Getting the State Out of Marriage

The opinion of an Alabama Supreme Court justice has caused a minor amount of jimmies to get rustled. Justice Glenn Murdock opined that allowing same-sex marriage to continue in Alabama could result in all marriages behind banned in the state. Needless to say this has the writers over at Think Progress very upset:

Thus, according to Murdock, if gay couples and straight couples must enjoy the exact same marriage rights under the Constitution, the proper remedy might be to deny those rights to everyone, rather than extending them to same-sex and opposite-sex couples alike.

In the unlikely event that a majority of the state supreme court adopts this approach, that could cause a largely academic matter that has divided federal judges to suddenly become hugely important. Though the overwhelming majority of federal judges to consider the question after the Supreme Court’s most recent gay rights decision in 2013 agree that the Constitution does not permit anti-gay marriage discrimination, these judges have split on rationale. Some judges have held that denying equal marriage rights to gay, lesbian and bisexual individuals deprives them of their right to equality under the law; while others have held that denying such rights to these individuals violates a “fundamental right” to marry. (Other judges have embraced both rationales in favor of marriage equality, or they’ve embraced a hybrid of the two rationales.)

According to the author’s view denying anybody the ability to marry would be the denial of the right to marriage. I actually propose an alternate view. Rights are supposed to be acts individuals can partake in freely. Privileges, on the other hand, are acts individuals can partake in so long as they have permission to do so. This means any act the state interferes with becomes a privilege instead of a right. Marriage, by being regulated by the state, is today a privilege that one must seek approval from the state to partake in.

Progressives and libertarians agree that people should be free to marry who they want. Where the two groups disagree is how such a freedom can exist. According to progressives the freedom to marry can only exist if the state allows it to. Libertarians believe that the freedom to marry can only exist if the state is entirely divorced (excuse the pun) from the process. The difference between the two beliefs is stark. If the state is involved then it has the power to grant or deny marriages. Currently the fight for marriage equality focuses on same-sex couples. However granting same-sex couples the privilege to marry doesn’t necessarily grant, say, polyamorous groups the privilege to marry. Meanwhile divorcing the state from marriage would mean the institution is up to individuals to define so same-sex couples and polyamorous groups would both be free to declare themselves married.

By denying all marriages Alabama could create a de facto environment where state approval of marriage is no longer sought and therefore individuals would be more apt to declare themselves married on their own terms. In my opinion far more would be accomplished if Alabama denied all marriage licenses than if it approve heterosexual and homosexual couples to get married. The former would encourage people to ignore the state whereas the latter would require, say, polyamorous groups to drudge through a long legal fight to seek permission to get married.