Redefining Marriage By Getting Rid of It?

Introduced in January in the New Hampshire House of Representatives, HB569 would get rid of marriage. Sort of.

To be exact, the proposed bill, currently in committee, privatizes marriage. The New Hampshire state government would no longer issue marriage licenses; instead, it would grant domestic partnerships. If you wanted to get married in the traditional sense, you’d go to your religious house of choice. If you wanted the legal benefits of marriage as it currently stands, you’d get a domestic partnership. And all this would apply to gay and straight couples alike.

A group of Republican members of the New Hampshire state house proposed the bill, coming from the libertarian position that marriage is a contract:

that should be recognized and applied by the courts, but that the government has no business, in general, decreeing who may or may not make the contract or imposing any prior conditions, as licensure does.

Is this where American marriages are heading? Is this the best solution to the same-sex marriage debate?

On one hand, the government has a monopoly on marriage, and government-sanctioned marriages have been disintegrating for years—just look at the divorce rate in the United States [PDF]. Since all 50 states issue no-fault divorces, it’s sometimes easier to end a marriage than it is to end a corporate partnership.

David Boaz explained the benefits of privatized marriage for both heterosexual and homosexual couples in his 1997 Slate article:

Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. … Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world…

And what of gay marriage? Privatization of the institution would allow gay people to marry the way other people do: individually, privately, contractually, with whatever ceremony they might choose in the presence of family, friends or God. Gay people are already holding such ceremonies, of course, but their contracts are not always recognized by the courts and do not qualify them for the 1,049 federal laws that the General Accounting Office says recognize marital status.

Those who consider the word “marriage” to carry great importance can still get married; the institution would just belong to religious organizations (as it originally did) instead of the government. If a church or synagogue or mosque chose to bless a union, they would be free to do so. Marriage would not be eradicated; in fact, it might become more spiritually meaningful. Today, marriage licenses have become meaningless in terms of what Stephanie Coontz called “interpersonal responsibilities;” after all, in 2008 almost 30 percent [PDF] of all households were single-parent homes, a 10 percent increase since 1980. Coontz writes:

As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.

That marriages currently take place under the auspices of religion presents its own issue. When a member of the clergy marries a couple, he or she does so under the power of the law, essentially acting as a representative of the government. So when a church refuses to marry a gay couple, conflict could arise as to whether the church is acting as a representative of government (as it does when dealing with marriage) or as a religious organization. A 2007 position paper by the secular think-tank Center for Inquiry explored this issue, along with other issues relating to same-sex marriage, and argues that state-endorsement for domestic partnership is the best possible solution with regards to the separation of church and state, though they argue LGBTQ couples should be granted equal marriage rights so long as the state sanctions marriages.

Gay couples may actually be the ones most resistance to having domestic partnerships replace “marriage” on a legal level. Time magazine pointed this out after the California Supreme Court ruled against the ban on gay marriage:

After all, what was the most sweeping part of the May 2008 decision Ming and his colleagues issued that granted gays the right to marry? It was the idea that the word marriage is so strong that denying it to gay couples violates the most sacred right enshrined in the state constitution: the right for all people to be treated with dignity and fairness. Just 10 months later, gay couples–whether or not they are among the 18,000 who married in the state before Prop 8 stopped the ceremonies–are loath to lose a word for which so many fought so hard and so long to have apply to themselves.

If the government no longer marries people, it cannot control who can and can’t get married, so the argument about gay marriage becomes irrelevant–the legal rights and protections of “marriage” are no longer at stake. Domestic partnership may still have conditions and qualifications, but the “sacred institution of marriage” loses its legal definition and with that the legal requirements necessary to enter it. Whether or not that’s a good thing is up for discussion.

Photo from Flickr user comeilmare licensed under Creative Commons.


  1. Privatizing marriage would not mean that gays lose the word "marriage." They would still be able to get married in a church that supports gay marriage, and there will always be churches that do so. Whether marriage is private or government based has no bearing on which churches will be willing to marry them.

