Marriage privatization
Encyclopedia
Marriage privatization is the concept that the state
should have no authority to define the terms of personal relationships such as marriage
. Proponents of marriage privatization, including certain minarchists
, anarchists
, libertarians
, and opponents of government interventionism, claim that such relationships are best defined by private individuals and not the state. Arguments for the privatization of marriage have been offered by a number of scholars and writers. These arguments are most often raised in the context of same-sex marriage
. Traditionally arguments surrounding the topic of same-sex marriage tend to be in support of same-sex marriage or against same-sex marriage. A third option involves a policy of allowing civil union
s for same-sex couples while maintaining marriage exclusively for heterosexual couples. Proponents of marriage privatization often argue that privatizing marriage is a solution to the social controversy over same-sex marriage. Arguments for the privatization of marriage span both liberal and conservative political camps.
David Boaz
wrote an article for Slate
titled “Privatize Marriage: A Simple Solution to the Gay-Marriage Debate." In the article, Boaz suggests privatizing marriage in a way that models the nature of standard business contracts. Boaz's idea is to allow two (possibly more) individuals to set the terms of their own private marital contract in a way that is best for the individuals involved. "When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties." According to Boaz the government could be called upon to enforce the contract but may have no other role in developing the contract and setting the terms.
In 2002, anarchist
Wendy McElroy
echoed Boaz's business contract model in an essay for Ifeminists titled "It's Time to Privatize Marriage."
In 2003, political columnist Ryan McMaken, writing on LewRockwell.com
, raised the issue of marriage privatization arguing that the rise of state-sanctioned marriage coincides historically with the expansion of government. In his article titled "Married to the State," McMaken wrote:
In a similar libertarian vein, the radio talk-show host Larry Elder
has also spoken out to endorse the privatization of marriage. In "The State Should Get Out of the Marriage Business," a 2004 article published in on the website Capitalism Magazine, Elder wrote:
In 2006, law professor Colin P.A. Jones wrote an article appearing in the San Francisco Chronicle
titled "Marriage Proposal: Why Not Privatize?" following the business model for privatization Jones writes:
Also in 2006, Orthodox Jewish
libertarian Michael R. Paley (author of Orthodox Judaism, Liberalism, and Libertarianism: When Secularism Becomes a Religion (PublishAmerica, 2006)) advocated the privatization of marriage, saying that the expression "holy matrimony", and the Hebrew word for "marriage", viz. kiddushin (from the root word kadosh, "holy"), ought to place marriage in the sphere of church, not state, and that Orthodox Judaism agrees with the separation of church and state, at least until the Messianic Era; religious matters such as marriage (including its very definition) ought to be within the jurisdiction of private religious officials, not public, civil ones. Paley also argued that because a same-sex marriage does nothing to harm or impede heterosexuals or interfere with their marriages, it is wrong to punish homosexuals for a victimless crime. He added that if the state wants to promote marriage, it should do so by allowing a totally laissez-faire, free-market economy, so that a family can live on the husband's wage alone, letting the wife stay home with the children. He pointed to Protestant temperance movements
and Prohibition
as an example of an improperly close relationship between church and state, and warned that if the state remains in the business of marriage, the result will be similar to the mafias and crime produced by Prohibition. Additionally, state regulation of marriage will merely result in further bloat of the overgrown bureaucracy, as laws against homosexuals will require more regulations and police to enforce them. Paley concluded,
In 2009, author and journalist Naomi Wolf wrote about getting the state out of marriage in The Times
:
Professor Gary S. Becker, a winner of the Nobel Memorial Prize in Economic Sciences
, has said that:
According to author and journalist Wendy Mcelroy:
The article mentions that the practice is common in Europe
, but it is perceived as a radical move by most United States
congregations.
Pepperdine University
law professor Douglas Kmiec
, an influential Roman Catholic commentator, told the Catholic News Agency
that churches that do not accept same-sex marriage have a genuine concern that they be subject to penalties such as losing public benefits or receiving lawsuits. He argued that the state should just allot people "civil licenses", with the terminology "marriage" left "as a religious concept" for groups to debate outside the scope of government.
