Several years ago I wrote a “Judeo-Christian” defense of marriage privatization, by which I mean getting the government out of the business of deciding what marriage is and by what terms it should be governed. As the cultural wars over same-sex marriage intensify, that idea has gained wide popularity across the political spectrum. For example, in their popular book Nudge, Richard Thaler and Cass Sunstein devote an entire chapter to advocating marriage privatization.
Many advocates of marriage privatization seem to think that disentangling the state from marriage would be easy. They argue that the government should just stop issuing marriage licenses. Marriage would then become a private ceremonial and contractual matter. The state would enforce marriage contracts just like other contracts.
Although I remain an advocate of marriage privatization, disentanglement would be far from that easy. The state is thoroughly intertwined with marriage; the Gordian knot cannot be neatly severed. I’m currently working on article entitled How to Privatize Marriage that tries to work through these complex issues. My bottom line is that privatizing marriage does not mean that the state would get out of regulating and recognizing intimate unions altogether, but that it would try to create a wider space for regulation and recognition by individuals and social and religious groups.
I’m still working through these issues and won’t try to offer a comprehensive solution yet. For now, I’d like to raise three difficulties with marriage privatization that need to be addressed as part of any privatization proposal. They correspond to functions currently served by state marriage regulation and recognition.
First, the state uses marriage as a marker for the dispensation of state benefits and the extraction of obligations owed to the state by individuals. This is most obvious in the taxation context, but occurs across a tremendous range of state activities. (I’m using “state” in its broad sense to include all governments). For example, selective service (i.e., the draft) has typically differentiated between the married and unmarried. The rules of evidence create “marital privilege” allowing spouses not to testify against each other. If the government were to stop issuing marriage licenses, it would need to account for the thousands of ways in which laws draw distinctions based on marital status. If marriage were a purely private creation—anyone could call themselves married according to whatever criteria they chose—these thousands of legal categorizations would collapse.
Second, the state has traditionally regulated marriage to prevent certain kinds of abuses. For example, prenuptial agreements are not enforced as routine contracts because of the potential for unfairness and imposition by the strong on the weak. The easy “pro-privatization” answer is that civil courts would continue to enforce marriage contracts only if they were fair. But what if the married couple had agreed, for example, to be bound by principles of Christian marriage and to have any disputes within their marriage resolved through a process of conciliation, mediation, and arbitration within the Catholic Church? Nominally, a civil court’s job would be to enforce any arbitration award coming out of the Catholic Church, as courts currently do under the Federal Arbitration Act. But now imagine the entanglement problems when, for example, the wife challenged the arbitration award as unconscionable or against public policy because the arbitrators had discriminated against her because she was a woman or had left the Catholic Church or wanted to use birth control or had come out as a lesbian or any number of other potentially objectionable reasons. Having civil courts scrutinize religious arbitral decisions for fairness and conformity with public values raises severe establishment clause and free exercise problems. And having courts simply rubberstamp such arbitration awards means that the state would have to abdicate its traditional function in preventing various kinds of abuse and unfairness within marital relations. Just to raise everyone’s hackles, imagine the proceedings to enforce a Sharia divorce judgment in a family court in San Francisco.
Finally, state recognition of marriage plays an important role in facilitating market transactions between private parties. For example, car rental companies typically allow a married renter to add his or her spouse as a driver at no additional charge. Insurance companies set premiums for all kinds of policies based on marital status. And there are many other examples. In certifying who is married, the state performs a function that markets value, much as the USDA does as to various kinds of food certifications. This is not to say that private organizations couldn’t replace the state’s certification role, but, to play law and economics for a moment, that might greatly increase various kinds of transaction costs. This last point is one that I don’t think has been widely appreciated, but is quite substantial.
I believe that there are answers, which is why I remain an enthusiastic marriage privatization proponent. But privatization advocates need to start engaging more systematically with these thorny problems.