Should the Government Get Out of Marriage?

Introduced in January in the New Hampshire House of Representatives, HB569 would get rid of marriage. Sort of.

To be exact, the proposed bill, currently in committee, privatizes marriage. The New Hampshire state government would no longer issue marriage licenses; instead, it would grant domestic partnerships. If you wanted to get married in the traditional sense, you’d go to your religious house of choice. If you wanted the legal benefits of marriage as it currently stands, you’d get a domestic partnership. And all this would apply to gay and straight couples alike.

A group of Republican members of the New Hampshire state house proposed the bill, coming from the libertarian position that marriage is a contract:

that should be recognized and applied by the courts, but that the government has no business, in general, decreeing who may or may not make the contract or imposing any prior conditions, as licensure does.

Is this where American marriages are heading? Is this the best solution to the same-sex marriage debate?

On one hand, the government has a monopoly on marriage, and government-sanctioned marriages have been disintegrating for years—just look at the divorce rate in the United States [PDF]. Since all 50 states issue no-fault divorces, it’s sometimes easier to end a marriage than it is to end a corporate partnership.

David Boaz explained the benefits of privatized marriage for both heterosexual and homosexual couples in his 1997 Slate article:

Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. … Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world…

And what of gay marriage? Privatization of the institution would allow gay people to marry the way other people do: individually, privately, contractually, with whatever ceremony they might choose in the presence of family, friends or God. Gay people are already holding such ceremonies, of course, but their contracts are not always recognized by the courts and do not qualify them for the 1,049 federal laws that the General Accounting Office says recognize marital status.

Those who consider the word “marriage” to carry great importance can still get married; the institution would just belong to religious organizations (as it originally did) instead of the government. If a church or synagogue or mosque chose to bless a union, they would be free to do so. Marriage would not be eradicated; in fact, it might become more spiritually meaningful. Today, marriage licenses have become meaningless in terms of what Stephanie Coontz called “interpersonal responsibilities;” after all, in 2008 almost 30 percent [PDF] of all households were single-parent homes, a 10 percent increase since 1980. Coontz writes:

As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.

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