133:
move, of course, would bring with it new assumptions about the role of the State in divorce, children, and a variety of other aspects of family life. The State will not give up control over these things easily, for the assertion that the importance of marriage makes it a legitimate interest of the State is only true from the point of view of the State itself, for as the foundation of society, marriage and family cannot be entrusted to governments just to be blown about by the winds of democratic opinion, for the same government that has the power to protect can just as easily destroy.
478:
in the integrity and well-being of marriage, and to write it off as if it were purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake". This position is seconded by
Jennifer Morse of the Witherspoon Institute, who argues that if literally anyone can define marriage as whatever they want, the state forfeits the ability to sufficiently secure the best interests of children.
96:
in a way that is best for the individuals involved. "When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties." According to Boaz the government could be called upon to enforce the contract but may have no other role in developing the contract and setting the terms.
57:, and opponents of government interventionism, claim that such relationships are best defined by private individuals and not the state. Arguments for the privatization of marriage have been offered by a number of scholars and writers. Proponents of marriage privatization often argue that privatizing marriage is a solution to the social controversy over
146:
worship or private institutions. Adultery, although legal, remains a sin subject to societal condemnation. It's tough to legislate away condemnation or legislate in approval. Those who view same-sex marriage as sinful will continue to do so, no matter what the government, the courts or their neighbors say.
490:
has written that privatization would be a "disaster". He argued that government "still has to decide what sort of private unions merit benefits... under this privatization scheme", and then "we also get the same quarrels over social recognition that we got before privatization." He commented that the
415:
No religious model that rejects same-sex marriage would be required to perform same-sex marriages under this privatized model. Under this model a couple, either heterosexual or homosexual, would obtain a civil union in order to have public and legal recognition of their partnership; they would have a
399:
of same-sex marriage may be just as neutrally unbalanced as its ban. In place of the public institute of marriage, Torcello, like
Dershowitz, argues that civil unions providing the full extent of marital benefits under law ought to be instituted for both heterosexual and homosexual couples. According
268:
on the topic. Kinsley's essay is titled "Abolish
Marriage: Let's Really Get the Government out of Our Bedrooms." Kinsley follows the model set by his libertarian counterparts Boaz and McElroy; like Elders, he emphasizes marriage privatization's potential to end the controversy over same-sex marriage:
132:
The question we are then left with today is one of whether the churches and individuals should be looking to privatize marriage yet again and to begin making a distinction between secular contracts between private citizens and religious unions that should be kept beyond the power of the State. Such a
477:
has argued that marriage has an important cultural role in helping children develop into "basically honest, decent law-abiding people of goodwill—citizens—who can take their rightful place in society". Thus, he concludes, "Family is built on marriage, and government—the state—has a profound interest
95:
titled “Privatize
Marriage: A Simple Solution to the Gay-Marriage Debate." In the article, Boaz suggests privatizing marriage in a way that models the nature of standard business contracts. Boaz's idea is to allow two (possibly more) individuals to set the terms of their own private marital contract
273:
If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and
179:
Let's also get the state out of the marriage union. In spite of the dress and the flowers, marriage is a business contract. Women, generally, don't understand this, until it hits them over the head upon divorce. Let's take a lead from our gay and lesbian friends, who, without state marriage, often
237:
that churches that do not accept same-sex marriage have a genuine concern that they be subject to penalties such as losing public benefits or receiving lawsuits. He argued that the state should just allot people "civil licenses", with the terminology "marriage" left "as a religious concept" for
145:
How about government simply getting out of the marriage-license-granting business? (Ditto for government licenses necessary to cut hair, drive a taxi, open a business or enter a profession.) Leave marriage to non-governmental institutions, like churches, synagogues, mosques, and other houses of
313:
Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state
514:
has also called privatization as a "fantasy" since "here is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems."
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Subject to certain statutory constraints, businesspeople have long been free to form whatever sort of partnership they felt appropriate to their needs. Why not make the same possible for marriage, which is a partnership based on one of the oldest types of contractual relationships?