Stuart Koehl, writing for the Catholic periodical First Things
, referred back to the early history of the church:
He advocated for a return to this status, in which couples wanting to marry would have to get a license from civil magistrate first that would then be "sacramentalized" if a church so chooses. He argued that this would leave churches freer to be a "witness to truth" separate from corrupting government influence.
and journalist
Michael Kinsley
wrote a second essay to appear in Slate on the topic. Kinsley’s essay is titled "Abolish Marriage: Let's Really Get the Government out of Our Bedrooms." Kinsley follows the model set by his conservative counterparts Boaz and McElroy; like Elder’s he emphasizes marriage privatization's potential to end the controversy over same-sex marriage:
Marriage privatization received attention from the legal scholar Alan Dershowitz
in 2003 when Dershowitz wrote a Los Angeles Times
editorial titled "To Fix Gay Dilemma, Government Should Quit the Marriage Business." More so than commentators from the right, Dershowitz frames his view on the topic in terms of church-state separation; unlike libertarian leaning discussions Dershowitz maintains that the state does have an interest in the secular rights of marriage. Dershowitz proposes that civil-unions as a secular replacement for state sanctioned marriage, be extended to both same-sex and opposite-sex couples. Under Dershowitz's conception of privatization, couples have a choice as to whether or not they wish to be married by a clergy
willing to perform a marriage ceremony
or to exclusively partake of secular/state-sanctioned civil unions. Dershowitz writes:
, a secular think tank
, released a position paper authored by analyst Ruth Mitchell titled "Same-Sex Marriage and Marriage." The paper argues from the separation of church and state that as long as marriage is available to heterosexual couples it ought to be equally available to LGBT
couples. Nevertheless, the position paper claims that state endorsement of civil unions for both types of couples is the most appropriate policy in light of separation of church and state.
The argument for marriage privatization has also been formulated in academic scholarship. In 2008 an argument for marriage privatization appeared in the public policy
journal Public Affairs Quarterly. In that issue philosopher Lawrence Torcello offers a detailed model of marriage privatization based on the later political writings of the 20th century political philosopher John Rawls
. The article is titled "Is The State Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model.'
In the 1993 book Political Liberalism, Rawls argues that arguments in a pluralistic
society
must be hashed out in terms that all members of that society can understand if not endorse. This means that in making public claims one must refrain from religious or otherwise controversial metaphysical
claims that cannot, in principle, be equally endorsed by reasonable persons. In doing this, one is relying on what Rawls refers to as public reason
.
In his article, Torcello claims that any state endorsement of marriage represents an inappropriate public
endorsement
of a comprehensive religious or otherwise metaphysical doctrine
, which underlies any particular definition of marriage. Accordingly, taking public reason seriously leads to the idea that legalization
of same-sex marriage may be just as neutrally unbalanced as its ban. In place of the public institute of marriage, Torcello, like Dershowitz, argues that civil unions providing the full extent of marital benefits under law ought to be instituted for both heterosexual and homosexual couples. According to the argument, such civil unions ought to replace the current legal institute of marriage. Once privatized, marriage is open for individuals to define and embrace or ignore as they see fit, within the scope of their private
religious or philosophical
belief system
s:
In a July 2008 article appearing in The Monist
titled “Privatizing Marriage” Harvard Law Professor Cass Sunstein
and University of Chicago
economist Richard H. Thaler offer arguments for the privatization of marriage. Thaler and Sunstein also take up the topic in their co-authored 2008 book Nudge: Improving Decisions about Wealth, Health, and Happiness. Sunstein and Thaler argue for marriage privatization among other positions under the heading of what they call “Libertarian Paternalism.”
Some opponents of marriage privatization can argue that such a policy will simply shift the current debate over same-sex marriage to civil unions.
Liberal opponents of marriage privatization, favoring same-sex marriage, can argue that privatizing marriage does not sufficiently address the historical injustice of excluding same-sex couples from the public institution of marriage.
