Marriages happened long before government took notice and wrote laws about them, then set up family courts to deal with them specially. Now the special status of the married is embedded in thousands of well-meaning laws covering taxation, benefits, inheritance, and child custody. Starting 20 years ago, same-sex couples quite reasonably demanded to be included, since most of the trappings of marriage had little to do with procreation (and same-sex couples now head many families with children.) We’ve just seen the public flip to majority support for this fairness position, and not surprisingly legislatures and courts are following.
Reason’s Scott Shackford has a story about this which is worth a read, ending with this thoughtful question:
Well, there’s this: Every time a ruling like this happens, there’s a dozen comments or so about getting the government out of marriage entirely. While I think that’s a great goal for creating an equal playing field in areas like government entitlements and taxation, I still have deep fears our court system won’t know how to deal with legal family conflicts.
When a federal judge in Oklahoma struck down the state’s ban on gay marriage recognition, a conservative state legislator named Mike Turner said he was going to craft a bill eliminating government marriage in Oklahoma entirely. After the quick rush of initial, extremely superficial stories, I attempted to get in touch with him to delve deeper into the proposal to see if he had researched or thought about all the things the state would need to change if it were to end official marriage licensing. Unfortunately, he declined to speak further on the matter, leaving some coverage to characterize his actions as some sort of “cut off his nose to spite his face” act of retribution.
Who knows—they may be right about Turner, but that doesn’t mean other efforts to divorce marriage from the government are about denying people the right to freely associate. From the libertarian perspective, it’s the opposite. The government is the barrier, not the liberator. So a thought exercise: Presume that we can’t just eliminate marriage licenses entirely, as much as we might want to. The good news in these gay marriage rulings is that judges are pointing out that the state doesn’t really have an actual stake in using marriage incentives to further breeding (and isn’t handing marriage licenses out based on the concept anyway). What actually can or should be done next to further reduce government involvement in our family composition choices?
Let’s suppose (as I proposed here) the states opened up marriage as a private contract and truly respected the couple’s intentions on entrance into marriage. The states might retain family courts but allow marriage contracts to invoke binding arbitration (which would be far cheaper and faster, because like all services run by government, cost, speed, and innovation are not valued by court systems, so they are unmanageably slow and expensive for settling small matters.) The state’s family court would be invoked only when the parties had failed to make proper preparations (as is true of Probate Courts, now often circumvented by efficient trusts.) The state could outline the minimum requirements for a contract to qualify as “marriage” for legal purposes (to prevent abusive or sham marriage contracts) and set out several model contracts (which would make adjudicating disputes under them simpler by providing the most common options which would then have a large body of previous decisions to examine.) Many people would thus be able to avoid the costly and expensive lawyers now required in adversarial disputes over custody and property.
This reform would be fairer to everyone and reduce the enormous damage divorce causes, as it is now practiced. Be sure that any state that tried to move toward such a reform would find a large number of entrenched interests (lawyers, politicians) trying to block it.
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Great post, Jeb. From what I understand, many divorcing couples have gone the arbitration route and found it far less painful. Obviously, it’s most likely to be used in amicable splits. The idea of allowing for that before marriage is a good one, I think. It would eliminate ego and revenge-driven battles.