  2. Insurgence says:

    I think this is fantastic, for all of the reasons listed in the article. The legal contract which provides benefits for those in a partnership is a completely separate issue from the religious/spiritual/emotional reasons people get married. Keeping these two aspects together causes all sorts of unnecessarily and frankly absurd complications, such as the same sex marriage debate.

    The author ends this article saying "Whether or not that’s a good thing is up for discussion." My honest question is: what could possibly be the negative effects of taking marriage out of the hands of the state and allowing individuals rather than politicians choose who they marry?

  3. Hmm… I think I like this idea. I actually wrote about this type of thing a while ago, only allowing for more than two people being legally binded together.

  4. jesurgislac says:

    Well, this should cut down on US tourists traveling to other countries, as many countries will not recognise a "domestic partnership" as legally equivalent to marriage, and religious marriage of course is not recognised in law at all. So if this became universal, US couples, mixed-sex and same-sex alike, would find themselves in a strangely ambiguous position outside the US, neither legally married nor legally single. Awkward.

    • TrannyGirl says:

      That's not entirely true, since foreign countries don't usually require documentation of marriage in the event of accident or arrest; they only want to see identification with the same name and/or address on it. In the absence of identification, just wearing similar rings has been enough in the past for many people.

    • KaseyCaye says:

      I don't know if that would really be an issue since other countries would be aware of what the US had done and would most likely adapt. Besides, if my partner and I were in a domestic partnership we would (probably) both we wearing wedding rings and I've never heard of anyone being asked for a marriage certificate to prove their relationship abroad.

    • If the US government passports indicate that they are a "couple" as defined by US law I don't think there would be any problem. Just what would be your specific concerns? What rights might they be denied that a married couple would currently have while traveling overseas?

  5. TrannyGirl says:

    I think I like this, though I'm still thinking about it. The idea of eliminating the church from the process makes the idea of marriage more like the compact that it is supposed to be, a contract between two people that love each other. The argument that having the church act as a representative of the government violates the separation of church and state, also makes a great deal of sense. That would make the role of the church in the marriage process a violation of federal law, and force it to be banned. I think I like that even more.

  6. Civil Marriage/Civil Union, Religious Marriage/Religious Union;
    Name it what you will but remove the right of religious leaders to perform legally binding contracts.
    Check out the marriage laws of Brazil where most couples have TWO ceremonies…. A religious marriage (not legally binding) AND a civil marriage (legally binding)… Oh, AND a pre-nuptial agreement is required BY LAW!

  7. KaseyCaye says:

    I think this is perfect – the right has a problem with allowing everyone the right to marry because marriage is sacred and blah blah blah – so this way everyone won't be marrying, they will simply be seen in the eyes of the government as two people legally bound together with the same rights and privileges that everyone else gets who are also bound the same way. I can honestly say that I would be much happier to get in a domestic partnership with my partner and skip the whole marriage thing.

  8. I think we should be cautious. It's an interesting idea, but the idea of couples righting their own clauses into marriage contracts that they would be liable in civil courts for has the potential for abuse.I worry that in already unhealthy relationship clauses like "if the wife gains x pounds then the husband is entitled to have an affair with a thinner woman". Although these contracts would be apparently voluntary, that doesn't change the fact that they could be harmful. I would want some rules to protect vulnerable people from committing to such clauses.

    • Galadreal says:

      I don't know, if you are entering into a partnership with someone who puts in a clause like that, then I think you are with the wrong person anyway. I big part of being with someone is trust. If you don't trust someone then you should not be with them for a long term commitment.

  9. Can't people have non religious marriages already? What's wrong with getting married in a courthouse?

    • I was married by a JP 4 years tomorrow and i was forced to pray to get my marriage licence.. I think there needs to be a true separation. I should be able to get a licence with my partner for a domestic partnership with out the marriage part. I shouldn't be forced to pray to a deity i don't have faith in just so my children's father and i can form a lasting legal bond.

