Privatize Marriage
In the debate over whether
to legalize gay marriage, both sides are missing the point. Why should the
government be in the business of decreeing who can and cannot be married?
Proponents of gay marriage see it as a civil-rights issue. Opponents see it as
another example of minority "rights" being imposed on the majority culture. But
why should anyone have--or need to have--state sanction for a private
relationship? As governments around the world contemplate the privatization of
everything from electricity to Social Security, why not privatize that most
personal and intimate of institutions, marriage?
"Privatizing" marriage can mean two slightly different things. One is to take
the state completely out of it. If couples want to cement their relationship
with a ceremony or ritual, they are free to do so. Religious institutions are
free to sanction such relationships under any rules they choose. A second
meaning of "privatizing" marriage is to treat it like any other contract: The
state may be called upon to enforce it, but the parties define the terms. 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.
And privatizing marriage would, incidentally, solve the
gay-marriage problem. It would put gay relationships on the same footing as
straight ones, without implying official government sanction. No one's private
life would have official government sanction--which is how it should be.
Andrew
Sullivan, one of the leading advocates of gay marriage, writes, "Marriage is a
formal, public institution that only the government can grant." But the history
of marriage and the state is more complicated than modern debaters imagine, as
one of its scholars, Lawrence Stone, writes: "In the early Middle Ages all that
marriage implied in the eyes of the laity seems to have been a private contract
between two families. ... For those without property, it was a private contract
between two individuals, enforced by the community sense of what was right." By
the 16 th century the formally witnessed contract, called the
"spousals," was usually followed by the proclamation of the banns three times
in church, but the spousals itself was a legally binding contract.
Only with the Earl of Hardwicke's Marriage Act
of 1754 did marriage in England come to be regulated by law. In the New England
colonies, marriages were performed by justices of the peace or other
magistrates from the beginning. But even then common-law unions were valid.
In the
20 th century, however, government has intruded upon the marriage
contract, among many others. Each state has tended to promulgate a standard,
one-size-fits-all formula. Then, in the past generation, legislatures and
courts have started unilaterally changing the terms of the marriage contract.
Between 1969 and 1985 all the states provided for no-fault divorce. The new
arrangements applied not just to couples embarking on matrimony but also to
couples who had married under an earlier set of rules. Many people felt a sense
of liberation; the changes allowed them to get out of unpleasant marriages
without the often contrived allegations of fault previously required for
divorce. But some people were hurt by the new rules, especially women who had
understood marriage as a partnership in which one partner would earn money and
the other would forsake a career in order to specialize in homemaking.
Privatization of religion--better known as the separation
of church and state--was our founders' prescription for avoiding Europe's
religious wars. Americans may think each other headed for hell, but we keep our
religious views at the level of private proselytizing and don't fight to impose
one religion by force of law. Other social conflicts can likewise be
depoliticized and somewhat defused if we keep them out of the realm of
government. If all arts funding were private (as 99 percent of it already is),
for instance, we wouldn't have members of Congress debating Robert
Mapplethorpe's photographs or the film The Watermelon Woman .
So why not
privatize marriage? Make it a private contract between two individuals. If they
wanted to contract for a traditional breadwinner/homemaker setup, with
specified rules for property and alimony in the event of divorce, they could do
so. Less traditional couples could keep their assets separate and agree to
share specified expenses. Those with assets to protect could sign prenuptial
agreements that courts would respect. Marriage contracts could be as
individually tailored as other contracts are in our diverse capitalist world.
For those who wanted a standard one-size-fits-all contract, that would still be
easy to obtain. Wal-Mart could sell books of marriage forms next to the
standard rental forms. Couples would then be spared the surprise discovery that
outsiders had changed their contract without warning. Individual churches,
synagogues, and temples could make their own rules about which marriages they
would bless.
And what of gay marriage? Privatization of the
institution would allow gay people to marry the way other people do:
individually, privately, contractually, with whatever ceremony they might
choose in the presence of family, friends, or God. Gay people are already
holding such ceremonies, of course, but their contracts are not always
recognized by the courts and do not qualify them for the 1049 federal laws that
the General Accounting Office says recognize marital status. Under a privatized
system of marriage, courts and government agencies would recognize any couple's
contract--or, better yet, eliminate whatever government-created distinction
turned on whether a person was married or not.
Marriage is an important
institution. The modern mistake is to think that important things must be
planned, sponsored, reviewed, or licensed by the government. The two sides in
the debate over gay marriage share an assumption that is essentially
collectivist. Instead of accepting either view, let's get the government out of
marriage and allow individuals to make their own marriage contracts, as befits
a secular, individualist republic at the dawn of the information age.
