What role should the government play in defining marriage?
When the Supreme Court issued its landmark ruling on same-sex marriage, many Americans considered the issue resolved.
But in early 2017, Alabama’s House Judiciary Committee passed a bill to abolish marriage licenses and replace them with marriage certificates, which wouldn’t require a probate judge’s approval (the measure still needs to be approved by the House to become law). Essentially, the bill’s sponsors want to drastically reduce the government’s role in defining marriage.
Some people want to go even further. Arvin Vohra, Vice Chair of the Libertarian Party, told HealthyWay that government should step completely out of marriage.
“[Libertarians] advocate eliminating these restrictions on private contracts, and allowing consenting adults to set up any arrangements to which they mutually agree,” Vohra says.
Surprisingly, this isn’t a new concept. Commonly called marriage privatization, the argument has drawn serious consideration from feminists, social conservatives, and libertarians alike. It’s also highly controversial—which is to be expected, given the overall tone of other marriage debates.
To discuss the potential advantages and disadvantages of marriage privatization, we asked Vohra a few questions. We also spoke to an attorney who specializes in family law, who asked to be quoted anonymously.
Here’s the surprisingly reasonable argument for abolishing marriage, along with a few compelling counterpoints.
We believe that government should have no role at all in marriage.
The Libertarian argument for marriage privatization is based on a simple principle: No one should be forced to sacrifice their own values for the benefit of others. That’s explicitly outlined in their party platform.
Critics of marriage privatization often note that removing government recognition will allow for marriages that might be seen as detrimental to society—a marriage between biological relatives, for instance, or marriages between three or more people.
But Arvin Vohra contends that there’s no reason that the government should provide that sort of oversight in the first place.
“Consenting adults have the right to marry whoever they want, for whatever reasons they want,” Vohra says. “Today’s government mismanaged marital structure, which forces a one-size-fits-all marriage on everyone, fails to respond to the diversity of desires, cultures, and preferences that exist. As the simplest, though not only, example, government licensing has made polyamorous marriages, standard in many cultures for many years, part of many present-day religions, legally impossible.”
What about people who might want to marry, say, animals? Marriage privatization advocates generally think that’s a red herring used to maintain the status quo.
“Many of the types of marriage that people might more strongly object to are not commonly sought after, and would be a waste of time and money legislating,” Vohra insists. “Many people are interested in polyamorous marriages. Very few are interested in marrying dogs. Creating a law to prevent something already unpopular, which would then require hiring enforcement staff with tax dollars, is a terrible idea.”
Besides, an animal couldn’t consent to a relationship, and under most proposed marriage privatization laws, all involved parties would have to give full consent to the terms of the marriage contract.
Getting government out of custody disputes would mean that people would consider those decision carefully beforehand, instead of relying on an unreliable, government-mismanaged system
Getting rid of marriage would likely cut government expenditures. Vohra says that there’s no need to pay government employees to control marriage—not when people are perfectly capable of entering into marriage contracts by their own free will. He says that privatizing marriage would also reduce the strain on courts by simplifying property and custody disputes.
“Under the current system, custody disputes are a disaster, precisely because people are using a default contract rather than carefully considering what would work best in their case,” Vohra says. “Family court disputes are often ugly, drawn out, and damaging to children. Getting government out of it would mean that people would consider those decision carefully beforehand, instead of relying on an unreliable, government-mismanaged system.”
“Part of this means abolishing laws that prevent settling child support and custody before conception,” Vohra continues. “These laws get in the way of creating responsible contingency plans, and force people to waste time and money in family courts.”
The attorney we spoke to contested that last point.
“In those terms, [privatization] already happened,” the attorney says. “It’s a done deal. It’s been going on since the ’60s and ’70s.”
“For example,” they continue, “if you have a child out of wedlock, the state already—at taxpayer expense through a state’s attorney or attorney general—will find that person and establish child support. If a child is disabled or needs medical attention, they’ll do the same thing.”
Granted, this is handled at a state level, and laws vary from state to state, but when determining custody and protecting a child’s welfare, governments don’t really attribute much value to the marital status of the adults.
Abolishing marriage could allow people to make arrangements that fit their values.
“[Getting the] government out of marriage allows marital innovation (e.g. finding ways to make polyamorous marriages work), lowering of spending and taxes, and elimination of the nuisances associated with getting licenses,” Vohra says.
While our attorney source conceded that point, he noted that divorces could quickly become complicated without state marriage laws—potentially to the detriment of stay-at-home partners and their children.
“If there’s a divorce, that always happens in state court, and if you’ve been married for any period of time, the less-earning spouse—in most cases, still, women—is entitled to a portion of a pension and 401(k) benefits, for instance,” our source says. “They might also be entitled to maintenance, which we used to call alimony, and that’s solely based upon the conception of marriage. That wouldn’t exist without a state-sponsored marriage structure.”
So, why is that a problem? It isn’t—if both partners have roughly equal income.
However, state marriage contracts currently offer protection for partners who contribute to their households in other ways.
“For example, let’s say we have two couples, and each has two children. In each couple, one partner works, while the other stays at home to care for the kids,” our source says. “Both couples were together for 20 years, but one was married, and one wasn’t.”
“If they’re married, that person will likely be credited for what they put into the marriage by forgoing a career or forgoing their earning potential and be given a certain amount of their partner’s pension or property. If that structure didn’t exist, they’d simply part ways, and that would be disadvantageous to the less-earning spouse, which in this day and age, is still mostly women.”
According to the attorney, eliminating marriage would immediately result in more expenditures for states, since thousands of people would be suddenly forced to rely on welfare programs.
Getting government out of marriage is absolutely a priority.
“Punishing people who want to shape their own marriages because of government’s inability to stop handing out welfare is addressing the wrong side of the equation,” Vohra says. “We support repealing all social welfare programs, including TANF [Temporary Assistance for Needy Families, the program that pays temporary financial assistance to pregnant women and families with dependent children] and Medicaid.”
Would Libertarians wait to abolish marriage until they were able to eliminate those social welfare programs?
“That can happen concurrently, before, or after,” Vohra says, “but we do not believe in holding marital freedom hostage to other considerations. Government has no place in marriage. It also should stop providing any welfare. Either getting government out of marriage or ending welfare would be great steps in the right direction.”
We asked the family law attorney whether he’d agree that government has no place in marriage.
“Well, I’ve honestly never really thought of it,” he says, “but I think that the concept of marriage is so intertwined with civil law and how we treat relationships in courts that it would be highly damaging to have it undone by the stroke of a pen. It would put people in poverty almost immediately.”
He adds that marriage privatization, while an interesting concept, is politically unviable.
“I don’t think that states would ever really undergo privatization of marriage, for that reason alone, because it would expand the welfare roles so drastically.”
Vohra, however, says that the issue is vital to many Americans, including people in polyamorous and other non-traditional relationships. He doesn’t see marriage privatization as a minor issue; it’s a fundamental part of his party’s philosophy.
“Getting government out of marriage is absolutely a priority; the right to love and commit as you and your partner(s) see fit is a fundamental right,” Vohra says. “It is as sacred as freedom of speech or freedom of press. Many of our candidates have pledged to sponsor legislation to get government completely out of marriage, as a way to show how deeply we value the sacredness of personal relationships.”
We asked whether he sees a political path for complete privatization.
“In terms of practicality, it is politically quite possible,” he says. “There are no major entrenched financial interests that benefit from government involvement in marriage. The largest opposition comes from bigotry, for those who want to enforce their view of marriage on everyone. That group is shrinking in both size and influence, making this somewhere between a political likelihood and a political inevitability.”