Why not get the state out of the marriage business?

A reader asks,

Why should any marriage require state licensing or recognition at all? … If instead people who wished to marry were to seek out their church (or whoever) for recognition, and handle all other secular legal matters by contract, we’d have fewer issues.

Others have made similar arguments before. I think this is a serious proposal — albeit one that doesn’t seem politically viable today — so I thought I’d blog briefly about it.

1. To begin with, recall that there are many important legal benefits attached to marriage. One of the most important, for instance, is that a spouse of a U.S. citizen is eligible for citizenship; a mere friend or business partner is not. Another is that a person may refuse to testify against a spouse, but must testify against others. A third is that people can transfer property to their spouses free of gift tax or estate tax.

Of course, one might think that there should be no need for such rules. If one is a hard-core libertarian, one might think that borders should be open, that testimony should never be compelled in the first place, and that gifts and legacies shouldn’t be taxed. But that still leaves one with the question of the second best: What does one do in our current flawed system, rather than one’s desired perfect system?

Or one might think that, though immigration restrictions, duties to testify, and gift or estate taxes are fine, marriage shouldn’t be at all special. Maybe that’s right, but I’m skeptical. These rules, as well as some others, reflect the notion that a particular sort of relationship is, for most people, unusually emotionally important, and that it’s unusually harmful to put people in a position where they can’t live with their spouses, or must help send them to jail. I think this notion is likely correct; but even if it isn’t, I suspect that many of my fellow citizens do adhere to this notion. This makes abolishing any special legal status for marriage especially hard.

2. One possible solution is to introduce some new legal status, not called marriage, that provides for such things — perhaps make everything into a “civil union” or “contractual special status” or some such. This would do little, though, to diminish the “issues” created by state recognition of marriage. At most, it might relieve some of the arguments that are triggered by the use of the term “marriage,” which to many has a particular meaning that shouldn’t be tampered with.

But beyond this, I think there’d be some cost to this. Especially as to the more important benefits (such as citizenship, the exemption from the duty to testify, and the like), the link of these benefits to marriage diminishes — though doesn’t eliminate — the risk that people will just claim the status opportunistically. If any American citizen could confer citizenship on one other person, lots of people would do that for money or for other reasons, rather than for the reason the law supports (which is that it’s cruel to separate American citizens from their chosen life partners).

Of course, some people do fake marriage for immigration purposes, but my sense is that the requirement to claim actual marriage makes this rarer. I suspect that at least some single people, when asked to enter into a marriage of convenience with a foreign friend or acquaintance or just someone with money, would be reluctant to say yes because marriage means something to them and to society. They might not want to, for instance, be publicly known as being married to someone of the same sex (assuming same-sex marriage is allowed). Or they might just worry that, friends will think them dishonest for entering into a sham marriage.

But if it’s understood that immigration benefits stem not from marriage but from a special contractual arrangement to which the law gives a particular effect, then I think these social constraints may substantially diminish. Indeed, the more the law is crafted to stress that it’s recognizing a merely contractual agreement, and is staying away from recognizing any emotional component to it, the more likely people are to see the legal status as indeed lacking any emotional component. And then entering into the status to help an acquaintance get citizenship would be seen as not much different than, say, letting an acquaintance stay in your garage for a while (and maybe taking rent under the table, even if you’re not allowed to rent the garage out).

3. Finally, there is of course the argument that marriage on balance strengthens society, and that the legal system’s imprimatur strengthens marriage.

I’m pretty confident of the first point. Having an institution that people see as intended to last for life — even if one can get out of it with some hassle and expense — helps build better homes for children, provide stability that lets people invest with more security in their long-term plans, reduce sexually transmitted disease, and more.

And I tentatively incline towards the second point. People are influenced, I think, by respected institutions in their society, and the legal system is one such institution. I’m not positive about this, but I think it likely that if the legal system stops seeing marriage as special, many citizens will in some measure be influenced to see marriage as less special, too.

And while I’m not a thoroughgoing Burkean, I do think that one shouldn’t jettison central institutions of society unless there’s a really good reason for it. The legal recognition of marriage is one such institution. This doesn’t mean that it can’t be changed at all, but I think the case for such changes has to be quite strong, and the more radical the changes the stronger. Mere abstract reasoning and a desire for legal simplicity, I think, shouldn’t suffice; one needs a strong practical case for why the changes are very likely to do substantial good. And I don’t think that case has been made in favor of the replace-marriage-with-contracts proposal.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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