There was an interesting op-ed in the New York Times recently arguing for privatizing marriage. According to the article, throughout most of history the government was not involved in marriages at all. While religious institutions did get involved, people could still get married without the approval of a religious institution and had the same rights as people married through a religious institution. All a couple had to do was agree with each other that they were married and they were.
It was only in the 16th century that European countries started regulating marriage, and this was primarily because parents were upset about who their children were marrying and wanted more control of the process.
In the US, until the mid-19th century, although marriages were required to be registered, common law marriages were normally recognized. It was only after this that governmental intrustion into marriage increased dramatically, for instance, by the passing of laws forbidding whites to marry non-whites.
More and more people today are choosing not to get married, in part because of the onerous legal obligations that marriage entails (which can be changed somewhat with a prenuptial agreement).
I agree completely with the op-ed piece that marriage should be privatized. In my opinion this would have a number of advantages, some of which are listed in the artice:
1. It would stop the government from passing crazy marriage laws (e.g. whites can’t marry non-whites).
2. It would end the divisive and pointless debate about gay marriage. If two gay people want to live together in a committed relationship, they are free to do so and to negotiate whatever rights they want between them. There would be no need for an official government sanction of the relationship.
3. As the article points out, there are substantive unfairnesses in the way the government treats non-married couples vis-a-vis married couples. Getting the government out of marriage would end this.
4. Couples would have the freedom to enter into prenuptial agreements that did not face some of the current limitations on prenups.
5. It prevents the government from changing the marriage contract after a couple is married. Over the last 35 years, divorce law has seen dramatic changes. Unlike most changes in law, these changes apply retroactively. So marriages are governed by laws that didn’t exist at the time of the marriage.
Let’s face it. What’s important about a marriage is the relationship between the couple. There is no need for a government sanction of the relationship, nor does a government sanction improve the relationship in any way.