Privatize Marriage

In the debate over whether to legalize gay marriage, both sides are missing the point. Why should the government be in the business of decreeing who can and cannot be married? Proponents of gay marriage see it as a civil-rights issue. Opponents see it as another example of minority “rights” being imposed on the majority culture. But why should anyone have—or need to have—state sanction for a private relationship? As governments around the world contemplate the privatization of everything from electricity to Social Security, why not privatize that most personal and intimate of institutions, marriage?

“Privatizing” marriage can mean two slightly different things. One is to take the state completely out of it. If couples want to cement their relationship with a ceremony or ritual, they are free to do so. Religious institutions are free to sanction such relationships under any rules they choose. A second meaning of “privatizing” marriage is to treat it like any other contract: The state may be called upon to enforce it, but the parties define the terms. When children or large sums of money are involved, an enforceable contract spelling out the parties’ respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties.

And privatizing marriage would, incidentally, solve the gay-marriage problem. It would put gay relationships on the same footing as straight ones, without implying official government sanction. No one’s private life would have official government sanction—which is how it should be.

Andrew Sullivan, one of the leading advocates of gay marriage, writes, “Marriage is a formal, public institution that only the government can grant.” But the history of marriage and the state is more complicated than modern debaters imagine, as one of its scholars, Lawrence Stone, writes: “In the early Middle Ages all that marriage implied in the eyes of the laity seems to have been a private contract between two families. … For those without property, it was a private contract between two individuals, enforced by the community sense of what was right.” By the 16th century the formally witnessed contract, called the “spousals,” was usually followed by the proclamation of the banns three times in church, but the spousals itself was a legally binding contract.



Privatization of religion—better known as the separation of church and state—was our founders’ prescription for avoiding Europe’s religious wars. Americans may think each other headed for hell, but we keep our religious views at the level of private proselytizing and don’t fight to impose one religion by force of law. Other social conflicts can likewise be depoliticized and somewhat defused if we keep them out of the realm of government. If all arts funding were private (as 99 percent of it already is), for instance, we wouldn’t have members of Congress debating Robert Mapplethorpe’s photographs or the film The Watermelon Woman.



