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The Case for Getting Government out of the Marriage Business

Posted: June 27, 2015 at 5:00 pm   /   by


Christian S. Miller

  1. Introduction
  2. The Governments: Federal and State
  3. Marriage and Civil Union
  4. Definition of Marriage
  5. Federal Marriage Subsidies
  6. State Marriage Benefits
  7. Correlation and Causality
  8. Children
  9. Prestige and Status
  10. Polygamy and Incest
  11. Marriage Contract
  12. History of Government and Church in Marriage
  13. Separation Of Church and State
  14. Equal Rights for Singles
  15. Same-Sex Marriage
  16. Implementation
  17. Consequences of “Government Free Marriage”


  1. Introduction

Government-free marriage is a subject upon which rational people should be able to agree. Conservatives should welcome the reduction of government and getting government out of our intimate personal lives; the Christian Right should welcome the church having authority over the marriage of its members and rather than the government; 90 million single people should applaud no longer having to pay increased taxes for benefits exclusively going to married people; gays will have finally have achieved true equality; liberals and progressives should welcome the justice of the situation; and libertarians will rejoice at a small move in the direction of “live and let live.” Everyone should be satisfied except those who relish the fight itself.

This paper analyzes the major aspects of the government-free marriage issue.


  1. The Governments: Federal and State

The question of government’s role in marriage needs to be considered in two separate parts: the role of the federal government and the role of state governments. The federal government’s current primary role is providing financial benefits to couples with marriage licenses issued by the states.

State governments issue marriage licenses and determine who is qualified to get marriage licenses. They also established marriage laws that deal with the dissolution of marriage and provide a bundle of default provisions in case other documentation is absent. For example, if one spouse dies without a will, then a judge divides his/her estate among his relatives including the surviving spouse, usually according to some formula.

I recommend that we start only with “Federal Government Free Marriage”. It will be an easier fight than getting the state governments out of the marriage business, which can come later.


  1. Marriage and Civil Unions

For the purposes of Government Free Marriage, the terms “marriage” and “civil union” are synonymous. They both confer special government benefits to people with government marriage licenses. We need to get government free of both. That being said, we should be mindful of the power of the word “marriage” as evidenced by the passionate and expensive California Prop 8 fight over the word “marriage”.


  1. Definition of Marriage

We can say that there are three fundamental different types of marriages: government marriage; religious marriage; and personal marriage.  The three types are often blurred into one as in the case of a typical wedding where personal vows are exchanged; a minister conducts the sacrament of marriage; and witnesses sign the government marriage certificate.  For most people the word marriage conjures up images of love, commitment, sex, home, children, sharing etc.

Any couple, with or without a government marriage license or with or without church sanction, is legally free to define and characterize its relationship with any word they wish, including “marriage”.

Churches are also legally free to define marriage in any way they please and to decide whose marriage they will sanction.

Government decides who can and cannot get a marriage license.  But it does not define, and practically cannot define, what marriage is.  Look at a marriage license application. It does not say what marriage is. Nothing about love, commitment, etc. No vows are required.  Without a government definition of marriage, the government cannot state what behavior it is trying to encourage.  The question, “What are we trying accomplish?” is unanswerable. Consider how the government ties itself in logical knots dealing with “sham” marriages of Russian women to US citizens so they can come to the United States.


  1. Federal Government Subsidies

Federal marriage subsidies are hard to justify. They are not effective. They are unfair to single people and most of the money goes to wealthy couples.

The main federal subsidies are: income averaging for joint income tax returns; wife’s entitlement to 50% of a husband’s Social Security payments; reduced Medicare premiums; and 100% spousal exemption from inheritance tax. Although these benefits came into law without much thought or debate, the only logical justification is that they are an incentive for a couple to get a government marriage license and/or provide some financial support to couples with marriage licenses. Both of these rationales fall apart upon examination. It would be tough to argue that the prospect of collecting increased Social Security in their sixties is going to weigh on the decision to marry on couple in their twenties who are madly in love.

The value of the financial support to married couples is marginal. Most married couples do not need financial support. Second, the vast bulk of this money goes to our more affluent couples. Couples in a financial situation that allows one spouse not to work are pretty much the only ones who get the Social Security and Medicare benefits. Where both spouses have worked, they each qualify for Social Security on their own. Likewise, income averaging only helps couples that have a large difference in incomes. The unlimited spousal exemption from inheritance tax only benefits those with multi-million dollar estates. Third, these financial benefits are terribly unfair to single people or couples without government marriage licenses who have to pay increased taxes to support these benefits.

These financial benefits can amount to $500,000 over the life of a moderately affluent couple. Social Security payments to a spouse who did not work can be over $9,000 per year.

It has been suggested that government marriage subsides are an incentive for couples to get government marriage licenses. My sense is that most people are not knowledgeable about these government subsidies when they get married. I would guess that anyone who was gets married because of the government subsidies is getting married for the wrong reasons  and is probably going to have a disappointing marriage.

