Positive Liberty

John Coleman argues for privatized marriage in Reason magazine as follows:

It is time to privatize marriage. If the institution is really so sacred, it should lie beyond the withering hands of politicians and policy makers in Washington D.C. There should be no federal or state license that grants validity to love. There should be no state-run office that peers into our bedrooms and honeymoon suites. If the church thinks divorce and homosexuality are problematic, it should initiate the real dialogue to address these problems in-house rather than relying on state-sponsored coercion to affirm doctrinal beliefs. And if tax-codes and guardianships need some classification for couples, let’s revise civil union standards to reflect those needs.

I agree that love should be outside the government’s control. And yet the proposed solution is both unworkable and an equivocation on the basic issue of civil marriage.

First, let’s look at the practical details. Imagine that privatization of marriage were a reality. What would we do with the thousands of people who are now permitted to stay in the country only because they have married U.S. citizens? Would we declare them illegal aliens? Would we deport them and break up their marriages?

How about child custody? Marriage grants child custody jointly and automatically. Who gets the kids if there is no state marriage? Yes, of course it should be both parents. But if the law doesn’t say this, someone will certainly take advantage of it somehow. And how would we establish joint custody, if not through something like a marriage? Would there be new forms to fill out at every birth? And how exactly would this make libertarians any happier?

What about hospital visitation rights, inheritance, and so forth? Would we make every married couple draw up a will so that their spouses could inherit as they might have done automatically under government-sponsored marriage? Would we force married couples to obtain a power of attorney every time they wanted to conduct each others’ financial affairs? Would we deprive them of their spouses’ Social Security and pension benefits?

Could you seriously imagine the chaos that would result? Can you imagine the mass protests that would ensue from the religious right? “You are destroying traditional marriage!” they would scream. And for once, I would probably agree.

As the gay community has been discovering of late, marriage is two very different things. First, there is a love that leads to a lifelong commitment. The government has absolutely no place in this realm of life. It is personal, private, and even spiritual. It is the exclusive domain of the married couple–and of God, if they wish to invoke Him. Gay people have always had this kind of marriage if we wanted it. We are not looking for some God/government amalgam to make our unions mystically “okay.”

Many libertarians look down on gays and lesbians, who seem to be demanding that the government bless their unions. This comports badly with libertarianism. “You poor institutionalized creatures,” they often declare. “Can’t you stand on your own two feet, be an individual, and get along without government?” But these are easy things to say when the protections of government are always on the side of straight couples (so much so that straight couples often don’t even notice them)–and when the government almost always presumes against gay ones.

There is a second kind of marriage, you see, and this “marriage” is a convenient bundle of rights and contractual obligations that the state makes available to some of its citizens. These rights and obligations exist in a bundle because the citizens demanded them as a means to securing the private and dignified nature of their marriages. As often happens in a democratic government, some aspects of civil marriage are necessary and just; others represent nothing more than crude social engineering (witness the tax code).

When gay people say that they want marriage, they do not mean marriage by love or by spirit; these they have had all along. Nor are they claiming that their loves are illegitimate without government help: The gay liberation movement would never have gotten off the ground if we’d believed these absurdities for even a moment.

Gay marriage means the second type, civil marriage, which allows us to pursue our lives with a minimum of bureaucratic hassle and risk. I do not care for the social engineering aspects of civil marriage, and I would abolish them if I could, yet I am convinced that there are legitimate reasons for civil marriage to exist. Just as the state exists to secure the rights of individuals, civil marriage exists to secure the private, spiritual bond that is ultimately of a deeper dignity than even the government itself.

One plausible option would be to offer “civil unions” for all who desire them, gay or straight, but to abolish “government marriage.” This would defuse the objections of religious groups, many of whom curiously believe that God needs the help of the state to sanctify marriages. Let marriage refer to the private institution, and “civil union” refer to the package of rights and obligations.

The advantage of this setup is its clarity; no longer would the social engineering aspects of marriage be so easily justified by the ultimately religious claims on which they now rest. Civil unions would not be in the service of any religion, nor even in the service of religion generally. They would facilitate a long-term couple’s interactions with the state and with others in society–and nothing more.

The disadvantage is that few would ever tolerate the “abolition of marriage,” or the imposition of “gay-style civil unions” on everyone. And this is almost certainly what the religious right would term the plan. Hence the current fight, whose terms are not likely to change anytime soon.