Can We Really Get Government Out Of Marriage?
Is the answer to the same-sex marriage debate as simple as getting the government out of the marriage business, or is it more complicated?
In an interview with National Review’s Robert Costa, Kentucky Senator Rand Paul takes a position on marriage equality that is very familiar to most libertarians:
Paul says foreign policy is an instrumental way to expand the GOP, but it’s not the only way. Social issues are another area where he thinks Republicans can make a better argument to independents and centrists without departing from their principles. Gay marriage, for instance, is one issue on which Paul would like to shake up the Republican position. “I’m an old-fashioned traditionalist. I believe in the historic and religious definition of marriage,” he says. “That being said, I’m not for eliminating contracts between adults. I think there are ways to make the tax code more neutral, so it doesn’t mention marriage. Then we don’t have to redefine what marriage is; we just don’t have marriage in the tax code.”
Jennifer Rubin reacts positively to this suggestion:
In other words, let’s get the government out of the marriage business, he says. If we were starting a system from scratch, I suspect that would be an easier sell. But getting the federal government out of the marriage business, deferring to the states and allowing individuals to, as he says, enter into contracts with one another, can be the way out of the gay marriage thicket for the GOP, I would argue.
The Supreme Court, depending on its ruling in the same-sex marriage cases, may assist this process by striking down the Defense of Marriage Act, the biggest aggrandizement of federal power on marriage in my lifetime (maybe ever).
Conservatives understand that there is a realm of conduct left to churches, synagogues, families, localities and individuals. The essence of Burkean conservatism is a healthy regard for and respect for those realms and for the customs, habits and beliefs that flow from those free associations. Whatever the methodology, conservatives at the national level need to extract themselves from a losing battle that should not be within the purview of the federal government.
And, reacting to the news of Senator Rob Portman’s change of heart on the issue, Stephen Green says much the same thing:
[T]he proper course is to abolish marriage as a government institution. Civil unions for all who want them, gay or straight, for legal purposes of wills, benefits, hospital visitations, etc. But leave marriage where it originated: With the churches. My church will proudly marry gay couples, maybe yours won’t. But no one will be forced to do or recognize anything they don’t want to. Everyone’s rights are protected; everyone’s liberties are respected.
It’s an appealing position on many levels for persons such as myself who favor limited government and maximum autonomy for individuals to define their relationships. Additionally, it would not necessarily be as radical a change as it might seem to be at first. As I noted elsewhere, the heavy government involvement in marriage that we are familiar with today, wherein one is not “married” unless one has been granted a license by the state, is of relatively recent vintage in the long history of Western Civilization. For centuries, millennia actually, marriage was an institution that was handled at the church level or via other informal means. People didn’t apply for marriage licenses, and there weren’t a class of people authorized by the government to perform marriage. In nations governed by English Common Law, marriage could come into existence merely by a pattern of behavior between the parties such as cohabitation for an extended period of time. That form of ”common law marriage” is still permitted in eleven states, although the requirements for it are typically governed by statute now rather than the informal, judge-made, rules traditionally associated with Common Law. Therefore, the idea of turning marriage into something far less legally formal than we have today, wherein people would be free to enter into contracts as they wished and religious institutions would be free to define marriage as they wish, would arguably be a return to the way things were before the state stepped in and asserted more and more control over an area that it traditionally had not been involved in.
The “get government out of marriage” argument is also appealing to me as a libertarian because, well, it involves getting the government out of people’s lives. I’ve long believed that the ideal world would be one in which consenting adults would be free to enter into any kind of personal relationships they wish without having to seek the permission or imprimatur of the state. It doesn’t matter to me if that means a man and a woman, two men, two women, or more than two people to be completely honest about it. I realize that a more radical position than most advocates of same-sex marriage take, but as far as I’m concerned people should be enter into whatever consensual relationships they want for whatever reason. For that reason, the idea of separating marriage and state does appeal to me.
At the same time, though, I have to wonder whether “getting the government out of marriage” is something that can ever actually be accomplished.
