Getting Government Out Of Marriage Is A Fantasy, Not A Solution

The Supreme Court's decision on marriage equality seems to have revived an idea that has been mentioned before, but as it has always been, the idea of "getting government out of marriage" is little more than a simplistic slogan.

wedding-rings

On Friday in the hours after the Supreme Court’s decision in Obergefell v. Hodges, pretty much every Republican candidate for President had chimed on the Court’s decision in one way or another. Some, such as Jeb Bush, Marco Rubio, and Lindsey Graham, took a position that maintained their long-standing support for “traditional marriage,” chided the Court for stepping into an issue that should be “left to the states,” but also saying that now that the Court had ruled the decision must be respected. Others, such as Rick Santorum, Ted Cruz, Mike Huckabee, and Bobby Jindal took a hard line stance of opposition to the ruling, suggestions that state officials don’t really need to listen to the Supreme Court, and even suggestions to get rid of the Supreme Court or subject Federal Judges to election. One candidate who remained silent, though, was Kentucky Senator Rand Paul, and that silence continued throughout the weekend to the point where it started to become noticeable in its absence. Yesterday, Paul broke his silence in an Op-Ed in Time that seems to try to bridge the gap between Paul’s libertarianism and the social conservatives that he is obviously trying to appeal to while running for President, and doesn’t really accomplish either:

Republican presidential candidate Rand Paul finally made his opinion known about the Supreme Court’s same-sex marriage ruling, writing in a Time op-ed that the federal government should get out of the marriage business altogether.

“While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract,” the Kentucky senator wrote in the op-ed, published Sunday night.

The government should not prevent people from doing so, Paul said, adding that “does not mean that the government must confer a special imprimatur upon a new definition of marriage.”

Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party, Paul said.

“Since government has been involved in marriage, they have done what they always do — taxed it, regulated it, and now redefined it,” he wrote. “It is hard to argue that government’s involvement in marriage has made it better, a fact also not surprising to those who believe government does little right.”

While Paul’s Time piece is rather disjointed and, quite honestly, not very well written or edited, at its heart it appears to be making a case for the idea of “getting the government out of marriage,” or as I have noticed it being called recently in some circles, “marriage privatization.” It’s worth noting off the bat this isn’t a new position for Paul that he came up with in response to Obergefell, but rather something he’s articulated several times in the past. The specifics of what this means, though, are never really made clear, not even in Paul’s Op-Ed, and in the end the phenomenon of conservatives talking about the idea of “getting government out of marriage” seems to be one that has come to being largely in response to the advance of same-sex marriage. Prior to the Supreme Court’s ruling, for example, state legislatures in Alabama and Oklahoma considered bills that would have eliminated the entire idea of marriage licenses from the law and turned the process of getting married into something that was mostly done by churches, with the non-religious apparently left to their own devices to figure out how to go through the motions required to be considered legally married by the state. Yesterday, the Attorney General of Mississippi suggested a similar idea for his state in response to the ruling in Obergefell. I’ve also noticed it gaining some traction among some on the right both online and elsewhere.  The odds of any of these proposals actually becoming law at any point are, of course, quite small, but this is likely to be a topic of debate in the future just as it has been one in the past.

As I’ve said before, on some level the idea of getting the government out of marriage is one that has some appeal. Indeed, in some previous writing, I was quite sympathetic to the idea. The entire idea behind much of the movement that pushed for legal recognition of same-sex marriage and an end to the laws that restrict what two people can do in their personal relationships, after all, was the idea that these are relationships that government should have little to no involvement in to begin with. Taken to its logical conclusion, this would seem to suggest that people shouldn’t need to go to a government office and get a “license,” which is really of course just a form of registration at this point,  to be “married.” It’s a position that has appealed to me in the past largely because of its obvious libertarian roots. However, as James Joyner, Steven Taylor, and myself have all noted here at OTB in the past, while the idea of “getting the government out of marriage” sounds simple and appealing on the surface, it is in reality quite complicated, probably not possible, and in the end inadvisable.

Leaving aside the issue of the rights and benefits that being legally married grants, though, it becomes clear fairly quickly that the idea of getting government out of marriage is largely an impossibility. Let’s take Paul’s suggestion that marriage just be treated as a contract, for example. Even in the area of private contract law, the government still plays a role that it would also play in a world where marriage was “just a contract.” First, in many respect the government, through both written laws and court decisions, plays the role of setting certain default rules for contracts such as who can enter into a contract (i.e, capacity to contract issues such as the age limits and mental states of the parties), what form the contract must take to be considered valid, and when and how the contract itself is considered ratified. Government and the law also play a secondary role in the world of contracts by setting out default rules about performance, breach, and dispute resolution. The parties can often come up with their own rules, but for purposes of convenience and to save money most people follow the default rules. Finally, of course, government plays a role when there are contract disputes and when contractual relationships are dissolved.