111:
Marriage should be privatized. Let people make their own marriage contracts according to their conscience, religion and common sense. Those contracts could be registered with the state, recognized as legal and arbitrated by the courts, but the terms would be determined by those
180:
create domestic partnerships with financial autonomy and unity spelt out. A heterosexual parallel: celebrate marriage with a religious or emotional ceremony—leave the state out of it—and create a business- or domestic-partner contract aligning the couple legally.
534:
In general, a legal contract signed between two or more people will often include penalties for the severing of the contract by a party or parties. However, this generally does not apply to marriages in the US, which usually fall under the legal standard of
331:, released a position paper authored by analyst Ruth Mitchell titled "Same-Sex Marriage and Marriage". The paper argues from the separation of church and state that as long as marriage is available to heterosexual couples it ought to be equally available to
400:
to the argument, such civil unions ought to replace the current legal institute of marriage. Once privatized, marriage is open for individuals to define and embrace or ignore as they see fit, within the scope of their
300:
replacement for state sanctioned marriage, be extended to both same-sex and opposite-sex couples. Under
Dershowitz's conception of privatization, couples have a choice as to whether or not they wish to be married by a
128:, raised the issue of marriage privatization arguing that the rise of state-sanctioned marriage coincides historically with the expansion of government. In his article titled "Married to the State," McMaken wrote:
1247:
Torcello, Lawrence, "Is The State
Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model," Public Affairs Quarterly, Volume 22, Number 1, January 2008
503:
relationships attempting to obtain contracts under the new scheme as well as attempts by heterosexual acquaintances to make "marriages of convenience" to obtain things such as spousal medical insurance. His
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are entitled to. And if the other side is sincere in saying that its concern is not what people do in private, but government endorsement of a gay "lifestyle" or "agenda," that problem goes away, too.
467:
has stated that he opposes the privatization of marriage because "markets do not always encourage or support moral behavior" and he believes the proposal would " marriage as a public institution."
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must be hashed out in terms that all members of that society can understand if not endorse. This means that in making public claims one must refrain from religious or otherwise controversial
335:
couples. Nevertheless, the position paper claims that state endorsement of civil unions for both types of couples is the most appropriate policy in light of separation of church and state.
288:
editorial titled "To Fix Gay
Dilemma, Government Should Quit the Marriage Business." More so than commentators from the right, Dershowitz frames his view on the topic in terms of
454:
Opposition to marriage privatization, like its endorsement, is equally likely to be found arising from conservative or liberal sources and a wide variety of objections are made.
1030:
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endorsed the privatization of marriage. In "The State Should Get Out of the
Marriage Business", a 2004 article published in on the website Capitalism Magazine, Elder wrote:
838:
Torcello, Lawrence G (2008). "Is the State
Endorsement of Any Marriage Justifiable?: Same-Sex Marriage, Civil Unions, and the Marriage Privatization Model".
350:. In that issue philosopher Lawrence Torcello offers a detailed model of marriage privatization based on the later political writings of the 20th century
357:. The article is titled "Is The State Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model."
189:
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With marriage contracts that set out the couple's commitments, there is little reason why judges should retain their current involvement in marriage.
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62:
519:
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Sunstein and Thaler argue for marriage privatization among other positions under the heading of what they call "Libertarian
Paternalism".
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claims that cannot, in principle, be equally endorsed by reasonable persons. In doing this, one is relying on what Rawls refers to as
1132:
McLain, Linda C. "Evolution—Or End—Of Marriage?: Reflections on the Impasse of Same-Sex Marriage" Family Court Review (2006) 44:2 200
66:
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argued against the privatization of marriage in “Why the State Cannot 'Abolish Marriage': A Partial Defense of Legal Marriage”
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Jordan Jeff, “Is it Wrong to Discriminate on the Basis of Homosexuality?” Journal of Social Philosophy 26, no. 1 (1995): 39–52
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offer arguments for the privatization of marriage. Thaler and Sunstein also take up the topic in their co-authored 2008 book
1212:
Schaff, Kory “Kant, Political Liberalism, and The Ethics of Same-Sex Marriage,” Journal of Social Philosophy (2001) 32:3 446
539:. It remains an open issue as to whether or not these quasi-marriage partnership contracts will be enforced with penalties.
