Marriage privatization
Marriage privatization is the concept that the
Advocacy
Libertarian advocacy
In 1997, libertarian David Boaz wrote an article for Slate titled “Privatize Marriage: A Simple Solution to the Gay-Marriage Debate." In the article, Boaz suggests privatizing marriage in a way that models the nature of standard business contracts. Boaz's idea is to allow two (possibly more) individuals to set the terms of their own private marital contract in a way that is best for the individuals involved. "When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties."[1] According to Boaz the government could be called upon to enforce the contract but may have no other role in developing the contract and setting the terms.
In 2002, Wendy McElroy echoed Boaz's business contract model in an essay for Ifeminists titled "It's Time to Privatize Marriage."
Marriage should be privatized. Let people make their own marriage contracts according to their conscience, religion and common sense. Those contracts could be registered with the state, recognized as legal and arbitrated by the courts, but the terms would be determined by those involved.[2]
McElroy has also said:
Why is marriage declining? One reason is that it has become a three-way contract between two people and the government.[3]
In 2003, political columnist Ryan McMaken, writing on
The question we are then left with today is one of whether the churches and individuals should be looking to privatize marriage yet again and to begin making a distinction between secular contracts between private citizens and religious unions that should be kept beyond the power of the State. Such a move, of course, would bring with it new assumptions about the role of the State in divorce, children, and a variety of other aspects of family life. The State will not give up control over these things easily, for the assertion that the importance of marriage makes it a legitimate interest of the State is only true from the point of view of the State itself, for as the foundation of society, marriage and family cannot be entrusted to governments just to be blown about by the winds of democratic opinion, for the same government that has the power to protect can just as easily destroy.[4]
In a similar libertarian vein, the radio talk-show host Larry Elder endorsed the privatization of marriage. In "The State Should Get Out of the Marriage Business", a 2004 article published in on the website Capitalism Magazine, Elder wrote:
How about government simply getting out of the marriage-license-granting business? (Ditto for government licenses necessary to cut hair, drive a taxi, open a business or enter a profession.) Leave marriage to non-governmental institutions, like churches, synagogues, mosques, and other houses of worship or private institutions. Adultery, although legal, remains a sin subject to societal condemnation. It's tough to legislate away condemnation or legislate in approval. Those who view same-sex marriage as sinful will continue to do so, no matter what the government, the courts or their neighbors say.[5]
In 2006, law professor Colin P.A. Jones wrote an article appearing in the San Francisco Chronicle titled "Marriage Proposal: Why Not Privatize?" following the business model for privatization Jones writes:
Subject to certain statutory constraints, businesspeople have long been free to form whatever sort of partnership they felt appropriate to their needs. Why not make the same possible for marriage, which is a partnership based on one of the oldest types of contractual relationships? [6]
In 2009, author and journalist Naomi Wolf wrote about getting the state out of marriage in The Sunday Times:
Let's also get the state out of the marriage union. In spite of the dress and the flowers, marriage is a business contract. Women, generally, don't understand this, until it hits them over the head upon divorce. Let's take a lead from our gay and lesbian friends, who, without state marriage, often create domestic partnerships with financial autonomy and unity spelt out. A heterosexual parallel: celebrate marriage with a religious or emotional ceremony—leave the state out of it—and create a business- or domestic-partner contract aligning the couple legally.[7]
Professor Gary Becker, a winner of the Nobel Memorial Prize in Economic Sciences, has said that:
With marriage contracts that set out the couple's commitments, there is little reason why judges should retain their current involvement in marriage.[8]
As of 2015, the only known members of
Religious advocacy
Pepperdine University law professor Douglas Kmiec told the Catholic News Agency that churches that do not accept same-sex marriage have a genuine concern that they be subject to penalties such as losing public benefits or receiving lawsuits. He argued that the state should just allot people "civil licenses", with the terminology "marriage" left "as a religious concept" for groups to debate outside the scope of government.[12]
Liberal advocacy
Though often introduced from
If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and are entitled to. And if the other side is sincere in saying that its concern is not what people do in private, but government endorsement of a gay "lifestyle" or "agenda," that problem goes away, too.[13]
Marriage privatization received attention from the legal scholar
Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control.[14]
Public policy advocacy and academia
In 2007 the Center for Inquiry, a secular think tank, released a position paper authored by analyst Ruth Mitchell titled "Same-Sex Marriage and Marriage". The paper argues from the separation of church and state that as long as marriage is available to heterosexual couples it ought to be equally available to LGBT couples. Nevertheless, the position paper claims that state endorsement of civil unions for both types of couples is the most appropriate policy in light of separation of church and state.[15]
The argument for marriage privatization has also been formulated in
In the 1993 book Political Liberalism, Rawls argues that arguments in a pluralistic society must be hashed out in terms that all members of that society can understand if not endorse. This means that in making public claims one must refrain from religious or otherwise controversial metaphysical claims that cannot, in principle, be equally endorsed by reasonable persons. In doing this, one is relying on what Rawls refers to as public reason.