Applying this to a world where marriage is just a contract as Senator Paul seems to advocate, this means the government will be involved in setting the default rules for who can get married, such as age limits, limits regarding familial relationship, and laws regarding who has sufficient legal capacity to get married. Second, as I’ve already noted, government sets the terms of what it means to be married by establishing a certain legal status to the institution that is unavailable to unwed couples. Otherwise, there’s no reason for people to agree to be “married” in the first place.  If one of the parties to the marriage dies, the government has a role in determining inheritance rules for the estate of deceased, especially if there is no will. Finally, if the marriage unfortunately dissolves and the parties are unable to agree on their own how to divide marital assets, as happens quite often, the government plays a role, though the court system in that process as well. If there children involved, then the courts are most emphatically part of the process, and they also play a role in issues related to domestic violence and other matters that can, unfortunately, arise in the course of a married relationship. The point is, government is inherently tied into the status of being “married” from a non-religious point of view (the religious definition of marriage doesn’t interest me and is, in any case, irrelevant to anyone not the member of a particular church or religious group) so the idea of “getting government out of marriage” is really nothing more than a simplistic soundbite.

On a final note, it’s important to point out that many people seem to be latching on to this “marriage privatization” idea for less than admirable reasons. Senator Paul comes at the issue honestly, I think, because this is something he has talked about many times in the past and it is largely in tune with the libertarian viewpoint that informs his views. In other cases, though, and especially in the cases of politicians in certain states who have pushed this idea lately, the motivation seems to be less than pure. Indeed, one can say that for many conservatives the issue in “marriage privatization” has only really come about as it became more apparent that they were on the losing side of the same-sex marriage debate. One did not hear these people suggesting something like this when only men and women could get married, for example. Given that, these suggestions should be taken with a dose of skepticism separate and apart from the fact that the argument itself doesn’t really withstand logical scrutiny. In the end, it seems as though many of these people have decided that the government should stop issuing marriage licenses merely because gays and lesbians are now legally able to get them.

FILED UNDER: *FEATURED, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. grumpy realist says:

    It is VERY obvious that Paul has not been through law school….

    Property rights? No comment.
    Intestate rights? No comment
    Tax status? No comment
    Marital privilege? No comment
    Financial debt sharing? No comment.
    Alimony rights? No comment
    Divorce rights? No comment.

    By the time you rewrote contract law enough to allow for all of the above, you would have discovered that you would have recreated marital law in full.

  2. GeoffBr says:

    I’m actually not as convinced that this is unrealistic. My assumption is that the “get government out of marriage” proposal is rooted in the idea that “marriage” as a word has a lot of religious connotations to it… and that simply calling marriage a civil union (or whatever) might help defuse the tension that results when people make that connection.

    In other words, if we didn’t call marriage “marriage,” but it conferred all the same rights that marriage does today, it might be a compromise that would basically “cost” nothing from a civil rights point of view but would make people feel better.

    You can debate whether that feeling would be logical, but if it were true, it seems like it would be worthwhile.

  3. While Paul’s Time piece is rather disjointed and, quite honestly, not very well written or edited

    So he actually wrote it himself, is what you’re saying?

  4. I’ve also noticed it gaining some traction among some on the right both online and elsewhere.

    The most amusing part of this being their apparently lack of awareness of the fact there are a large number of churches that are perfectly happy to marry gay couples.

  5. humanoid.panda says:

    @GeoffBr:

    In other words, if we didn’t call marriage “marriage,” but it conferred all the same rights that marriage does today, it might be a compromise that would basically “cost” nothing from a civil rights point of view but would make people feel better.

    Well, nothing is stopping conservative Churches from renaming their marriages- let’s say to holy matrimony. Why bother the rest of us?

  6. GeoffBr says:

    @humanoid.panda:

    Not sure I really understand this; the point is that Paul’s audience feel a religious attachment to the term “marriage,” and “the rest of us” presumably don’t care what word we use as long as everyone gets the same rights and uses the same terminology.

    If the outcome is identical, this makes the others feel better, and it doesn’t make us feel worse, what’s the difference? It’s a no-lose move, especially since we can’t force people to change their thoughts, just their actions.

  7. Hal_10000 says:

    By the time you rewrote contract law enough to allow for all of the above, you would have discovered that you would have recreated marital law in full.

