Should the state be involved in marriage? Writing in the NYTimes professor of history Stephanie Coontz notes:
The American colonies officially required marriages to be
registered, but until the mid-19th century, state supreme courts
routinely ruled that public cohabitation was sufficient evidence of a
valid marriage. By the later part of that century, however, the United
States began to nullify common-law marriages and exert more control
over who was allowed to marry.
By the 1920s, 38 states
prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese,
Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not
issue a marriage license if one partner was a drunk, an addict or a
“mental defect.” Eighteen states set barriers to remarriage after
It’s no accident that the state began restricting and intervening in the marriage contract at the same time as it was restricting and intervening in economic contracts. It was of course the evil Oliver Wendell Holmes Jr. who dissented in Lochner v. New York and who also upheld forced sterilization laws in Buck v. Bell (writing that "three generations of imbeciles in enough.") Economists don’t like to talk about social externalities but the connection between economic and social regulation is very clear in the progressives.
I think it’s time to restore
freedom of contract to marriage. Why should two men, for example, be denied the same rights to contract as are allowed to a man and a woman? Far from ending civilization the extension of the bourgeoisie concept of contract ever further is the epitome of civilization. Our modern concept of marriage, for example, is simply one instantiation of the idea of contract.
People will claim that this means a chaos of contracts for every form of marriage. This is wrong factually and also conceptually misguided. Factually, we already allow men and women to adjust the marriage contract as they see fit with pre-nuptials. Moreover, different states offer different marriage contracts with some offering more than one type. Partnerships of other kinds have access to all manner of contractual arrangements without insufferable problems.
More importantly, the chaos of contracts argument is fundamentally misguided. The purpose of contract law is to give individual’s greater control over their lives. To make contract law a restraint on how people may govern themselves is a perversion of the social contract. To restrict people from accessing the tools of civilization on the basis of their sexual preference is baseless discrimination.
It is time to restore
freedom of contract to marriage, Laissez-faire for all capitalist acts between consenting adults!
Thanks to Daniel Akst for the pointer.