Marriage Catch-22

[cross-posted at Austro-Athenian Empire]

A friend sends me a link to this story about several counties in California responding to the recent legalisation of same-sex marriage by refusing to perform any marriage ceremonies at all, whether same-sex or hetero. My friend asks whether this is a positive or negative development from a libertarian standpoint; although the motive may be homophobic, isn’t this policy a step in the right direction, i.e., toward getting the state out of the business of defining and regulating marriage, leaving it to private contract and custom?

Well, I think it’s a mixed bag. Recent events have actually gotten the separation of state and marriage onto the table in broader-than-libertarian circles, which is surely a good thing even if some of the motives are questionable. But under present circumstances, county governments refusing to perform marriages has a serious downside.

As things stand, the state imposes a variety of legal burdens on unmarried couples from which married couples are exempt; these range from higher taxes to restrictions on inheritance, refusal of right to make medical decisions on a partner’s behalf, and, in the case of citizen/alien couples, liability to deportation for the alien. In this context, when one branch of the state, charged with providing the only legal means of avoiding certain forms of aggression imposed by another branch of the state, refuses to provide those means, it arguably becomes an accessory to the aggression – while still collecting salary from the taxes of the victims, to boot. Now if county employees wish to resign their tax-funded jobs, that’s another matter. But in the meantime, it’s as though my henchman Sluggo says he’s going to rob you unless my other henchman Thuggo says not to, while Thuggo remains silent (and collects his share of the take).

Incidentally, another friend who’s doing academic research on marriage asks me for citations to articles (preferably though not necessarily in academic journals) by “prominent libertarians” who argue that the state should stay out of marriage. Any suggestions? (So far all my friend has found is Jennifer Roback Morse’s argument that a libertarian state should not permit divorce! For the honour of libertarianism we must do better.)