Should marriage be privatised?

I’ve often disagreed with social democrats about privatisation, but it is not often that I do so to oppose a privatisation proposed by a social democrat. But that’s my response to an opinion piece in yesterday’s Weekend Australian suggesting privatisation of marriage, written by Tim Soutphommasane.

Tim’s argument seems similar to that of Tamara Metz in her book Untying the Knot: Marriage, the State and the Case for their Divorce, which I reviewed in Policy late last year.

As opposed to the libertarian view that marriage should be done via contract law, Tim and Metz see the need for specific legal relationships applying to domestic relationships. I largely agree with this part of the argument; people should not be able to contract their way out of all the obligations attached to partnerships and especially parenting. With contract, too many people will not make them, or will make contracts that are one-sided or fail to foresee future issues. ‘Off the shelf’ legal arrangements can deal with these problems.

Where I disagree (with Metz and current law; Tim does not express a view) is the tendency to blur all types of live-in sexual/romantic relationships regardless of the intent of the parties. If getting married is a symbolic act with legal consequences, so should be just living together or getting some lesser form of relationship recognition than marriage. There can be different bundles of rights and obligations attached to each status. The basic idea is that the liberal state should facilitate people having the relationships they want to have, without being more prescriptive than is necessary.

We don’t need a legal institution of marriage to achieve all this – we could, for example, just have grades of domestic partnership. The symbolic/expressive aspect of marriage could be ‘privatised’, as Tim says ‘left to private associations such as churches or religious bodies’. To some extent marriage has always been partly privatised; different groups add their own meanings to the secular law of marriage. The authority of the religious organisation has added moral and social guides and pressures to marriage.

The problem in my view is that in a largely secular society like Australia – with only about a third of marriages conducted in a religious context – there are few non-religious sources of authority that could take the place of churches, mosques, synagogues etc. While Metz gives examples of humanist and other alternative providers of weddings, these have no wide social recognition. They are really just like the commitment ceremonies that few people think are equivalent to marriage.

So the state is the only alternative to religious weddings that has wide recognition. Most people would regard a domestic partnership level 1 as a poor substitute.

As in Tim’s article, the idea of privatising marriage often comes up in the context of sorting out the issue of same-sex marriage. Like Tim, I very much doubt that same-sex marriage would undermine heterosexual marriage. But privatising marriage could seriously undermine all non-religious marriages. Politically, it is much easier to push for extending existing marriage rights to same-sex couples than to so radically change the legal nature of marriage.

11 Responses to “Should marriage be privatised?

  • 1
    conrad
    March 14th, 2011 04:46

    “we could, for example, just have grades of domestic partnership.”
    .
    Apart from have-children vs. don’t-have-children, this really sounds like a mess to me, with a one size fits all enforcement of invasive laws (I realize it is the case now).
    .
    “The problem in my view is that in a largely secular society like Australia – with only about a third of marriages conducted in a religious context ”
    .
    Surely, if the government quit marriage, other organizations would pick it up. I can’t see why people are going to be less happy to be married at, say, a church, than getting some certificate signed by some government bureaucrat.

  • 2
    Buddy
    March 14th, 2011 08:07

    I really think that you are making this more complicated than it needs to be, bureaucratic almost. You really think that having the government involved, makes for better families, partnerships etc? Why can’t society handle this one? Without the immense crowding out by government, wouldn’t individuals organise this themselves in diverse and workable ways – as they do in a free market?

    Marriage is so serious that many people don’t want it. Why not have a less serious arrangement for them? Marriage is not serious enough for some people, why can they not choose the arrangement that they want? Are polygamists not mainstream enough for they to have a right to be married? Is gay marriage only allowable when it is considered ‘worthy’ by government? It seems every time I look, you’re finding novel ways where government interferes or can interfere with voluntary co-operation for our own benefit.

  • 3
    Andrew Norton
    March 14th, 2011 08:21

    Conrad – The problem is that often churches won’t marry non-believers, and non-believers don’t want to get married in churches – which is why so many don’t. Despite the long-term decline of the religious role in marriage, there have been few secular alternatives. In practice Tim’s suggestion is really to abolish non-religious marriage, rather than to privatise marriage.

    Buddy suggests a counter-factual of non-religious bodies that might have emerged if the state had not crowded them out. But given there was always a gap in the market for the symbolic/expressive aspect of marriage that has hardly been filled I am not sure that this is right.

    In practical terms, the important part of marriage law is the rules of separation. While I think there should be more choice than there is now, especially for couples without dependent children, for the reasons stated above I don’t think contract is the right legal mechanism.

  • 4
    caf
    March 15th, 2011 13:50

    Considering that two-thirds of marriages are already conducted outside of a religious context (presumably by celebrants), I would say that that’s ample evidence that such marriage ceremonies have wide recognition.

