Is It Possible to Get the State Out of Marriage?

Richard Epstein

John Fund has raised a trial balloon on National Review Online with his suggestion that the best response to the huge dispute over gay marriage is for the state to get out of the marriage business altogether and leave it solely to private contract to create and define marital relationships. As a good libertarian, it is tempting to support this proposal. But that temptation ought to be resisted. Here is why.

One notable gap in the Fund column was any reference to the status of children of this union. That covers issues dealing with child support and inheritance rights. It also deals with issues of guardianship and divorce. It is hard enough to deal with these questions when it is known who is married to whom. It is even harder to deal with them when the nature of these private relationships resists standardization.

Things do not get any easier when the subject turns to external attribution rules that are commonly tied to spousal status. Do your shares and mine count as a single holding sufficient to create a control block under tax or securities law? Or are they to be considered separately so that this designation cannot be applied? What about reporting rules for various kinds of conflict of interest situations in business or biomedical research? If there are intermediate statuses that people can adopt, all of these external groups are going to have to develop criteria to apply their own provisions. It will prove to be messy, costly, and inefficient.

There is an easier way to deal with this. Keep the designation of marriage so that this full range of regulatory provisions do not have to be redone from the ground up. Then allow the parties to shift between themselves (by contract) those incidents of marriage that do not alter relationships with third parties. A couple could decide which property is separate or common, and could decide who is the primary caregiver. But they could not escape the rules that require reporting of separately held interests; nor could one spouse escape their support obligations when the primary caregiver has refused to discharge that obligation.

There is next the question about the role of religious institutions. For that, the proper response is that they do not have to recognize marriages, including gay or polygamous marriages, for their own internal purpose. This caveat is essential to preserve their rights to function as autonomous institutions.

When on the path of reform, minimal adjustments generate many fewer surprises than radical, uncharted changes. So let gay marriage come, even if it ends the stranglehold that traditional marriage has on the term. Once that is done, the libertarian ideal is honored by allowing all social institutions to decide how they wish to deal with these unions, so long as they are subject to a uniform set of public duties.

It is a lot easier to slot gay marriages into the current system than to undo the public system with consequences that could prove unintended, disastrous, or both. The correct rules on marriage are clearly path-dependent, and in this context we are not writing on a blank slate, but on a historical institution that long antedates the creation of the state