“Get the government out of marriage”

by Walter Olson on April 11, 2013

Okay, “get the government out of marriage” makes a nice slogan, with a libertarian-sounding ring to it. But what happens on contact with legal reality, where countless existing legal relations are predicated on marriage’s functional role as an on/off switch as opposed to a sliding continuum of statuses customized by private contract? [Scott Shackford, Reason]

Also on the marriage question, I have a new blog post at Cato recapitulating why social conservatives are deluding themselves if they imagine the GOP can use the issue to harvest many new black votes.

Yet more: video of a Friday Cato panel in which I join Mary Bonauto of GLAD, Ilya Shapiro of the Cato Institute, and Kathryn Lehman of Holland & Knight; I talk about how public opinion on same-sex marriage is increasingly boxing in the national Republican Party, and how it might bid to get out of the box.

{ 4 comments }

1 mb 04.12.13 at 12:14 pm

Walter- I think it’s quite simple. That absent a compelling gov’t interest, there is no need for State involvement, period. Why should the gov’t be required to hear every legal matter that is brought before the courts, when it would be far less costly to send people to mediation, couples counseling, parenting classes, etc.

2 charles platt 04.15.13 at 12:47 am

The quotes from legal scholars in the Reason article make no sense to me at all. They ask, what about the status of children if the government wasn’t involved in marriage. I imagine it would be much the same as the status of children in the millions of couples who have procreated without bothering to get married. Apparently family courts are able to deal with this supposed legal nightmare. The declining popularity of formal marriage is a clear indicator that it is no longer serving the needs of many people, and the lack of legal repercussions seems to indicate that eliminating the statutory status of marriage would cause no problems at all. Or am I missing something here? Seems to me, statutory marriage was a necessary safeguard when paternity was not easily proved, but DNA testing changed that long ago. And contrary to the claims of the Scottish legal scholar, early US colonies did not have statutory interference in marriage; it was simply not practical at a time when the population was so thin and dispersed. There is good evidence that government only got involved in marriage during the French revolution, according to the books that I have read.

3 mb 04.15.13 at 6:41 am

No one in government wants to answer tough constitutional questions because, for one, they don’t understand the oath that they’ve taken to uphold it, and two, most members of Congress feel that it is much more important for Big Brother to be centrally involved in intimate personal decision-making, rather than leaving it to the discretion of individuals. Quite simply, they can’t fathom a world where people engage in voluntary associations. The truth that they so very much like to avoid is that government destroys everything it touches. Social conservatives love to intermingle issues related to children as the cause for protecting traditional marriage. Yet they along with Progressives have been supporting policies that have been having a much more damaging effect on both marriage and children for decades, starting with no-fault divorce, income-based child support and alimony, expanded definitions for domestic violence that make anything count as an infraction, and reducing divorced and unmarried fathers to that of “visitor” status. The next time you hear a social conservative talk about protecting traditional marriage, they have no idea what they’re talking about.

If government were truly interested in supporting healthy, intact marriages, it would have thought of a way quite a long time ago through financial incentives, PR campaigns, or a combination of things. But the fact of the matter is that the family has long been the principle check on government, so having policies that support marriage and family are bad policy for government. It’s much more profitable to conquer and divide through harmful divorce policies that ruin the head of it, (the father), and attempt to assume the new role as the custodian of children. Dr. Stephen Baskerville’s book “Taken into Custody: The War on Fathers, Marriage and the Family” does a masterful job of laying this out and should be a must-read for libertarians who are looking for better answers to the marriage debate.

4 Robert 04.15.13 at 1:46 pm

It would be nice if unmarried people could declare someone to be their “next of kin” for Social Security survivor’s benefits, inheritance tax exemptions, etc.

Think of two unmarried siblings who live together in old age, for example.

Once they figure out all the benefits that come with Marriage, it would be nice to see them available to any two people.

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