    This. Getting government out of marriage is one of those hypotheticals that some conservatives and libertarians chase down a rabbit hole. But what is a contract w/o the power of law to enforce it? It’s a handshake. I don’t see people putting things like custody of children and inheritance into the “we’ll just win it” category.

  8. Modulo Myself says:

    Shorter Rand Paul:

    “I used to believe in legal segregation but ever since the Civil Rights Act it’s clear that the government has no business telling anybody what to do.”

  9. James Pearce says:

    “Senator Paul comes at the issue honestly, I think, because this is something he has talked about many times in the past and it is largely in tune with the libertarian viewpoint that informs his views.’

    Yeah, this is kind of the problem with the libertarian viewpoint. Once you internalize the “government is bad” stuff, you get a government that’s callous, non-responsive, and rather indifferent to your concerns.

  10. stonetools says:

    This is the typical libertarian problem, they’re so anxious to get rid of “Big Gumint”, they forgot why people instituted governments in the first place.
    “How can we enforce this contract?”
    The gumint.
    “How we will get others to recognise that this contract exists”
    The gumint will notify them?
    “If there is a dispute as to what this marriage contract means, who will settle it for us?”
    Why, the gumint.
    “If we want to end this contract, how will we divide up the assets and seperate in orderly fashion?”
    With the help of the gumint.

    Other than all that, there is no need for the involvement of the dadgum gumint at all.

  11. Mikey says:

    @Stormy Dragon:

    The most amusing part of this being their apparently lack of awareness of the fact there are a large number of churches that are perfectly happy to marry gay couples.

    No TRUE Scotsman would marry two gay people!

    Errr…Christian, I mean Christian…

  12. wr says:

    @GeoffBr: “You can debate whether that feeling would be logical, but if it were true, it seems like it would be worthwhile.”

    Maybe… but I’ve got a marriage, too, and I don’t believe in Jesus. And who are you or anyone else to say that my marriage is somehow different just because a bunch of ignorant hicks don’t want to share the word with people they don’t like?

    It’s worthwhile to the extent that it’s making major changes in the culture to ease the idiot feelings of bunch of bigots. I do not surrounder to these people.

  13. James Pearce says:

    @GeoffBr:

    If the outcome is identical, this makes the others feel better, and it doesn’t make us feel worse, what’s the difference?

    It’s too late for this kind of “compromise.” The time for this would have been the 90s, and even then, I suspect that by now, we’d have a whole generation of people in “civil unions” who would want to be in actual “marriages.”

    That “separate but equal” stuff tends to grate after a while.

  14. An Interested Party says:

    These people who want to “get the government out of marriage” are like the spoiled rich kid who takes his toys and goes home because everyone won’t play by his rules…these people really need to grow up and except reality for what it is rather than what they want it to be…

  15. LWA says:

    What Paul (and quite a few libertarians) overlook is that even the most basic contract has 3, not 2, parties: Party, Counterparty, and the Adjudicating Party.

    The last one is so assumed no one ever thinks about it. Except when someone says “hey, lets get the government out of business!”

    All the convoluted schemes for getting around this fact just end up recreating it through other means.

    So as commenters note above, even if there is no “marriage”, the state (AKA the guys with guns and cages) will be needed to determine what these private contracts men and how they are applied.

    And sorry, Paul, that means gay folks will have their “contracts” enforced just like you.

  16. grumpy realist says:

    @Mikey: Unfortunately, that’s the attitude that people like Rod Dreher take.

    His argument for the invalidity of the liberal Christian churches as opposed to the traditional Christian churches is that the liberal churches are losing believers at a higher rate than the trads are.

    I swear, that’s his argument. The validity of Christian thought in his mind is determined by the growth in believers.

    Based on that logic, he should be believing in atheism, because the percentage of people who identify as “Nones” is climbing faster than the rest…

  17. Monala says:

    @GeoffBr: Conservative Christians aren’t the only ones who like the term marriage. Furthermore, they didn’t invent, so why do they get to own it?

  18. grumpy realist says:

    @stonetools: The other problem is that contract law doesn’t overlap marriage law all that well. There’s a whole bunch of rights that married couples have (the right to not be forced to testify against the other) that certainly never show up in contracts.

    Which is why this is such a totally brain-dead idea. “Getting the government out of marriage” sounds great until you realize that most of what marriage has BEEN, historically, is something identified under secular law. (The Catholic Church at first refused to get into the matter.)

  19. stonetools says:

    @grumpy realist:

    Unfortunately, that’s the attitude that people like Rod Dreher take.

