Apparently, some people are still getting up in arms over the idea of other people marrying without the permission of our wise overlords and modern-day ephors in government.

What’s tragic and infuriating, however, is that such protestation isn’t just from the usual suspects, but from publications that would otherwise advocate for greater liberty.

Over at Reason magazine, senior analyst Shikha Dalmia attacked the idea in a column titled “Privatizing Marriage Is a Terrible Idea.” Since the title makes any intro summary unnecessary, let’s do this by the numbers (emphasis added).

Today, the idea of privatizing marriage is gaining popularity. But it is an incoherent concept that, if anything, will actually increase—not decrease—government interference in marriage.

Getting government out of the marriage business means the government will have more control over it? Isn’t this sort of like arguing that we need to “abandon the free market system” to save the free market system?

Next, she writes (emphasis added):

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.

This is making a wide range of presumptions, chief of which is that government has to define marriage legally outside of a contract between voluntary parties. It doesn’t, and shouldn’t. She talks of whether a marriage of 19 is acceptable or not.

If they all consented to a contract, who is she, or the state, to deem the stipulations in the contract invalid? Why does it have to be “approved” by a third party whose authority the spouses didn’t consent to? Why should the state have the ability to define marriage as one thing or another and then enforce this definition on millions of people against their will? How is it not discriminatory? Why would the 19 people in her hypothetical situation not be able to sue, using the same argument that same-sex couples have when marriage was defined as only one man and one woman?

Let’s move on.

Dalmia then argues that if government doesn’t control people’s marriages, the church or mosque might (emphasis added).

Furthermore, true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples. In other words, letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent. Inter-faith couples could choose one of their communities—but only if it allowed interfaith marriages. But here’s what they couldn’t get: a civil marriage performed by a justice of the peace. Why? Because that option would have to be nixed when state and marriage are completely separated. This would mean that couples would be subjected to community norms, many of them regressive, without any exit option. For example, a Muslim man could divorce his Muslim wife by saying “divorce” three times as per sharia’s requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere). Obviously, that would hardly be an advance for marriage equality.

Her fears are completely misplaced. Again, if the parties have voluntarily agreed to the marriage contract, it should not require a third party of any kind in order for it to be deemed valid and binding. Secondly, if they consent to abiding by the rules of an organization or a church and the governing authorities of those entities, then what concern is it of Dalmia’s or anyone else’s if those rules appear strange or unfair to her?

If they are coerced into following these rules, then it is a violation of their rights and therefore a crime.

But how exactly would privatizing marriage somehow give private organizations the power to force people to follow their ideas of marriage against their will – and how is government doing it instead protecting people from this unlikely possibility?

And Dalmia warning of limited financial support in privatized marriage following a divorce would be humorous, if men weren’t being currently subject to modern day debtor’s prisons for being unable to pay child support. Such men make up one eighth of the inmates in South Carolina’s prisons.

For those who don’t know, child support (which has nothing to do with supporting “the children”) is based on a despicable policy known as “imputed income,” in which the payment amount is arbitrarily determined not by how much the person makes, but on how much the judge thinks they should make.

If they can’t meet the payments for any reason, they get thrown in jail, and the Supreme Court has ruled people do not have a right to counsel in such hearings.

To add insult to injury, the person who receives the child support payments doesn’t have to pay income taxes on it, but the person who pays does, and there is no legal obligation for the receiver to spend the money on the child.

But you know, we need to keep this oppressive system in place because of….I don’t know…marriage equality or something like that.

Dalmia’s next statement is just as baffling (emphasis added).

Cato Institute’s Jason Kuznicki notes that marriage, properly understood, is a negative, pre-political right that in the liberal understanding of things the government doesn’t grant, it guarantees.

We need government to grant us marriage licenses in order to guarantee us the right to get married? Do I need a free speech license, or a license to keep a firearm? Last time I checked, we don’t need a “license” to exercise a right. The very idea is contradictory.

Her next statement is equally bewildering (emphasis added).

It makes as much sense, therefore, to abolish marriage in the name of unshackling it from the government’s clutches as it would to, say, abolish property rights to “free” them from the government.

No one is talking about “abolishing” marriage. It’s about allowing consenting adults to voluntarily contract with one another without government intervention. It’s about allowing people to define their relationships without forcing their definition on other people in violation of their rights.

Here we get to the real gist of why they think privatized marriage is a bad idea: People aren’t responsible enough to take care of themselves, so government needs to do it for them.

Without marriage, every aspect of a couple’s relationship would have to be contractually worked out from scratch in advance. This may—or may not—prove to be an onerous inconvenience (some people speculate that companies would start marketing canned contracts to couples). But without licenses or registration for marriages, many things, including establishing paternity, would get really messy. When a couple is in a recognized marriage, the children in their custody are presumed to be theirs—either because they bore them or adopted them. Privatizing marriage, maintains Kuznicki, would mean giving up this presumption.