Conservative religious opponents of same-sex marriage may feel that privatizing marriage is still a state endorsement of what they consider to be immoral unions between homosexual couples. Thus many of the same religious arguments aimed against same-sex marriage might be applied to marriage privatization as well. Prominent conservative evangelical
baptist
R. Albert Mohler, Jr.
has stated the he opposes the privatizaton of marriage because "markets do not always encourage or support moral behavior" and he believes the proposal would "[destroy] marriage as a public institution."
Princeton
professor Robert George has argued that marriage has an important cultural role in helping children develop into "basically honest, decent law abiding people of goodwill– citizens– who can take their rightful place in society". Thus, he concludes, "Family is built on marriage, and government- the state- has a profound interest in the integrity and well-being of marriage, and to write it off as if it were a purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake".
Stanley Kurtz
of National Review
has written that privatization would be a "disaster". He argued that government "still has to decide what sort of private unions merit benefits... under this privatization scheme", and then "we also get the same quarrels over social recognition that we got before privatization." He commented that the government will have to deal with polygamous, polyamorous, incestual relationships attempting to obtain contracts under the new scheme as well as attempts by heterosexual acquaintances to make "marriages of convenience" to obtain things such as spousal medical insurance. His National Review
colleague Maggie Gallagher
has also called privatization as a "fantasy" since "[t]here is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems."
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
should have no authority to define the terms of personal relationships such as marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
. Proponents of marriage privatization, including certain minarchists
Minarchism
Minarchism has been variously defined by sources. It is a libertarian capitalist political philosophy. In the strictest sense, it maintains that the state is necessary and that its only legitimate function is the protection of individuals from aggression, theft, breach of contract, and fraud, and...
, anarchists
Anarchism
Anarchism is generally defined as the political philosophy which holds the state to be undesirable, unnecessary, and harmful, or alternatively as opposing authority in the conduct of human relations...
, libertarians
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
, and opponents of government interventionism, claim that such relationships are best defined by private individuals and not the state. Arguments for the privatization of marriage have been offered by a number of scholars and writers. These arguments are most often raised in the context of same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
. Traditionally arguments surrounding the topic of same-sex marriage tend to be in support of same-sex marriage or against same-sex marriage. A third option involves a policy of allowing civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
s for same-sex couples while maintaining marriage exclusively for heterosexual couples. Proponents of marriage privatization often argue that privatizing marriage is a solution to the social controversy over same-sex marriage. Arguments for the privatization of marriage span both liberal and conservative political camps.
Libertarian advocacy
In 1997, libertarianLibertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
David Boaz
David Boaz
David Boaz is the executive vice president of the Cato Institute, an American libertarian think tank. He played a key role in the Institute's development and the American libertarian movement....
wrote an article for Slate
Slate (magazine)
Slate is a US-based English language online current affairs and culture magazine created in 1996 by former New Republic editor Michael Kinsley, initially under the ownership of Microsoft as part of MSN. On 21 December 2004 it was purchased by the Washington Post Company...
titled “Privatize Marriage: A Simple Solution to the Gay-Marriage Debate." In the article, Boaz suggests privatizing marriage in a way that models the nature of standard business contracts. Boaz's idea is to allow two (possibly more) individuals to set the terms of their own private marital contract in a way that is best for the individuals involved. "When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties." According to Boaz the government could be called upon to enforce the contract but may have no other role in developing the contract and setting the terms.
In 2002, anarchist
Anarchism
Anarchism is generally defined as the political philosophy which holds the state to be undesirable, unnecessary, and harmful, or alternatively as opposing authority in the conduct of human relations...
Wendy McElroy
Wendy McElroy
Wendy McElroy is a Canadian individualist anarchist and individualist feminist. She was a co-founder along with Carl Watner and George H. Smith of The Voluntaryist in 1982.-Sex-positive:...
echoed Boaz's business contract model in an essay for Ifeminists titled "It's Time to Privatize Marriage."
Marriage should be privatized. Let people make their own marriage contracts according to their conscience, religion and common sense. Those contracts could be registered with the state, recognized as legal and arbitrated by the courts, but the terms would be determined by those involved.
In 2003, political columnist Ryan McMaken, writing on LewRockwell.com
LewRockwell.com
LewRockwell.com is a 501 libertarian web magazine operated by Burton Blumert , Lew Rockwell , Eric Garris , and others associated with the Center for Libertarian Studies ; its motto is "anti-state, anti-war, pro-market"...
