A political climate in which both parties are competing to offer
the most generous Medicare prescription drug benefits isn't exactly
a libertarian paradise, but at least one formerly radical
libertarian proposal seems to be going mainstream: Getting
government completely out of the business of regulating, licensing
or even defining the institution of marriage.
Popularly called "privatizing marriage," it was once taken as
seriously outside libertarian circles as privatizing lighthouses or
selling Yellowstone National Park. But the well-respected Beltway
liberal pundit Michael Kinsley endorsed the idea in a recent
column, arguing that
since the Supreme Court ejected governments such as Texas' from our
bedrooms in Lawrence v. Texas, we might as well go for
broke by abolishing matrimony as a government institution. Shortly
afterward, John O'Sullivan, an editor-at-large of the venerable
conservative magazine National Review, predicted
that something vaguely like privatization would take place in
response to gay marriage. This follows on the heels of a growing
number of privatize-marriage columns by more libertarian-oriented
commentators in recent years, including syndicated columnists Deroy
Murdock (who likes to call it separation of marriage and state) and
Jacob Sullum, the Cato Institute's David Boaz, Wendy McElroy and
Radley Balko for FOXNews.com and Marni Soupcoff in the American
Enterprise Online.
One selling point is that privatizing marriage would sidestep
what figures to be a nasty and protracted debate over gay marriage,
likely to come to a head in time for the 2004 presidential
election. This argument could gain adherents across the political
spectrum. Liberals are eager to keep another issue that galvanizes
the religious right from becoming an election-year staple, while
conservatives sense that the momentum in the debate is with the
other side and are looking for ways to minimize the damage. Stanley
Kurtz reports in the August 4 issue of The Weekly Standard
that even family law academics are getting into the act.
Besides, what could be bad about privatization of anything? Why
not just take this divisive issue out of politics entirely? Why
should the government have any say in who gets to spend their lives
together? If Roman Catholics and Southern Baptists believe that
marriage is a union between a man and a woman, fine. If others
believe a marriage can be between two men or two women (or,
depending on the specific proposal, potentially other arrangements)
and the Unitarians and the Metropolitan Community Churches choose
to bless those unions, that's fine too.
Appealing as this concept might be to those of us who would
prefer to see government involved in less, there are nevertheless
powerful reasons to resist it. For starters, privatizing marriage
won't deliver the things its proponents promise.
In today's America of litigation and regulation, there's no
guarantee that making marriage a purely private contract will
actually de-politicize the issue. The fact that the Boy Scouts of
America is a private organization hasn't kept it from becoming
enmeshed in the gay rights debate. Who's to say that churches that
refuse to recognize same-sex unions won't be sued for
discrimination? Concerns about the application of gay rights laws
to religious entities have already been raised in Canada.
This libertarian proposal would probably not even be
particularly liberty-enhancing. It is hardly the case that the
current civil marriage arrangements actually amount to the
government deciding who gets to spend their lives together. Men and
women are free to choose their spouses. People who wish to live
outside the confines of the legal definition of marriage are also
perfectly free to choose lives with their preferred partners.
Cohabiting heterosexuals are not prosecuted and the Supreme Court
has just removed the last vestiges of legal sanction against gays
and lesbians in similar relationships.
The licensing of marriage is hardly the most coercive aspect of
the government's involvement in the institution. The real meddling
comes into play when dealing with child custody, health care,
pension rights and a whole host of other arrangements. The
government would still be involved in all these things to some
extent as it sought to enforce the terms of private marriage
contracts and also whatever obligations would presumably be left
over from previously existing civil marriages.
But the biggest problem with privatizing matrimony is that it
fundamentally misunderstands the nature of marriage itself. As
syndicated columnist Maggie Gallagher has written, "Marriage is not
just another lifestyle, but a productive, wealth-creating
institution that (like education) builds human and social capital
and (like education) therefore deserves public support." Marriage
represents a social ideal based on insuring civilized relations
between the sexes and offering children -- who after all, are
created by sex between men and women -- a framework in which they
can have both a mother and a father. This ideal may not be
universally attainable, but our society would be in serious trouble
if nobody attained it. The government's role in marriage is thus
not to coerce as much as to affirm, not to ratify every
relationship but to add legal weight to a specific publicly
significant one and uphold the expectations that accompany it.
If you aren't persuaded that upholding the ideal represented by
traditional marriage is important, perhaps you should consider the
catastrophic social implications of previous departures from it.
There is a growing body of evidence that children fare better with
both parents and that the increase in children without them has
contributed to crime, welfare dependency, educational failure,
poverty and a host of other pathologies. Blogger
Eve Tushnet put it best: "How could anyone look at marriage in
America today and think it needs to become more ad hoc, more
centered on the individual contracting adults and not on the
children and the wider society, more do-it-yourself?"
So this novel idea of ending government-sanctioned marriage
would be a logistical nightmare to make practical, produce little
if any gains in terms of liberty and political harmony at the cost
of knocking away one more support from an institution vital to
society and child-rearing that is already under assault. Sounds
like one risky privatization scheme that conservatives would be
wise to avoid.
topics:
Education, Health Care, Business, Law, Supreme Court, Unions, Medicare
