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Privatizing Marriage



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A law professor named Colin P.A. Jones published an article in the San Francisco Chronicle on January 22 called, “Marriage proposal: Why not privatize?” It is extraordinary. Libertarians and radical feminists often call for privatizing marriage. (See, for example, Michael Kinsley’s “Abolish Marriage.”) Rarely does anyone come up with a concrete plan to do so. Jones has a concrete plan alright.

Jones treats his privatization scheme as a way to preserve marriage. It looks to me like the effective end of marriage as an institution capable of protecting children. But by all means, see what you think of this real-life plan to privatize marriage. Certainly this scheme amounts to a de facto legalization of polygamy and polyamory. Fans of polyamory have long advocated corporate law as a way to accommodate the complexities of multi-partner unions. And this is exactly the approach Jones takes. Incest prohibitions don’t seem to survive in this scheme. In “Rick Santorum Was Right” I wrote about a pro-polyamory law professor who envisions a world with separate social clubs for polyamorists and monogamists. Jones shows how exactly that would flow from privatization.

One of the remarkable things about this article is the way it confirms so many points made by critics of same-sex marriage. For example, Jones agrees that the presumption of reproduction is a key feature of marriage as we know it, even if every marriage is not reproductive. Jones’ acknowledgment that a presumption of reproduction is a key feature of the current system is the key to some of his most radical proposals. Other than the acknowledgment that marriage does now presume potential reproduction, there is virtually nothing in here about children. Jones seems to treat marriage as something chiefly designed for the needs of adults.

In “Beyond Gay Marriage,”
I suggested that we might someday see heterosexual couples contract same-sex “marriages of convenience” solely to secure benefits like medical insurance. Jones says he has a heterosexual friend in Massachusetts contemplating just such a union, and he builds this possibility into his system.

Most remarkable of all, Jones is ultimately forced to put the government back into marriage. Although he says that he is trying to solve the controversy over same-sex marriage, in the end government still has to decide what sort of private unions merit benefits. So under this privatization scheme, we not only dissolve marriage as any sort of workable or effective social institution, we also get the same quarrels over social recognition that we got before privatization. What a solution! No doubt there are libertarians out there who will love this scheme. Yet to me, this proposal shows the disaster that privatization would actually be. I hope that when folks talk about privatizing marriage, they keep concrete proposals like this in mind. Apparently, a more detailed version of this scheme is going to be published in the Independent Review.

Consider that we are getting radical proposals like this even now. If same-sex marriage becomes legal, this sort of idea will be floated on a regular basis. I can see someone believing that the slope might not ultimately slip, but I can’t see how folks can dismiss it even as a possibility. That same-sex marriage will, at minimum, lead to long and bitter debates over radical proposals such as this seems beyond doubt. It is already happening.



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