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Can Government Get out of the Marriage Business?

In the debate last night, Ron Paul noted his position on marriage as follows:

get the government out of it. Why doesn’t it go to the church? And why doesn’t it to go to the individuals? I don’t think government should give us a license to get married. It should be in the church.

This is something Paul has said before (for example) and is something I have read and heard in other places as well (and from persons other than Paul).

Now, the basic context here was a question of same-sex marriage, but I want to set aside that for the moment and simply ask: can government actually get out of the marriage business?

I don’t think it can, and here’s why (and, btw, if they can’t, then such statements about getting out of the marriage business when asked about same-sex marriage is a utter dodge).

Here’s the deal:  much of the significance of marriage is very much linked to civil-legal matters in a way that makes it impossible for government to extricate itself from its definition.  Marriage is many things that have nothing to do with government such as romance, love, friendship, lifelong companionship, and even sacred bonds.  There is  little doubt that those things can all be achieved without the government being involved (as is the case with friendship, for example).  However, marriage is also about certain mutual legal obligations regarding property, finances, children and whatnot, about which governmental intervention is sometimes necessary to resolve disputes (as is the case with any contractual relationship).  Further, marriage diminishes legal complexity in a variety issues (children, death [i.e., funeral arrangements], hospital visitations, medical decisions, etc.).  Now, we could utterly remove marriage as a legal institution, but then we would have to replace it with something else, and that something else would almost certainly be more cumbersome in terms of government entanglements that the current system.

To put it as simply as possible:  for government to truly get out of the marriage business it would have to stop recognizing the spousal relationship as having special legal standing.  This is because to recognize that relationship as having specific legal significances it would need a definition of “marriage” that could be held up to legal scrutiny (to, for example, stop people from arbitrarily claiming whatever privileges might exist for married couples).  Such a stand would have to exist whether the government issued the licenses or not.  Once the law has to define “marriage” then government is, by definition, in the “marriage business.”

To summarize the summary:  the only way to truly get government out of the marriage business would be to reduce marriage to the same status of friendship, i.e., a social relationship utterly defined by private interactions and that lacks legal significance.

As such, I just don’t see how government can get out of the marriage business, and this is why the same sex marriage issue has to be addressed.

Indeed, fundamentally, legal marriage can be seen as a means of safeguarding the property rights of both parties to the marriage, and therefore strikes me as something that a libertarian would see as a legitimate role for government to play.

There is also a sidebar to Paul’s response that raises other questions.  Stating that marriage should be “in the church” rather ignores the fact that there are people who want to get married, but who are not religious,  and given that a lot of libertarians are not religious, it seems odd for Paul to direct marriage to the church.  Granted, there is room in his answer for other private entities to operate, I suppose, but that might also create licensing issues, which could bring the government back into it (unless you want to say anybody can marry anyone at any time, but here we get back to that legal definition problem above).

Also from a libertarian perspective, having the government manage the legal aspects of marriage strikes me as more likely to increase net liberty, as religious orders of various stripes tend to favor the rights of men over women.  So again, I am not so sure the Paul position makes sense, even from a libertarian perspective.

I will note that of all the things I have done in my life that have involved the government, getting a marriage license was one of the easiest.

To conclude:  isn’t one* of the reasons that people get married is to create a legal bond?  As such, it is a government process plain and simple.

UPDATE (James Joyner): See also my post “Should Government Get Out Of Marriage Business?” from last August. The bottom line is that, if marriage didn’t exist, we’d have to invent it. Maybe calling the government version of it something different–whether “civil union” or something else — would solve some psychological issues vis-a-vis letting gays do it. But we need a legal institution that does the things that marriage currently does in terms of survivability, inheritance, child custody, medical care, and the like.

—–

*Please note that I said “one of the reasons”–I hardly think it is the only one by a longshot.  And, just to perhaps preempt some responses:  I am big fan of marriage, and will celebrate 21 years of wedded bliss at the end of this month.

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About Steven L. Taylor
Steven L. Taylor is Professor and Chair of Political Science at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. He is the author of Voting Amid Violence: Electoral Democracy in Colombia and is currently working on a comparative study of the US to 29 other democracies. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging at PoliBlog since 2003. Follow Steven on Twitter

Comments

  1. Trumwill says:

    I agree with all you say here, but almost everyone I know who thinks that the government should get out of the marriage business believes that it should be replaced with civil unions that one can enter without regard to gender or familial relations. In other words, strip it of its moral, romantic, and historical connotations. If two brothers want to confer upon one another the benefits of what is currently considered spousehood, they would be allowed to without (social) expectations of intimacy, monogamy, and whatnot.

