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In the debate over gay marriage, both sides have missed the point, writes Sam Bowman, Research Director at the Adam Smith Institute.
People in same-sex relationships have, rightly, fought for equality before the law. But they have ignored the bigger question – why the state should have anything to do with consenting adults' relationships at all. We have privatised industries and services with excellent results: now, why don't we privatise marriage?
Marriage has not traditionally been a preserve of the state, only entering the statute books in England in the Marriage Act of 1753. According to historian and author of ‘Marriage, a History: How Love Conquered Marriage’, Stephanie Coontz, it was only in the 16th Century that European governments began to require marriages to be performed under legal auspices at all, marriage is a public contract between consenting adults. Most of what is in modern marriage could be agreed upon privately by consenting adults: property rights (over inheritance, for example), parental responsibilities, duties of care, next of kin nomination, and so on. Other rights, such as residency sponsorship for non-citizens, should not be restricted to married couples at all.
Removing the need to get a state licence for 'marriage' would allow consenting adults to sign whatever contract they want and call it marriage. People would be free to draw up contracts tailor-made for them, or to take one of the one-size-fits-all 'marriage contracts' that would inevitably be offered by private firms.
This rather simple step would make the whole marriage debate redundant. Any pair of consenting adults – gay, bisexual, straight, transsexual, or anything else – could agree to a contract that suits them and hold a marriage ceremony wherever would have them. (I say a pair, but there is no reason that three or four or more consenting adults should not be allowed to share their lives with each other in a private marriage, if they want.)
Of course, they would be free to hold whatever ceremony they wanted to around the contract signing. Marrying couples could hold unique weddings that reflected their own values and passions, instead of having to sign their contracts in a state registry office. It would be up to individual churches to decide for themselves whether or not they want to be involved – some probably would, and some probably would not.
Those who have fought for same-sex marriage should welcome this. They know how painful it can be to rely on the majority to grant equal rights. But, paradoxically, the strongest advocates of this reform may end up being the people currently fighting for 'traditional' marriage. As they lose battle after battle and begin to feel that their marriages are being delegitimized by 'non-traditional' marriages, they may eventually realize the foolishness of leaving the definition of marriage up to the majority.
In a private system, these traditionalists could simply ignore the fact that gay couples have called their contracts 'marriage', safe in the knowledge that only their version is 'true' marriage.
Advocates of same-sex marriage are right to demand equality before the law. But they should also recognise that our private lives should not be up for public debate at all. If we really want equality and privacy, we need to get the government out of the marriage business altogether. Love is too important to be left up to the state.