Now that the Supreme Court has ruled that states must issue marriage licenses to gay couples, the notion of “privatizing marriage” or “getting government out of marriage” has gained popularity. But how would that actually work?
Writing for The Week, author Shikha Dalmia suggests that “privatizing marriage would be a disaster“:
At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage “deed.” It won’t — and can’t — simply accept any marriage performed in any church — or any domestic partnership written by anyone.
Why not? Why can’t government accept any contract entered into by consenting adults? Further, why would government necessarily need to “authorize the entities that perform” ceremonies coinciding with such contracts?
Dalmia operates from the presumption that there is something unique to marriage which requires it to be treated differently than any other type of human relationship. But no rationale is offered giving that presumption substance.
Suppose that Osho, the Rolls Royce guru who encouraged free sex before getting chased out of Oregon, performed a group wedding uniting 19 people. Would that be acceptable? How about a church wedding — or a civil union — between a consenting mother and her adult son? And so on — there are innumerable outlandish examples that make it plain that government would have to at least set the outside parameters of marriage, even if it wasn’t directly sanctioning them.
This is interesting coming from an apparent gay marriage proponent. How can you in one breath insist that government allow “the freedom to marry” for gay couples, and in the next breath insist that government “set the outside parameters of marriage”? If government holds some compelling interest in defining marriage, then the gay marriage argument loses its core merit.
Dalmia doesn’t appear to understand what separates government from private entities. She paints a picture of marriage privatization where couples are somehow enslaved to community norms:
… true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples. This would mean letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent. Inter-faith couples could choose one of their communities — but only if it allowed interfaith marriages.
From where would this supposed “authority” arise? How would relegating civil marriage to a contract between individuals place you, me, or anyone under the “authority” of a religious institution?
Next: Government’s proper role in marriage…
Dalmia seems to think that privatizing a thing means insulating it from government. But that’s never been the case. Private contracts of any kind mean nothing without government enforcement. Such enforcement does not require government to dictate the terms or definitions of the contract, only to arbitrate objectively.
Without [government-defined] marriage, every aspect of a couple’s relationship would have to be contractually worked out from scratch in advance. This may — or may not — prove to be an onerous inconvenience (some people speculate that companies would start marketing canned contracts to couples). But without licenses or registration for marriages, many things, including establishing paternity, would get really messy…
Privatizing marriage, maintains [Cato Institute’s Jason] Kuznicki, would… create havoc, especially if a marriage breaks up. “[You’d] get a deluge of claims and counterclaims about child custody and paternity, as parents fought either to establish or relinquish custody without any clear advance guidance from the government about how they will be treated,” he insists. “It is hard to imagine the state being more in a private family’s business than this.”
Such handwringing ignores contractual reality. I can log onto a self-service legal document site right now and buy a template for filing a business partnership in my state. I don’t need to work out every aspect “from scratch in advance,” because many other people before me have done the same thing and the template has become standard. This isn’t complicated. It would work just fine.
The real reason why the gay rights movement wants to keep government in the marriage-defining business is to impose a sense of legitimacy upon dissenters. Dalmia’s conclusion hints as much:
What all of this suggests is that privatizing marriage can’t sidestep the broader questions about who should get married to whom and under what circumstances. In a liberal democracy, those who want to expand the scope of marriage have no choice but to fight — and win — the culture wars by slowly changing hearts and minds, just as they did with gay marriage. There are no cleaner shortcuts.
The questions of who should get married to whom and under what circumstances need not be decided by “a liberal democracy,” but by individuals entering into unions and the communities with whom they freely associate. I don’t need an entire democracy to legitimize my relationship with my wife. Our relationship is ours, recognized by our God. All we require from others is the recognition of our rights as individuals, same as if we were single, same as if we were business partners. In the eyes of the law, all that should properly matter is our consent.