    Seriously, why do you even engage with that guy? He is completely around the bend on this issue.

    But then, I sometimes engage with Jack and Jenos…

    OK, carry on.

  20. humanoid.panda says:

    @GeoffBr:

    If the outcome is identical, this makes the others feel better, and it doesn’t make us feel worse, what’s the difference?

    Because if a tiny group of people feels their marriages are no longer marriages because gay marriage is law of the land, the logical thing is for them to define what kind of relationship they are in, rather than for the rest of us to change the way we do things.

  21. humanoid.panda says:

    @stonetools: I do it too, and I am not sure why. One possible reason is that the man is a walking paradox: on the one hand, he is a boring upper middle class suburbanite that spends his time on foodie pursuits, yet ideologically he basically pines for a Byzantine theocracy. People like Jenos and Jack are in the end nothing but an extension of the Fox News puke funnel, and he really represents an alien way of thinking. Another issue is that he is the rare good writer who is absolutely and utterly incapable of forming a logical deduction- so shooting down his arguments is fun..

  22. Lynn Eggers says:

    @GeoffBr: “If the outcome is identical, this makes the others feel better, and it doesn’t make us feel worse, what’s the difference?”

    If the other school is exactly the same, and we all get the same education, what difference does it make?

  23. JKB says:

    Well, before you can get government out of marriage, we should actually dispassionately identify the government’s interests in marriage (civil unions)

    Looking at this list from Bouvier’s Law Dictionary (1856)

    18. The civil effects of marriage are the following: 1. It confirms all
    matrimonial agreements between the parties.
    19.-2. It vests in the husband all the personal property of the wife,
    that which is in possession absolutely, and choses in action, upon the
    condition that he shall reduce them to possession; it also vests in the
    husband right to manage the real estate of the wife, and enjoy the profits
    arising from it during their joint lives, and after her death, an estate by
    the curtesy when a child has been born. It vests in the wife after the
    husband’s death, an estate in dower in the husband’s lands, and a right to a
    certain part of his personal estate, when he dies intestate. In some states,
    the wife now retains her separate property by statute.
    20.-3. It creates the civil affinity which each contracts towards the
    relations of the other.
    21.-4. It gives the husband marital authority over the person of his
    wife.
    22.-5. The wife acquires thereby the name of her husband, as they are
    considered as but one, of which he is the head: erunt duo in carne una.
    23.-6. In general, the wife follows the condition of her husband.
    24.-7. The wife, on her marriage, loses her domicil and gains that of
    her husband.
    25.-8. One of the effects of marriage is to give paternal power over
    the issue.
    26.-9. The children acquire the domicil of their father.
    27.-10. It gives to the children who are the fruits of the marriage,
    the rights of kindred not only with the father and mother, but all their
    kin.

    Most of those effects have been gone for a long time. Others such as children kinship can more easily be established by DNA testing. Although, I suppose rich people, would have issue since unrecognized bastard children could claim their part of the estate, but then in the anglosphere, Wills take care of that if properly worded.

    So really modern marriages have few civil effects other than qualifying for government benefits. Well, there is the “default” contract between spouses (spread throughout the statutes and decisions) that comes with “marriage”.

    Well, the can’t be compelled to testify might be a remaining benefit. Hey, maybe criminal gangs will start same-sex marrying?

  24. @Mikey:

    No TRUE Scotsman would marry two gay people!

    Says you!

    Church of Scotland opens door for appointment of married gay ministers

  25. anjin-san says:

    @JKB:

    I’m curious, are you married? I know that my marriage confers a lot of benefits. I’m not prepared to give them up because there are a lot of conservatives who are bigots.

  26. michael reynolds says:

    I’ve been with the same woman for 36 years tomorrow. We got married somewhere in there. The institution has never meant a damned thing to either of us. The only reason I care about marriage is because one bunch of Americans was being deprived of its right to participate in an institution I find kinda silly. Very much like religious freedom to me in that it involves me fighting for something I find ridiculous because some else finds it indispensable.

    But that aside, rather than go to all the hassle of getting government out of marriage, why not just religion out? Seems quicker and easier. Let the state marry and let the church do its thing.

  27. Bruce Majors says:

    @Modulo Myself: I take it you are from that party that feels good about itself and its papier Mache civil rights paradigm while you kidnap poor kids of color and sell them to the educrat guilds for the second biggest source of donations to your Democratic candidates? And discusses how people not as enlightened as you are all racists at cocktail parties in your new loft condo built on the former property of black people you dispossessed theough eminent domain.