395:, which underlies any particular definition of marriage. Accordingly, taking public reason seriously leads to the idea that
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private marriage ceremony if they so chose in order to honor their private religious or philosophical concept of marriage.
646:
120:
Why is marriage declining? One reason is that it has become a three-way contract between two people and the government.
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Thaler, Richard M., Nudge: Improving Decisions About Wealth, Health, and Happiness, (Yale University Press, 2008)
901:
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Strasser, Mark, On Same Sex Marriage, Civil Unions, and The Rule of Law (Westport, Connecticut London, 2002)
707:
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titled "Marriage Proposal: Why Not Privatize?" following the business model for privatization Jones writes:
152:
1150:
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253:, marriage privatization has received attention from advocates on the left. In 2003 left-leaning political
292:; unlike libertarian leaning discussions Dershowitz maintains that the state does have an interest in the
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Strasser, Mark, Legally Wed: Same-Sex Marriage and the Constitution, (Cornell University Press, 1997)
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In his article, Torcello claims that any state endorsement of marriage represents an inappropriate
1209:
Schaff, Kory “Equal Protection and Same-Sex Marriage” Journal of Social Philosophy (2004) 35:1 133
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Sunstein, Cass & Thaler, Richard M., "Privatizing Marriage" The Monist, Volume 1, Number 3–4
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744:"Abortion, marijuana, and same-sex marriage: District 6 candidates state their positions"
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or to exclusively partake of secular/state-sanctioned civil unions. Dershowitz writes:
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Rawls, John, Justice as Fairness: A Restatement, (Harvard University Press, 2002)
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950:""Why the State Cannot 'Abolish Marriage': A Partial Defense of Legal Marriage""
388:
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201:
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647:"Marriage proposal: Why not privatize? / Partnerships could be tailored to fit"
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scholarship. In 2008 an argument for marriage privatization appeared in the
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In 2006, law professor Colin P.A. Jones wrote an article appearing in the
1191:"Episcopal Diocese May Quit Marriages: Same-Sex Debate Drives Mass. Plan"
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The argument for marriage privatization has also been formulated in
61:. Arguments for and against the privatization of marriage span both
1093:"Abolish Marriage: Let's Really Get Government Out of Our Bedrooms"
1092:
693:"Why Every Married Couple Should Sign a Contract". Gary S. Becker.
1046:"To Fix Gay Dilemma, Government Should Quit the Marriage Business"
1001:"Privatize Marriage: A Simple Solution to the Gay-Marriage Debate"
278:
Marriage privatization received attention from the legal scholar
1000:
332:
444:
Nudge: Improving Decisions about Wealth, Health, and Happiness.
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rights of marriage. Dershowitz proposes that civil-unions as a
1018:
Colin, P.A. Jones, "Marriage Proposal: Why Not Privatize?"
45:. Proponents of marriage privatization, including certain
821:
819:
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137:
In a similar libertarian vein, the radio talk-show host
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of a comprehensive religious or otherwise metaphysical
1206:
Rawls, John, A Theory of Justice, (Belknap Press 1971)
124:
In 2003, political columnist Ryan McMaken, writing on
103:
echoed Boaz's business contract model in an essay for
204:
to support privatization of state marriage are Sen.
1061:"The State Should Get Out of the Marriage Business"
765:"Kmiec proposes end of legally recognized marriage"
238:groups to debate outside the scope of government.
1171:"Why do you think they call it 'holy matrimony'?"
169:wrote about getting the state out of marriage in
450:Arguments opposing the privatization of marriage
37:should have no authority to define the terms of
975:"Why is the state involved in marriage at all?"
697:. New York: December 29, 1997. Iss. 3559; p. 30
1106:"It's Time to Privatize Marriage – Ifeminists"
8:
879:"Privatizing marriage is unjust to children"
726:"Justin Amash Backs DOMA Repeal On Twitter"
796:
107:titled "It's Time to Privatize Marriage."
530:Issues involved with privatizing marriage
190:Nobel Memorial Prize in Economic Sciences
1151:"Why Not Privatize Marriage? Here's Why"
825:
808:
759:
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1224:"Why the State Cannot Abolish Marriage"
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621:
588:
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200:As of 2015, the only known members of
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7:
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520:University of Virginia School of Law
420:In a July 2008 article appearing in
27:Concept about personal relationships
366:, Rawls argues that arguments in a
319:Public policy advocacy and academia
1044:Dershowitz, Alan (December 2003).
