Getting the State Out of Marriage: A BRIEF HISTORY OF LOVE, MONEY, AND POWER.

• Author: Horwitz, Steven

WE RECENTLY GOT married. Well, technically, we got married twice.

One fine day this spring, we put on nice clothes and publicly performed the rites and rituals recognized by our families and community as a wedding ceremony. As part of the day's events, we signed a Ketubah, the traditional Jewish wedding contract. Historically, the Ketubah included the groom's promise to provide "food, clothing, the necessities of life, and conjugal needs" for the bride, along with a statement of the dowry the bride brought to the marriage. Modern versions are often more egalitarian. Ours included a mutual promise to "work for one another," "live with one another," and "build together a household of integrity." Ketubot are typically beautifully calligraphed works of art, and we spent a lot of time choosing the right text and design for ours. It was witnessed by our rabbi and by two beloved friends. It hangs in our bedroom as a reminder of the commitment we have made to each other.

We also got married in the eyes of the law. Our state marriage license was printed at the city-county building on cheap paper after the clerk checked our IDs, filled our names into the anonymous blanks in the same text every other couple has to use, and gave us a pamphlet about syphilis. We had no say in the wording or the witnesses. We keep that license in the safe deposit box at the bank with our mortgage and the titles to our cars.

The contrast in the thinking behind our two marriage documents, and in how we have treated them now that we have them, captures the difference between thinking of marriage as a mutual contract and thinking of it as a license from the state. It's the difference between a relationship that requires consent and one that requires permission.

If you hang around with libertarians long enough, you'll almost certainly hear someone ask, "Why can't we just get the state out of the marriage business entirely?" Until two years ago, when Obergefell v. Hodges settled the question, you'd occasionally hear a certain stripe of libertarianish conservative call for privatizing marriage too, sometimes on principle and sometimes as a dodge around the question of whether the federal government should recognize gay unions. Sen. Rand Paul (R-Ky.), for instance, has long said, "I don't want my guns or my marriage registered in Washington." The Alabama state legislature has considered proposals that would more or less end the licensing of marriages in the state, presumably not because of a deep commitment to limited government.

As libertarians, we would prefer to deal with the government as little as we can, yet we still chose to involve the state in our marriage. The reasons we did so can shed light on the challenges involved in extracting the state from this institution, and also on why such a change might be worthwhile.

CUPID BY CONTRACT

WHAT DOES IT mean in practice to say we want to get the state out of marriage?

One problem is that state marital provisions are one-size-fits-all, as with our fill-in-the-names-and-sign-here marriage license. Actual 21st century marriages are much more idiosyncratic--the wide range of pre-nuptial agreements demonstrates this, as does our personalized Ketubah. Many people might want the flexibility in marital arrangements that privatization allows. Writing in Slate in 1997, the Cato Institute's David Boaz imagined a kind of standard contract, much like a standardized will, that would work for many as-is but would also allow for more detailed arrangements. One can even imagine marriage contracts that are renewable at 5- or 10-year intervals, allowing couples to part ways amicably without many of the financial and emotional costs of divorce.

Economic arrangements could be varied along a number of dimensions, including considerations for children, agreements about how money will be spent, and worst-case-scenario planning for illness, death, or divorce. People could choose to have a religious wedding, with a contract designed by the institution in question, along with specifications for divorce and the rest. All of these kinds of contracts would be enforced through common-law mechanisms, with judges interpreting the texts and building up a body of legal precedent about how to resolve disputes. We could also imagine marriage certification services (Marital Underwriters Lab? BridalZoom.com?) who check over simple contracts for those who don't want to use a lawyer or a church.

Full privatization also implies that marital status must be irrelevant to the provision of government benefits. Otherwise, the state would still have an interest in how marriage is defined. Truly private marriage would allow for whatever variety of arrangements people desire.

Privatization of this sort might be especially attractive to those whose relationships currently do not have legal status. Plural marriages are the obvious example. Religious institutions might also support privatization, as it would enable them to have their own set of marital rules without fear that the state's requirements would force them to act against their beliefs. Tailored contracts, especially if such contracts became relatively standardized for particular kinds of partnerships, might be appealing to the very wealthy or to those with child custody complications. If such contracts included provisions for private arbitration (or even marital counseling), this...