    Like or Dislike: Thumb up 6 Thumb down 0

  2. Trumwill says:

    Come to think of it, I do know at least a couple who suggested multiple contract options. Not different legal terms or anything, but basically Civil Union Inc. would come up with contracts. They sign the contracts and the government’s involvement is merely in acknowledging the contracts. If the contract says so-and-so is my legal next of kin, and so on.

    Like or Dislike: Thumb up 1 Thumb down 0

  3. mantis says:

    I’m quite interested in this topic, as my “wife” and I are not legally married, unless you count common law. We see marriage as a religious institution, and as atheists, see no reason to do what amounts to spending a ton of money for a big party (we put that money toward a down payment on the house instead). I know you can have a non-religious marriage, but that seems like we’re asking permission from the state to have the relationship we already have. We don’t see why we should have to do that.

    However, the fact is that marriage is also a government institution. And now that we’re making more money and getting older, we’re thinking more about things like social security benefits, hospital visitation, and filing our taxes, and it would in some respects be easier for us to have a legal partnership.

    Illinois just started granting civil unions this month, and we are the first state to open those up to straight couples as well as same-sex couples. We’re considering getting one, but it doesn’t solve any of the federal complications we have, and in the end its still asking permission from the government for an existing relationship, though one without so much of the baggage that “marriage” has.

    So basically, I’m very much in favor of the government getting out of the marriage business, but I like you I don’t really see it happening at all.

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  4. I suppose the fundamental question is: can you get government out of the contract business?

    By definition that answer is no for all practical purposes, yes?

    Like or Dislike: Thumb up 1 Thumb down 1

  5. Trumwill says:

    I suppose the fundamental question is: can you get government out of the contract business?

    I don’t think it was Paul’s intent to suggest we get the government out of the contract-enforcement business. I know some pretty hard core libertarians, but none that hard core.

    Personally, I support marriage. For all the “wrong reasons” according to the libertarian (and sometimes liberal) set. To me, marriage is a contract, but it’s more than just that.

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  6. Tylerh says:

    What a straw man. Getting the Government out of the marriage business is trivial.

    The current law is roughly “The government acknowledges that one may make certain contractual obligations with any one person who (1) is legally competent and (2) of a different sex.”

    Step one is to simplify the law to “The government acknowledges that you make certain contractual obligations with any one person who is legally competent.”

    That is, just drop the sex requirement, in the same way the “no Mexicans” convenant has been dropped from the title many houses here in Souther California.

    Step two is to change “marriage” to some other legal term, such as “domestic partner,” while making no change to that list of “certain contractual obligations.”

    Voila!

    See how easy that was? The government is still enforcing the same contracts, but if the noun “marriage” is important to you, then you need to go someone in the “marriage business.”

    This is not an abstraction. My wife’s faith refused to marry us because I wasn’t willing to make the necessary doctrinal confessions. So we made other arrangements and filed our legal paperwork with the county after we made our vows.

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  7. Wayne says:

    There are many different levels to “marriage”. Yes some are emotional, religious, and legal. I think many people who are against same sex marriages would go for another term like civil unions with “similar” implication. Both sides though are stuck on the term marriage. The minority PC side shouldn’t always get their way.

    If one really thinks it not the business of the government to say who can marry who than why can’t people have more than one spouse or large communal groups being marry to each other? Please answer the question instead of reflecting it with a lame argument like “don’t give me the slippery slope argument”.

    The legal part is a big can of worms. The more you dilute the term marriage the worst it gets. It is not like businesses, government, tax codes and benefits would not greatly be influence by diluting the term especially if you allow groups to get married to each other.

    IMO the way legal system treats marriages need to be revamped. If there are no children involved then there is no reason that the woman can’t get a job. Many do. If they split up it is basically an end to a relationship and they go their separate ways. Yes some assets issues but does a Johnny Carson wife or a J Lo husband really deserve millions of dollars for a split up? Children complicates matters.

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  8. @Tylerh:

    What you (and others) are describing is not government getting out of the marriage business, but it is either renaming it and/or redefining it.

    Like or Dislike: Thumb up 1 Thumb down 3

  9. I agree with Trumwill that I don’t think Rep. Paul’s assertion is that the government, vis-à-vis the courts, can have no role in “marriage.” Personally, I don’t think its that hard. Do away with all forms of federal benefits to “married” people and/or instead of issuing marriage licenses just have the government certify a legally binding contract. Probably not going to happen any time soon, but I don’t’ think its is a stretch as far as feasibility is concerned.

