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.