Marriage privatization - Wikipedia
Libertarian advocacy[edit]
In 1997,
libertarian David Boaz wrote an article for
Slate titled “Privatize Marriage: A Simple Solution to the Gay-Marriage Debate." In the article, Boaz suggests privatizing marriage in a way that models the nature of standard business contracts. Boaz's idea is to allow two (possibly more) individuals to set the terms of their own private marital contract in a way that is best for the individuals involved. "When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties."
[1] According to Boaz the government could be called upon to enforce the contract but may have no other role in developing the contract and setting the terms.
In 2002,
anarchist Wendy McElroy echoed Boaz's business contract model in an essay for
Ifeminists titled "It's Time to Privatize Marriage."
Marriage should be privatized. Let people make their own marriage contracts according to their conscience, religion and common sense. Those contracts could be registered with the state, recognized as legal and arbitrated by the courts, but the terms would be determined by those involved.
[2]
McElroy has also said:
Why is marriage declining? One reason is that it has become a three-way contract between two people and the government.
[3]
In 2003, political columnist Ryan McMaken, writing on
LewRockwell.com, raised the issue of marriage privatization arguing that the rise of state-sanctioned marriage coincides historically with the expansion of government. In his article titled "Married to the State," McMaken wrote:
The question we are then left with today is one of whether the churches and individuals should be looking to privatize marriage yet again and to begin making a distinction between secular contracts between private citizens and religious unions that should be kept beyond the power of the State. Such a move, of course, would bring with it new assumptions about the role of the State in divorce, children, and a variety of other aspects of family life. The State will not give up control over these things easily, for the assertion that the importance of marriage makes it a legitimate interest of the State is only true from the point of view of the State itself, for as the foundation of society, marriage and family cannot be entrusted to governments just to be blown about by the winds of democratic opinion, for the same government that has the power to protect can just as easily destroy.
[4]
In a similar libertarian vein, the radio talk-show host
Larry Elder endorsed the privatization of marriage. In "The State Should Get Out of the Marriage Business", a 2004 article published in on the website Capitalism Magazine, Elder wrote:
How about government simply getting out of the marriage-license-granting business? (Ditto for government licenses necessary to cut hair, drive a taxi, open a business or enter a profession.) Leave marriage to non-governmental institutions, like churches, synagogues, mosques, and other houses of worship or private institutions. Adultery, although legal, remains a sin subject to societal condemnation. It's tough to legislate away condemnation or legislate in approval. Those who view same-sex marriage as sinful will continue to do so, no matter what the government, the courts or their neighbors say.
[5]
In 2006, law professor Colin P.A. Jones wrote an article appearing in the
San Francisco Chronicle titled "Marriage Proposal: Why Not Privatize?" following the business model for privatization Jones writes:
Subject to certain statutory constraints, businesspeople have long been free to form whatever sort of partnership they felt appropriate to their needs. Why not make the same possible for marriage, which is a partnership based on one of the oldest types of contractual relationships?
[6]
In 2009, author and journalist Naomi Wolf wrote about getting the state out of marriage in
The Times:
Let's also get the state out of the marriage union. In spite of the dress and the flowers, marriage is a business contract. Women, generally, don't understand this, until it hits them over the head upon divorce. Let's take a lead from our gay and lesbian friends, who, without state marriage, often create domestic partnerships with financial autonomy and unity spelt out. A heterosexual parallel: celebrate marriage with a religious or emotional ceremony — leave the state out of it — and create a business- or domestic-partner contract aligning the couple legally.
[7]
Professor
Gary Becker, a winner of the
Nobel Memorial Prize in Economic Sciences, has said that:
With marriage contracts that set out the couple's commitments, there is little reason why judges should retain their current involvement in marriage.
[8]
As of 2015, the only known members of
US Congress to support privatization of state marriage are Sen.
Rand Paul,
[9] Rep.
Justin Amash (R–Michigan)
[10] and Rep.
Gary Palmer (R–Alabama).
[11]
Religious advocacy[edit]
Pepperdine University law professor
Douglas Kmiec told the
Catholic News Agency that churches that do not accept same-sex marriage have a genuine concern that they be subject to penalties such as losing public benefits or receiving lawsuits. He argued that the state should just allot people "civil licenses," with the terminology "marriage" left "as a religious concept" for groups to debate outside the scope of government.
[12]
Liberal advocacy[edit]
Though often introduced from
conservative commentators, marriage privatization has received attention from advocates on the left. In 2003 left-leaning political
columnist and
journalist Michael Kinsley wrote a second essay to appear in
Slate on the topic. Kinsley's essay is titled "Abolish Marriage: Let's Really Get the Government out of Our Bedrooms." Kinsley follows the model set by his libertarian counterparts Boaz and McElroy; like Elder's he emphasizes marriage privatization's potential to end the controversy over same-sex marriage:
If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and are entitled to. And if the other side is sincere in saying that its concern is not what people do in private, but government endorsement of a gay "lifestyle" or "agenda," that problem goes away, too.
[13]
Marriage privatization received attention from the legal scholar
Alan Dershowitz in 2003 when Dershowitz wrote a
Los Angeles Times editorial titled "To Fix Gay Dilemma, Government Should Quit the Marriage Business." More so than commentators from the right, Dershowitz frames his view on the topic in terms of
church-state separation; unlike libertarian leaning discussions Dershowitz maintains that the state does have an interest in the
secular rights of marriage. Dershowitz proposes that civil-unions as a
secularreplacement for state sanctioned marriage, be extended to both same-sex and opposite-sex couples. Under Dershowitz's conception of privatization, couples have a choice as to whether or not they wish to be married by a
clergy willing to perform a
marriage ceremony or to exclusively partake of secular/state-sanctioned civil unions. Dershowitz writes:
Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control.
[14]
