Marriage: The State vs. Contract and Religion

2012’s Republican US presidential candidates are, to a man, opposed to legal recognition of same-sex marriage.

The worst of them, former US Senator Rick Santorum, says he considers marriage a federal issue and wants a constitutional amendment enshrining marriage apartheid — state privilege for heterosexuals, exclusion of homosexuals — in law.

Even the best of them, US Representative Ron Paul, has sponsored legislation (the fraudulently named “Marriage Protection Act”) that would leave state governments free to discriminate against same-sex couples in defiance of the US Constitution’s Full Faith and Credit and Equal Protection clauses. But Paul, at least does make a nod toward the standard libertarian position that marriage really isn’t any of political government’s business.

The same-sex marriage debate is a perfect showcase for the anarchist argument against political government itself. For marriage is two things, neither of which require a monopoly state to enact, support, preserve or regulate.

One facet of marriage is a personal — usually, but not always, religious in nature — commitment between two (or more!) people who’ve decided to merge their lives in important ways. When they “get married,” they’re simply announcing to their friends, family and interested public that they intend to move forward with their lives as a couple (or group! — but from here on out I’ll assume two people) rather than separately.

The other facet of marriage is contractual. When a couple marries, they merge their property in certain ways. The types of mergers involved vary. Under political government different states handle “marital property” in different ways. There may be pre-nuptial agreements which set up rules for what is merged or not, and how. But any way you cut it, a marriage is also a business partnership in which properties become intermingled and have to be sorted out in some way in the case of dispute, divorce or death.

State involvement in marriage is not only unnecessary, it does active damage to the institution itself.

On the personal, spiritual and religious side, the state places barriers in the way of couples making the commitment they’ve chosen. At a minimum, there’s the bureaucratic ritual of applying and paying for a “license” to set up housekeeping. At a maximum, if the marriage doesn’t pass muster with the licensing laws, some states go so far as to threaten to jail clergy who officiate at the ceremony! It’s the equivalent of Congress dictating baptism by dunking instead of sprinkling, or the FDA requiring disclosure (“this product may contain the body of Christ”) on communion wafers.

On the contractual side, state involvement imposes a “one size fits all” template on marriages, then withholds the protections and benefits of that template from those marriages it declines to recognize.

If couples in state-licensed marriages want to vary from the state-imposed contract, they have to procure extensive (and expensive) legal services to dispose of their property as they want rather than as the state’s template specifies, then hope they can make that disposition stick versus a legal process which defaults to the template.

Couples in unlicensed marriages — and yes, folks, they are “real” marriages, just like tooling down the road without a driver’s license in your pocket is “really” driving — likewise have to jump through expensive legal hoops to set up relationships analogous to the state’s template, like powers of attorney and so forth, that would have been automatic had they not been denied a license.

Families, churches and other societal institutions are fully competent to decide for themselves whom to recognize as “married” for purposes of social and religious interactions. They don’t need the state to tell them how it’s done. They’ve been doing it for millennia.

And, absent the state’s “one size fits all” template, market competition would almost certainly produce fitting contractual frameworks — including arbitration protocols for property disputes in case argument or divorce — in record time, with a much greater range of choice, and at lower prices than the state’s “justice” system will ever offer.

Like everything else it touches, political government makes a mess out of marriage. Those who decry “the breakup of the American family” need look no further than the courthouse, the statehouse and the Capitol for the culprits.