To start, I think it’s important to realize just how involved in marriage the government actually is. Except for those eleven states where Common Law Marriage is still recognized, in order to be married in the United States of America you have to go through the hoops that state governments have set up in order to get a marriage license. At the very least, that means that the ceremony must be presided over by someone authorized by the state to perform marriages. In four states, it still means that you must take a pre-marriage blood test, originally intended to screen both parties to a marriage for venereal diseases. In many states, you are required to wait a certain number of days before actually undertaking the wedding ceremony and some of them have restrictions on how long non-residents must be in the state before they can apply for a marriage license. So, even before you’ve put on the tuxedo or wedding gown, you’ve had to comply with a host of legal requirements in order to have your union blessed by the state.
There may be a rational basis for some of these requirements, but they all appear to me to be hanging on by a very weak string. What’s the justification, for example, for requiring blood tests at this point in time? Or what about the requirement that only people licensed by the state can perform marriages? Why couldn’t a couple decide that they wanted a close friend to officiate at their ceremony, what’s the harm in the fact that he doesn’t have a piece of paper from the state? Waiting periods also seem especially dubious. Eliminating most or all of these regulations would strike me as being particularly difficult or complicated, but that’s only the beginning.
Once a couple is married, they become the beneficiaries of a whole host of legal benefits that are not available to single people, and which are difficult if not impossible to mimic via private contracts. When a married couple buys property, for example, they typically buy it under a legally unique type of property called “Tenancy By The Entirety.” What this means in a practical respect is that the property is not only deemed to be owned by both parties equally, which is also the case when property is owned by individuals via a Joint Tenancy, but that also includes the additional protection that the property is immune from attack by a creditor that only has a claim against one of the parties. Legally, there’s no way to create this kind of protection for non-married couples outside, possibly, of the cumbersome and expensive process of placing the property in a Trust. Married couples also obtain the protection of the Spousal Testimonial Privilege which, with exceptions that vary from state to state, generally say that one spouse cannot be compelled to testify against the other on matters that are considered “marital communications.” Again, that is not a protection that can be created by contract. Other legal benefits granted to married couples that are difficult to replicate via contract include the benefits provided in the tax code, the privileges that a spouse has when the others spouse dies without a will, and a myriad other benefits that are difficult if not impossible to re-create via contract. Finally, getting that piece of paper from the state saying that you are married means that you suddenly become entitled to a host of benefits offered by private companies. You can add your spouse to your health insurance, for example. That’s something that isn’t possible unless you have an insurance plan that allows you to do so.
There are two other final complications relating to marriage in which the government gets heavily involved. As everyone knows, we live in an era where marriages don’t necessarily last forever. Depending on which statistic you follow, the divorce rate is either 50% or something pretty close to that. Many divorce cases end up being uncontested and with little courtroom drama between the parties, but for each one of those cases there are the ones where the separation was bitter and the court proceedings lengthy. Even if we replaced our current legal regime with one where people are free to contract among themselves, there were still need to be a legal method for dealing with the dissolution of those contracts. If children are involved, the matter becomes even more complicated, because then the Court becomes the arbiter of the best interests of the child, something that also cannot be dealt with via legal contracts.
There’s one final point that the advocates of this position make that needs to be addressed largely because it is also an argument utilized by opponents to same-sex marriage. Legalizing same-sex marriage, they argue, would lead to churches being forced to marry gay couples even if that is against their religious doctrine and religious people being forced to provide services to gay couples even though it might be offensive to their religious beliefs. As to the first point, I would suggest that it’s perfectly clear that the First Amendment would bar any governmental effort to force any religious institution to solemnize a marriage that was in contradiction to their religious beliefs. For example, there are Federal laws that bar discrimination based on religious belief, but nobody is seriously arguing that the rules of the Catholic and Orthodox Churches which generally forbid interfaith marriages absent certain exceptions are illegal. Similarly, nobody is seriously arguing that legalizing same-sex marriage means that the Archbishop of New York will be required to preside over same-sex marriages. Indeed, as someone who supports same-sex marriage I say without qualification that I would oppose any effort by the state to impose such a regime on religious institutions.
