THE SEPARATION OF MARRIAGE AND STATE, The time for Marriage Privatization is Now

For many years now leading up to the U.S. Supreme Court decision in Obergefell v. Hodges in 2015, https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf , which legalized same-sex marriage nationally there has been a heated debate about the issue.  This debate continues to this day.  Proponents argue that same-sex couples should have the freedom to marry as a matter of equal rights.  Opponents argue that allowing for same sex marriage redefines marriage from what it has always been understood to be going back millennia.

In 1997, David Boaz wrote his groundbreaking article for Slate Magazine arguing for the privatization of marriage https://www.cato.org/publications/commentary/privatize-marriage.  This idea of privatizing marriage has gained much attention within libertarian circles as well as elsewhere.  Is privatizing marriage a possible solution to the same-sex marriage question as well as many other issues that arise with government involvement in marriage?  Why not?  Marriage existed before the creation of the state and can quite easily exist without it.  It's quite possible for all individuals and couples to share equal rights without the government participating in marriage.  There is no need for the government to redefine marriage or to define it at all.  Churches, couples, families, etc. can define it for themselves. 

Problems with Government Involvement in Marriage

One specific problem that arises with government involvement in marriage is the licensing of marriage.  A license is the granting of permission to do something.  Marriage has been recognized for decades as a fundamental constitutional going back to at least 1923, see Meyer v. Nebraska https://scholar.google.com/scholar_case?case=16175793893966768030. The question that has arisen among legal scholars is if marriage is a fundamental right, why would we need permission to enter into it?  One does not generally have to acquire permission to exercise his or her rights such as to practice your religion.  The idea that one would need to retain permission from the state to marry is insulting to say the least.

Licensing is generally about control by the government.  Historically, we can see this with the issue of interracial marriage which was barred by many states.  Licensing is a revenue generator for the state as well.  Licensing makes the state a 3rd party to what should otherwise be a private domestic contract.  

Another way the government becomes a party to an otherwise private relationship is through the solemnization process.  For many, marriage is a sacred religious and spiritual institution which the state has no place being in (anymore) than it would baptisms.  Marriage may be a spiritual union of two hearts being wedded together in love that cannot be reduced to a ceremony or state license.

Some might object that for many, marriage is a secular matter, that it is a domestic contract the state grants to people.  To a great extent, this is true.  The state's involvement is to grant certain legal rights, benefits, and responsibilities.  Unfortunately, many see the government involvement in marriage as an approval or disapproval of personal and sexual relationships.  If our goal with the state is to protect certain rights and benefits by domestic contract, then why not have an actual domestic contract that people privately enter into in writing rather than by licensing and solemnization and which deviates from contract law in many ways?

How would Privatization Occur?

Ultimately, I would envision the state being completely removed from marriage altogether.  This includes the licensing, solemnizing, defining, or even recognizing it directly.  Marriage would become a completely private matter much like the practice of your faith.  In terms of legal rights, responsibilities, and benefits associated with marriage, people would be given the power by statute to create domestic relations agreements (DRAs) in writing.  These DRAs would function legally much like a civil union by private contract.  The term for your DRA would not matter, there would be no “magic words” like marriage, civil union, domestic partnership, etc.  

One would be free to call the contract whatever they wanted, the key is the substance.  You would be free to call your DRA a “marriage contract” but what is being recognized are the contractual rights, not a marriage itself.   The point is the state is permitting people to contract for certain rights and benefits together.  It's not an endorsement of any underlying relationship.  Much like with other contracts or with wills, Powers of Attorneys, etc. 

Advantages of a DRA over Civil Marriage

Besides resolving the same sex marriage issue and many more, DRAs offer several advantages.  For one, since it is a contract, people would have a great deal more flexibility and freedom in how they can structure their legal rights together.  Some may only want to contract for a few of the rights currently held by marriage.  Others might simply opt to do a simple one-page contract that grants all the same rights, responsibilities, and benefits currently associated with civil marriage.  You literally can have it your way.

You can modify legal rights and obligations in marriage by prenuptial and postnuptial agreements, but they are far more limited.  Courts have said some aspects of marriage cannot be changed by contractual agreement.  One area is when couples sought to build in monetary penalties for adultery.  

DRAs would not simply be a civil union, though in many cases they would function like one.  Civil unions replicated every aspect of marriage including licensing, solemnization, and marital regulations which could not be altered by private agreement.  So, we are talking about more than just a civil union for all approach. 

Since marriage institutionally would be separate from the state, private institutions would have a greater influences in how people understand marriage.  This would be a benefit to churches and other faith based institutions. 

Gradual Steps toward Marriage Privatization

I do realize that marriage privatization is not going to occur all at once but needs to be something gradual.  The biggest obstacle is going to be the psychological one.  The government has been so entangled with marriage for so long that people cannot fathom it not having a central role in marriage.  

There are real legal hurdles to contend with as well.  This is especially true within the United States which has a Federal system.  The Federal government only recognizes marriage in terms of legal rights and benefits.  Civil unions, domestic partnerships, and any type of DRA I’m proposing has no current status.  This may make states reluctant to even consider the idea of marriage privatization.  This same problem exists with most states, no other type of domestic contract whether it be civil unions or domestic partnerships are recognized or at least placed on the same footing as a civil marriage from another state. Until all this is changed by states and the Federal government, we have to consider intermediate steps.  

One step to take is to allow parallel options.  A state can allow people to enter into a civil marriage or a DRA.  Some states effectively do this by having both the option of a civil marriage or a civil union.  One can take a DRA or civil union and still marry privately.  This option is only going to get you state benefits right now and will not be recognized currently by the Federal government or many other states.  It does set up for a future complete privatization of marriage.

