Epstein: "Is It Possible to Get the State Out of Marriage?"

Is It Possible to Get the State Out of Marriage?
Richard A. Epstein
March 29, 2013

John Fund has raised a trial balloon on National Review Online with his suggestion that the best response to the huge dispute over gay marriage is for the state to get out of the marriage business altogether and leave it solely to private contract to create and define marital relationships. As a good libertarian, it is tempting to support this proposal. But that temptation ought to be resisted. Here is why.

One notable gap in the Fund column was any reference to the status of children of this union. That covers issues dealing with child support and inheritance rights. It also deals with issues of guardianship and divorce. It is hard enough to deal with these questions when it is known who is married to whom. It is even harder to deal with them when the nature of these private relationships resists standardization.

Things do not get any easier when the subject turns to external attribution rules that are commonly tied to spousal status. Do your shares and mine count as a single holding sufficient to create a control block under tax or securities law? Or are they to be considered separately so that this designation cannot be applied? What about reporting rules for various kinds of conflict of interest situations in business or biomedical research? If there are intermediate statuses that people can adopt, all of these external groups are going to have to develop criteria to apply their own provisions. It will prove to be messy, costly, and inefficient.

Richard A. Epstein