Libertarian Land: Marriage Unbound

Marriage is an odd institution. It often involves a religious ceremony, yet it is also a legal arrangement between two persons, their children, and the state. The debate over same-sex marriage reflects this tension. Proponents believe government provision of civil marriage should include same-sex couples. Opponents believe that same-sex marriage conflicts with their religious views. Libertarian Land resolves this divide by keeping government out of the marriage business. Instead of supplying civil marriage, the government defines and enforces default rules about the components of marriage, without mentioning the word or concept.One component of civil marriage is rules about division of property when a joint living arrangement ends. In the absence of rules, resolution of such issues might be inefficient or violent, implying value from a government-defined and -enforced default.A possible rule is that all property, real or financial, belongs to the person who owned it before the communal living situation began; all income belongs to the person who earned it; and all property acquired during the communal arrangement belongs to the person who paid for it. Government enforces this rule when disputes arise.A second component of civil marriage is rules about the distribution of property when one member of a couple dies. Again, absent rules, disputes over the dying person’s property might be inefficient.A simple default is that, when the deceased has written a will, the government enforces it. Otherwise, the government takes everything. The third component of civil marriage is rules about children, such as who is the legal guardian and who is responsible for child support. Government might have a useful role in minimizing dispute resolution costs and in protecting the welfare of children. A rule that addresses these concerns says the biological mother is a child’s only legal parent, unless she chooses to share legal guardianship or put the child up for adoption. The biological father owes 50 percent of child support. Government enforces this default.Beyond enforcing these default rules about the components of civil marriage, government enforces privately negotiated variations on these defaults, including ones that combine them in ways that mimic civil marriage. This private contracting approach never mentions civil marriage. The approach limits neither religious marriage nor private contracts that deviate from the defaults. These or similar policies already exist in modern societies, since communal living, inheritances, and children occur routinely outside of civil marriage. The specific defaults outlined here might not be optimal. That is a minor issue, however, because everyone can contract around the defaults. The examples merely show that it is feasible to address the components of marriage without government provision of marriage per se. Experimentation would likely disclose which defaults, or variations, work best for most couples.The likely outcome of the private contracting approach is that many persons would enter private contracts, enforced by government, that resemble existing civil marriage. So the distribution of “married” versus “unmarried” couples might not differ much from what occurs now.Regardless of whether marriage increases or decreases, however, the private approach has several advantages over government provision. The private approach alerts everyone that they have choices. Some couples, say, might want an agreement that divides all property equally if the relationship ends; others a different approach. This mimics current practice regarding inheritances; many people choose standard defaults, but everyone has options about specifics.The private approach means that government plays no role in defining what a marriage is or who can have one. This eliminates controversy over same-sex marriage because all marriages, whether from private contracting or religious ceremonies, are voluntary arrangements between adults, with no government restrictions. One implication is that elimination of civil marriage might strengthen religious marriage. Some religions will suggest a particular marriage contract and require couples to adopt it if they want that religion’s approval. Religions might thus establish the main forms of private marriage contracts, but with scope for variety, innovation, and freedom to choose one’s preferred kind of religious marriage.When a policy debate generates hard-to reconcile-opinions from different population subgroups, a likely reason is that government has intervened where it need not. The solution is to end this intervention.

Libertarian Land: Marriage Unbound

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