In other words, people might actually get decide things that the state decides for them at the moment. Don’t these uppity mundanes realize it’s for their own good that the government takes care of those “unimportant” details for them (whether they want them to or not?)

It is impossible to adequately describe here how cruel, unjust, and prejudiced the modern institution of marriage is in the hands of the state. Divorce court and the family courts create terrible incentives for people to use divorce either as a threat against their spouse, knowing the courts will favor them, or actually file when they know the court will reward them.

According to a paper written by Professors Margaret F. Brinig and Douglas W. Allen: (emphasis added):

Individuals file for divorce when there are marital assets that may be appropriated through divorce, as in the case of leaving when they have received the benefit of educational investments such as advanced degrees…..We have found that who gets the children is by far the most important component in deciding who files for divorce, particularly when there is little quarrel about property, as when the separation is long.

In other words, thanks to state-enforced no-fault divorce laws, spouses who did not consent to the divorce can find themselves kicked out of their own homes, dragged into a courtroom and forced to comply with a judge’s decision on extremely intimate matters, such as when they can and cannot see their own children.

It’s no wonder that Stephen Baskerville at Touchstone referred to state-control over a marriage within the context of a divorce as the “most predatory and repressive sector of government ever created in the United States” (emphasis added).

Most Americans would be deeply shocked if they knew what goes on today under the name of divorce. Indeed, many are devastated to discover that they can be forced into divorce by procedures entirely beyond their control. Divorce licenses unprecedented government intrusion into family life, including the power to sunder families, seize children, loot family wealth, and incarcerate parents without trial. Comprised of family courts and vast, federally funded social services bureaucracies that wield what amount to police powers, the divorce machinery has become the most predatory and repressive sector of government ever created in the United States and is today’s greatest threat to constitutional freedom.

It’s curious that Dalmia mentions the issue of establishing paternity as a reason not to privatize marriage. Getting a marriage license causes a man to actually lose protections against paternity fraud – which is how some men have actually been forced to pay child support for a child that they have proven isn’t theirs, even after the mother they divorced later marries the child’s actual father.

Perhaps these matters should be addressed first before lecturing anyone about the “impracticality” of removing government control over their marriage.

While the state is currently wreaking havoc on the institution of marriage, allowing people to write up their own marriage contract would mitigate or resolve many of these abuses and injustices that favors one party over the other (perhaps that’s why some are opposed to such a proposal……).

If a divorce should occur, matters such as possible alimony and child support, division of jointly-owned property, and who gets child custody should be decided beforehand in the marriage contract, not by the state.

Without addressing any of the issues directly caused by state-control over marriage, Dalmia concludes on a dismissive note to all those who would oppose such an arrangement (emphasis added).

Privatizing marriage can’t sidestep the broader questions about who should get married to whom and under what circumstances. In a liberal democracy, those who want to expand the scope of marriage have no choice but to fight—and win—the culture wars by slowly changing hearts and minds, just as they did with gay marriage. There are no cleaner shortcuts.

If they want a different reality, they will just have to move to Mars—or Venus.

She completely sidesteps the fundamental question: What is marriage, and how did she (and the state, for that matter) come to this conclusion? Is it between a man and a woman, or two people? Does a majority vote decide, or an ex cathedra pronouncement by the Supreme Court?

The question is moot when marriage is privatized – everyone gets to decide for themselves within the context of voluntary agreements. But if you’re going to force your specific definition on others through government laws, then the question has to be answered to the satisfaction of those affected.

What’s particularly baffling is that this sort of nonsense isn’t coming out of the Progressive halls of the New Republic and The Nation, or the mainstream conservative news sites.

Reason magazine is a self-described libertarian publication. For one of its senior analysts to advocate for the continuation of government marriage licenses is like the Gun Owners of America arguing that we need to register our guns to the government in order to protect our right to own them.

Is this what passes for libertarian literature nowadays, defending a government policy originally implemented as a racist solution to prevent interracial marriages and then say those who don’t like it can “geeeet ouuuuut“?

I believe I speak for many Americans when I say I do not consent to any government authority over any marriage I may enter into voluntarily via a marriage contract. I do not consent to the government deciding when I am or am not married. If a divorce were to occur, I would not consent to the government having any say whatsoever as to the terms of the divorce concerning the division of jointly-owned property from the marriage, custody of any children I may have had with my wife, financial support to either spouse, or anything along those lines. All government intervention – or for that matter, any intervention by anyone else – in these matters are acts of coercion and aggression against myself and my property.

If what I just wrote is not sufficient an argument for a “libertarian” as to why marriage should be privatized, then chances are you need to drop the libertarian label.

That, or come back to planet Earth.

TJ Martinell

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