The issue becomes slightly more complicated when you’re talking about individuals engaged in private business who may claim to have a religious objection to same-sex marriage. Should a wedding planner, or a photographer, caterer, baker, or florist, be able to refuse to provide services to a same-sex couple on the grounds that acknowledging such a union would violate their religious beliefs? This is precisely the issue that Federal Court’s throughout the country are dealing with in connection with the legal challenges to the mandate from the Department of Health and Human Services, pursuant to the Affordable Care Act, that employer provided health insurance plans must include coverage for contraceptives. As I’ve noted before, I’m slightly skeptical of the religious liberty arguments against this mandate mostly because I don’t think the Federal Government ought to have the authority to impose such mandates on any employer and I can’t see the logic in carving out an exemption for employers who claim to have a religious objection to the mandate. If you take that argument to it’s extreme, then it would mean that an employer who was a Jehovah Witness could object to covering health insurance expenses for blood transfusions. That leaves us with two options, either the employer mandate is Constitutional (and I don’t think that it is) or only employers who can come up with a religious reason to oppose it are exempt from it. The second option doesn’t seem very logical to me. In either case, the government is still “involved.”
So, there are a whole host of legal and sociological issues that arise from a relationship, whether it s called a marriage or a civil union. In the end, I don’t see how the government can ever be totally “out of the marriage business,” but I’m willing to listen to some arguments.
A long, thought-out, detailed discussion of marriage laws? Released on a Friday night? When OTB readership starts the weekend drop-off? Oh, I’m just being snarky. Yes, yes, to all of the above. Lets remove the magic of the word “marriage” and leave that the the churches. Call domestic partnership a legal binding action and be done with it. Even the DoD is on board, allowing new ID cards for domestic partners.
@John Peabody:
Yes, this is a post I’ve been working on for a day or two
Now that gay marriage is nearing critical mass we have to change everything? No sale.
Equal protection under the law. Period.
No way small government Republicans give up this power over other peoples lives.
You noticed that too…so many of these people who are suddenly calling for the government to get out of marriage are acting like children who want to take their toys and go home now that the rules of the game are about to change…
From the very beginning, marriage has been about property and inheritance rights , so no, you can’t get the state out of marriage. Only romantics and people with no knowledge of the actual history of marriage could ever believe you could get the government out of marriage.
You know, I really could care less about Rand Paul’s religions beliefs. Or Rob Portman’s. Or any other Republican, conservative, or “person of faith”. I don’t expect them to care about mine, or alter their lives in the slightest to accomodate me. Neither their religious beliefs or mine should affect public policy.
Once again, equal protection under the law. Period.
It’s so bizarre how conservatives can argue with a straight face that the federal government is awful, but letting state government handle the same things is magically better and totally different. It’s just so transparent. They want to prevent the feds setting a floor for government services which would give those services to the undeserving (anyone not straight, white, male, and prosperous); so they argue “state’s rights” so backwards states can continue to treat their citizens like dirt.
Hmm, a year ago James Joyner did a similar post here. I really recommend the comments there of Rev Donald Sensing (and his 2004 links to his writings in the W$J).
I live in a state when same-sex marriages (and divorces) are now legal. Times and society change, and some will still thunder about the evils of rock-and-roll (or the demon weed).
It is too bad that we can’t separate “marriage”, religious institution, the legalities of marriage but I think that would be far to complex. It’s also too bad that the Bible Bangers who cherry pick the Bible to support their own phobias and prejudices have so much influence in this country.
Seems like a solution in search of a problem. It’d be a lot easier to just allow same sex marriage than try and redo the whole thing, and it has the bonus of only inconveniencing the people who deserve it.