, raised the issue of marriage privatization arguing that the rise of state-sanctioned marriage coincides historically with the expansion of government. In his article titled "Married to the State," McMaken wrote:
The question we are then left with today is one of whether the churches and individuals should be looking to privatize marriage yet again and to begin making a distinction between secular contracts between private citizens and religious unions that should be kept beyond the power of the State. Such a move, of course, would bring with it new assumptions about the role of the State in divorce, children, and a variety of other aspects of family life. The State will not give up control over these things easily, for the assertion that the importance of marriage makes it a legitimate interest of the State is only true from the point of view of the State itself, for as the foundation of society, marriage and family cannot be entrusted to governments just to be blown about by the winds of democratic opinion, for the same government that has the power to protect can just as easily destroy.
In a similar libertarian vein, the radio talk-show host Larry Elder
Larry Elder
Laurence Allen "Larry" Elder is an American radio and television personality. His radio program The Larry Elder Show airs weekdays 9 AM to noon on talk radio 790 KABC in Los Angeles, California...
has also spoken out to endorse the privatization of marriage. In "The State Should Get Out of the Marriage Business," a 2004 article published in on the website Capitalism Magazine, Elder wrote:
How about government simply getting out of the marriage-license-granting business? (Ditto for government licenses necessary to cut hair, drive a taxi, open a business or enter a profession.) Leave marriage to non-governmental institutions, like churches, synagogues, mosques, and other houses of worship or private institutions. Adultery, although legal, remains a sin subject to societal condemnation. It's tough to legislate away condemnation or legislate in approval. Those who view same-sex marriage as sinful will continue to do so, no matter what the government, the courts or their neighbors say.
In 2006, law professor Colin P.A. Jones wrote an article appearing in the San Francisco Chronicle
San Francisco Chronicle
thumb|right|upright|The Chronicle Building following the [[1906 San Francisco earthquake|1906 earthquake]] and fireThe San Francisco Chronicle is a newspaper serving primarily the San Francisco Bay Area of the U.S. state of California, but distributed throughout Northern and Central California,...
titled "Marriage Proposal: Why Not Privatize?" following the business model for privatization Jones writes:
Subject to certain statutory constraints, businesspeople have long been free to form whatever sort of partnership they felt appropriate to their needs. Why not make the same possible for marriage, which is a partnership based on one of the oldest types of contractual relationships?
Also in 2006, Orthodox Jewish
Orthodox Judaism
Orthodox Judaism , is the approach to Judaism which adheres to the traditional interpretation and application of the laws and ethics of the Torah as legislated in the Talmudic texts by the Sanhedrin and subsequently developed and applied by the later authorities known as the Gaonim, Rishonim, and...
libertarian Michael R. Paley (author of Orthodox Judaism, Liberalism, and Libertarianism: When Secularism Becomes a Religion (PublishAmerica, 2006)) advocated the privatization of marriage, saying that the expression "holy matrimony", and the Hebrew word for "marriage", viz. kiddushin (from the root word kadosh, "holy"), ought to place marriage in the sphere of church, not state, and that Orthodox Judaism agrees with the separation of church and state, at least until the Messianic Era; religious matters such as marriage (including its very definition) ought to be within the jurisdiction of private religious officials, not public, civil ones. Paley also argued that because a same-sex marriage does nothing to harm or impede heterosexuals or interfere with their marriages, it is wrong to punish homosexuals for a victimless crime. He added that if the state wants to promote marriage, it should do so by allowing a totally laissez-faire, free-market economy, so that a family can live on the husband's wage alone, letting the wife stay home with the children. He pointed to Protestant temperance movements
American Temperance Union
A national temperance union was formed in the United States 1826. Shortly thereafter, a second national temperance union was organized and the two groups merged in 1833 to form the American Temperance Union...
and Prohibition
Prohibition in the United States
Prohibition in the United States was a national ban on the sale, manufacture, and transportation of alcohol, in place from 1920 to 1933. The ban was mandated by the Eighteenth Amendment to the Constitution, and the Volstead Act set down the rules for enforcing the ban, as well as defining which...
