A Proposal For Privatizing Marriage
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The notion that marriage should be privatized was and to some extent sill is en vogue in among other places, libertarian circles. It’s starting to become less so for libertarians. One argument against such is that it would be, as it currently stands, unworkable. Jason Kuznicki and now Shikha Dalmia object on these grounds. From the latter’s link:
At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage “deed.” It won’t—and can’t—simply accept any marriage performed in any church—or any domestic partnership written by anyone. Suppose that Osho, the Rolls Royce guru who encouraged free sex before getting chased out of Oregon, performed a group wedding uniting 19 people. Would that be acceptable? How about a church wedding—or a civil union—between a consenting mother and her adult son? And so on—there are innumerable outlandish examples that make it plain that government would have to at least set the outside parameters of marriage, even if it wasn’t directly sanctioning them.
In other words, this kind of “privatization” won’t take the state out of marriage—it’ll simply push its involvement (and the concomitant culture wars) to another locus point.
I don’t agree with the reasoning here. Yes, it’s true that the state would “still ha[ve] to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds.” On the other hand, there IS a solution to the problem: Abolish state involvement in “marriage” and replace it with “civil union.” “Civil union” as a governmental institution would have all of the same, in fact every single right, duty, obligation, presumption of what used to be called “marriage.” Let any two people register for such. And have the state INQUIRE NOT as to what sexual conduct, if any, occurs therein.
So if for instance, two chaste, conservative, doctrinaire Roman Catholic, cisgendered nuns who happen to be biological sisters (Sisters who are sisters) want to enter into a “civil union” they would be able to do so just as a gay couple, a biologically related brother and sister, or an unrelated male and female could.
Couples who wanted to get “married” would do so in a private ceremony which would have as much legal status as being baptized or confirmed in a church.
I should note the civil institution of marriage is, in my opinion a bureaucratic morass (that it is such explains why attempting to “privatizing” it could be theoretically disastrous). If folks want to enter into such under the auspices of a “civil union,” fine. Let’s not insult “marriage” — metaphysically sacred institution that it is — with such legalistic gobbledygook.
If on the other hand, the instruments of private contract alone will not suffice and one needs to join a comprehensive state oriented legal institution, join it under the auspices of the above defined “civil union” and leave marriage alone.