Getting Government Out Of Marriage Is A Fantasy, Not A Solution

The Supreme Court's decision on marriage equality seems to have revived an idea that has been mentioned before, but as it has always been, the idea of "getting government out of marriage" is little more than a simplistic slogan.

Doug Mataconis · · 66 comments

On Friday in the hours after the Supreme Court’s decision in Obergefell v. Hodges, pretty much every Republican candidate for President had chimed on the Court’s decision in one way or another. Some, such as Jeb Bush, Marco Rubio, and Lindsey Graham, took a position that maintained their long-standing support for “traditional marriage,” chided the Court for stepping into an issue that should be “left to the states,” but also saying that now that the Court had ruled the decision must be respected. Others, such as Rick Santorum, Ted Cruz, Mike Huckabee, and Bobby Jindal took a hard line stance of opposition to the ruling, suggestions that state officials don’t really need to listen to the Supreme Court, and even suggestions to get rid of the Supreme Court or subject Federal Judges to election. One candidate who remained silent, though, was Kentucky Senator Rand Paul, and that silence continued throughout the weekend to the point where it started to become noticeable in its absence. Yesterday, Paul broke his silence in an Op-Ed in Time that seems to try to bridge the gap between Paul’s libertarianism and the social conservatives that he is obviously trying to appeal to while running for President, and doesn’t really accomplish either:

Republican presidential candidate Rand Paul finally made his opinion known about the Supreme Court’s same-sex marriage ruling, writing in a Time op-ed that the federal government should get out of the marriage business altogether. “While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract,” the Kentucky senator wrote in the op-ed, published Sunday night. The government should not prevent people from doing so, Paul said, adding that “does not mean that the government must confer a special imprimatur upon a new definition of marriage.” Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party, Paul said. “Since government has been involved in marriage, they have done what they always do — taxed it, regulated it, and now redefined it,” he wrote. “It is hard to argue that government’s involvement in marriage has made it better, a fact also not surprising to those who believe government does little right.”

While Paul’s Time piece is rather disjointed and, quite honestly, not very well written or edited, at its heart it appears to be making a case for the idea of “getting the government out of marriage,” or as I have noticed it being called recently in some circles, “marriage privatization.” It’s worth noting off the bat this isn’t a new position for Paul that he came up with in response to Obergefell, but rather something he’s articulated several times in the past. The specifics of what this means, though, are never really made clear, not even in Paul’s Op-Ed, and in the end the phenomenon of conservatives talking about the idea of “getting government out of marriage” seems to be one that has come to being largely in response to the advance of same-sex marriage. Prior to the Supreme Court’s ruling, for example, state legislatures in Alabama and Oklahoma considered bills that would have eliminated the entire idea of marriage licenses from the law and turned the process of getting married into something that was mostly done by churches, with the non-religious apparently left to their own devices to figure out how to go through the motions required to be considered legally married by the state. Yesterday, the Attorney General of Mississippi suggested a similar idea for his state in response to the ruling in Obergefell. I’ve also noticed it gaining some traction among some on the right both online and elsewhere. The odds of any of these proposals actually becoming law at any point are, of course, quite small, but this is likely to be a topic of debate in the future just as it has been one in the past.

As I’ve said before, on some level the idea of getting the government out of marriage is one that has some appeal. Indeed, in some previous writing, I was quite sympathetic to the idea. The entire idea behind much of the movement that pushed for legal recognition of same-sex marriage and an end to the laws that restrict what two people can do in their personal relationships, after all, was the idea that these are relationships that government should have little to no involvement in to begin with. Taken to its logical conclusion, this would seem to suggest that people shouldn’t need to go to a government office and get a “license,” which is really of course just a form of registration at this point, to be “married.” It’s a position that has appealed to me in the past largely because of its obvious libertarian roots. However, as James Joyner, Steven Taylor, and myself have all noted here at OTB in the past, while the idea of “getting the government out of marriage” sounds simple and appealing on the surface, it is in reality quite complicated, probably not possible, and in the end inadvisable.

Leaving aside the issue of the rights and benefits that being legally married grants, though, it becomes clear fairly quickly that the idea of getting government out of marriage is largely an impossibility. Let’s take Paul’s suggestion that marriage just be treated as a contract, for example. Even in the area of private contract law, the government still plays a role that it would also play in a world where marriage was “just a contract.” First, in many respect the government, through both written laws and court decisions, plays the role of setting certain default rules for contracts such as who can enter into a contract (i.e, capacity to contract issues such as the age limits and mental states of the parties), what form the contract must take to be considered valid, and when and how the contract itself is considered ratified. Government and the law also play a secondary role in the world of contracts by setting out default rules about performance, breach, and dispute resolution. The parties can often come up with their own rules, but for purposes of convenience and to save money most people follow the default rules. Finally, of course, government plays a role when there are contract disputes and when contractual relationships are dissolved.

Applying this to a world where marriage is just a contract as Senator Paul seems to advocate, this means the government will be involved in setting the default rules for who can get married, such as age limits, limits regarding familial relationship, and laws regarding who has sufficient legal capacity to get married. Second, as I’ve already noted, government sets the terms of what it means to be married by establishing a certain legal status to the institution that is unavailable to unwed couples. Otherwise, there’s no reason for people to agree to be “married” in the first place. If one of the parties to the marriage dies, the government has a role in determining inheritance rules for the estate of deceased, especially if there is no will. Finally, if the marriage unfortunately dissolves and the parties are unable to agree on their own how to divide marital assets, as happens quite often, the government plays a role, though the court system in that process as well. If there children involved, then the courts are most emphatically part of the process, and they also play a role in issues related to domestic violence and other matters that can, unfortunately, arise in the course of a married relationship. The point is, government is inherently tied into the status of being “married” from a non-religious point of view (the religious definition of marriage doesn’t interest me and is, in any case, irrelevant to anyone not the member of a particular church or religious group) so the idea of “getting government out of marriage” is really nothing more than a simplistic soundbite.

On a final note, it’s important to point out that many people seem to be latching on to this “marriage privatization” idea for less than admirable reasons. Senator Paul comes at the issue honestly, I think, because this is something he has talked about many times in the past and it is largely in tune with the libertarian viewpoint that informs his views. In other cases, though, and especially in the cases of politicians in certain states who have pushed this idea lately, the motivation seems to be less than pure. Indeed, one can say that for many conservatives the issue in “marriage privatization” has only really come about as it became more apparent that they were on the losing side of the same-sex marriage debate. One did not hear these people suggesting something like this when only men and women could get married, for example. Given that, these suggestions should be taken with a dose of skepticism separate and apart from the fact that the argument itself doesn’t really withstand logical scrutiny. In the end, it seems as though many of these people have decided that the government should stop issuing marriage licenses merely because gays and lesbians are now legally able to get them.