Has the Time Come for Government to Get Out of the Marriage Business?

Posted on Dec 22, 2012

Should government end its involvement in the institution of marriage?

That’s the question that Laurie Shrage considers in a recent essay for the New York Times. She observes that the nature of family relationships has been transforming worldwide in recent decades. Male-dominated societies have been challenged by trends that give more power to women, allowing them a greater voice within a marriage. Traditions such as parents arranging marriages for their children and the “right” of men to select multiple wives are under attack.

In the Western, industrialized societies of America and Europe, the changing nature of the family has led to calls by prominent policymakers, philosophers, and social critics to “privatize” marriage—to get government out of the business of defining and regulating marriage. “The primary argument for this change of policy,” Shrage writes, “is that the state allegedly has no business regulating marriage, which is a complex cultural and religious practice.”

Would this mean the end of marriage in the United States? Not at all, Shrage says. Marriage as a religious and cultural institution would continue to exist. “Some private organizations, such as religious institutions, might still perform and solemnize marriages among their congregants, but these marriages would have no official state recognition,” she writes. As for the role of government, it would replace current civil marriage laws with “civil union” or “domestic partnership” laws, essentially special forms of legal contracts between adult individuals who agreed to form a family together. Such families would receive much the same, special legal protections and tax benefits given to people married under state laws currently.

Shrage, who is a professor of philosophy and women’s studies at Florida International University, finds some positive aspects to this proposal. She believes that this change would focus lawmakers to reaffirm the role of the family as a caregiving institution. The family exists to protect its most vulnerable members—the very young, the infirm, and the elderly—most, but it also serves to nurture adult lives too. Civil society has a valuable interest in promoting this nurturing function, she says, but it does not have a legitimate role in regulating sexual matters under the laws of marriage. Shrage finds limiting the scope of what government can regulate may actually strengthen religion: “Keeping the government out of our bedrooms is especially important for democracies that value religious diversity and personal freedom.”

Ultimately, though, Professor Shrage finds the arguments in favor of “privatized marriage” insufficient. Marriage is too embedded in our culture to be discarded, and getting government out of the marriage business means a huge risk that intolerant groups will get to define what constitutes a legitimate marriage in the future. The replacement laws of civil unions would be so vague and so elastic—as they must be, to encompass a wide variety of possible family arrangements—that the public might reject them as contrary to public values. Although she is sympathetic to many of the aims of the marriage privatization movement, Professor Shrage thinks that current laws provide better protection for people who could be trapped in “abusive, coercive and exploitative” relationships.

That’s something we can endorse at Speaks Law Firm. Our New Hanover County family law firm is dedicated to helping people find a way out of painful family situations. If your marriage has grown intolerable, and you need a way out, connect with us by calling 910-341-7570 or 877-593-4233 toll-free anywhere in North Carolina. At Speaks Law Firm, we treat every client as our most important client.

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