  28. Bruce Majors says:

    @LWA: No doubt privatizing marriage would not get the government out of marriage in the same way Alfred Khan deregulating the airline industry in the late 70s didn’t get government out of contracts in that industry. (Though there is a history of contract law without the State, merchant law.)

    This article seems to take a 3 sentence diacussion and embroider it into more significance than it has. Deregulating an area of life, so that people are free to contract, associate, relate, as they choose, does not abolish government or eliminate it from adjudicating contracts. So what?

    The care of children might then legally be determined by who was a parent, not who was a spouse. Courts might have to decide who was a spouse when it comes to not being required to incriminate a spouse. These are already areas where courts have to make decisions with common law marriages and other types of unlicensed relationships. They do it all the time.

  29. Bruce Majors says:

    @James Pearce: Yes. Libertarians are to blame for the callousness of government. From the Vietnam war, to apartheid, to gas chambers, to forced starvations, to failed, de facto segregated urban public schools, the libertarians are behind it all.

    I bet they are even responsible for you!

  30. Bruce Majors says:

    @stonetools: Yes, so the fact that currently government is how you enforce a contract means government should be involved in setting the terms and details of every contract.

    This is one of the problems with this article. It takes a tangential minor point, pretends it is a major issue in this debate, and encourages the blindered to imagine they are enlightened.

  31. Bruce Majors says:

    @JKB: So in other words for decades the absence of freedom to marry has meant not only that gay people were taxed to pay for the Social Security survivor benefits of heteroaexual spouses and their children, but gay people could uniquely be forced to testify against the person they’d chosen to share their entire life with.

  32. Bruce Majors says:

    @Mikey: Including gay churches like the Metropolitan Community Church.

    I like the First Amendment argument for gay marriage:

    In licensing the sacraments of one group of churches but not another, the government is establishing a set of state approved churches.

    Since the existence of state licensure of marriage may mean that the State will always be approving some and not approving other churches’ sacraments, marriage licensure may be incompatible with the Constirurional injunction against establishing a state religion.

  33. stonetools says:

    @Bruce Majors:

    Hey guy, Somalia is thataway(points).

    Good luck.

  34. J-Dub says:

    I’m envisioning a new era of the marriage contract; signing bonuses, opt-out clauses, morality clauses, buyouts, 10 year terms…

    What else could we throw in there?

  35. Mikey says:

    @Bruce Majors: This doesn’t really fly because the churches are themselves choosing which marriages they will perform. The state would happily license any marriage a church is willing to perform, if a church chooses not to perform certain ones, that’s not the state’s concern.

  36. Mikey says:

    @michael reynolds:

    But that aside, rather than go to all the hassle of getting government out of marriage, why not just religion out? Seems quicker and easier. Let the state marry and let the church do its thing.

    Lots of countries do this. Getting married in Germany generally means two weddings: one at the Standesamt (magistrate’s office) and one a the church. You can be married in the eyes of God at the church, but as far as the state is concerned you’re not married until you show up at the Standesamt for the civil ceremony.

  37. Tony W says:

    @Bruce Majors:

    Courts might have to decide who was a spouse when it comes to not being required to incriminate a spouse.

    The courts are awfully slow when your partner is dying in the hospital and you’re out in the lobby.

  38. Pharoah Narim says:

    This place really has become an echo chamber. Licensure is a control mechanism of which there is no longer any use for (if there ever was any use for it in the first place). Why should the government sanction a specific form of private relationship then offer tax incentives to that favored group?

    I think people here are smart enough to understand that Paul wasn’t referring to the Government not enforcing contracts or even having specifications for what type of issues should be enumerated in said contract. Just because the man says a lot of dumb things doesn’t mean that everything he says is dumb. I used to be able to count on this blog to have that kind of sophisticated discernment. Now its like HiffPo where the validity of the message is determined based on the political leanings of the messenger.

    There is no reason why private parties couldn’t enter into marriage contracts that covers subject areas stipulated by the State (plus their own unique areas of concern) with terms of their choosing and agreement–then go have a ceremony to demonstrate their commitment publically at a Church, reception hall, wherever. Licenses are all about exclusion–sometimes good in the case of doctors/drivers/etc where a case can be made for public safety. In the marriage area they have historically been used as a form of social control to keep disfavored groups from ever acquiring wealth or assets though marriage. Marriage licenses are relics of a caste society.

  39. KM says:

    @GeoffBr:

    If the outcome is identical, this makes the others feel better, and it doesn’t make us feel worse, what’s the difference? It’s a no-lose move, especially since we can’t force people to change their thoughts, just their actions.

