The Case for Privatizing Marriage

Anyone reading this blog should not be surprised that I support marriage equality for same-sex couples. In fact, given its positive effect for transgender and intersex folks, we should consider following Norway's lead and just refer to it as "gender-neutral" marriage. For someone of both progressive and romantic leanings, it's a no-brainer -- it affirms love in a fair and straightforward way.

But there's also part of me which is irked by the whole brouhaha over the issue. Take the recent news in New Hampshire, where marriage equality is closer than ever to legislative approval. They actually introduced a clause to "guarantee" that no member of the clergy would have to officiate at a same-sex wedding if they didn't want to. Excuse me, but ... clergy already have that right! They've had the right to refuse to officiate at any marriage ceremony for any reason, for centuries! The only reason I can see that this was written into the bill was to placate the paranoia of the far Right, who keep harping the lie that letting any couple which is not clearly "one man and one woman" get a marriage license would somehow hurt the rest of us.

Right-wingers have also argued that, if we take this step, then what's to stop someone from marrying two or more people, or a child, or their pet dog or cat? Well, the latter two examples are answered simply enough: Consent. Marriage, after all, is about taking responsibility for one another, and that means we should be sure that each partner fully understands those responsibilities, and is fully able to carry them out.

That being said, when it comes to plural marriage arrangements, I have no problem with three or more consenting adults joining together -- and it's my openness on that which makes me part company with many marriage equality activists. Many of them argue that it would make things too complicated, or that you wouldn't have equality in such an arrangement. Again, I'd go back to the issue of consent: If we accept those as a given, and the partners in question fully understand and accept that, then where is the compelling interest to deny them their choice? There is also the issue of whether such complexity and inequality is indeed "a given"; from what I've seen and heard of many polyamorous households, it's not.

So here's the sticky bit ... If we consider marriage a free union entered into by consenting adults, and we consider that it is not the government's business to tell consenting adults which consenting adults they can or cannot marry, then why marriage licenses? A driver's license I understand -- there is no "right to drive a car," and public safety is a compelling reason to make sure that those who do can do so safely. But, being licensed to fall in love and build a family together? Sorry, but that doesn't square with the idea of marriage as a right, or even as a responsibility.

Long before I wrote this blog, I've advocated replacing state-issued marriage licenses with contracts. Each couple (or menage) would draft their own agreement of what their respective rights and responsibilities would be, sign it in the presence of witnesses, and even register it with the appropriate government office. They could even spell out terms for dissolution, including the option to settle their divorce through arbitration rather than the more adversarial court system; or even establish a time limit with the option to renew.

Many people across the political and religious spectrum have argued for a similar approach, and especially as an answer to the same-sex marriage debate. Some like to refer to "getting government out of the marriage business"; I think it more accurate to think of it as changing government's role with respect to marriage, from that of paternalistic protector to one of record-keeper and potential arbiter. Naturally, there are many who would consider this too "radical" a proposal. So, let me address some major objections...

Objection #1: This would demand a radical change in our marriage laws. Response: Not exactly. The most obvious change would be that, instead of the government issuing licenses, they would record contracts. Divorce laws could change by allowing spouses to determine ahead of time how dissolution would proceed, but this would follow existing laws regarding prenuptial agreements. Every other aspect of law regarding marriage would pretty much stay the same.

Objection #2: What about the role of religion? Response: The only major change would be that we would not require clergy to become government agents. If you'd like your priest, minister, rabbi, imam or other spiritual advisor to sign your contract as a witness, you're free to do so. But it would no longer be required that you have such a signature. If anything, having an explicit contract in writing is in keeping with many religious traditions, such as the Jewish ketubah.

Objection #3: If everybody gets to draft their own contract, then we wouldn't have a single standard for determining who can get married, when they can divorce, etc. Response: Currently, we already have such a state of affairs in this country. Each state and territory can determine their own age of consent for marriage, whether they will allow no-fault divorce, community property versus equitable distribution, and so forth. But there would still be a fundamental definition of marriage as a freely-entered union of consenting adults based on love to create a new household or family.

Objection #4: So if a man comes to the town clerk with his five year old daughter, and hands over a contract which says he married her, ... Response: Again, there's the issue of consent. Can we be sure that the five year old fully understands the contract, her rights and responsibilities as this man's wife, and so forth? If not, then it's not a valid contract, and it can be challenged and nullified on those grounds. The real question is whether the government should have the power to tell consenting adults who they can and cannot marry, and the specific terms by which they can enter into or end a marriage, before the fact.

Objection #5: Reducing marriage to "just another contract" would cheapen it, and take away its vital social and spiritual function. Response: If anything, it could heighten appreciation for that. While most marriage contracts would likely follow a common template, potential partners would have to discuss their respective rights and responsibilities with one another before setting their signatures on the contract they draft. That means they would actually have to know what it means to be married, and especially in their circumstance -- a much more robust approach than simply filling out a license form and finding a willing officiant. While there is no guarantee that this would take place, having the specifics written out like this would certainly increase the odds for greater awareness and appreciate of the meaning and role of marriage as an institution.

Objection #6: What about the children? The whole point of having the state issue marriage licenses is to guarantee the welfare of a couple's children. Response: The history of marriage and marital law says otherwise. Marriage used to be a private contract between families, with little or no intervention by state or church. England introduced licensure in the fourteenth century as a way of waiving the three-week waiting period required for declaring banns. In the United States, marriages licenses did not become required until the middle of the nineteenth century, as a means of enforcing anti-miscegenation laws. There is also no reason to believe that children would be harmed by replacing state-issued licenses with private contracts; if anything, the partners could make specific stipulations in their contract for the benefit of any children.

I'm sure folks out there could come up with other objections and questions, but the bottom line is this: If we believe that grown-ups have a right to marry, then we should treat them as grown-ups and let them spell out the terms for themselves. They shouldn't need a paternalistic state to tell them when and how.