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  10. @Tal:

    Of course, there is a whole other set of issues that I did not touch on: taxes, social security, military benefits, etc, which are all linked to marriage within federal law.

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  11. A voice from another precinct says:

    The real problem here is that some people are treating Ron Paul’s statement as rational and using it as a context to try to reinvent the wheel. You can’t rely on Ron Paul to say rational things or to say them having thought them through. Until this is the case, Ron Paul statements should be examined individually and discussed seriously only when rational. In other cases, it should be permissible to ridcule them as the rantings of the Zagnut bar he seems to be a lot of the time.

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  12. mantis says:

    If one really thinks it not the business of the government to say who can marry who than why can’t people have more than one spouse or large communal groups being marry to each other?

    Well, they can live like that all they want, but the government won’t license it, and indeed what you describe already happens in some places. However, your question makes no sense. If we believe marriage is not the business of government, then we believe it’s not the government’s job to say those people “can’t” do that. It’s also not the government’s job to say they “can” do it.*

    *Requisite age of consent disclaimer: regardless of my view on the government’s role in marriage, minors should always have their rights protected.

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  13. sam says:

    @Wayne

    “If one really thinks it not the business of the government to say who can marry who than why can’t people have more than one spouse or large communal groups being marry to each other”

    And why not? I don’t see anything in principle wrong with such arrangements. What’s required, really, is a rethinking of the law of contracts as regards marriage. New social arrangements require new ways of thinking.

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  14. OzarkHillbilly (used to be tom p) says:

    Of course, there is a whole other set of issues that I did not touch on: taxes, social security, military benefits, etc, which are all linked to marriage within federal law.

    OK… Here is the gist of it: Marraige is a contractual relationship. I married my wife for one reason and one reason only: So she can get my pension. If I had not married her, the union would have gotten it. ( that is the law)
    Not my sons (23 and 26) but the union. And to be honest???? my wife deserves my pension after putting up with me. If it wasn’t for that, we probably never would have married.
    So, for the record, put me down as saying that Gov’t should get out of the marraige bussiness and stick to the contractual bussiness. And no, I am not so naive as to believe this will be easy, but I do believe people should be able to enter into whatever contractual arrangements suit them.

    Like or Dislike: Thumb up 3 Thumb down 0

  15. Vast Variety says:

    I keep asking this question of social conservatives who are against marriage equality.

    “If gay people do not deserve to be married then what do we deserve? We exist, we always have and always will. We form families and raise children just like everyone else. We aren’t going away so what do we deserve?”

    So far all I get is blank stares and personally I’m beginning to wonder if many anti-gay social conservatives don’t secretly believe that gay people can some how be eradicated.

    Like or Dislike: Thumb up 1 Thumb down 1

  16. Trumwill says:

    What you (and others) are describing is not government getting out of the marriage business, but it is either renaming it and/or redefining it.

    This is only true if you consider marriage to be the legal contract and nothing more. If you remove the word marriage, and strip it of its historical and social connotations (leaving that up to churches, families, and so on), you’ve gotten out of the marriage business and entered the civil union business or the contract-enforcement business or whatever.

    Most of the people that talk about “getting the government out of marriage” are looking at them like different things. They’re not alone in this, which is why gays got “civil unions” and not marriages and why, having gotten civil unions, they didn’t stop pushing for marriage. To a lot of people, these are not the same thing.

    You may consider them exactly the same thing or close enough to the same thing, but your argument here is semantic rather than substantive.

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  17. Liberty60 says:

    I think there are other reasons why the government should remain in the marriage bsuiness, and recognize gay marriage, but not polygamy and incesutious marriages. Oddly enough, it shares the line of reasoning with the social conservatives (to whom I used to belong).

    There is value in civic order, and a consensus of what constitutes a shared ethos. While we want to encourage individual freedom to pursue our own notions of morality, there are limits to individualism.

    Or rather, the benefit from having a society built on shared values brings real and tangible benefits. A society where gay couples are welcomed and embraced is one where they take an equity share in that society, and respond with the fulfillment of their obligations.

    Why not polygamy and incest (or for that matter, man-on-dog sex)? Simply because those are anathema to society at large, and they are far more of tiny minority than gay people. They have very little to offer us as a culture, whereas gay people do.

    Which of course means that in time, if these things became acceptable, they too would be legalized.