My wife and I had three kids before we got married. Frankly, with the head of household filing status under the federal tax code, mutually drafted wills, advanced care directives (aka living wills) and various other contractual relationships we were able to pretty much mimic married status. I don’t understand why all the controversy when these kinds of options are available. I would go down the road of expanding fand improviing voluntary options instead of forcing people to adopt a once size fits all religious sacrament.
@Let’s Be Free:
People aren’t forced to be married though…
David M pretty much says it all. This is a solution in search of a problem
@Let’s Be Free:
Unless the hospital just ignores them. It’s been known to happen. Also, there is no paperwork you could just sign to, say get your same sex, non-American partner a green card. And if you had died, your unmarried partner would have zippo claims on your Social Security.
There are about a hundred benefits that you can only get through legal marriage. Just google, those lists are easy to find.
Two consenting adults that love each other want to get married. WTF should they have to jump through a bunch of hoops to satisfy a bunch of bigots stuck in the previous century? Why should they not enjoy the same rights I do? When I wanted to get married, it was pretty fricking simple.
Of course, my wife is half Asian. So not too long ago the same bigots who are working hard to prevent gay marriages would have been cheering for laws making my marriage illegal.
@ Let’s Be Free
Tell me, does “Let’s Be Free” actually mean anything to you? Perhaps that people who are more or less exactly the same as you should be free.
But not gays or lesbians.
Justice denied anywhere is justice denied everywhere.
I married my wife so she would get my pension when I die, something not possible without marriage.
This is a strawman argument. Nobody has the constitutional right to be in business. If there was such a right, government could not regulate business. Likewise, through the ACA, the government is not forcing anyone to provide insurance that covers contraception. If someone does not want to do that, they are perfectly free not to.
They can go out of business.
Doug, do not, ever, cite Jennifer Rubin in support of an argument you are trying to make.
Jennifer, just exactly where, when, and how, do Conservatives understand that there is a realm of conduct left to churches, synagogues, families, localities and individuals? Really???? You can type that with a straight face??? Conservatives have NO (read that as ZERO) respect, Burkean or otherwise, for the customs, habits and beliefs that others may hold which are not the same as theirs.
Why else is it I want a bumper sticker that says, “Your religion does not trump my freedom.” or “Your Bible, not mine”? Why is it every time I turn around, some “conservative” is arguing against gay marriage or contraception or abortion, or for intelligent design (which, whatever else it might be, it is NOT intelligent) they are reaching into their “rich Judeo-Christian heritage” (aaaaack gag aaaack) for the arguments to bolster their point of view? Jennifer, please, why don’t you and all your little friends take your take your Burkean respect, ball it up with all of “religious values” (whatever they are) and sho……
Now, now, Tom…. You promised James you would be nice to the useful idiots.
Jennifer? Remember something for me, will you? Those nice people in the Catholic Church in 15th and 16th century Spain? They were just engaged in a realm of conduct left to churches too. I’m sure you would have fit right in.
The idea that a body of law developed over two thousand years must be abandoned to accommodate the ranks of anti-gay florists is ludicrous. (Leaving aside the bizarro fantasy where Orthodox rabbis are forced to start presiding over gay weddings, as if existing antidiscrimination law forces them to marry Episcopalians.)
@alkali:
heh.
@OzarkHillbilly:
This is, at best, inartfully stated. I blame it on insomnia, I have been awake since 1 AM.
To get it righter (!!)) let me quote Greg Sargent commenting on the Cruz Feinstein kerfuffle:
In a sense, Cruz’s questions seem to presuppose that the Bill of Rights is absolute, and that any laws regulating any behavior relating to them inherently violate those rights. “Rights are all subject to some restrictions and are applied differently,” Cole says. “The same with the Fourth Amendment. The courts have held that with respect to people out on parole or probation, the state doesn’t have to have either probable cause or reasonable suspicion. It can search those people at will. The courts have said some kinds of investigations don’t count as searches and are not restricted by the Fourth Amendment.”
In other words, the courts have held that the First, Second, and Fourth Amendment don’t preclude regulation in these areas. Or, as Cole puts it: “Rights are not absolute.”