Finally, government subsidies should be based on need rather than marital status.


  1. State Marriage Benefits

Legal provisions for married couples are often cited as being needed. These are convenient fallbacks established by government for dealing with medical and legal issues. These issues are better served by specific explicit documents. In fact it is really a bad idea for married people to leave these issues to the defaults in the marriage laws.

For example, medical instructions should be documented in a durable power of attorney and a living will. Consider the Terri Schiavo case. If one cares about what happens to ones assets at death, then a simple will is necessary. Default inheritance can be a mess. If you are concerned about how your assets are divided up upon your death, a will is highly advised for everyone, married or not.  If there are major assets then JTWROS (Joint Tenants With Right of Survivorship) will keep them out of probate. When one spouse dies 100% of the ownership passes immediately to the surviving spouse; it does not pass via a will.  This is simply accomplished by checking the box “JTWROS” on the title application. If there is great wealth, then a trust is appropriate. It is false security to rely on the marriage laws. Not having a will or not owning major assets as “JTWROS” almost guarantees a messy probate. These government “benefits” do a disservice to married couples.

Legal issues can be documented in a simple partnership agreement. This is a good idea in any case because most couples do not know what legal obligations they are signing up for with a marriage license.

Exclusive privileges such as hospital visitation and exemption for testifying against a spouse could be made available in some form to all people, single or married. Visitation rights should be available to anyone the patient specifies. Everyone should be able to specify one person for testimonial privilege.

The state government’s other role is the dissolution of government marriages. The only issues are children and money. In cases of financial dispute, the court divides the assets as it would in a partnership dispute. In the case of children, the court decides what is in the best interest of the children, not the parents, as it would whether the parents were married or not.


  1. Correlation and Causality 

Proponents of government marriage use studies that show that married couples do better financially and their children are more successful and conclude that having a government marriage license somehow caused or influenced those outcomes. They point to a correlation between mothers without marriage licenses and mothers with disadvantaged children. A fundamental flaw in this logic is equating correlation with causality. Rich people drive expensive cars, but diving an expensive car will not make you rich. Women who turn out to provide good mothering are likely to have gotten marriage licenses. The licenses do not make them good mothers. Getting a government marriage license is not about to reform a deadbeat father.


  1. Children

The discussion of children should be taken off the table. A couple without a marriage license can procreate. A couple with a marriage license is not obligated to attempt to procreate. With or without a marriage license, the biological parents of a child are ultimately legally responsible for the welfare of that child. In the case of divorce or any other case, the first consideration of the judge is what is best for the child.


  1. Status and Prestige 

It has been argued (in the Prop 8 court case) that the government gives status and prestige to married couples.  On a philosophical level, the government should not be in the business of granting status or prestige. We do not issue knighthoods. Status and prestige are earned not granted. Government marriage is status without status. On a practical level, a marriage license itself gives no status or prestige. No one is ever asked to show a marriage license. No one hangs it up his office. How do I know that our good neighbors are married? I have not seen their marriage license, but they act married. They are introduced as husband and wife; addressed as Mr. and Mrs.; live in the same house; celebrated their 50th wedding anniversary; have four children and seven grand children. As far as anyone is concerned, they are married. They have prestige.

Arguably, the most prestigious moment is the engagement. Consider the prestige, celebration, joy, relief, congratulations, and encouragement upon the announcement of a marriage engagement, which normally happens before any marriage license is issued and any involvement of the state government. An engagement ring is hard evidence of meaningful commitment that the couple will live together in a traditional marriage.

If there is no meaningful qualification or commitment for obtaining a marriage license and anyone can get it, then it holds little currency, little value, and carries little prestige. Think about Britney Spears’s sham marriage in Las Vegas that had full state government sanction and license. The government mocks, trivializes and debases traditional marriage by sanctioning such marriages. Yet as long as the government issues marriage licenses, it has no basis to deny marriage licenses to the Britneys of the world.

Ted Olsen, attorney for the plaintiffs, made a case for the importance of government marriage “status” that Judge Walker incorporated in his Prop 8 ruling.  This status is probably the most important point for the gay marriage advocates. They may even accept the need for fairness to single people, but will give up the prospect of government marital status. “In order to be fair to single people, it would OK for government to remove all the marital privileges, but we want to government to sanction the value of gay marriage to give us status, respect and acceptance.”


  1. Polygamy and Incest

It is argued that marriage laws were instituted to prevent incest and polygamy.  I have not heard a convincing explanation of how marriage laws prevent either. Incest is not illegal if the sex is between consenting adults. Polygamy is not illegal if there are no government marriage licenses involved and the parties are consenting adults.


  1. Marriage Contract

It is often assumed that marriage is a contract between the bride and groom. It is true in most religious marriages. Vows are exchanged. In the Jewish faith, there is even a written and signed contract called a “Document of Conditions”. In a government marriage, however, there is no contract between the husband and wife. There is only an agreement by the groom to be bound by the government’s marriage laws and an agreement by the bride to be bound by the government’s marriage laws. Note that the government can change these laws at anytime without the permission of the husband or wife.