925:Gallagher, Maggie (14 July 2003).
767:. Catholic News Agency. 2009-05-28
491:government will have to deal with
264:wrote a second essay to appear in
25:
1142:Center for Inquiry Position Paper
604:. Enterstageright.com. 2002-07-22
602:"It's time to privatize marriage"
1149:Mohler, Albert (March 9, 2006).
1138:"Same-sex Marriage and Marriage"
1136:Mitchell, Ruth (December 2007).
877:Morse, Jennifer (4 April 2012).
282:in 2003 when Dershowitz wrote a
708:"Rand Paul: Privatize Marriage"
165:In 2009, author and journalist
1091:Kinsley, Michael (July 2003).
1059:Elder, Larry (February 2004).
664:Wolf, Naomi (March 22, 2009).
426:titled "Privatizing Marriage"
1:
900:Kurtz, Stanley (2006-01-22).
246:Though often introduced from
1104:McElroy, Wendy (July 2002).
18:Marriage Privatization Model
1120:McMaken, Ryan (July 2003).
881:. The Witherspoon Institute
666:"Love lessons from divorce"
1294:
999:Boaz, David (April 1997).
1031:"Taking Marriage Private"
977:. Hotair.com. 2010-08-07
840:Public Affairs Quarterly
348:Public Affairs Quarterly
33:is the concept that the
1222:Strauss, Gregg (2015).
1020:San Francisco Chronicle
948:Strauss, Gregg (2015).
683:(subscription required)
290:church-state separation
153:San Francisco Chronicle
116:McElroy has also said:
1122:"Married to the State"
1063:. Capitalism Magazine.
902:"Privatizing Marriage"
418:
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212:(I–Michigan) and Rep.
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39:personal relationships
31:Marriage privatization
1268:Criticism of marriage
1029:(November 26, 2007).
559:Self-uniting marriage
436:University of Chicago
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352:political philosopher
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305:willing to perform a
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225:Pepperdine University
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89:wrote an article for
554:Prenuptial agreement
549:Domestic partnership
465:R. Albert Mohler Jr.
363:Political Liberalism
234:Catholic News Agency
78:Libertarian advocacy
1231:Indiana Law Journal
957:Indiana Law Journal
730:The Huffington Post
1189:Paulson, Michael.
1169:Paley, Michael R.
750:. 22 October 2014.
653:. 22 January 2006.
325:Center for Inquiry
220:Religious advocacy
188:, a winner of the
1051:Los Angeles Times
1027:Coontz, Stephanie
440:Richard H. Thaler
360:In the 1993 book
307:marriage ceremony
285:Los Angeles Times
192:, has said that:
69:political camps.
59:same-sex marriage
16:(Redirected from
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1078:. March 22, 2009
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732:. 29 March 2013.
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459:evangelical
389:endorsement
368:pluralistic
214:Gary Palmer
202:US Congress
186:Gary Becker
139:Larry Elder
84:libertarian
47:minarchists
1257:Categories
1160:October 3,
992:References
981:2014-04-05
911:2014-04-05
771:2014-04-05
634:Elder 2004
608:2014-04-05
522:Professor
510:colleague
501:incestuous
493:polygamous
473:professor
438:economist
423:The Monist
355:John Rawls
329:think tank
259:journalist
184:Professor
167:Naomi Wolf
105:Ifeminists
87:David Boaz
51:anarchists
1097:slate.com
885:11 August
577:Boaz 1997
471:Princeton
255:columnist
231:told the
206:Rand Paul
112:involved.
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1263:Marriage
1054:(Op-ed).
852:40441478
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543:See also
393:doctrine
346:journal
340:academic
314:control.
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462:baptist
428:Harvard
402:private
371:society
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1111:6 July
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1010:6 July
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651:SFGate
499:, and
386:public
303:clergy
1227:(PDF)
1076:Times
1005:Slate
953:(PDF)
848:JSTOR
565:Notes
266:Slate
92:Slate
35:state
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