Marriage: How to De-Politicize the Culture War

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In the United States, same-sex marriage is de facto legal — based on a combination of court rulings and legislation — in 36 states, the District of Columbia and several American Indian jurisdictions.

The Supreme Court is widely expected to come down on the side of ending marriage apartheid nation-wide this summer. Even if it doesn’t do so in one fell swoop, the Constitution’s “full faith and credit clause” will make itself felt over time, if for no other reason that married couples move, then divorce.

Ireland’s late-May referendum may be a global bellwether. 62% of voters in that largely Catholic country brushed aside the objections of church leaders to legalize same-sex marriage.

Some social conservatives, particularly in the United States, seem to have finally got it through their heads that they’ve lost this battle; they want to move on. A few of them even have an inkling of the best way to go about doing so.

On May 19, Alabama’s Senate passed a bill that, if also approved by the House and the governor, would move marriage from the category of state-licensed activity to a matter of contract between parties. No ceremony necessary — if you want one, that will be between you and your church or other social group.

It’s about time! Libertarians have been suggesting this for decades.

With the state out of the business of defining and licensing marriage, that institution can evolve organically as people decide for themselves how to organize their lives.

People who want to marry can just consult a lawyer. Or, and I predict this will happen very quickly, legal services firms will make boilerplate marriage contracts available for inexpensive download, with selections of additional “drop-in” clauses to accommodate most reasonably common scenarios (property settlements in case of divorce, for example, as are handled with “pre-nups” now by some couples).

The Alabama bill, according to news accounts, specifies only two parties, but not their sexes. On the ground, those who want marriages of more than two parties will presumably be able to have workable contracts drawn up to accommodate their desires, neatly sidestepping (for e.g. polygamy) the decade-long political war we just went through over same-sex marriage. Presented with a facially just and valid contract, a court will likely honor and enforce that contract.

Will this approach get the state out of marriage matters entirely? No. Marriage contracts might specify arbitration instead of state court litigation in case of divorce, but when it comes to matters of child custody and child support, the state will probably assert a compelling interest to intervene as it sees fit.

But it’s a start. People are better than politicians at making important life decisions for themselves.

[hat tip for the Alabama story — George Phillies of Liberty For America]

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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  • Sandy Sanders

    I called years ago for the Prof. Jonathan Turley solution: Take marriage out fo the state code and give gays equal rights to a civil union. Let churches call it marriage if they choose!

    http://www.varight.com/news/sandy-comes-out-well-on-gay-marriage-anyway/

    • I found Turley’s proposal (and variants proposed by others) interesting, but I’d really prefer to not even have “civil unions.”

      Just let people negotiate contracts for that kind of relationship like they do anything else instead of having a specific, codified, regulated institution (vis a vis the state).

      That solves a whole range of issues — not just same-sex marriages, but group marriages and so forth. And as far as the religious aspect goes, let people and their chosen churches (or other social organizations) handle it however they want in terms of recognition, rites/sacraments, etc.

      There’s actually some precedent for that approach. I’m not very familiar with it, but as I understand it, Orthodox Jews have a specific marital code, terms for divorce, etc., and if I’m not mistaken they handle the legal end of it via enforceable prenuptial contracts which are recognized as such by the courts, even though there’s no state “law” specific to the situation.