There would be a problem with the state governments withdrawing from marriage because they need to adjudicate divorces and disagreements. These are now handled according to contract law in a similar fashion to disputes involving partnership contracts. Marriage agreements can, and are, made by prenuptial contracts that are enforced by the courts. A problem is that complex unforeseen issues can arise over a long marriage with large assets especially when children are involved. Divorce is often a messy process.

It can be argued however, that normal partnerships that do not involve marriage can also have issues that are not anticipated in the original partnership contract. Most of the very difficult marriage cases involve larges assets and would still be a big problem with or without existing marriage laws. The issue of children should be matter of subjective judgment by court on the basis of what is best for the children, not for what is best for the parents.


  1. History of Government and Church in Marriage

There have been arguments about whether churches or governments first regulated marriage. This is a non-issue because it ancient times the government and church were one.

The first recorded laws, Hammurabi’s Code, dealt with marriage and family issues. In those days, however, there was no separation of church and state. They were one, no distinction. The leader of the government was the leader of the church.  It is interesting that 67 of the 282 laws in this Code deal with marriage and family law. It is also a bit difficult to comprehend that this code was written 3800 years ago.  The Code dealt with sex, procreation, children, incest, property, marriage contract, protection of the wife, and divorce.

Some of the first laws in the U.S. also dealt with property and protection of the “little woman”.  In the mid 1800’s marital laws were created to prevent interracial marriages. In the early 20th century U.S. laws were enacted for the purpose of eugenics. In the 1930’s our government started giving financial benefits to people with marriage licenses. In the last decades no fault divorce laws have been instituted and same-sex marriage has been under consideration.


  1. Separation of Church and State

The separation of church and state should be a non-issue, but it is not.  Churches are not controlled by the government and the government is not controlled by the churches. Except for marriage. In the case of marriage there is a voluntary unholy alliance of church and state.

“By the power vested in me, by the state of California, I now pronounce you Husband and Wife.” declared the minister in front of the altar of God. Our minister conducting the Sacrament of Holy Matrimony is a government official, an “agent” of the State of California. There is a conspiracy of Church and State. If a couple wishes to have the Sacrament of Holy Matrimony in their own local church, their minister will force them, as a practical matter, to get a government marriage license in which they assent to a contract with government which binds them to whatever marriage laws the government wishes to enact or change. On the other hand, the civil marriage ceremony conducted by a justice of the peace closely mimics a religious ceremony.

The churches can help establish Government Free Marriage by taking back marriage for themselves. They should be encouraged to stop being government agents.


  1. Equal Rights for Singles

The injustice of marriage laws is to single people and couples without government marriage licenses, including heterosexual and homosexual people.  There are about 90 million single US adults.  They are subsidizing government benefits to married couples through increased taxes.

Consider the situation of two elderly women, neither of whom contributed enough to collect Social Security. The married woman collects $9,000 per year from Social Security because her husband qualifies for Social Security.  The unmarried woman collects nothing from Social Security.


  1. Same-Sex Marriage

It is not illegal for churches to perform same-sex marriages. It is not illegal for a same-sex couple to live together; have sex, share property; act married; or characterize themselves as “married”.  There are no government prohibitions of same-sex marriage; there is only a withholding of financial benefits from the federal government and the withholding of marriage licenses by most state governments and the associated benefits of state marriage laws. In these regards same-sex couples have no greater or fewer government financial benefits of marriage laws than any single person without a government marriage license.

The extremes on both sides of same-sex marriage issue desperately want government marriage continued, but for very different reasons.  It is about status rather than exclusive tangible government benefits. The extreme gay rights advocates want government to sanction, approve and say same-sex marriage is good. They want admittance to the exclusive club. The extreme Christian right wants government to exclude same-sex couples from marriage. They want to keep them out of the exclusive club. They want government to say same-sex marriage is bad.

Most same-sex couples would not benefit from the federal financial subsidies and most of the remainder would not need the subsidies.


  1. Implementation 

Phasing out some of the specific marriage subsidies and making the rest available to single people can achieve federal government free marriage. For example, joint filing of income tax can be eliminated immediately. Social Security for spouses who had not worked can be reduced while some Social Security can be paid to elderly single people who had not contributed to Social Security yet who are in need.

Likewise some state government privileges such as hospital visitation rights can be extended to single people. Other marriage laws such as spousal inheritance and medical decisions can be eliminated and people encouraged to have written wills and powers of attorney.


  1. Consequences of Government-Free Marriage

Life would go on.  Couples would still fall in love, make commitments, have beautiful wedding celebrations, live together, have sex, raise children, create stable homes, share life, and have all those wonderful things we associate with marriage.  All without involvement of the federal government or the state government.



Source: George Hodan
License: Public Domain

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The Case for Getting Government out of the Marriage Business