Privatizing Marriage or Nationalizing Cohabitation?

Stephanie Coontz makes the case for privatizing marriage.

Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.

Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.

This argument has been around for a long, long time. And as Michael Kinsley put it in 2003, it promises to “really get the government out of our bedrooms.”

But in fact Coontz’s proposal will do the exact opposite. How is that?

Coontz notes that by midcentury,

governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.

Libertarians like Julian Sanchez are enthusiastic about privatizing marriage, and with good reason: they believe that the government should not, generally speaking, be in the business of “distributing resources to dependents,” so their position is perfectly coherent. But I have to assume that Coontz believes that distributing resources is an entirely appropriate role for government.

Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.

This begs the question: if “a marriage license tells us little about people’s interpersonal responsibilities,” is there some other authority to which we can turn? What do we do when parties differ as to the extent and nature of their “interpersonal responsibilities”? In some societies, the government gets actively involved in determining the nature of nonmarital relationships. Do we really want the government to investigate whether our relationships are conjugal or nonconjugal, loving and committed or not?

Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.

“Increasingly impractical” suggests that there is some more “practical” alternative. Cohabitation exists in the space of liberty. There can be formal contracts, if the parties choose, but that’s not expected and it happens to be very rare. This is part of the freedom of association, an important and neglected freedom. Cohabitation is not about making a public commitment and a pledge of mutual responsibility. Imagine the insane scenarios: the Craigslist “roommate from hell” who tells a court of law that you are “partners,” and thus the lunatic is entitled to half of your wages.

“That’s nonsense! And easily rectified!” Of course. Frivolous lawsuits are vanishingly rare. They are not a drag on the economy. No industry of private investigators dedicated to claiming or denying conjugal relationships will emerge in response to this uncertain new world where large amounts of money are tied to the outcome. That’s crazy talk. Right?

Perhaps all couples or polyamorous collectives should spell out the nature of their interpersonal responsibilities in a document to be filed with the Social Security Administration. That makes somewhat more sense. Somehow I imagine it will introduce new complications. But please, let’s not pretend that “privatizing marriage” will make seamless sense in the context of a large welfare.

In truth, the status quo, in which marriage is a public commitment, is the best bulwark we have against state interference in our private lives. I’m reminded of the argument some libertarians make against school vouchers: it invites state control in through the backdoor.

Note that the struggle over marriage is really a struggle over recognition. While privatizing marriage is attractive to ideological liberals and libertarians, I suspect it has little appeal for the nonideological lesbians and gays who want more than a commitment ceremony or religious marriage in a hospitable church: they want a civil marriage, with the rights and respect that entails.