as an example of an improperly close relationship between church and state, and warned that if the state remains in the business of marriage, the result will be similar to the mafias and crime produced by Prohibition. Additionally, state regulation of marriage will merely result in further bloat of the overgrown bureaucracy, as laws against homosexuals will require more regulations and police to enforce them. Paley concluded,
Marriage, ultimately being a religious institution, shouldn’t be part of the civil code, except to the degree that courts must adjudicate disputes implied by the contractual nature of marriage (which, by the way, is an integral component of Jewish matrimony). Religious groups and people who freely associate with them are perfectly capable of formulating their own definition of marriage and of performing and regulating those marriages.
In 2009, author and journalist Naomi Wolf wrote about getting the state out of marriage in The Times
The Times
The Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...
:
Let’s also get the state out of the marriage union. In spite of the dress and the flowers, marriage is a business contract. Women, generally, don’t understand this, until it hits them over the head upon divorce. Let’s take a lead from our gay and lesbian friends, who, without state marriage, often create domestic partnerships with financial autonomy and unity spelt out. A heterosexual parallel: celebrate marriage with a religious or emotional ceremony — leave the state out of it — and create a business- or domestic-partner contract aligning the couple legally..
Professor Gary S. Becker, a winner of the Nobel Memorial Prize in Economic Sciences
Nobel Memorial Prize in Economic Sciences
The Nobel Memorial Prize in Economic Sciences, commonly referred to as the Nobel Prize in Economics, but officially the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel , is an award for outstanding contributions to the field of economics, generally regarded as one of the...
, has said that:
With marriage contracts that set out the couple’s commitments, there is little reason why judges should retain their current involvement in marriage.
According to author and journalist Wendy Mcelroy:
Why is marriage declining? One reason is that it has become a three-way contract between two people and the government.
Religious advocacy
In 2008, an article published in the Boston Globe, "Episcopal Diocese May Quit Marriages: Same-Sex Debate Drives Mass. Plan," reported a debate within the church that would amount, in practice, to a church led privatization of marriage:A group of local Episcopal priests, saying that the gay marriage debate has intensified their longtime concern about acting as agents of the state by officiating at marriages, is proposing that the Episcopal Church adopt a new approach. Any couples qualified to get married under state law could be married by a justice of the peace, and then, if they want a religious imprimatur for their marriage, they could come to the Episcopal Church seeking a blessing from a priest.
The article mentions that the practice is common in Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
, but it is perceived as a radical move by most United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
congregations.
Pepperdine University
Pepperdine University
Pepperdine University is an independent, private, medium-sized university affiliated with the Churches of Christ. The university's campus overlooking the Pacific Ocean in unincorporated Los Angeles County, California, United States, near Malibu, is the location for Seaver College, the School of...
law professor Douglas Kmiec
Douglas Kmiec
Douglas W. Kmiec is an American legal scholar, author, and former U.S. ambassador. He is the Caruso Family Chair and Professor of Constitutional Law at Pepperdine University School of Law. Kmiec came to prominence during the United States presidential election, 2008 when, although a Republican, he...
, an influential Roman Catholic commentator, told the Catholic News Agency
Catholic News Agency
The Catholic News Agency is a provider of news related to Catholicism to an English speaking audience worldwide. It is headquartered in Denver, Colorado....
that churches that do not accept same-sex marriage have a genuine concern that they be subject to penalties such as losing public benefits or receiving lawsuits. He argued that the state should just allot people "civil licenses", with the terminology "marriage" left "as a religious concept" for groups to debate outside the scope of government.
Stuart Koehl, writing for the Catholic periodical First Things
First Things
First Things is an ecumenical journal focused on creating a "religiously informed public philosophy for the ordering of society". The journal is inter-denominational and inter-religious, representing a broad intellectual tradition of Christian and Jewish critique of contemporary society...
, referred back to the early history of the church:
He advocated for a return to this status, in which couples wanting to marry would have to get a license from civil magistrate first that would then be "sacramentalized" if a church so chooses. He argued that this would leave churches freer to be a "witness to truth" separate from corrupting government influence.
