Marriage & The State – A Case For Privatization

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Outside of abortion, the definition of marriage and the role of the state is probably the most contentiously debated topic in social politics today. Over the last decade, same-sex couples have ramped up their battle for the state to recognize their unions and receive the same benefits (including legal recognition) that is given to traditional marriages. The proponents of the expansion of marriage were (and still are) vehemently opposed by organizations, mainly religious, that believe same-sex marriage is not marriage at all, but a redefinition of marriage altogether. Over the last 15 years or so, and certainly for the coming years, the debate has taken over legislatures and courts. Of course, this battle culminated last summer in the Obergefell v. Hodges decision by the Supreme Court of the United States forcing states to recognize same-sex marriage. However, the battle is not over.texas-liberty-law  Marriage & the State - A Case for Privatization Texas Liberty Law

Many religious persons are concerned with the tension that will ultimately exist between the protection of same-sex couples to be legally married and the First Amendment’s protection of the religious objector. However, religious exemptions are just a legislative solution to a legislative problem. In other words, the state is trying to balance itself among competing interests, which inevitably will lead to one group having to lay down their constitutional liberties, whether it is the gay couple or the religious objector. This leads the objector, and courts, to have to choose which Constitutional principle is “greater”: the First or Fourteenth Amendment (which we all know which special class they will protect). My argument here is that the state should go one step further and get out of the “marriage” debate altogether.

For the purposes of this post, I have tried to maintain a neutral position on what I believe is true marriage and its role in communities, churches, and families. That was intentional, as I do not believe we need to have such an intimate discussion of marriage in order to talk about how much the state has destroyed it, and, therefore, conclude that we must privatize marriage.

I will take a brief look at the current relationship between marriage and the state, including the actual benefits and recognition by the state. Then I will explore the objections from those that believe the state has an interest in regulating marriage. Finally, I present an argument that the state should step out of the “marriage” game and relinquish it back to the realm of personal liberty, and further explore what exactly marriage without government regulation looks like.

The State and Marriage

The state is the greatest actor in marriage today. Couples are dependent on the state for license and recognition. They do so for many reasons: tradition, a feeling of legitimacy, or to receive special benefits that the state may extend. For instance, a couple may find that marriage is the best option because there are certain tax incentives that will save them money or provide tax breaks that they would not normally get if they were single. These incentives are regulated and promulgated by the government. But most importantly, the government is the sole regulator of marriage. It has the ultimate say, through coercion, of who may get married, when a couple can get married, and whether or not that marriage is “valid.” These rules are laid out by legislatures (or courts) that see it as their duty to promote marriage and, more recently, provide equal protection under the law.

Therefore, by its role as regulator, the state has become the ultimate actor in marriage. Sure, marriage is a rational choice by two individuals. However, this choice is limited or motivated by the framework that the state has laid out. In other words, individuals respond to incentives from the state. The traditional argument for state involvement in marriage is that the state has a rational reason to promote families. In other words, the state should promote marriage because families are the bedrock of society. Without families, we would have no society, so the government should do its best to see that this is preserved.

However, traditional marriage advocates are not the only ones promoting government involvement in marriage. Those that seek same-sex marriage recognition have also pursued the blessing of their unions through the government. They have petitioned legislatures to pass “marriage equality” laws that would recognize same-sex marriage to be the legal equivalent to traditional marriage. Because of this, states have sought to balance out the perceived Fourteenth Amendment rights of same-sex couples and the proposed protections of the free exercise clause of the First Amendment.

Ultimately, both views seek the government to protect, allow, exclude, and/or bless a definition of marriage that the government then regulates. This is a false dichotomy of believing that either the state recognized or your right or tradition, or it doesn’t exist. Both sides feel compelled to run to the government to promote their interests, instead all citizens should petition the government to get out of the marriage business altogether and allow them to truly exercise their own personal and religious freedom.

Government’s Harm to Marriage

The traditional view of the relationship between the state and marriage is that the government has an interest in promoting the family and marriage, because it is the bedrock of our society. However, this falls flat on its face. In fact, the opposite is true. Government’s regulation of marriage has diminished marriage and made it a function of the state more than it is a solemn commitment between two individuals.

One example where government harms marriage is no-fault divorce laws. Through the development of no fault divorces laws (allowed by the state) anyone can divorce another for no reason at all. How can the state rationally say that they protect marriage when they allow it to be dissolved so easily? The state can no longer hold itself up to be the defenders of marriage, when it passes no-fault divorce laws.

Another example of government’s over-regulation of marriage diminishing its “sanctity” is by using incentives to entice marriage. The tax laws that incentive marriage, for instance, would, quite possibly, create or promote a marriage that will be based purely off an economic motive than through the government’s lofty goal of promoting families. Such incentives would theoretically lead to higher rates of divorce, because more people would eventually be unhappy in their situation if they only married purely for economic reasons. It would not be a marriage at all, at least not in the view of the traditionalist, but two people sharing a tax return.