In his article, Torcello claims that any state endorsement of marriage represents an inappropriate
No religious model that rejects same-sex marriage would be required to perform same-sex marriages under this privatized model. Under this model a couple, either heterosexual or homosexual, would obtain a civil union in order to have public and legal recognition of their partnership; they would have a private marriage ceremony if they so chose in order to honor their private religious or philosophical concept of marriage.[16]
In a July 2008 article appearing in
Arguments opposing the privatization of marriage
Opposition to marriage privatization, like its endorsement, is equally likely to be found arising from conservative or liberal sources[17][page needed] and a wide variety of objections are made.
Conservative
Princeton professor Robert P. George has argued that marriage has an important cultural role in helping children develop into "basically honest, decent law-abiding people of goodwill—citizens—who can take their rightful place in society". Thus, he concludes, "Family is built on marriage, and government—the state—has a profound interest in the integrity and well-being of marriage, and to write it off as if it were purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake".[12] This position is seconded by Jennifer Morse of the Witherspoon Institute, who argues that if literally anyone can define marriage as whatever they want, the state forfeits the ability to sufficiently secure the best interests of children.[19]
Stanley Kurtz of National Review has written that privatization would be a "disaster". He argued that government "still has to decide what sort of private unions merit benefits... under this privatization scheme", and then "we also get the same quarrels over social recognition that we got before privatization." He commented that the government will have to deal with polygamous, polyamorous, and incestuous relationships attempting to obtain contracts under the new scheme as well as attempts by heterosexual acquaintances to make "marriages of convenience" to obtain things such as spousal medical insurance.[20] His National Review colleague Maggie Gallagher has also called privatization as a "fantasy" since "[t]here is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems."[21]
University of Virginia School of Law Professor Gregg Strauss argued against the privatization of marriage in “Why the State Cannot 'Abolish Marriage': A Partial Defense of Legal Marriage” [22]
Issues involved with privatizing marriage
In general, a legal contract signed between two or more people will often include penalties for the severing of the contract by a party or parties. However, this generally does not apply to marriages in the US, which usually fall under the legal standard of no-fault divorce. It remains an open issue as to whether or not these quasi-marriage partnership contracts will be enforced with penalties.[23]
See also
Notes
- ^ Boaz 1997.
- ^ McElroy 2002.
- ^ "It's time to privatize marriage". Enterstageright.com. 2002-07-22. Retrieved 2014-04-05.
- ^ McMaken 2003.
- ^ Elder 2004.
- ^ "Marriage proposal: Why not privatize? / Partnerships could be tailored to fit". SFGate. 22 January 2006.
- ^ Wolf, Naomi (March 22, 2009). "Love lessons from divorce". The Sunday Times. London. Retrieved February 27, 2021. (subscription required)
- ^ "Why Every Married Couple Should Sign a Contract". Gary S. Becker. Business Week. New York: December 29, 1997. Iss. 3559; p. 30
- ^ "Rand Paul: Privatize Marriage". Time. June 28, 2015.
- ^ "Justin Amash Backs DOMA Repeal On Twitter". The Huffington Post. 29 March 2013.
- ^ "Abortion, marijuana, and same-sex marriage: District 6 candidates state their positions". AL.com. 22 October 2014.
