To the elation of social libertarians everywhere, last month a federal court ruled a key element of Utah’s polygamy ban unconstitutional. District Judge Clark Waddoups ruled that the state can no longer dictate or punish its citizens’ for their living arrangements—though Utah is still not required to issue multiple marriage licenses to a single person. The libertarian response to this ruling was unsurprising: Get the government out of marriage and this wouldn’t bet an issue at all.
As a general rule of thumb, libertarians believe in keeping government out of the bedroom. When it comes to prostitution, gay marriage, and polygamy, we find these issues to be outside the scope and intended focus of government (and therefore they should be legal). None of these social issues that call to question institutionalized equality, or the lack thereof, would be issues at all if we simply removed the government from marriage. But what does that really mean?
What are libertarians really calling for when advocating that government should recognize marriage as nothing more than a contract between consenting adults? Most obviously, an end to tax breaks and incentives for married couples. But divorcing the state would be far more complicated than just thinning a couple’s tax returns.
There are over 1,100 benefits given by the state for being married. Some of these benefits, like compulsory joint parental rights, would be fairly easy to compensate for in the private sector. And some given benefits, like preferential hiring of military spouses in government jobs, shouldn’t exist at all. But if we remove government completely from marriage, what would happen to spousal benefits like healthcare, social security, and spousal military housing? What would happen to the right to not testify against a spouse in court? And, perhaps most importantly, how would spousal qualification for green cards work?
All of this is not even to mention how messy it would be to untangle hundreds of years of common law regarding divorce, allocating assets, and prenuptial agreements. With common law, laws regarding marriage and family are part of public – not private – law, and are therefore much more difficult to privatize. As former TOL blogger and gifted lawyer Helen Dale says:
Common law of contract has built up over thousands of years…It’s not just something you can sweep away. It’s very expensive, very awkward. It leads to lots of litigation and pain. All the people who advocate for this need to go into it with their eyes open and be aware of how much change is involved. There would be fundamental changes to families and contracts.
Libertarians, divorcing the state would be messy as hell. If we want to advocate that government get out of marriage, we must be able to also address the concerns of how costly and perhaps inefficient it would be to do so. If we are to advocate that marriage be treated as a private contract, we must actually understand what that would mean.