    Most people don’t like this form of argument, because it doen’t have the strength of “It Must Always Be Thus“- this argument is predicated on the notion that the norms and values that build and reinforce society evolve and change, which some find disturbing, with its overtones of moral relativism.

    But we can’t avoid that- we don’t have some bright shining compass that works for everyone.

    We do however live in a world where the majority rules, and as pointed out, government can’t possibly disentangle itself from marriage, any more than our culture at large can. All our institutions- churches, schools, businesses- even “private” clubs like Scouts are inextricably entangled in family and couples.

    We stand to gain more benefit from accepting and embracing the presence of gay couples than trying to shun them.

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  18. Robert in SF says:

    I think that marriage is a unique legal contract that is restricted by all interpretations legally to be between 2 persons. That is, it is a unique contract that specifies an equal partnership in legal responsibilities and benefits without any negotiation between remaining parties in the event that there is a situation that shifts the authority away from one person.

    In other words, a marriage splits the decision making authority to two persons equally, and as such, if one person becomes incapacitated from making decisions (death, sickness, mental deficiency, etc.), then the authority shifts 100% to the other person. This also applies to benefits such as social security, pensions, inheritance, etc.

    If there were 3 or more people in the marriage, and one becomes sick, how could the remaining spouses decide how to handle the lack of a “living will” of the sick one, if they disagree? And then the handling of the kids or property should they die. That’s the more complex example I have of the complications that arise from the slippery slope argument against recognizing same-gender marriages.

    Marriage is good for the persons, good for the community, and good for the country. It brings a lot of benefits and little cost, and as such should be encouraged as it were, by providing those benefits provided by the government.

    Disclosure: I am gay (duh!)….but no getting my opinion invalidated! :)

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  19. Rob in CT says:

    Personally, I’d be fine if the government simply issued “civil unions” (encompassing all the legal rights of marriage and, thus, being simply a name change) and left “marriage” to religion.

    But that’s just re-branding, really, so whatever. I’m married. I’m not religious. A justice of the peace married my wife and I, and we wrote the ceremony ourselves.

    You can’t get the government out of the whole “legal contract between adults” business, for reasons that have been stated well above. So it really comes down to what you call it.

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  20. August says:

    First, if you did go through a church, the church would have legal standing in the contract. You break the contract with your spouse, the church would have something to say about it, and any civil court should take the church’s say into account because it is a third party to the contract.

    Second, the third party could function as court- arbitration if you dislike the idea of your church as court. This means, ideally, that you never end up in a government court in the first place. Indeed, one of the flaws of this whole line of argument is that you need government courts to decide this in the first place.

    Third, the government controls marriage, and will ultimately redefine it, not because it likes gays, but because it likes lawyers. This is another source of revenue for the divorce industry.
    Indeed, if you believe in traditional marriage and want to strengthen it, you’ll have to look to something other than government- they’ve been making it less and less meaningful over the years. Now it is merely a pretext for some court somewhere to redistribute assets. We certainly don’t see adulterers punished or anything like that.

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  21. @August:

    Indeed, one of the flaws of this whole line of argument is that you need government courts to decide this in the first place.

    But, the fact of the matter is, the ultimate arbiter of contracts is the government via the courts.

    You are right: if two private citizens agree to a settlement and both are satisfied with that settlement, they don’t need an outside power. But what happens when one of the parties is not happy with the agreement? Or, to use your example, what happens when one of the two parties decides that they no longer accept the authority of the church? Or, what if the church renders a ruling about child custody and one of the parents does not comply? Where does one go at that point?

    The civil courts, that’s where.

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  22. Blake says:

    The reason marriage is not something that can be entered into by just anyone is because the special rights of marriage are specifically linked to kinship.

    This is necessary because it is the nature of making babies that the two people doing it (the man and the woman) are not able to split the costs evenly, or arrive at a fair understanding of what might constitute “splitting the costs evenly”, without something serving the function that is currently served by the institution of marriage.

    Women bear more than half the burden, biologically and economically. That gives them a claim on the man who is the child’s other father.

    The other claims specific to family are likewise claims that derive legitimately from the special nature of kinship – a special nature that derives from the specific needs and claims of reproduction, and the fact that people tend to cluster with those they are biologically related to (for reasons that have proven to be hard to replicate in social engineering experiments: blood really is thicker than “rights”).

    The question of gay marriage is not whether people can choose to make alternate arrangements – find some other way of clustering, some form of social unit that is based on choice and desire rather than on biological kinship.

