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

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As U.S. courts have repeatedly declared, marriageis fundamentally a private, individual right.One implication of this view, clear but not alwaysconsistently applied, is that the federal role inmarriage should be to get out of the way. When itcannot, it should behave in predictable, orderly,and low-cost ways so that individuals may conducttheir family and private lives as they thinkbest. When the federal government must act inthis area, it should do so only with a view towardpreserving individual rights. This paper considersfederal marriage policy in a new light by suggestingthat some, though far from all, of the federalprovisions governing marriage may be understoodas protections of this kind, or as guaranteesof individual responsibility, as in the case of children.When marriage acts in such a way, it meritsfederal recognition, but not otherwise.

Although privatizing all aspects of marriagemay well be appealing, such an approach wouldresult, at both state and federal levels, in muchgreater government interference in family life,higher taxes for married couples, invasions of privacy,difficulties related to child custody, and othernegative consequences. In some areas, marriageis a defense against state power, and such a defenseshould not be lightly discarded. However,marriage should be decoupled from the tax codeby adopting a flat tax; the Defense of Marriage Actshould be repealed; and Congress should adoptlanguage making it clear that civil and religiousmarriage are not the same institution, and thatthe existence of marriage as a legal category is neutralwith respect to religion. Wherever possible,marriage penalties and bonuses in the tax codeand welfare system should be eliminated.