Liberal advocacy
Though often introduced from conservative commentators, marriage privatization has received attention from advocates on the left. In 2003 left-leaning political columnistColumnist
A columnist is a journalist who writes for publication in a series, creating an article that usually offers commentary and opinions. Columns appear in newspapers, magazines and other publications, including blogs....
and journalist
Journalist
A journalist collects and distributes news and other information. A journalist's work is referred to as journalism.A reporter is a type of journalist who researchs, writes, and reports on information to be presented in mass media, including print media , electronic media , and digital media A...
Michael Kinsley
Michael Kinsley
Michael Kinsley is an American political journalist, commentator, television host, and pundit. Primarily active in print media as both a writer and editor, he also became known to television audiences as a co-host on Crossfire...
wrote a second essay to appear in Slate on the topic. Kinsley’s essay is titled "Abolish Marriage: Let's Really Get the Government out of Our Bedrooms." Kinsley follows the model set by his conservative counterparts Boaz and McElroy; like Elder’s he emphasizes marriage privatization's potential to end the controversy over same-sex marriage:
If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and are entitled to. And if the other side is sincere in saying that its concern is not what people do in private, but government endorsement of a gay "lifestyle" or "agenda," that problem goes away, too.
Marriage privatization received attention from the legal scholar Alan Dershowitz
Alan Dershowitz
Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He has spent most of his career at Harvard Law School where in 1967, at the age of 28, he became the youngest full professor of law in its history...
in 2003 when Dershowitz wrote a Los Angeles Times
Los Angeles Times
The Los Angeles Times is a daily newspaper published in Los Angeles, California, since 1881. It was the second-largest metropolitan newspaper in circulation in the United States in 2008 and the fourth most widely distributed newspaper in the country....
editorial titled "To Fix Gay Dilemma, Government Should Quit the Marriage Business." More so than commentators from the right, Dershowitz frames his view on the topic in terms of church-state separation; unlike libertarian leaning discussions Dershowitz maintains that the state does have an interest in the secular rights of marriage. Dershowitz proposes that civil-unions as a secular replacement for state sanctioned marriage, be extended to both same-sex and opposite-sex couples. Under Dershowitz's conception of privatization, couples have a choice as to whether or not they wish to be married by a clergy
Clergy
Clergy is the generic term used to describe the formal religious leadership within a given religion. A clergyman, churchman or cleric is a member of the clergy, especially one who is a priest, preacher, pastor, or other religious professional....
willing to perform a marriage ceremony
Wedding
A wedding is the ceremony in which two people are united in marriage or a similar institution. Wedding traditions and customs vary greatly between cultures, ethnic groups, religions, countries, and social classes...
or to exclusively partake of secular/state-sanctioned civil unions. Dershowitz writes:
Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control.
Public policy advocacy and academia
In 2007 the Center for InquiryCenter for Inquiry
The Center for Inquiry is a non-profit educational organization with headquarters in the United States whose primary mission is to encourage evidence-based inquiry into paranormal and fringe science claims, alternative medicine and mental health practices, religion, secular ethics, and society...
, a secular think tank
Think tank
A think tank is an organization that conducts research and engages in advocacy in areas such as social policy, political strategy, economics, military, and technology issues. Most think tanks are non-profit organizations, which some countries such as the United States and Canada provide with tax...
, released a position paper authored by analyst Ruth Mitchell titled "Same-Sex Marriage and Marriage." The paper argues from the separation of church and state that as long as marriage is available to heterosexual couples it ought to be equally available to LGBT
LGBT
LGBT is an initialism that collectively refers to "lesbian, gay, bisexual, and transgender" people. In use since the 1990s, the term "LGBT" is an adaptation of the initialism "LGB", which itself started replacing the phrase "gay community" beginning in the mid-to-late 1980s, which many within the...
couples. Nevertheless, the position paper claims that state endorsement of civil unions for both types of couples is the most appropriate policy in light of separation of church and state.