    People have the right to do that now.

    The question is under what circumstances should such alternate arrangements be granted the special status of “family”.

    Under what circumstances are we obliged to recognize someone’s alternate arrangements?

    If I get a girl pregnant, and she chooses to give my child to her lesbian lover, am I obliged to recognize her and her lover and my child as a family? What if I don’t like that? What if my child doesn’t like that? What if the next door neighbors – who feel that adultery is morally wrong – don’t like that? Whose choices and beliefs are to be prioritized, and on what grounds?

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  23. Rob in CT says:

    Blake,

    Trotting out the ‘ole procreation argument? Please. Get back to me when infertile people aren’t allowed to marry. Also: gay people adopt, meaning all the issues associated with parenting are there for them too (or at least can be, just as they can be for hetero couples).

    “If I get a girl pregnant, and she chooses to give my child to her lesbian lover…”

    Custody battle, I presume. Same thing if you get a girl pregnant and she has a new boyfriend and they want to raise the kid w/o you. You can go to court, can’t you? How is it any different?

    The courts decide such things as best they can. Got a better idea?

    Like or Dislike: Thumb up 2 Thumb down 2

  24. MSS says:

    Anyone who, like Paul, believes an allegedly modern democratic state should get out of the marriage business should be required to take a close look at Israel. There is no civil marriage in Israel. To get legally married in Israel, one must have the sanction of one of the officially recognized religious authorities. For Jews, this means the Orthodox establishment. (I have no idea what it is like for Christian and Muslim citizens/legal residents in Israel; I assume the basic rules of needing religious sanction apply, but these groups actually have more religious pluralism than do Israeli Jews anyway.)

    This state of affairs creates all sorts of problems concerning legal standing, especially for women, and for non-Orthodox Jewish communities.

    The state does, however, recognize civil marriages performed outside Israel. This has created quite a business in “marriage tours” to Cyrpus, the nearest relatively liberal state to which Israelis can travel. I suppose self-described libertarians like Paul (who holds a slew of non-libertarian views, but that’s a separate topic) would applaud this “market” solution–and look the other way over the fact that it was a market created by government intervention–but I wonder how they would propose to accept, or not, civil marriages performed in Canada or anywhere else in the world.

    For reasons Steven articulated, as well as many more, Paul’s “proposal” is completely non-serious.

    I would actually think the real liberal/libertarian proposal would be to make all marriage, from the standpoint of the law, civil. Get rid of state-sanction religious marriage, although certainly not the right of any couple to seek a religiously recognized parallel wedding from the cleric of their choice.

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  25. See, “What makes marriage, marriage?

    Frankly, as an ordained clergyman in the UMC, I’d rather the church get out of the marriage business – but note that we are all using here “marriage” when what we really mean is “wedding.” Marriage is the enduring relationship between the spouses; the wedding is the contractual arrangements by which they enter into a marriage relationship.

    So what I really mean is that the Church should be in the marriage but not necessarily in the wedding. In fact, getting married in a church by a cleric is a relatively recent development and is not normative in Europe in most places. The wedding is seen there as a legal-contractual proceeding after which the newlyweds may (or might not) receive the purely religious sacrament of marriage.

    Today it is extremely unusual for an engaged couple to approach me about officiating their wedding who are not already cohabiting as husband and wife, though without the formality of a license. (This used to be called “living in sin.” How quaint.) I would much prefer they get wedded by civil authority and later (say, their first anniversary) have the religious sanctification if they are so inclined.

    This gets nowhere, of course, since getting wedded in a church by a cleric is a matter of high superstition rather than reflection. One mother of a bride told me that she was so glad a clergyman was performing the ceremony “because now I know they’ll never get divorced.” Jeepers.

    More food for thought – my Wall Street Journal piece, “Save Marriage? It’s Too Late.

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  26. Carlo says:

    Rob in CT:

    the “infertile couples can marry” argument is a total red herring. The fact of the matter is the state has no interest whatsoever in contractual agreements between consenting adults. The only public interest is in having children raised in the best possible circumstances, which for many of us means having both a father and a mother. If you want to go after childless heterosexual couples because they do not ‘deserve’ the benefits afforded by civil marriage, be my guest. Policy instruments are blunt and some time there are loopholes. But the case of homosexual relationships the case is clear: they are private affairs that should not be the object of public policy.

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  27. Paul Rogers says:

    Good! Marriage should not have any special legal standing. Period!!! Next issue.

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