    It is quite the privileged entitlement mentality to tell someone that since you have a problem with them doing the same thing you are, they need to change their language habits and definitions because they are not like you. That they have no right to a word that legally applies to them because it makes certain people uncomfortable and they’d prefer you make up a new one rather then hurt their feelings. Well meaning or not attempt at reconciliation or peace….. it’s really rude and presumptuous to expect someone else to change when the problem is clearly an internal one for certain people. Who cares if they change their thoughts or feelings? Nobody said they have to like gays or the fact that they can marry – we are simply saying they need to comply with the law. Let them hate to their hearts content but keep it out of legal interactions with people.

    Since marriage is a legal term, gays don’t have to do a thing. They are married in the eyes of the law. Now, if Christians who oppose this want to pick up a new terminology (may I suggest “joined in Jesus”?) for their religious needs, it would work out nicely. It would serve several masters: reinforcement of dogma, marks those who use it as holding the religious aspect of their union most prominent to others of the faith (tribal markers!), serve to separate the sacred from the profane in terms of ideology, etc….. We can already say Purity Balls with a straight face, why not Joined in Jesus Ceremonies?

  40. KM says:

    @Pharoah Narim :

    There is no reason why private parties couldn’t enter into marriage contracts that covers subject areas stipulated by the State (plus their own unique areas of concern) with terms of their choosing and agreement

    So….. how would a third party know what rights/privileges a couple has at any given time via the contract? If Spouse A in a car accident, does the ER have to quiz a terrified Spouse B about visitation rights and HIPAA permissions? Does the bank need to consult with their lawyer when Spouse B wants money from the checking account? Are they going to carry a copy of the marriage contract in their wallet like a MedicAlert bracelet?

    This sounds like a *massive* increase in bureaucracy just to keep track of who has agreed to what. Society operates due to some basic assumptions rooted in law; married couples are allowed to do a number of things single people can’t because the law allows them to. If we make it a buffet instead of an all-included package, there is now a urgent need to track and notify to relevant parties in real-time (work, finical institutions, the police, the hospital, schools, etc). If the point was to shrink the government, this will have the opposite effect. A whole new Federal Department of Marital Affairs (DOJ-affiliated of course)!

  41. Zachriel says:

    Separation of church and state. Civil unions are the standard legal contract. You can have a marriage ceremony in a church of your choice, but only the civil union has legal standing.

  42. KM says:

    @Pharoah Narim :

    Why should the government sanction a specific form of private relationship then offer tax incentives to that favored group?

    I actually agree with this. It’s a government incentive pushing towards a preferred social state of being based on specific morals, not research, science or consensus. It should go the way of the dodo. The fact that’s I’m single has nothing to do with this opinion 🙂

  43. An Interested Party says:

    Yes. Libertarians governments are to blame for the callousness of government particular idiots who happen to be in charge at any given moment. From the Vietnam war, to apartheid, to gas chambers, to forced starvations, to failed, de facto segregated urban public schools, the libertarians are government is behind it all.

    Happy to be of help…

  44. Pharoah Narim says:

    @KM: There are mechanisms that we use to color the law to a predetermined default–like we have presumption of innocence. For [insert your hypothetical emergency or time-sensitive situation] there would be the presumption that one would have medical visitation–unless proven otherwise (if it even came to that).

    Non-married couples have access to no-questioned joint banking by way of being listed on the account. Despite being married, no company or bank I did business with prior to being married will even speak with my spouse unless I’ve added her as an authorized user. I think you are anticipating problems where non would exist.

  45. Joe says:

    Time? Like Time magazine? Are they still publishing that? Did anyone besides Mataconis read it?

  46. Alex says:

    The whole point here is not that the government recognizes “marriage”, the point is that the government recognizes “immediate family”. If someone is a member of your immediate family, that has enormous implications in tax law, immigration law, estate law, etc. You can’t sponsor some random person for permanent residency in the US, but you can sponsor an immediate relative.

    You’re born with some of your immediate family – your parents, for example. But otherwise, there are two major legal ways of changing your relationship with another person from a legal stranger into a legal family member: adoption and marriage. Before same-sex marriage was legal, there were some same-sex couples where one partner legally adopted the other in order to create this legal family relationship.

    Bottom line, saying “let’s get the government out of marriage” is almost as ludicrous as saying “let’s get the government out of adoption”. As long as family relationships are important in law, having a defined legal structure for saying, “this person is henceforth a member of my family,” is essential.