I’m afraid the article strikes me as an argument for gay marriage. Sure, you could do a mass substitution on all US law, and put in the word “familified” (formed as a family for the purposes of tax, property, child-care, and survivor benefits) and then use “marriage” as something else … but why go to all the bother?
By using that one existing word, you let gay people familify and you are done.
This has much wider implications than marriage laws. I’m sure you’ve all read of pharmacists who invoke “religious freedom” as an excuse to withhold birth control prescriptions. Anyone who has a scintilla of knowledge of South African apartheid laws knows they were “backed” by Biblical interpretation.
I understand the attraction of very limited government, but without a central, secular institution, humanity collapses.
@swbarnes2:
Well said. On my read, most conservatives and alleged libertarians don’t like the federal government because it occasionally prevents then from doing awful things that they want to do.
Therefore, they prefer “states’ rights”, which means generally that people just like them will encourage them to do the awful things they wanted to do all along.
@Rick Almeida:
Why do you think the Pauls are so popular with evangelicals?
I’m with anjin-san and Dave M on this one as well. This same exact proposal went up after Loving v Virginia . The bigots are starting to see just how fast the tables have turned so now they want to move the goalposts.
So, when the idea of gay marriage began to be taken serioiusly, right wingers told us that it would destroy the institution of marriage, which was the worst thing that could ever happen.
Now that legalization of gay marriage seems inevitable, right wingers want to destroy the institution of marriage, which is apparently just a peachy idea.
In other words: “If I can’t have it all to myself, no one can have it!”
Is the answer to the same-sex marriage debate as simple as getting the government out of the marriage business, or is it more complicated?
Yes.
@wr:
This.
This is all wrong. We shouldn’t be asking about getting the government out of marriage, we should be asking how we get the churches out of it.
Sorry since I see no support for polygamous marriages here, I am going to have to say you are the one that are intolerant.
/if it is not a binary union as ” christians and jews, but not muslism so not all of Abraham’s” define marriage i.e. 1 man 1 woman; then it should be a marriage from all cultures amongst mutually consenting adults .
Doug writes:
I’m sure it must have seemed complicated to segregationist business owners when races could mix at soda fountains. But it really wasn’t complicated at all.
@Argon: I heard about a local photography business that solved this problem by partnering and becoming part of the outreach ministry of a large church that the owner is also a member of. Their income is provided through the church, in return for rendering their skills and talents as photographers.
Doug–don’t you remember your Wills and Trusts course? The reason for having things like wedding ceremonies that you have to jump through hoops for is that there needs to be a bright line. Remember all those cases about “palimony” and “who is a family?” If we turn it over into mandated by contract, then there’s going to be incessant squabbling about implied contracts and What The Terms Of The Contract Are (unless we really start applying the Statute of Frauds). Two tipsy idiots late one night decide to pledge their vows on a whim to each other in front of a third friend, also mildly sloshed. They manage to scrawl a simple statement of vows on the back of a cocktail napkin. Is this legitimate? What happens if one of the individuals is separated–but not divorced–from a previous spouse? Can he/she be accused of bigamy and Low Moral Character by said spouse, who is fighting for increased alimony and child support?
@john personna:
Since you have the one sincere question I can manage to find in this mass of anti-conservative bigotry:
That’s the real question, isn’t it: What is marraige? Is it just “familification? or is it something deeper, socially speaking? (I’m leaving out the religious & spiritual dimensions of marriage here as they are none of government’s business).
At one point, marriage had a social purpose (I’m letting my inner Cynic ome out and play a bit here): To ensure that the vast majority of males were “bought into” the system so that they would support the status quo.
Think about this for a second.
When marriage is devined as “till death do you part” (baring someting extreme), the economics of marriage are vastly different. When society expect a person — any person — to stay true to their marriage vows and not mate with anyone other than their legal spouse (sex) then the economics changes. Etc.
That no longer exists.
Marriage is now a quaint, old fasioned notion that died about the same time I was born. Society no longer has buy in — there’s nothing in it for society. The only part of “marriage” that is now extant in the public sphere is the whole “personal union” thing.