Another option is for states is to bring back common-law marriage and allow for marriage by private written contract.  Currently, only about 12 states still allow for common-law marriage.  If you live within a state with common-law marriage, it will still be recognized as a marriage by other states that do not permit common-law marriages to be entered into within that state.  The Federal government also recognizes common-law marriages lawfully entered into within a state.  These two options offer a marriage privately entered into but is recognized by the state.  They also do not rely on the state to license, grant, or otherwise create the marriage.  This moves far closer to complete privatization. 

Alabama has already passed a bill that scraps marriage licenses and the need for solemnization.  Alabama recently passed a law that allows two people to marry by a written contract that is then filed with the state.  Alabama also still recognizes common law marriage.  I do believe that filing should be optional and not required, but this is a step in the right direction.  In actual fact though, with common law marriage, you could enter into a common law marriage in Alabama and then draw up a private marriage contract not filed with the state that would give stronger evidence of the existence of a common law marriage. Many may still want at least the option to file something with the state to ensure it will without question be recognized.

Common Objections

Marriage is the Foundation of Our Society

This particular objection tends to resonate with people of faith.  I as a Christian have sometimes wondered about this concern myself.  People do tend to look to the state for guidance on many moral issues and to establish our society.  One thing to bear in mind though, is that marriage existed before the state as we have said before.  So if marriage as an institution is strong, it should be a positive influence on the state rather than the other way around.

At least within the past few decades, the state has sought only to be involved within the legal parameters of marriage, to give a basic structure and then to focus more on legal rights and responsibilities that follow.  It has not been a force to in any way make marriage stronger but give a baseline, the lowest common denominator.  This is in part due to changes within society such as greater equality for women and the push for no fault divorce.  Obviously, women’s equality is a good thing, one can debate no fault. 

Marriage is so intertwined with religion, that the issue becomes a thorny one for the state.  Can marriage actually do better as a societal institution without the state, or at least less involvement for the time being?  If you look at the state of religion, the answer may be yes.  Religious practice is declining throughout the West, but it is still doing significantly better in the United States than in Western Europe where you still see official church states.  This is if you look at factors like church attendance and religious adherence. 

Civil Marriage is necessary to protect children

DRAs can give the same legal rights and protections to children that a civil marriage can.  This is also the case with states that have civil unions.  In the past, marriage did work as a legal protection for children due to the fact that children born out of wedlock did not have the same protections and were often discriminated against.  This has not been the case for decades because Courts have recognized the same legal rights for children born outside a marriage such as with issues of child support and custody.  Marriage can still clarify certain things, but so can civil unions or DRAs.  

Civil Marriage is necessary to protect women

In the past, spousal support was far more common, but it is actually quite rare today.  Even when spousal support is awarded by Courts, its usually very limited.  Thus, civil marriage today doesn’t really offer that much protection.  It would be possible with a DRA to specifically award spousal support if a divorce occurs, especially for adultery.  One could build in financial penalties for divorce with a DRA that would not be honored with a prenuptial in a civil marriage currently.  In that sense, a DRA could offer greater protections potentially.  As to protecting things like property, that can be handled by the DRA giving the same rights as a civil marriage offers or even greater as well.

Privatizing Marriage would be an attack on gay rights

Many might see the privatization of marriage now as merely as a way to circumvent the right to marry that gay couples recently acquired.  All legal rights would be enjoyed by gay couples as is enjoyed by heterosexual couples under law.  Not even a different legal delineation would exist such as when some states permitted gay couples to have civil unions but reserved civil marriage for heterosexual couples.  Gay couples like heterosexual couples would have a greater degree of privacy as well as flexibility in defining their legal relationship with each other.  Both gay and heterosexual couples could access legal rights without the need to marry if they did not wish to do so or be regarded as married under law.  Thus, rather than diminishing gay rights, privatization could be viewed as an expansion.

DRAs could open the door for couples to contract for anything

By reducing legal rights now enjoyed by civil marriage to a domestic contract, parties could potentially contract with each other for anything, including what amounts to prostitution (sex for services), polygamy, domestic slavery, etc.  It is true that a domestic contract would give parties more flexibility and freedom to define their rights together, but there are some limitations with contracts.  Courts will not honor contracts where the parties contract for illegal activities or where such contracts would violate public policy.  Thus, one cannot contract for actual slavery or prostitution. 

It is possible that more than two persons could enter into a DRA, though a statute could place limitations on this potentially.    One must bear in mind though, a domestic contract is not an endorsement of the personal relationship but simply giving the parties the ability to legally define their rights with each other.  In that sense, the state would not be endorsing or sanctioning polygamy.  This would also hold true for incest.  Close Relatives could contract to hold certain legal rights together, but if this is merely legal rights, no issue should arise if you have a DRA with Aunt Gertrude.  Some states actually permit close relatives to acquire some of the same legal rights as those held in civil marriage by what is called “reciprical benefits”.

What if the relationship breaks up

If the relationship dissolves, this would not present a problem.  The legal issues of custody, property, etc could be handled through the domestic contract.  The Court would not need to divorce them since marriage would be a private matter.  It is not uncommon to partition or divide out the issue of divorce with the other legal issues such as property, custody, and support.  In many cases, Courts will be asked to grant the divorce immediately and resolve the other issues later.  Now, we would just have to resolve the legal issues, you dissolving the personal relationship is your business. 

Closing thoughts

Regardless of how one's feels about same-sex marriage, privatizing marriage may be the ideal solution for all sides.  Many advantages would also come from privatization including greater privacy, flexibility, and freedom within personal relationships such as marriage.  The most significant hurdle to overcome the concept of government actually having no role or a lesser role in marriage.  Most other objections as we have seen are easily answerable.  Marriage privatization, especially in the United States, will most likely need to be incremental, so maybe, the title of this article should have been “the time to start marriage privatization is Now.”