  47. C. Clavin says:

    Rand Paul:

    Now look…we’ll just do away with the whole idea of marriage…because really… if we can’t be free to treat da gayz like second class citizens…what’s the point?
    OK…I’m off to meet with the ultimate welfare rancher and total fvcking racist, Clive Bundy. Because that man is a real right wing hero.

  48. Modulo Myself says:

    @Pharoah Narim:

    Did you read Paul’s piece? It contains gems such as this:

    Do consenting adults have a right to contract with other consenting adults? Supporters of the Supreme Court’s decision argue yes but they argue no when it comes to economic liberties, like contracts regarding wages.

    This:

    I acknowledge the right to contract in all economic and personal spheres, but that doesn’t mean there isn’t a danger that a government that involves itself in every nook and cranny of our lives won’t now enforce definitions that conflict with sincerely felt religious convictions of others.

    And this:

    Justice Clarence Thomas is correct in his dissent when he says: “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.

    Paul doesn’t want to get rid of any caste system. He wants in a hapless way to give more power to the caste system that existed before the 20th century.

  49. James Pearce says:

    @Bruce Majors:

    Yes. Libertarians are to blame for the callousness of government.

    Way to miss the point, Bruce. You thought I was blaming all the historical ills of this country on libertarianism? Nah. They don’t have the reach.

    A night watchman state is a government that’s callous, non-responsive, and rather indifferent to your concerns. It’s that way by design.

  50. LWA says:

    @Bruce Majors:

    the fact that currently government is how you enforce a contract means government should be involved in setting the terms and details of every contract.

    Not “should be involved” so much as “has the right to be” involved.

    When 2 people call upon me to adjudicate and enforce their contract, I have the right to set the terms of my involvement, such as requiring that the contract adhere to certain moral norms.

    In fact, this is exactly what the state does- for example, states refuse to enforce contracts with minors, based on our societal norms.

    It isn’t just the individual who has the “right to say no” -its also the state itself.

  51. grumpy realist says:

    @stonetools: Every now and then Rod writes a column that is extremely introspective and empathetic. But anything to do with Christian sexuality and he turns into a stone wall.

    He has placed Christian male-female duology as the basis of his religion, and can’t conceive of a mindset which does not. He’s unable to understand that (NOT) (Christian sexual ethics) doesn’t automatically mean (wild anarchy).

    He’s also unable to understand that most of what he’s complaining about is a logical result of certain technological advances and mindsets, so if he wanted to recreate a world where the sexual ethics he professes would be imposed by the authorities, he’s going to have to throw out all the technology and the mind-set that lead to the development of that technology.

    The most important beliefs that have developed in the last 1000 years were: Things that are real are more important than ideals about those things (Nominalism over Platonism), and Evolutionary improvement is possible. (The Great Chain of Being concept is an absolute crock.)

  52. grumpy realist says:

    @Pharoah Narim: It still isn’t going to work, because the area covered by contract law does not automatically overlap with the areas covered by marital law.

    You can’t contract with someone else and agree that both of you are exempt from having to testify in a law court against each other, for instance.

    Courts are getting a bit better about actually enforcing prenups and postnups, but for the longest time they were considered aspirational statements only. And they’ll still get thrown out (even if the two people who signed them agree) if the court rules said prenup/postnup is not in the best interest of any children that exist.

  53. Gromitt Gunn says:

    @grumpy realist: And we haven’t even really gotten into the legal rat’s nest that the intersections between marital status, tax status, inheritance, beneficiary designations and employee benefits would become.

    On the plus side, it would be one way to solve the unemployment / underemployment problem for recent law school graduates.

  54. JKB says:

    @Zachriel: You can have a marriage ceremony in a church of your choice, but only the civil union has legal standing.

    That was the solution but it wasn’t satisfying to gay activists. They wanted marriage, but really all they got was a word and that makes their motives suspect since marriage pre-dates law and government as a religious institution. But the word “marriage” was used in the development of law to identify the state of contractual civil “incorporation” of two individuals into a state of legal being. That state of being has been eroded till now it is little more (civilly) than a legal presumptions with lingering traits of past inequalities.

    But on the other hand, those making the argument for marriage as a religious covenant didn’t seem keen on keeping marriage as recognized by their religion but having those marriages seen only as civil unions by the state, even though the state has nothing to do with the religious aspect of marriage.

  55. JohnMcC says:

    @JKB: “…(S)ince marriage pre-dates law and government…” I suppose there is a semantic trap in getting into that statement; what is a definition of ‘marriage’? But it’s clear that ‘bonding’ and ‘forming a family’ can take place without ‘marriage’. So I will satisfy myself by wading right in and declaring that to be complete BS.

