Mar 5, 2004

Can We "Privatize Marriage"?

by Liberty and Power

I'm as sympathetic as anybody to the idea, often floated on this blog, of getting the state out of marriage. Consenting adults ought to be able to bind themselves into any sort of partnership they freely choose. But as long as there's a state, there will be a host of questions surrounding those partnerships that no contract can solve. Here, via Atrios,, is an interesting collection of legal consequences to marriage that can't be contracted into or around, among them:

Creating a"family partnership" under federal tax laws, which allows you to divide business income among family members.

Receiving Social Security, Medicare, and disability benefits for spouses.

Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans. Receiving public assistance benefits.

Consenting to after-death examinations and procedures.

Filing for stepparent or joint adoption.

Receiving equitable division of property if you divorce.

Receiving spousal or child support, child custody, and visitation if you divorce.

Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).

Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.

Note that some of these would be around even in a nightwatchman state, so the libertarian answer,"get the state out of marriage," doesn't settle the issue. Tax reform and privatization would get around the family partnership and survivors' benefits issues. But there would still be civil and criminal courts and questions of child custody even in a minarchist utopia, so the state by necessity would have to decide what counts as a marriage for those purposes.

More Comments:

Charles Johnson - 3/6/2004

"Tax reform and privatization would get around the family partnership and survivors' benefits issues. But there would still be civil and criminal courts and questions of child custody even in a minarchist utopia, so the state by necessity would have to decide what counts as a marriage for those purposes."

But why not rewrite the laws so that formal marital status is no longer relevant?

The civil court questions seem to have an obvious solution: allow people to grant the power to whomever they please to sue on their behalf in case of wrongful death (call this Designated Next Of Kin status). If you have a wedding and want to name your life partner as a DNOK, you could do so; if you don't and you want to name your sister or your best friend as a DNOK, you could do that too. If you don't name anyone as a DNOK, then the right to sue for wrongful death can be treated as a homesteadable claim by whomever lays claim first.

Concerning child custody: if there is no explicit agreement between parents over childcare and child custody issues, then it seems like it's up to the court to determine who will be caretaker based on the best interests of the child. But does that have anything in particular to do with the relation of the parents to some state-sanctioned ceremony of tying the knot? If so, what?

Concerning criminal proceedings and 'spousal privilege.' I'm willing to just bite the bullet on this one. Why should there be such a thing as spousal privilege in court proceedings? If there is some sort of general appeal to an expectation of privacy, then why is that limited only to some sort of legally-recognized spousehood? If it has something __specific__ to do with the nature of a marital relationship, then what is it?