The every-fourth-year-ly hoopla about a certain politician whose name rhymes with "Don Tall" has brought into view a slogan (perhaps I may say a "canard") which evidently is this politician's position--namely, that "government should get out of the marriage business."
As so often happens in political discourse, as long as this is a slogan, it sounds good (I guess, to some people) but is contentless, and political enthusiasts repeat it mindlessly. So let's try to get a bit clearer. What would it actually mean to "get the government out of the marriage business"? As far as I can see, if we want to be clear, we should say instead that someone who advocates this thinks that civil marriage should be abolished. That doesn't sound nearly so unthreatening. It sounds rather radical, in fact. That's because it is.
At the federal level, abolishing civil marriage would mean abolishing all manner of tax statuses and social security connections. "Married" would no longer be a category under which you would file taxes, and "your spouse who cares for your minor children" would no longer be able to get any of your social security benefits after you die.
Really, this entry would get too long if I tried to list all the common law implications of abolishing civil marriage. If a "spouse" with no civil status greater than that of a common-law spouse were treated in cases of intestacy exactly as a civil marital spouse is presently treated, then the court would merely be reinventing the notion of civil marriage (to all intents and purposes), which would mean that the government was "in the marriage business" after all. If we really tried to be consistent with the notion that the government isn't "in the marriage business," then presumably in cases of intestacy the spouse (where "spouse" could not even be defined and could be understood only in terms of a person with whom one had gone through some private ceremony, perhaps in a church) would not have any special claim on the deceased's earthly goods. What would the court do to reinvent the wheel? Oh, I dunno. Maybe automatically give all the worldly goods to blood kin, treating the common-law spouse as a mere friend. Maybe grudgingly treat the common-law spouse as kin but only on a par with blood kin. Who knows? It would be the wild West of common law, hundreds of years of common law having been shaken up by the abolition of legal marriage. And the same, mutatis mutandis, for hospital visitation, rights of guardianship in the case of an adult's incapacity, and...oh, yes, children.
Now, young men, I'm speaking to you. I'm especially speaking to young erstwhile conservative men who, for some reason, have started taking the above slogan seriously. Maybe you've done this because of an increasing enthusiasm for "Don Tall." Think with me, here. Imagine that you are married and have a child. If you are already married and have a child, that will be easy to do. Guess what? If government were to "get out of the marriage business"--that is, if civil marriage recognized by the government were abolished--you would have no more presumptive parental rights over your child than if you had gotten your girlfriend pregnant without bothering to marry her. If that doesn't concern you, it certainly should.
Right now, married fathers automatically have parental rights. They are presumed to be the father of the child. They don't have to adopt their own child (there's a concept for you!). They don't have to present DNA evidence to a court to establish parental rights. If a court wants to challenge your parental rights as a married father, the burden is on the court to terminate or undermine those rights. The burden of proof is not on you to establish that you have those rights. Things are quite different if you are a single father, though just how different seems to vary a bit from state to state.
What if your wife were to die? Would you automatically be the person raising your child as a widower? You would now, if you are civilly married. That's because government is "in the marriage business." If civil marriage were abolished and the government did not automatically recognize your parental rights as a married father, who knows?
In case you haven't noticed, single mothers tend to have more trouble with CPS and other intrusive government agencies. If you're a libertarian, you should be thinking very hard about the protection that the remnants of government recognition of the family afford for the privacy of citizens.
Any thinking person who knows anything about law ought to realize (as this blogger, with whom I would doubtless have many disagreements, points out) that it isn't actually practically possible for the government to "get out of the marriage business." It's a fuzzy libertarian dream without any clear meaning. If civil marriage did not exist, the courts would have to invent it.
But as usual, some of libertarianism's worst problems arise when we start even thinking about children, and it's at that point that "the government should get out of the marriage business" becomes a true nightmare. (Well, if it weren't a nightmare enough to imagine yourself blocked from decision-making about the care of your dying wife because you're "just a friend" who only married her in a "purely religious" service.)
Can we scrap this slogan? Oh, and while we're at it, let's please, please scrap a similar idea that I've run into from one conservative or another suggesting that conservatives should "boycott" civil marriage. Do that, and you'll lose some of the few rights and freedoms you currently have left for your family. So don't do that.
The government should stay in the marriage business. Which makes it all the more important for conservatives not to sidestep the defense of marriage. He that hath ears to hear, let him hear.