  10. I think this is sorta what Canada has right now. Everyone just has domestic partnerships- gay, straight, etc. At least that's what a Canadian friend told me.

    • Stephanie says:

      No, not true. You can have a common-law marriage, a civil union/domestic partnership or a legal marriage performed by a religious/judicial leader in Canada just as you can in the U.S. But Canada has full marriage equality for same-sex and straight couples alike.

      • Oh ok gotcha. Do straight or gay couples tend to gravitate towards any specific option (common-law marriage, domestic partnership)?

  11. Stephen Levine says:

    What about interfaith marriages? Many religious leaders will not perform them. What if atheists want to get married?

    Will the domestic partnership be recognized as marriage in another state?

    I think the idea of privatizing marriage is a poor one.

    • Then they go to the courthouse and have the JP do the ceremony like they do already. Or they have a friend get a ULC ordination. That part is really between the couple and their church (or friends, or ship's captain, etc.).

    • Susannah Merrill-Bernath says:

      I think this is a nonissue; this bill takes the details out of the hands of the religious group and puts it into the hands of individuals. So although many religious leaders would refuse to perform some marriages, there will always be some that will perform them. In Judaism, the vast majority of Conservative and Orthodox rabbis will not perform interfaith marriages, but there are two groups of rabbis who will: "mercenaries", who do it for the money, and those rabbis who feel that the policy against interfaith marriages is wrong, for whatever reason. I cannot but believe that in every religion there will be leaders willing to perform gay marriages, both mercenaries and dissidents.

      I'd also like to point out that atheists frequently have ceremonies beyond that of the courthouse, and there are many atheist groups that would hustle to get people certified as ceremony leaders in order to allow for something like this. I've personally attended many atheist, pagan and "other" weddings run by friends certified for the day or general ceremony leaders whose job is simply to marry people, without regard for their affiliations.

      Of course, then the fight becomes "who gets to decide who can marry couples?", but at least then gay couples will only be fighting for the word and not the rights. It is a sin when couples don't have the right to visit one another in hospital or in jail, inherit from their spouse or be the decision-maker when their spouse is incapacitated.

  12. I know a straight couple that were "married" by giving each other power of attorney(in a nutshell) over one another and then the bride changed her last name to his. that's it. oh, and they had a rockin ceremony 🙂

    but no government permission/licensure/affirmation required, I don't see why gay couples can't already do the same thing.

  13. Either a union has consequences in law or it hasn't. Marriage typically has effects in tax and social security. The debate remains.

  14. Susannah Merrill-Bernath says:

    I've always believed that when a couple makes their relationship public via ceremony or announcements, they are married. What more is marriage than saying, "This is the person I choose for life."? And having the government be involved in any way more than allowing couples to register their marriages(and/or their new names) is unnecessary and grotesque. For me, getting a new Social Security card was about the size of it as far as the US government was concerned. Far more important was that now being bound to my husband was part of my public identity, so that everybody who knew us knew we were married.

    For me, the term "domestic partnership" is only a tactic to avoid the emotional load of the word "marriage", and while I appreciate the legal rights more than almost anything, it's a cheesy move designed just to allow this bill to pass- but hey, if it passes, hurrah! Also, many people are content to avoid the word "marriage"; it creates a powerful image of one's domestic life that may or may not be factual or welcome. I wonder if my husband and I had a domestic partnership if our hyphenated name would be heard more often… our name is Merrill-Bernath, Merrill being my original name and Bernath being his, and I am just a little bit fed up with being referred to as "Mrs Bernath". But then someone will call him "Mr Merrill" and it helps a bit.

  15. This is the libertarian way of dealing with the problem and I like it pretty well, though it may take second place to state licensed gay marriage, it is a close second and gets us important allies among the libertarians, who would otherwise stand with the Tea Party in coalitions against us.….