- ^ a b "Kmiec proposes end of legally recognized marriage". Catholic News Agency. 2009-05-28. Retrieved 2014-04-05.
- ^ Kinsley 2003.
- ^ Dershowitz 2003.
- ^ Mitchell 2007.
- ^ a b c Torcello 2008, p. 51.
- JSTOR 40441478.
- ^ Mohler 2006.
- ^ Morse, Jennifer (4 April 2012). "Privatizing marriage is unjust to children". The Witherspoon Institute. Retrieved 11 August 2015.
- ^ Kurtz, Stanley (2006-01-22). "Privatizing Marriage". National Review. Retrieved 2014-04-05.
- ^ Gallagher, Maggie (14 July 2003). "The stakes". National Review. Archived from the original on 2010-08-06.
- ^ Strauss, Gregg (2015). ""Why the State Cannot 'Abolish Marriage': A Partial Defense of Legal Marriage"" (PDF). Indiana Law Journal. 90.
- ^ "Why is the state involved in marriage at all?". Hotair.com. 2010-08-07. Retrieved 2014-04-05.
References
- Boaz, David (April 1997). "Privatize Marriage: A Simple Solution to the Gay-Marriage Debate". Slate. Retrieved 6 July 2009.
- Colin, P.A. Jones, "Marriage Proposal: Why Not Privatize?" San Francisco Chronicle, January 2006
- New York Times.
- Dershowitz, Alan (December 2003). "To Fix Gay Dilemma, Government Should Quit the Marriage Business". Los Angeles Times (Op-ed).
- Elder, Larry (February 2004). "The State Should Get Out of the Marriage Business". Capitalism Magazine.
- Jordan Jeff, “Is it Wrong to Discriminate on the Basis of Homosexuality?” Journal of Social Philosophy 26, no. 1 (1995): 39–52
- "Relationships". Times. March 22, 2009. Retrieved 6 July 2009.
- Kinsley, Michael (July 2003). "Abolish Marriage: Let's Really Get Government Out of Our Bedrooms". slate.com.
- McElroy, Wendy (July 2002). "It's Time to Privatize Marriage – Ifeminists". Retrieved 6 July 2009.
- McMaken, Ryan (July 2003). "Married to the State". lewrockwell.com.
- McLain, Linda C. "Evolution—Or End—Of Marriage?: Reflections on the Impasse of Same-Sex Marriage" Family Court Review (2006) 44:2 200
- Mitchell, Ruth (December 2007). "Same-sex Marriage and Marriage". Center for Inquiry Position Paper.
- Mohler, Albert (March 9, 2006). "Why Not Privatize Marriage? Here's Why". albertmohler.com. Retrieved October 3, 2009.
- Paley, Michael R. "Why do you think they call it 'holy matrimony'?". NJ Jewish News. Retrieved 16 May 2011.
- Paulson, Michael. "Episcopal Diocese May Quit Marriages: Same-Sex Debate Drives Mass. Plan". Boston Globe.
- Rawls, John, Justice as Fairness: A Restatement, (Harvard University Press, 2002)
- Rawls, John, A Theory of Justice, (Belknap Press 1971)
- Schaff, Kory “Equal Protection and Same-Sex Marriage” Journal of Social Philosophy (2004) 35:1 133
- Schaff, Kory “Kant, Political Liberalism, and The Ethics of Same-Sex Marriage,” Journal of Social Philosophy (2001) 32:3 446
- Strasser, Mark, Legally Wed: Same-Sex Marriage and the Constitution, (Cornell University Press, 1997)
- Strasser, Mark, On Same Sex Marriage, Civil Unions, and The Rule of Law (Westport, Connecticut London, 2002)
- Strauss, Gregg (2015). "Why the State Cannot Abolish Marriage" (PDF). Indiana Law Journal. 90: 1261–1319.
- Sunstein, Cass & Thaler, Richard M., "Privatizing Marriage" The Monist, Volume 1, Number 3–4
- Thaler, Richard M., Nudge: Improving Decisions About Wealth, Health, and Happiness, (Yale University Press, 2008)
- Torcello, Lawrence, "Is The State Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model," Public Affairs Quarterly, Volume 22, Number 1, January 2008 pp. 43–61