One could also plausibly make an argument that the state’s promotion of marriage is a violation of the First Amendment clause because marriage is a fundamentally religious and personal matter.  The state’s involvement therefore infringes on that expression of religious liberty and freedom and the exercise of religion.

Some proponents of gay marriage will argue that the state should recognize gay marriage because it would legitimize their relationship, when they have been marginalized for so long. This argument is not very compelling. Why seek validation from the state and be involved in an institution that will only lead to more regulation from the state than would be received if one’s marriage was purely religious and/or personal?

I should also add a theological point to this discussion: The covenant of marriage predates any civil code or law or establishment of government by God. In other words, marriage is a covenant that is outside the state, not subordinate to it. If the Christian truly wanted to protect marriage, they would seek to keep the covenant between the couple and, with no intrusion by the state.

Therefore, the government’s involvement in marriage actually diminishes the sanctity of marriage. In other words, legislatures are systematically destroying the very thing they are tasked by many pro-marriage groups to promote.  What then would marriage look like?

Marriage – A Covenantal, Personal Matter

Marriage should fundamentally be a personal, covenant matter. My decision to marry someone should ultimately be a rational decision made, before God, by me and my future spouse and not influenced by the state. The state can absolutely influence this decision by providing incentives, whether it is an easy divorce or finances, which would pervert the personal and covenantal aspects of marriage. To avoid such a perversion, the state should get out of the marriage game completely and leave it to the individuals who seek to be united.

Marriage then would be like any other private function, a solemn religious ceremony (or any ceremony or recognition of one’s choosing). This is called the “privatization of marriage.” The most important aspect of marriage privatization is that the marriage would not only be personal and maintain whatever religious elements one wishes to celebrate, but it would fundamentally be contractual. This contract would deal with a number of issues ranging from property division to dissolution to child support and care.

Of course, there are some issues that would arise. For instance, there would need to be some major overhauls of the probate code, particularly intestate administration of an estate. However, these issues could be resolved far more easily than having government regulates who, when, and where anyone can get married. Plus, the argument that we will have to fix the law in order to do what is right is not an argument, but a position of weakness that chooses convenience over truth.

This marriage contract need not have any bearing whatsoever on the religious ceremony any couple decides to participate in. In fact, it’s quite possible that two atheists could enter into such a contract without any religious involvement whatsoever. Further, in the transition time, legislatures could provide some sort of civil code that allows for parameters of the contract, especially regarding issues of dispute. The actual contents and the contracting parties should not be determined or regulated by the state. I would even submit that this would be far more efficient than the work done in family divorce courts today, thereby saving our communities countless dollars, emotions distress, and the use of children as pawns in a game of chess that is played out before family court judges.

In conclusion, if the government truly values the sanctity of marriage and its role and function in society, then it should do its part by getting out of the marriage business altogether. The harm done by government outweighs the goods that it contributes. It has marginalized populations, promoted the breaking up of families, and has led to a dangerous precedent of the state being intimately involved in the religious practices of churches and individuals.

Keith Strahan is a business attorney in Texas. His passions are liberty, theology, economics, and entrepreneurship.

  • George Forleo

    finally,a rational argument over the issue.

  • Zachary Goldberg

    I believe that government should get out of Marriage all together and allow the state to bestow benefits based on the terms of what two people agree to. The underlying factor here is this: children. You briefly touch upon this towards the end of the article.

    “The traditional view of the relationship between the state and marriage is that the government has an interest in promoting the family and marriage, because it is the bedrock of our society. ”

    At its core the primary function of Marriage is to tie children with their biological mother and father and humans-being as flawed as we are-always want to take the easy way out when things become too hard. Prior to the No-Fault Divorce laws Divorce had to initiated based on evidence found in one of the three A’s: Adultery, Abandonment, or Abuse. Other than that Marriage was seen by society and by government(from a time where society actually valued the Word of God) to be a permanent institution and if one could not prove any of the three A’s took place(I’m merely speculating) then you and your partner had to make the effort to ensure a successful Marriage. Society no longer promotes this, if the “love” or “excitement” of the Marriage fades, then so should the Marriage. We need an attitude adjustment here.

    Yes we have devalued this timeless institution and because of the road our civilization is taking perhaps we need to take a long hard look at the governments role in Marriage. However this does not address the factor: children. If the government is going to pull out of Marriage, then it should recind all divorce laws because it is not fair to the child that they should be used as an emotional footbal for monetary gain.

    Ryan Anderson of the Heritage Foundation said it best, “how can society expect fathers to be responsible for their children when the law has been written to make fathers optional?”

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