Special Report

A Risky Privatization Scheme

There can be no separation of marriage and state.

By 8.1.03

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.

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About the Author

W. James Antle III is politics editor of the Washington Examiner and the author of Devouring Freedom: Can Big Government Ever Be Stopped? Follow him on Twitter @jimantle.