The argument for marriage privatization has also been formulated in academic scholarship. In 2008 an argument for marriage privatization appeared in the public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
journal Public Affairs Quarterly. In that issue philosopher Lawrence Torcello offers a detailed model of marriage privatization based on the later political writings of the 20th century political philosopher John Rawls
John Rawls
John Bordley Rawls was an American philosopher and a leading figure in moral and political philosophy. He held the James Bryant Conant University Professorship at Harvard University....
. The article is titled "Is The State Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model.'
In the 1993 book Political Liberalism, Rawls argues that arguments in a pluralistic
Cultural pluralism
Cultural pluralism is a term used when smaller groups within a larger society maintain their unique cultural identities, and their values and practices are accepted by the wider culture. Cultural pluralism is often confused with Multiculturalism...
society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
must be hashed out in terms that all members of that society can understand if not endorse. This means that in making public claims one must refrain from religious or otherwise controversial metaphysical
Metaphysics
Metaphysics is a branch of philosophy concerned with explaining the fundamental nature of being and the world, although the term is not easily defined. Traditionally, metaphysics attempts to answer two basic questions in the broadest possible terms:...
claims that cannot, in principle, be equally endorsed by reasonable persons. In doing this, one is relying on what Rawls refers to as public reason
Public reason
Public reason refers to a common mode of deliberation that individuals may use for issues of public concern. The concept implicitly excludes certain assumptions or motivations that are considered improper as a basis for public decision making, even as a person may apply them in personal decisions...
.
In his article, Torcello claims that any state endorsement of marriage represents an inappropriate public
Public
In public relations and communication science, publics are groups of individuals, and the public is the totality of such groupings. This is a different concept to the sociological concept of the Öffentlichkeit or public sphere. The concept of a public has also been defined in political science,...
endorsement
Endorsement
Endorsement may refer to:*Testimonial in advertising, written or spoken statement endorsing a product*Political endorsement*a form added to an insurance policy, modifying the terms...
of a comprehensive religious or otherwise metaphysical doctrine
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
, which underlies any particular definition of marriage. Accordingly, taking public reason seriously leads to the idea that legalization
Legalization
Legalization is the process of removing a legal prohibition against something which is currently not legal.Legalization is a process often applied to what are regarded, by those working towards legalization, as victimless crimes, of which one example is the consumption of illegal drugs .Those...
of same-sex marriage may be just as neutrally unbalanced as its ban. In place of the public institute of marriage, Torcello, like Dershowitz, argues that civil unions providing the full extent of marital benefits under law ought to be instituted for both heterosexual and homosexual couples. According to the argument, such civil unions ought to replace the current legal institute of marriage. Once privatized, marriage is open for individuals to define and embrace or ignore as they see fit, within the scope of their private
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
religious or philosophical
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
belief system
Belief system
A belief system is a set of mutually supportive beliefs. The beliefs may be religious, philosophical, ideological or a combination of these.The British philosopher Stephen Law has described some belief systems as "claptrap" and said that they "draw people in and hold them captive so they become...
s:
No religious model that rejects same-sex marriage would be required to perform same-sex marriages under this privatized model. Under this model a couple, either heterosexual or homosexual, would obtain a civil union in order to have public and legal recognition of their partnership; they would have a private marriage ceremony if they so chose in order to honor their private religious or philosophical concept of marriage.
In a July 2008 article appearing in The Monist
The Monist
The Monist: An International Quarterly Journal of General Philosophical Inquiry is an American academic journal in the field of philosophy. It was founded in October 1890 by Edward C. Hegeler, making it one of the longest-established journals in philosophy...
titled “Privatizing Marriage” Harvard Law Professor Cass Sunstein
Cass Sunstein
Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
and University of Chicago
University of Chicago
The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
economist Richard H. Thaler offer arguments for the privatization of marriage. Thaler and Sunstein also take up the topic in their co-authored 2008 book Nudge: Improving Decisions about Wealth, Health, and Happiness. Sunstein and Thaler argue for marriage privatization among other positions under the heading of what they call “Libertarian Paternalism.”
Arguments opposing the privatization of marriage
Opposition to marriage privatization, like its endorsement, is equally likely to be found arising from conservative or progressive sources and a wide variety of objections are made.Some opponents of marriage privatization can argue that such a policy will simply shift the current debate over same-sex marriage to civil unions.
