Russell Blackford and I have corresponded by blog post briefly on the topic of marriage as a state-sanctioned institution. When he collected his thoughts on the topic for an opinion piece, he let me know it was there. I read along, generally finding a lot to agree with. I didn’t know we were in more or less the same page on most of these topics, but given some of the other details on which we each turn a skeptical eye on marriage, I wasn’t surprised.
I was slightly surprised to see that Russell was in favor of retaining a role for the state in marriage:
Frankly, I have no good, principled answer. However, I do not see it as a practical option for the state to withdraw from the field of marriage entirely – at least not any time soon.
Current liberal democracies do not start with a clean slate. Though marriage and its social meaning have changed dramatically over time, the institution has a long history, very widespread public acceptance, and much emotional significance for the majority of citizens. A move by the state to get out of the marriage business at this stage of history would have a different impact from merely declining to provide a system of state-recognized (and registered) marriages in the first place. It is not a practical policy position.
For the foreseeable future, marriage will continue as an important institution, though its meaning may undergo further changes. In most of the world’s jurisdictions, it also provides a raft of legal benefits, including the many that follow from the parties becoming next of kin. Though marriage is no longer assumed to be permanent, it remains an expression of strong commitment, and the legal formalities provide a way for the state to bless and glorify it. Those are the facts on the ground, and policy must take them into account.
It isn’t incompatible with anything Russell has said previously, but it is a more moderate position than those often taken by skeptics. The notion that states should remove themselves from the marriage business posthaste is hardly unheard of. It’s not the position I’d have taken, but it’s there, which merited my mild surprise.
Then I got to thinking a bit more about the concept of “next of kin”, specifically what rights it entails and what it has meant historically. The more I thought about it, particularly in the context of medical and legal proxies, the less I’m comfortable with these decision-making functions being automatically transferred by a marriage certificate.
Next of kin proxy status has always had potential for abuse by those who don’t have our best interests at heart, whether that be our parents who refuse to see us anything other than extensions of themselves, children with potential conflicts of interest in inheritances, or controlling or estranged spouses. The concept is problematic in itself.
As we think about what marriage has come to mean in modern times, we add another complication. We no longer treat marriage as primarily a merging of financial interests and household or family management. That means we no longer choose spouses (or have them chosen for us) based on those considerations, which in turn means that the person we choose to marry may not be the best person to represent our interests in those matters.
While the person I married because he made me happy is someone I trust to handle those matters, the same may not be true for everyone. So even as we move toward marriage equality and allowing all people to automatically move toward having their chosen next of kin recognized, the modern meaning of marriage suggests that we should also move toward creating strong proxies for our decision-making that have the weight of law behind them.
Even as we open state-sanctioned marriage, we should make it less useful. We should divorce more of the benefits of marriage from the institution itself. That many people would choose to make their spouses their proxies doesn’t subtract from the benefits of divorcing (as it were) the two roles.
There are, of course, additional benefits that may keep marriage a government institution for a while, but this particular one may well serve us best by being made separate.