Why Should Government "Get Out of Marriage?"

Often in my travels across the Internet, I encounter a peculiar argument about marriage. In the wake of the ongoing legal battle over state same-sex marriage bans, a common refrain by many is that it would be best if government "just got out of the marriage business" altogether.

This is usually said by people who support same-sex marriage in principle, but are just kind of tired of hearing about it and think everything would be easier if we just got rid of marriage laws altogether.

I simply do not understand this argument, and I don't think the people making it understand it, either.

First, the basics. "Marriage" as we refer to it can mean a couple of things. First, it can mean the civil institution where a couple goes to the local court clerk's office, pays a fee and fills out an application, and then receives a formal "marriage license." You have to go to court to break up, which we call "divorce." This is civil marriage.

The second meaning is something more subjective, where a couple, through their church or maybe just on their own, decides that they are "married" in the eyes of their God or in conjunction with their ethical creed or for some other spiritual, philosophical, or pragmatic reason. There's no state license involved, and the state does not recognize any formal obligations or duties on the part of either person. You don't have to go to court to get divorced. We'll call this "social marriage."

The first definition is what most of us mean when we talk about "marriage." And there's a reason for that, because without the backing of the government, "marriage" simply doesn't mean much of anything. It may mean something important to the two (or more) people directly involved, but it carries no weight with anybody else.

Civil marriage is enforceable. Once you apply for and receive a license, you are contractually obligated to do certain things, like share property and care for any children you have together. If one of the parties fails to live up to those obligations, they can be held liable to the other by a court. And marriage carries a variety of important privileges.

A marriage license from the state streamlines how we interact with society in certain ways. It is an automatic free pass for any issues that may arise due to our children, our health care, our property and possessions in life, or in the distribution of our property in death. It protects spouses from having to rat on each other in court, and it protects our employment if we have to take time off to care for them.

None of these things would exist if the state "got out of marriage." And this is not an exhaustive list of all the aspects of life which civil marriage touches and simplifies. There are also specific benefits, like tax breaks.

Let's pretend there is no civil marriage anymore for anybody, only social marriage. There are relationships people call "marriage," but the term no longer carries any legal weight. People will of course still have relationships, children, and shared property, but there won't be any way to identify as a couple in the eyes of the state.

What happens when your "spouse" gets sick and is hospitalized but the hospital refuses to admit anyone not in your spouse's family? You, not being of blood relation to your spouse, are excluded based on that rule. You are, after all, a legal stranger to that person.

Or perhaps you and your "spouse" buy a house together. But one day your spouse decides he or she doesn't want you to live there anymore and kicks you out. If your name is not on the deed, what claim to it do you have? And even if it is on the deed, your spouse has no legal obligation to give you half the value of the house in exchange for your part of the deed. Where would that obligation come from? No law currently on the books today. You'd have to sue in court and prove why you're entitled to any part of the value at all. What if your "spouse" was the only one employed and made all the mortgage payments?

And what if you and your "spouse" have children? Which last name do the children take? Remember, there is no civil marriage so name changes for that purpose are no longer granted. If the children take the last name of the spouse, where does that leave you? What if the children are sick at school and you go to pick them up, but the school refuses to release them because you have a different name and can't prove you're their parent? Do we need to create new custody laws to make up for the loss of civil marriage? Or perhaps one biological parent must file for adoption each time a child is born to their "marriage." That's a complicated, expensive process that is totally unnecessary under civil marriage.

How our society deals with issues of property, child care, death, and many other critical aspects of basic life revolve around civil marriage. When government is "out of it," it creates tons of headaches for couples who otherwise desire to operate as a cohesive unit.

After all, these are the kinds of legal struggles same-sex couples currently have to endure in the state of Kentucky. To them, government is "out of marriage," and it is hell. They face numerous daily (and expensive) hurdles simply because the state does not acknowledge their partnerships.

Maybe you're thinking that the government could just allow couples to enter into contracts where they share property and various other obligations, but we just won't call it "marriage" anymore. Well, what's the point of that?

There's a reason government is in the marriage business in the first place. It's because it streamlines complicated parts of life that require state recognition and dispute resolution. Simply because having to include more than just opposite-sex couples makes some people mad is not a good reason to implode the entire institution.

Switching to some informal, church-only, or individual concept of marriage makes us all legal strangers, even those couples who build all important aspects of their lives around each other. That cannot possibly be a better system than simply including more people in the one we have.

So the obvious question is why? Why should we totally abandon an established civil institution that, for the people currently included in it, seems to work pretty well? Why does that seem like a better alternative than just including more people in it? I have yet to hear any convincing argument.