Liberal opponents of marriage privatization, favoring same-sex marriage, can argue that privatizing marriage does not sufficiently address the historical injustice of excluding same-sex couples from the public institution of marriage.
Conservative religious opponents of same-sex marriage may feel that privatizing marriage is still a state endorsement of what they consider to be immoral unions between homosexual couples. Thus many of the same religious arguments aimed against same-sex marriage might be applied to marriage privatization as well. Prominent conservative evangelical
Evangelicalism
Evangelicalism is a Protestant Christian movement which began in Great Britain in the 1730s and gained popularity in the United States during the series of Great Awakenings of the 18th and 19th century.Its key commitments are:...
baptist
Baptist
Baptists comprise a group of Christian denominations and churches that subscribe to a doctrine that baptism should be performed only for professing believers , and that it must be done by immersion...
R. Albert Mohler, Jr.
R. Albert Mohler, Jr.
Mohler's approach to Muslims is driven by his belief in the relevance of the Christian Gospel to all people.-Media appearances:Mohler appeared on MSNBC's Donahue on August 20, 2002. The subject was Christian evangelization of Jews...
has stated the he opposes the privatizaton of marriage because "markets do not always encourage or support moral behavior" and he believes the proposal would "[destroy] marriage as a public institution."
Princeton
Princeton University
Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....
professor Robert George has argued that marriage has an important cultural role in helping children develop into "basically honest, decent law abiding people of goodwill– citizens– who can take their rightful place in society". Thus, he concludes, "Family is built on marriage, and government- the state- has a profound interest in the integrity and well-being of marriage, and to write it off as if it were a purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake".
Stanley Kurtz
Stanley Kurtz
Stanley Kurtz is an American social commentator who identifies with the conservative movement.-Career and works:He is a Senior Fellow at the Ethics and Public Policy Center and a former Adjunct fellow with Hudson Institute, with a special interest in America's "culture wars." Kurtz writings on the...
of National Review
National Review
National Review is a biweekly magazine founded by the late author William F. Buckley, Jr., in 1955 and based in New York City. It describes itself as "America's most widely read and influential magazine and web site for conservative news, commentary, and opinion."Although the print version of the...
has written that privatization would be a "disaster". He argued that government "still has to decide what sort of private unions merit benefits... under this privatization scheme", and then "we also get the same quarrels over social recognition that we got before privatization." He commented that the government will have to deal with polygamous, polyamorous, incestual relationships attempting to obtain contracts under the new scheme as well as attempts by heterosexual acquaintances to make "marriages of convenience" to obtain things such as spousal medical insurance. His National Review
National Review
National Review is a biweekly magazine founded by the late author William F. Buckley, Jr., in 1955 and based in New York City. It describes itself as "America's most widely read and influential magazine and web site for conservative news, commentary, and opinion."Although the print version of the...
colleague Maggie Gallagher
Maggie Gallagher
Margaret Gallagher Srivastav , better known by her working name Maggie Gallagher, is an American writer, commentator, and opponent of same-sex marriage. She has written a syndicated column for Universal Press Syndicate since 1995, and has published five books...
has also called privatization as a "fantasy" since "[t]here is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems."
Issues involved with privatizing marriage
In general, a legal contract signed between two or more people will often include penalties for the severing of the contract by a party or parties. However, this typically does not apply to marriages in the U.S., which typically fall under the legal standard of no fault divorce. It remains an open issue as to whether or not these quasi-marriage partnership contracts will be enforced with penalties.See also
- MarriageMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
- Domestic partnershipDomestic partnershipA domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
- Status of same-sex marriageStatus of same-sex marriageThe status of same-sex marriage changes frequently as legislation and legal action takes place around the world. Summarized in this article are the current trends and consensus of political authorities and religions throughout the world.-Civil recognition:...
- List of Christian denominational positions on homosexuality
- Blessing of same-sex unions in Christian churchesBlessing of same-sex unions in Christian churchesThe blessing of same-sex unions is currently an issue about which some Christian churches are at present in disagreement with other Christian churches...