But that’s not marriage.
But I guess I am a walking anacronysm.
@John D’Geek: In other words, marriage is a mechanism for tying males down who otherwise wouldn’t stick around to help raise the kid until adulthood?
Says a lot about the traditional view of males, don’t it?
The naivete embodied in the main blog post and in the various cited blurbs are so mind numbing, well, guess what, they numb the mind. They’re the sort of comments that only can be written, much less accepted, in media-academe-politico-Internet circles.
“Getting the government out of marriage” sounds great. OK, then what? What about child support? Alimony? Custody? Twenty other domestic relations issues? A dozen or more succession, probate, trust and will issues? Multiple tax issues? Multiple state, local and federal benefits issues? Various issues regarding visitations, medical treatments, etc.? The only way to handle all that is to substitute civil unions for marriage. But, hello, that would require the government (legislation) and then again the government (courts) to enforce the attendant mandates. So, yeah, we could de-legislate “marriage” from the lexicon, to make things more egalitarian. But simultaneously we’d have to legislate along the same lines and regarding the same topics. And then prescribe locally nearly identical licenses. Unless we simply want to overturn entire libraries worth of existing statutes, regulations and case law decisions.
The devil’s always in the details.
The only federal issues here are federal taxes and federal benefits. Why not simply amend the limited scope of federal laws to treat state-recognized civil unions the same as marriages? That way the likes of California, Missouri, Florida, Ohio, Michigan and Tennessee, etc., don’t have to have imposed upon them local decisions from the likes of Maryland and New York. And the courts could stay out of the fray.
Of course the answers are axiomatic why the left would not tolerate simply amendments of federal law, thereby leaving state laws intact. The left is not really interested in equality. That’s a red herring. The left wants its specific agenda imposed upon all. It’ll pick and choose the items for which it wants to be “Libertarian.” Same-sex marriages? Get the government out of the way. Gun rights? Well, that’s a different story. State and local regulations there are OK. The “drug war?” Government be gone. The “war on poverty?” Ah, well, the government there is OK. So on, so forth. It’s “Libertarianism” by emotion, not by logic. States’ rights by fiat, not by any consistent philosophy.
Indeed, much like with the Civil Rights Movement…but I can certainly understand why such a thing would hurt your delicate sensibilities…
@grumpy realist: A bit more cynical than I was going for, actually. Or less, maybe.
When humans are forced to choose only one mate, they choose differently and with longer term goals in mnd. This is true for both males and females. Once society allows the mating cycle to go “short term”, a very large pool of males drop of of the mating pool.
It’s the primary reason so many men are against Polygny — if one man has three wives, that means three men have none (assuming a rougly equal gender ratio). Those three men have no reason to support society “as is” and become “trouble makers”.
The modern era has created what some are calling “serial polygamy”(sic) — many mates, but one at a time. So, once again we have many single men who have no “buy in” to society. No children. No mate. No indicator from society that they are of some import to society. Remember — Men are expendable; Women are not. So they either fade away or become trouble makers.
Yep, you were definitely less cynical than I was being.
Two links:
“What makes marriage, marriage?”
and
“Save marriage? It’s too late.”
@Donald Sensing: Yep. My only “disagreement” (if you want to call it that) would be that since what exists now is not “marriage” let’s not call it that anymore. But in the end, I guess it just doesn’t matter.
I would suggest, Doug, that you (and most commenters) are conflating “marriage” with “wedding.” The government cannot get out of the marriage business because marriage is an enduring institution with all sorts of social and legal ramifications throughout the marriage’s lifetime.
As a clergyman, I want out of the wedding business because it enlists me as an agent of the state. I explained all this n some detail in my 2004 post, “Separate the legal and the spiritual in the wedding business,” but here is the nub:
I would prefer that weddings be entirely civil in nature and that the marriage resulting therefrom subsequently be consecrated or blessed in a religious setting if the couple desires.