Marriage: The State v Contract and Religion

by Thomas Knapp

2012′s Republican US presidential candidates are, to a man, opposed to legal recognition of same-sex marriage.

The worst of them, former US Senator Rick Santorum, says he considers marriage a federal issue and wants a constitutional amendment enshrining marriage apartheid — state privilege for heterosexuals, exclusion of homosexuals — in law.

Even the best of them, US Representative Ron Paul, has sponsored legislation (the fraudulently named “Marriage Protection Act”) that would leave state governments free to discriminate against same-sex couples in defiance of the US Constitution’s Full Faith and Credit and Equal Protection clauses. But Paul, at least does make a nod toward the standard libertarian position that marriage really isn’t any of political government’s business.

The same-sex marriage debate is a perfect showcase for the anarchist argument against political government itself. For marriage is two things, neither of which require a monopoly state to enact, support, preserve or regulate.

One facet of marriage is a personal — usually, but not always, religious in nature — commitment between two (or more!) people who’ve decided to merge their lives in important ways. When they “get married,” they’re simply announcing to their friends, family and interested public that they intend to move forward with their lives as a couple (or group! — but from here on out I’ll assume two people) rather than separately.

The other facet of marriage is contractual. When a couple marries, they merge their property in certain ways. The types of mergers involved vary. Under political government different states handle “marital property” in different ways. There may be pre-nuptial agreements which set up rules for what is merged or not, and how. But any way you cut it, a marriage is also a business partnership in which properties become intermingled and have to be sorted out in some way in the case of dispute, divorce or death.

State involvement in marriage is not only unnecessary, it does active damage to the institution itself.

On the personal, spiritual and religious side, the state places barriers in the way of couples making the commitment they’ve chosen. At a minimum, there’s the bureaucratic ritual of applying and paying for a “license” to set up housekeeping. At a maximum, if the marriage doesn’t pass muster with the licensing laws, some states go so far as to threaten to jail clergy who officiate at the ceremony! It’s the equivalent of Congress dictating baptism by dunking instead of sprinkling, or the FDA requiring disclosure (“this product may contain the body of Christ”) on communion wafers.

On the contractual side, state involvement imposes a “one size fits all” template on marriages, then withholds the protections and benefits of that template from those marriages it declines to recognize.

If couples in state-licensed marriages want to vary from the state-imposed contract, they have to procure extensive (and expensive) legal services to dispose of their property as they want rather than as the state’s template specifies, then hope they can make that disposition stick versus a legal process which defaults to the template.

Couples in unlicensed marriages — and yes, folks, they are “real” marriages, just like tooling down the road without a driver’s license in your pocket is “really” driving — likewise have to jump through expensive legal hoops to set up relationships analogous to the state’s template, like powers of attorney and so forth, that would have been automatic had they not been denied a license.

Families, churches and other societal institutions are fully competent to decide for themselves whom to recognize as “married” for purposes of social and religious interactions. They don’t need the state to tell them how it’s done. They’ve been doing it for millennia.

And, absent the state’s “one size fits all” template, market competition would almost certainly produce fitting contractual frameworks — including arbitration protocols for property disputes in case argument or divorce — in record time, with a much greater range of choice, and at lower prices than the state’s “justice” system will ever offer.

Like everything else it touches, political government makes a mess out of marriage. Those who decry “the breakup of the American family” need look no further than the courthouse, the statehouse and the Capitol for the culprits.

6 responses to “Marriage: The State v Contract and Religion

  1. It’s worth mentioning that the traditional English and generally European tradition on marriage was non-statist. It was a private contract. You made it literally just by a declaration. Two peopel could stand in a room and say “we are married” and that was that. Hence the paraphernalia of witnesses so you don’t get Fred saying, “Wilma married me” and WIlma saying, “no I didn’t.”

    It took the church centuries to drag marriage first inside the church, and then into State control. We really need to reverse that.

    Having said that, I have some sympathy for the anti-gay-marriage people. One thing that has defined marriage in every culture and time up until now is that the word specifically refers to something heterosexual. The Greeks may have buggered teenage boys, but they didn’t “marry” them. As such, the word has a particular meaning for a particular type of human relationship. Like the word “cake” describes food with particular ingredients, and if somebody says, “meat boiled in a pot should be called cake, they’re both types of food aren’t they?” you’d have to reply, “no, cake does not describe that type of food”.

    Gays should certainly be free to form any relationship they like, and whatever contractual arrangements they like. But I don’t think they’re entitled to use the word “marriage” for it. I can think of other special personal arrangements that might want marriage like aspects, but not be marriage; for instance two elderly spinsters living together in a non-sexual way might want to have similar contracual arrangements, next of kin, etc, but wouldn’t want to be “married”.

  2. I disagree and agree. Just because marriage so far has been exclusively heterosexual, and almost certainly came into being only for the stable rearing of children, is no reason why it shouldn’t be expanded to cover other unions. On the other hand, the equality laws we have would make gay marriage into a further means of subversion.

    Most homosexuals I know simply want to be be left alone. They favoured the neutering of the gross indecency laws, and have welcomed civil partnerships. Some of them do want to be married. But this campaign isn’t about their convenience. I can imagine the first effects of legalising gay marriage. There will be two 30-something ratbags – you know the sort: shifty faces and slimy, self-righteous voices raised in the usual platitudes – presenting themselves to a Catholic priest and demanding a full marriage service. When refused, they’ll run straight off to Trevor Phillips and sob about “homophobic discrimination.” Given the laws we have, they’ll be in for a nice grant of “compensation,” and the Romanists will be forced to choose between blessing fornication and only solemnising marriages behind locked doors with someone on the lookout for the equality police.

    The more severe protestants will be next on the hit list, and possibly the Orthodox Jews. I rather think the Moslems will be left alone. But I don’t doubt that the purpose of this campaign is less about equality in any real sense than about bringing on a full-blown war between church and state.

    Of course, any such war would be won hands down by the churches. We might then find that the liberalisation of the past few decades was not so very rooted in public opinion.

  3. Surely the problem here is not whether or not the state should control marriage, but what laws on divorce it should have? Out of curiosity, do libertarians think divorce should be free and easy?

  4. It may be we’re asking the wrong questions. In the case of divorce, what are the issues? For a childless couple, the only issue is one of division of property. It would make sense for couples to specify on marriage a contract in this regard. If they don’t, they can have endless fun pursuing each other through the civil courts. Nothing there that is really anything to do with the State, or laws.

    When it comes to children, we have a different factor since children are not merely chattels, but are persons with a special status. This then comes down to a profound and problematic discussion on the status of children in an idealised libertarian society. But again, I don’t think it’s particularly a “divorce” question. It is a question of what rights they have, what responsibilities their carers (who may not be parents) have, and so on. They are not the only persons in society considered unfit to rule themselves. The same is true of the senile, the mentally unwell, the severely retarded, and so on. So it’s part of a bigger question for libertarians which doesn’t get half as much discussion as the Gold Standard, perhaps becuase it’s a much more difficult issue.

  5. But sorry, forgot this. The question of whether divorce should be “free and easy” surely comes down to that, like any contract, everyone always has the right to walk away from it, subject to a damages claim where appropriate.

  6. Yes, but if they have the right to then marry again, it essentially obliterates marriage as it has been historically constituted. The pay-off for living in a society with free and easy divorce is misery for literally millions of children and the gigantic consequences of that.

    I’ve often thought it rather odd that libertarians would be against stronger restrictions on divorce. The breaking up of the married family increases the power of the state vastly.