    It’s not the rubber stamp from the Government that people recognise – it’s the process of standing up in front of a gathering of family and friends, exchanging solemn vows of commitment.

  • 5
    Andrew Norton
    March 15th, 2011 15:13

    Caf – Except that under Tim’s proposal, these would not be marriages at all as the celebrants would not have any authority. There is nothing stopping gay people holding such ceremonies in front of family and friends now (and indeed some do). But nobody thinks this is marriage, and this is why we have a campaign for gay marriage.

  • 6
    Alexander
    March 15th, 2011 18:14

    Andrew, no-one thinks it’s marriage because it’s not marriage. It’s circular.

    But if marriage weren’t defined by the state, then it could very well be marriage—it’s obviously an important social institution that has to do with more than just tax breaks, otherwise no-one would be asking for gay marriage.

    Even if the government created gay marriage, more than a third of the country still wouldn’t recognise it as marriage anyway, which is a very substantial minority, so I don’t see what unique difficulties a transitional period created by such a massive change as freeing up marriage would create.

    The real problem with privatised marriage is that about fifteen minutes after it is created, at least three states will either claim their old Marriage Acts were never repealed and are now once again active law, or else they will pass new Marriage Acts. They will probably permit gay marriage. So privatised marriage can’t really exist in Australia, at least as a way of officially letting people hold their own free opinions.

    (In any case, my understanding with talking to Catholics is that to them gay marriage and privatised marriage are equally bad ideas because they both serve to undermine the family. I don’t fully understand this because the Catholic Chrch only has a limited recognition of state marriages anyway, but it seems to be the official view.)

  • 7
    Alexander
    March 15th, 2011 18:16

    I wrote: Even if the government created gay marriage, more than a third of the country still wouldn’t recognise it as marriage anyway, which is a very substantial minority, so I don’t see what unique difficulties a transitional period created by such a massive change as freeing up marriage would create.

    For the sake of clarity, I meant after the transitional period is over.

  • 8
    Andrew Elder
    March 15th, 2011 19:04

    Marriage is privatised: no two marriages are alike, and various things that are central to one marriage are peripheral/irrelevant to another.

    The prospect of breaking down a uniformly accepted idea into “bundles”, like mobile phone plans or insurance contracts, is that special mix of the horrible and the absurd that applies to almost all attempts to manifest libertarianism.

    The fact that marriage is universally recognised is essential to its value. It is inappropriate for someone outside the marriage – bureaucrats, judges, hotel receptionists deciding whether I am “married enough” to share one of their employer’s rooms with my wife – to adjudicate whether or not aspects of my marriage apply in certain circumstances. I have great sympathy for gay couples who effectively have a kind of privatised form of marriage already. Certain aspects of marriage which cost them greatly but which add nothing to heterosexual marriages (e.g. superannuation payable to spouses upon death) are the very sorts of snarls that would ultimately devalue marriage.

    The care of children is essentially privatised – there are standards for raising children but enforcement is both so lax and convoluted that many children in what might appear to be secure family set-ups are horribly abused, while shambolic relationships among adults somehow work to ensure that children involved are loved, cared for and made to feel secure.

    Libertarians, like all ideologues, start with the abstract and try to apply it to reality. Do it in reverse and you’ll see that define-your-own marriage as a broad catch-all is the answer you seem to be seeking.

    What devalues marriage is the idea of doing it for appearances. Celebrities who get married and divorced within a few issues of a glossy magazine, gay people bullied into what looks like a heterosexual marriage – too much of that and the institution cannot survive as a serious undertaking.

    There are a lot of assumptions which haven’t been thought through, in terms of the extent to which lives should be and are codified, and the extent to which a partnership can fully define itself. Marriage is a far broader church than any political party – or, indeed, church – could ever be.

  • 9
    Eric Crampton
    March 22nd, 2011 15:29

    You ought to check out the self-uniting marriages that are available in the States. We had no celebrant at our wedding – no god and no state. The folks in attendance signed the wedding contract, which made it legal. You have to bring the contract round to city hall later, but there’s no reason that step couldn’t be eliminated. We had a great ceremony – unbiased opinion – with no need for “authoritative” figure other than ourselves.

  • 10
    Andrew Norton
    March 22nd, 2011 16:39

    Eric – Interesting. Metz mentions marriages where people get ‘ordained’ by a mail order church to marry their friends, but not I think self-uniting marriages.

  • 11
    Eric Crampton
    March 23rd, 2011 04:59

    I can’t think of a better way of running a wedding than having the marriage be made official by the assent of friends in family in attendance through signature as witnesses to the joining. Our wedding contract is framed on our wall with the signatures of the hundred and twenty five people who attended.