I sometimes hear the silly libertarian argument that “The government just needs to get out of marriage.”
In the 1500s, a pestering theologian instituted something called the Marriage Ordinance in Geneva, which made “state registration and church consecration” a dual requirement of matrimony. We have yet to get over this mistake. But isn’t it about time we freed marriage from the state?
Right off the bat, of course, this argument simply raises questions rather than offering real answers. The main question involves what exactly it means to get the government out of marriage. As far as I’m aware, these libertarians usually argue that the government should still allow people to form enforceable contracts with each other — but that courts should adjudicate break-ups based solely on regular contract law, and not family law. At least, that is the position taken by the above author, only three paragraphs into the article:
Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman—or no one at all—and enter into contractual agreements, call their blissful union whatever they felt it should be called, and go about the business of their lives.
Here we see the absurdity of the position. What is family law regarding marriage, other than a default contractual agreement? The default contractual agreement is that you will live together, love only each other, and avoid the various grounds for divorce specified in the legal code — such as adultery, cruel and inhuman treatment, abandonment, or drug abuse. The default financial rules governing the partnership (generally) specify that all income earned by either spouse is owned equally by both spouses. The default penalty for breaching this contract is (depending on the specific state) generally somewhat lenient, but may include sanctions such as dissolution of the marriage, increased alimony payments, and a diminished share of the divided marital assets. Overall, it is a generic contractual agreement. It governs the financial partnership and various aspects of the partners’ personal lives in ways that the average voter expects in his marriage.
If any particular individual would prefer a different set of rules for his marriage, he is free to negotiate a prenuptial agreement. A prenuptial agreement still keeps the spouses under the general umbrella of the contractual institution described above, but it alters the terms of the contract in various ways. For example, the agreement might specify that the spouses will earn separate property rather than the joint ownership described above. Or they might severely restrict the possibility of alimony.
There tend to be some limits to prenuptial agreements, though. For example, you probably could contractually void the various grounds for divorce. If this limitation presents a problem for a rabid libertarian or any generic pervert, he of course remains free to create his own separate contract. For example, perhaps two men and one woman could all contractually unite with each other if they really wanted to “marry” each other outside of the law.
Given that the government enforces contracts and given that libertarians still advocate contractual unification of couples, their argument that the government should divorce itself from marriage seems rather laughable.