  56. Pharoah Narim says:

    @Modulo Myself: No I didn’t read it because I know the majority of what he has to say is dumb. That said–a broke clock is right twice a day so there is no reason to completely dismiss the validity of concept…simply because Rand Paul is offering it.

  57. Lenoxus says:

    @KM:

    We can already say Purity Balls with a straight face

    Maybe you can…

    But yes, the “Joined in Jesus” idea is the right direction for fundamentalists to take. In fact, they already have it, with force of law, in three states: covenant marriage. Obligatory pre-marriage counseling, more strict in terms of divorce. Strangely it hasn’t taken the Christian conservative world by storm, with under 1% of couples who can use it doing so. (That said, covenant marriage is technically not heterosexual-only, and obviously in light of Obergefellit never could be while retaining its government-sanctioned status. I can’t wait to see the headsplosions when the first gay couple to opt for a covenant marriage does so.)

    @Pharoah Narim:

    Just because the man says a lot of dumb things doesn’t mean that everything he says is dumb. I used to be able to count on this blog to have that kind of sophisticated discernment.

    Did you read the post? It’s full of sophisticated analysis, and even explcit sympathy for the view. (Using the actual word “sympathy”.) The piece simply says that the idea is extremely impractical (both at the level of policy and politics). And that in the context of the present (with same-sex marriage now fully legal) it looks a lot like trying to take the ball and go home.

    Doug doesn’t even ascribe those bad motivations to Paul. I wouldn’t be so charitable myself (I think Paul’s personal opposition to gay marriage in itself, and his no-regrets celebration of the “state’s right” to ban it, is a giveaway of a social conservatism that, at the very least, serves as trimming to his libertarianism). But you can’t pretend that Doug is being reflexively anti-Rand-Paul here.

  58. Zachriel says:

    @JKB: That was the solution but it wasn’t satisfying to gay activists.

    Civil unions have not provided all the legal benefits of marriage, so the situation was separate and unequal.

    The suggestion is that the state only offer civil unions, and that people are free to have a marriage ceremony in whatever tradition they want. That way everyone can avail themselves of the rights and responsibilities inherent in civil unions on an equal basis. Separation of church and state.

  59. Grewgills says:

    @Zachriel:
    That was my original solution back in the 90s when I didn’t think the country would come around as rapidly as it has. Let everyone have civil unions and then get married in a church or wherever as they chose in addition to the civil union.

  60. Lynn Eggers says:

    @Grewgills: “Let everyone have civil unions and then get married in a church or wherever as they chose in addition to the civil union.”

    I suggested that same thing, years ago. Civil ceremony = civil partnership; religious ceremony = married.

    Lots of conservative Christians went for it, until they found out that my husband and I would be civil partnered and our friends Ann and Carol would be married.

  61. Joseph Slabaugh says:

    I dont need the government privileges. If I want to be truly married, without the State as a 3rd party, I can do so.

  62. Darryl Schmitz says:

    “While Paul’s Time piece is rather disjointed and, quite honestly, not very well written or edited…”
    This little bit of condescension told me everything I needed to know about the rest of your column, Doug. I do not think it was poorly written. Rather, it was very clearly written and makes a good point about the proper role of government in America, at least the way America was established at its beginning. Separating state and religion is needed in this case more than anywhere else, yet those who traditionally yell the loudest for separation of church and state in every other instance are strangely silent about this, allowing government to define a religious status.

  63. JohnMcC says:

    @Joseph Slabaugh: We keep wandering into contentious use of the word ‘marriage’ in a way that makes me think we are using different definitions. So I will content myself by saying that you may perform a rite that makes you ‘married’ in your own mind but I would recommend you have a real government-issued license before you file a joint tax return.

  64. Lynn Eggers says:

    @JohnMcC: “So I will content myself by saying that you may perform a rite that makes you ‘married’ in your own mind but I would recommend you have a real government-issued license before you file a joint tax return.”

    Or a joint fishing license

  65. DrDaveT says:

    @Pharoah Narim:

    For [insert your hypothetical emergency or time-sensitive situation] there would be the presumption that one would have medical visitation–unless proven otherwise (if it even came to that).

    You’re willing to default to a presumption of the right to have your life-support turned off by someone who asserts they’re your spouse (but can’t prove it)? Really?

    You can’t finesse this. Spouses have strong, deep rights that you really don’t want to either assume without proof or do without as a society. (Not to mention Grewgills’ observation that freedom from testifying against each other is not a contract that can be entered into by the parties as an ordinary contract.)