions between homosexual couples. Thus many of the same religious arguments aimed against same-sex marriage might be applied to marriage privatization as well.^{[citation needed]} Prominent conservative evangelical baptist R. Albert Mohler, Jr. has stated the he opposes the privatizaton of marriage because "markets do not always encourage or support moral behavior" and he believes the proposal would "[destroy] marriage as a public institution."^[17]

Princeton professor Robert George has argued that marriage has an important cultural role in helping children develop into "basically honest, decent law abiding people of goodwill– citizens– who can take their rightful place in society". Thus, he concludes, "Family is built on marriage, and government- the state- has a profound interest in the integrity and well-being of marriage, and to write it off as if it were a purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake".^[11]

Stanley Kurtz of National Review has written that privatization would be a "disaster". He argued that government "still has to decide what sort of private unions merit benefits... under this privatization scheme", and then "we also get the same quarrels over social recognition that we got before privatization." He commented that the government will have to deal with polygamous, polyamorous, incestual relationships attempting to obtain contracts under the new scheme as well as attempts by heterosexual acquaintances to make "marriages of convenience" to obtain things such as spousal medical insurance.^[18] His National Review colleague Maggie Gallagher has also called privatization as a "fantasy" since "[t]here is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems."^[19]

Issues involved with privatizing marriage

In general, a legal contract signed between two or more people will often include penalties for the severing of the contract by a party or parties. However, this typically does not apply to marriages in the U.S., which typically fall under the legal standard of no fault divorce. It remains an open issue as to whether or not these quasi-marriage partnership contracts will be enforced with penalties.^[20]

See also

• Marriage
• Domestic partnership
• Status of same-sex marriage
• List of Christian denominational positions on homosexuality
• Blessing of same-sex unions in Christian churches

Notes

1. ^ Boaz (1997)
2. ^ McElroy (2002)
3. ^ McMaken (2003)
4. ^ Elder (2004)
5. ^ Jones (2006)
6. ^ Paley (2006)
7. ^ Times (2009)
8. ^ Why Every Married Couple Should Sign a Contract Gary S. Becker. Business Week. New York: December 29, 1997. Iss. 3559; pg. 30
9. ^ http://www.enterstageright.com/archive/articles/0702/0702marriage.htm
10. ^ Paulson (2006)
11. ^ ^{a b} http://www.catholicnewsagency.com/news/kmiec_proposes_end_of_legally_recognized_marriage/
12. ^ ^{a b} http://www.firstthings.com/onthesquare/2010/07/an-independent-witness-to-marriage
13. ^ Kinsley (2003)
14. ^ Dershowitz (2003)
15. ^ Mitchell (2007)
16. ^ ^{a b c} Torcello 2008 p.51
17. ^ Mohler (2006)
18. ^ http://www.nationalreview.com/corner/117239/privatizing-marriage/stanley-kurtz
19. ^ http://article.nationalreview.com/269352/the-stakes/maggie-gallagher
20. ^ http://hotair.com/archives/2010/08/07/why-is-the-state-involved-in-marriage-at-all/

References

Boaz David, "Privatize Marriage: A Simple Solution to the Gay-Marriage Debate," Slate http://www.slate.com/id/2440/ April 1997 (accessed 6 July 2009) Colin, P.A. Jones, "Marriage Proposal: Why Not Privatize?" San Francisco Chronicle, January 2006 Coontz Stephanie, "Taking Marriage Private," New York Times http://www.nytimes.com/2007/11/26/opinion/26coontz.html?_r=2&em&ex=1196226000&en=5e70532fce256fe0&ei=5087%0A&oref=slogin November 2007 Dershowitz Alan,"To Fix Gay Dilemma, Government Should Quit the Marriage Business," Los Angelos Timeshttp://www.rossde.com/editorials/Dershowitz_marriage.html December 2003 Elder Larry,"The State Should Get Out of the Marriage Business," Capitalism Magazinehttp://www.capmag.com/article.asp?ID=3543 February 2004 Jordan Jeff, “Is it Wrong to Discriminate on the Basis of Homosexuality?” Journal of Social Philosophy 26, no. 1 (1995): 39-52 Times http://women.timesonline.co.uk/tol/life_and_style/women/relationships/article5931968.ece March 22, 2009, (accessed 6 July 2009) Kinsley Michael, "Abolish Marriage: Let's Really Get Government Out of Our Bedrooms," http://www.slate.com/id/2085127/ July 2003 McElroy Wendy, "It's Time to Privatize Marriage," Ifeminists,http://www.wendymcelroy.com/ifeminists/2002/0716.html July 2002 (accessed 6 July 2009) McKaken, Ryan, "Married to the State," LewRockwell.comhttp://www.lewrockwell.com/mcmaken/mcmaken86.html July 2003 McLain, Linda C. “Evolution—Or End—Of Marriage?: Reflections on the Impasse of Same-Sex Marriage” Family Court Review (2006) 44:2 200

Mitchell, Ruth, "Same-sex Marriage and Marriage" Center for Inquiry Position Paper,http://www.centerforinquiry.net/advocacy/same_sex_marriage_and_marriage/ December 2007 Mohler, Albert, "Why Not Privatize Marriage? Here’s Why," www.AlbertMohler.com http://www.albertmohler.com/?cat=Blog&cid=543 (accessed October 3, 2009) Paley, Michael R., "Why do you think they call it ‘holy matrimony’?", NJ Jewish News, http://njjewishnews.com/njjn.com/062906/commWhyDoYouThink.html (accessed 16 May 2011) Paulson, Michael, "Episcopal Diocese May Quit Marriages: Same-Sex Debate Drives Mass. Plan,: Boston Globe,http://www.boston.com/news/local/articles/2006/10/08/episcopal_diocese_may_quit_marriages/ Rawls, John, Justice as Fairness: A Restatement, (Harvard University Press, 2002) Rawls, John, A Theory of Justice, (Belknap Press 1971) Schaff, Kory “Equal Protection and Same-Sex Marriage” Journal of Social Philosophy (2004) 35:1 133 Schaff, Kory “Kant, Political Liberalism, and The Ethics of Same- Sex Marriage,” Journal of Social Philosophy (2001) 32:3 446 Strasser, Mark, Legally Wed: Same-Sex Marriage and the Constitution, (Cornell University Press, 1997) Strasser, Mark, On Same Sex Marriage, Civil Unions, and The Rule of Law (Westport, Connecticut London, 2002) Sunstein, Cass & Thaler, Richard M., “Privatizing Marriage” The Monist, Volume 1, Number 3-4 Thaler, Richard M., Nudge: Improving Decisions About Wealth, Health, and Happiness, (Yale University Press, 2008) Torcello, Lawrence, "Is The State Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model," Public Affairs Quarterly, Volume 22, Number 1, January 2008 pp. 43–61