Marriage against the State: Toward a New View of Civil Marriage

January 12, 2011 • Policy Analysis No. 671

As U.S. courts have repeatedly declared, marriage is fundamentally a private, individual right. One implication of this view, clear but not always consistently applied, is that the federal role in marriage should be to get out of the way. When it cannot, it should behave in predictable, orderly, and low‐​cost ways so that individuals may conduct their family and private lives as they think best. When the federal government must act in this area, it should do so only with a view toward preserving individual rights. This paper considers federal marriage policy in a new light by suggesting that some, though far from all, of the federal provisions governing marriage may be understood as protections of this kind, or as guarantees of individual responsibility, as in the case of children. When marriage acts in such a way, it merits federal recognition, but not otherwise.

Although privatizing all aspects of marriage may well be appealing, such an approach would result, at both state and federal levels, in much greater government interference in family life, higher taxes for married couples, invasions of privacy, difficulties related to child custody, and other negative consequences. In some areas, marriage is a defense against state power, and such a defense should not be lightly discarded. However, marriage should be decoupled from the tax code by adopting a flat tax; the Defense of Marriage Act should be repealed; and Congress should adopt language making it clear that civil and religious marriage are not the same institution, and that the existence of marriage as a legal category is neutral with respect to religion. Wherever possible, marriage penalties and bonuses in the tax code and welfare system should be eliminated.

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