  16. Megan Irvine says:

    And that's how it should be. Marriage should be a private matter between two people and their personal beliefs, and domestic partnership is a civil contract – two very different situations.
    We would probably have less divorce that way, because fewer people would get married only to have the legal benefits of marriage, and both opposite sex and same-sex couples would be able to get the legal benefits they need through domestic partnership, without having to get married. It's pretty much a win-win. Because, believe it or not, just because two people love each other and might want to spend the rest of their lives together, doesn't necessarily mean that marriage is the best option for them.

  17. Kathleen says:

    I'm not so sure what I think about it. Marriage is still a patriarchal institution, but having "do it yourself" domestic partnerships could usher in a new form of male privilege, especially since heterosexual dating is still male-dominated.

    I think that if the woman makes a lot less money than the man and becomes economically dependent after they have children, she could still be left in a lurch by "private" marriage.

    I've heard that heterosexual couples don't start living together until the man asks the woman to do it. Hey, can't a couple just come to an agreement on a more-or-less equal basis? Also, research shows that most male live-ins just want to "test drive" the relationships. However, most female live-ins view living together as a prelude to marriage or a life partnership.

    So sorry, I just can't get very enthusiastic about privatizing marriage. It doesn't sound like it would do much for women.

    • When you suggested that it might be ushering in a new era of male privilege I had to re read your post to grasp where you were and where you saw things going based on the article. I agree that the idea would alter many working definitions of gendered discourse(s), and hence how feminism, among other isms, would be re-defined.

  18. I think this is definitely the way to go but why the restriction to 2 people? Many other countries and religions recognize various forms of plural marriage. If we're talking about voluntary contracts why should the government be able to restrict the number of people who are party to that contract?

  19. Government has no business interfering in the private lives and private decisions of individual citizens. The same-sex marriage issue has been posed by this government as just another means to force citizens into two hostile camps so that our rage is directed at each other rather than at those in power. Divide and conquer has always been the effective strategy of tyrants, who love to drum up issues to distract us from themselves.

    Don't think that our country is somehow different because we have a Constitution. This country was set up as a Republic, where individual liberty was of paramount imoportance. But it has devolved into a Democracy, a form of government that is favored by power-hungry people who use it to give citizens the illusion that they, instead of the powerful, have a say in what tyrant rules us.

  20. I am waiting for someone to drop the Orientalist equivalent of the 'Islam' bomb by suggesting that downgrading marriage into a civil contract is the death knell of Western values and Western feminism as a double entendre where politics is concerned. Do any other 'feminists' notice the absence of this train of thought put forth by the posters before me? Anyone else find that absence to be a concern?

  21. I'd argue that the bill does not go far enough. On what basis does the state purport to legally privilege "unions" of two unrelated persons, and those unions only, out of the multitude of human relationships? If procreation is no longer the basis, why exclude related persons or persons of a certain age? If religion and morality is no longer the basis, why exclude polygynous unions? And if it turns out there no longer is any basis at all, shouldn't the argument be for abolishing the statutory privileges associated with domestic partnerships altogether, rather than expanding them? Marriage would then return to an entirely private affair governed by contract and the common law.

  22. Lily Foss says:

    The thing is though, same-sex marriage is already legal in New Hampshire. This seems like just another way for Republicans to take the word 'marriage' away from gay couples.

  23. Republicans may actually be doing a good thing here. France implemented a choice of Civil Unions or Marriage for straight people. Civil Unions are actually overtaking marriage in popularity in France. Loads of people who grew up in broken homes and people burned by divorce. The French also like that if they do want a "divorce" there isn't the same drama with getting out of a Civil Union. It takes under an hour. The only losers are the divorce attorneys

  24. The irony here is delicious. For all of their talk about defending marriage, American conservatives may just end up killing it altogether. France did what the Republicans are trying to do. The result is that civil unions are becoming more popular than marriages

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