Over the last several years I have often heard well-intended folks on both sides of the marriage debate throw up their hands in exasperation and say something along the lines of, “Why don’t we just get the government out of marriage? Just let churches do what they want and keep the state out of it.” The latest example of this is Heather Wilhelm’s column at RCP today, suggesting this very thing. Now, I say the following with no exaggeration: Heather is a rock star and maybe my favorite new conservative author and I disagree with her almost never. But in this case, Heather (and lots of other folks who are jumping on this bandwagon) are just dead wrong.

There’s almost nothing  I hate worse than lawyers who view themselves as some sort of priesthood of received wisdom that the unwashed masses must accept as decrees from on high – but this idea is one of the few ideas out there that you maybe have to be a lawyer (or someone well versed in family law) to understand how dangerous and impractical it is. There are whole scads of really, really important laws that are built upon the existence of a state-recognized “marriage” and under which default rules that society relies upon to function in an orderly fashion rest. Here are but a few examples:

  • In every state I know of, if two parents are raising a kid, the default assumption if one of them dies is that the child will immediately go to the full custody of the spouse at the time the child was born, in the absence of evidence that the child was not in fact the offspring of that spouse;
  • In every state I know of, when a person dies without a valid will (which the overwhelming portion of the populace does in spite of the best efforts of lawyers and everyone else to try to get people to create wills), the law provides that some portion or all of that person’s assets automatically go to their spouse by operation of law;
  • In every state I know of, a person’s spouse is by default the person who is entitled to make medical decisions for a person who is incapacitated;
  • The Federal Tax code is based on fundamentally different treatment of married couples and single individuals in too many ways to count, especially as concerns numerous issues regarding the claiming of children, including probably most importantly the fact that married couples can make tax-free gifts to one another without limit;
  • Both medical and liability insurance laws and regulations carry numerous provisions that vary from state to state regarding the treatment of married couples;
  • Generally speaking, married couples may not be compelled to testify against one another in court;
  • Spouses are entitled by law to sue on behalf of their spouse in the event of a wrongful death;
  • In every state I am aware of, spouses may be held legally liable for the debts of the other spouse incurred during the marriage.

Now, in each of these cases, there are good and identifiable reasons for these default laws to exist. When one parent of a minor child dies, we don’t want that to automatically generate a custody battle provided that the other parent is still alive. When one spouse dies, we don’t want the other one to essentially have to sue the estate of the spouse for the right to continue living in the marital home or to keep the items of marital property. There comes a point in life when one’s parents shouldn’t be the ones making medical decisions for their kids especially given the default assumption that in most cases parents will die before their kids. The marital privilege regarding court testimony is considered to be a valuable protection for the longevity of marriages. And our sense of fairness compels us to believe that if an individual spouse incurs a debt that both spouses enjoy the fruits of, the other should be able to be held liable for it.

In light of this, the State has an extraordinarily high interest in verifying that a legal and valid marriage has occurred. The whole point of these default assumptions, after all, is to prevent needless court battles and to honor general societal expectations, based on millenia of practice, on what married people would like to occur with respect to their children and their property, especially in the event of incapacity or death.

Thus, if there is merely a religious ceremony that is not recorded or sanctioned by the State in any way, then there is no legal presumption of who a person’s spouse is in each of these circumstances. What good does it do to have a default law under which a spouse gets to make medical decisions, if there is no legally binding way to prove who a person’s spouse is? Without a certificate of marriage the state has no way (absent a trial each time the issue arises) to verify who a person’s valid spouse is. Thus, the state is well within its bounds to demand that a marriage be a) performed between two legally eligible individuals (to prevent, e.g., bigamy or fraud), b) in a reasoned ceremony to encourage reflection on the gravity of the event and c) properly recorded within state records so that the evidence can be established conclusively, especially upon the death of one or both spouses. It is also equally (and perhaps more) important that divorces be recorded officially as well, to prevent the unjust enrichment of divorced spouses and to thwart all number of societal expectations.

Definitely, I can get behind the idea that the requirements for a marriage should be more lax. But inviting the state to withdraw from the marriage business altogether ignores the frank impracticality of such a measure and the deleterious effect it would have on ordered society – an effect which would worse frankly than any of the alleged parade of horribles that reforming marriage in almost literally any way might have.

At the very least, the State can and should insist on measures to ensure that a) a valid marriage has occurred b) that the marriage is duly recorded in the state’s records to ensure and prove the existence of one spouse per person (or a complete rewrite of their laws to account for the possibility of multiple spouses, if you live in a state that is on a slippery slope) and c) that divorces are similarly recorded and corresponded with valid marriages.

I enjoy a good libertarian impulse as well as anyone. But “getting the government out of marriage” is not something that should – or, frankly, can – be done anymore.