PRIVATIZE MARRIAGE

Matthew of A Fearful Symmetry has an interesting solution to the gay marriage issue: get the government out of the marriage business altogether.

His argument makes sense and has occured to me as well. However, it strikes me as problematic from a practical standpoint. Marriage, at least in most states, takes a whole host of issues that would otherwise require litigation off the table, most notably division of property and many probate issues. I’m not sure it could be accorded the same legal status if it was left up to churches and whatever secular private organizations would handle it for nonbelievers.

Update (1014): If we’re going to have civil unions that are the legal equivalent of marriage as it now exists from a governmental benefits standpoint, it does create regulatory issues: Who gets to “marry” people? What limitations are going to be placed on the institution? (For example, are multiple simultaneous unions allowed? Can you marry your dog so you can claim it as a dependant?) Either we wind up having the government back to legislating morality–the problem we’re trying to solve here–or we render civil unions meaningless. Or, presumably, we do away with them entirely–but then create the problems I cited originally.

(Hat tip: Chris Lawrence)

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Matthew says:

    James, I recognize that my proposal is really awkward, but barring a huge shift in the court away from bleeding heart activism, we’re going to see judicially-imposed gay marriage within 5, 10 years. Unless we do something to protect churches by giving gays and lesbians the economic benefits of marriage without, say, mandating that their unions be called “marriage,” I fear that the left will not stop just with the legalization of marriage, but might also push to sanction churches which do not allow gays to marry.

  2. James Joyner says:

    Matthew,

    I agree all around. And, indeed, taking the state out of the business of deciding who gets married makes some sense. But it creates a whole bunch of other issues; see the “update” for more.

  3. Matthew says:

    In terms of who would “unionize” people, I think what we might need for this sort of plan to come into effect is a constitutional amendment which both protects marriage as a religious institution — at a minimum, this means that churches will have the right to refuse to marry people — and allows the unions between only consenting adults. In a sense, I’m trying to call the bluff of gay activists who claim that they want marriage for its economic benefits without allowing them to “define marriage down.”

  4. Nick says:

    I’m getting “married” in October. A friend of ours is doing the ceremony for us. He signed up online to be a member of the “Universal Church of Life”. It’s free and quick and non-religious. (We got the idea from an episode of NYPD Blue). Anyway, after the ceremony, he’s supposed to file the papers within 5 days. I’m going to be instructing him to just sort of let that deadline slip by him. After that, he will be the only person who knows that we are not “married” by the state.

    Back in May, I blogged a little about government’s involvement in marriage:

    http://www.rantingrationalist.blogspot.com/2003_05_01_rantingrationalist_archive.html#93655315