The last five months have been eventful in our ongoing national discussion about marriage. On May 8, North Carolina became the most recent state in which the electorate has voted against same-sex marriage. Days later, President Obama, prodded by Vice President Biden and Secretary of Education Duncan, expressed his personal support for same-sex marriage. At roughly the same time, the John F. Kennedy Library Foundation presented its Profiles in Courage Award to three Iowa Supreme Court justices who ruled that same-sex marriage is constitutionally-required -- and who were subsequently removed from office by the voters of Iowa. The Democratic Party is now posed to endorse in its 2012 national platform "equal treatment under law for same-sex couples."
From these events, the advocates of same-sex marriage can infer that they are winning our national debate about marriage: After all, they now have the president of the United States on their side. From these events, the opponents of same-sex marriage can, with equal plausibility, claim that they are winning: When the electorate is given the chance, it votes against same-sex marriage.
I draw a different conclusion than either of these: It is finally time to abolish civil marriage. Abolishing civil marriage would be good both for marriage and for the American polity.
Some oppose civil marriage because they oppose marriage. In contrast, I would abolish civil marriage to encourage and strengthen marriage by deregulating it.
Civil marriage is a state-run monopoly. Monopolies are generally bad. Government monopolies are invariably bad: Think of the DMV. When we want more of something, government monopoly is usually not the right approach. Abolishing civil marriage will firmly place responsibility for marriage where it belongs, in the churches, synagogues and other religious and secular institutions in our society concerned with defining and nurturing the family.
Released from a single, state-imposed definition of marriage, these marriage-promoting institutions would promote their respective versions of marriage. Once the law no longer monopolizes the definition of marriage, individuals would contract for their own versions of the institution. A free market in religion has made Americans a religious people. Similarly, a competitive market for marriage would strengthen marriage by unleashing the entrepreneurial energies of religious, cultural and other groups promoting their own models of marriage.
The advocates of traditional marriage have nothing to fear (and potentially much to gain) from this competition if (as many Americans think is the case) their version of the institution is as compelling as they claim.
Abolishing civil marriage would also be good for the American polity. A diverse society must be genuinely tolerant of genuine diversity. Americans today have widely different and equally sincere views of marriage. In such an environment, it is neither desirable nor feasible for the state to impose a one-size-fits-all definition on the institution of marriage.
My proposal to abolish civil marriage differs from the proposal that the states define "civil partnerships" and then permit such partnerships to be recharacterized as marriage by the parties themselves. Like many half-measures, the idea of universal civil partnerships suffers from the problem it is intended to solve. Just as the state should not be in the business of defining what is or is not a marriage, the state should not be in the business of defining what is or is not a "civil partnership." The issue is not the label which the state bestows but the impropriety of the state specifying what is or is not a normatively correct relationship.
Any particular relationship should be classified as a marriage, partnership or otherwise by those participating in the relationship. Such self-definitions will be assisted by religious and secular institutions and by the norms of the communities in which particular individuals are situated. It should not be the job of government to define what is or is not a normative family relationship, whether that relationship is denominated as "marriage," "civil partnership" or anything else.
Consider another argument for civil marriage: The law as promoter of values. From this vantage, if marriage is (as I believe) good, indeed critical, for families, children and the broader society, the law should encourage that socially-valuable institution.
This argument collides with Americans' deeply-held belief in the primacy of civil society and our skepticism of government. We do not expect the state and the law to be a fount from which flows all wisdom. We rely on other institutions -- churches, markets, nonprofit and charitable bodies -- for the quality and texture of American life.
Here I speak from experience: In June, I celebrated my 41st anniversary being married to my college sweetheart. It is not the coercive power of the state or the heavy-hand of the law which has made our marriage work for four decades.
Some advocates of same-sex marriage liken the proposal to abolish civil marriage to the response of die-hard segregationists to Brown v. Board of Education. These advocates of same-sex marriage point to the post-Brown closing of public schools, parks and pools. Rather than integrating these facilities, die-hard segregationists often closed them. Some advocates of same-sex marriage argue that abolishing civil marriage now would similarly close that institution just as the outsiders arrive at the gates.
The analogy fails because these intransigent segregationists didn't really abolish public facilities. Rather, through "white flight" academies and similar subterfuges, they effectively re-created these institutions on a racist basis.
In contrast, I propose that civil marriage be abolished across-the-board for everyone. After a (relatively brief) transition period, the cessation of civil marriage would apply to all marriages, including mine.
In many respects, we are much further down this road than many people realize. Consider, for example, planning for medical and financial emergencies. Contrary to what is widely-assumed, a spouse in a civil marriage is not automatically the legal decision maker for his or her incapacitated spouse. Consequently, properly-advised spouses today grant each other authority under powers-of-attorney and health care directives to act if the other is disabled. This common practice would continue after civil marriage is abolished.
By the same token, my spouse is not automatically my beneficiary under my life insurance policy. I must affirmatively designate her as such beneficiary. In this area also, abrogating civil marriage would have less practical import than many individuals think.
In a world without civil marriage, other areas of our legal system would require adjustments. However, these changes would be less radical than many might suppose.
Today, for example, only married persons can file joint income tax returns. Without civil marriage, the tax law could require every individual to file separately based on his or her own income. Alternatively, the tax law could allow any two adults to file jointly as long as they in good faith represent that they are a family unit.
In short, transition to a world without civil marriage is, in important respects, already underway. If civil marriage were abolished, further adjustments to our laws would be required in some areas. However, these changes could be made with manageable disruption during the (relatively brief) transition period to a world without civil marriage.
In the broad sweep of Western history, civil marriage as we know it today is a relatively recent phenomenon. Whatever the benefits of civil marriage in the past, it has today outlived its usefulness. Both the polity and marriage itself would be better served by abolishing civil marriage.