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The Myth of Mandates

The Thoughtless Orthodoxy

The Priority of the Visible: How Democracy Empowers Terrorists

Ditching the M-word

Straight Talk about Economic Illiteracy

The Poverty of Good Intentions

Buddhist Capitalism

Theory Gets a Reality Check: Power, Money, and a Little Bit about Love

The Politics of Innocents





Ditching the M-Word

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Mayor Gavin Newsom of San Francisco made a bold move last January when he allowed gays to marry in San Francisco City Hall. A bold move, for certain, but perhaps not the brightest for pro-gay-marriage strategists: Newsom’s efforts, along with those of gay-marriage advocates in Massachusetts and elsewhere, were met in November by a furious backlash. In all 11 states where gay marriage was on the ballot, voters approved constitutional bans on gay marriage, some by double-digit margins. Gay marriage is now trapped in the crossroads of the culture wars.

However, this Gordian knot can be cut cleanly: remove the state from the business of marriage, allow individuals to freely contract with each other, make the government treat all contracts equally, and leave further blessings over “marriages” in the hands of religious institutions.


The privatization of marriage, as proposed by David Boaz, is an elegant solution to the gay-marriage problem. Allow individuals to contract with one another, with religious institutions legitimizing the contracts as they see fit, and have the state treat all contracts equally.

Marriage privatization, which amounts to the separation of love and state, would equalize gay and straight marriage without implying government approval of the former—which, for whatever reasons of loathing, misinformation, or traditionalism seems to be a political dead end.

Marriage did not become the province of the state until England passed the Earl of Hardwick’s Marriage Act in 1754. Until then, marriage was purely a religious institution. Boaz and others argue that we should turn back the clock; the sanctioning of marriage should not be under the aegis of state power, and we should consider marriage as a contract between two people. Instead of a one-size-fits-all conception of marriage, marriage should be a contract tailored by and for individual parties. Whatever type of contract a religious community wants to sanction would be left up to that community. With this arrangement, the gay-marriage controversy would end.

One objection is that the state does not want to get out of the business of marriage. One-size-fits-all marriage rights create uniformity in many other rights that are administered by the state: inheritance rights, visitation rights at hospitals, etc. Marriages, like titles to property, must now be registered. The state benefits from the registry, but how does it benefit from its control of marriage? The abovementioned legal and administrative functions can be accomplished just as well if marriage contracts, like all contracts, continue to be registered with the state; but if, as with other contracts, it’s up to the parties involved to establish the particulars, such as inheritance and other arrangements.

The other objection may, curiously, come from gay-marriage advocates. Viewing themselves as heirs of the civil rights movement, they often want public affirmation that gay marriage is legitimate, as part of their desire for public affirmation of the legitimacy of homosexuality. In effect, that is the view of marriage framed by Massachusetts Chief Justice Margaret Marshall in Goodridge v. Department of Public Health, the decision that legalized gay marriage in the Bay State: marriage for gays should be viewed as analogous to civil rights for African Americans. In short, there is a fundamental equalprotection right to marriage.

But the current alignment of votes on the Supreme Court will probably not permit this type of argument to be heard, let alone vindicated. Going before the Supreme Court and arguing on the grounds of equal protection might be the worst thing for gay-marriage advocates to do, since a negative Court decision would be binding on everyone.

Perhaps, then, gay-marriage advocates should stop using the m-word and start talking contracts. Adopting the language and conceptual framework of contracts is the first step toward privatization, and thus toward the end of a controversy that apparently and needlessly threatens the values of many, many straights. But the social peace that comes from depoliticizing marriage may not satisfy gay-rights activists. They may care more about the glory of a political struggle than either its likely outcome or the casualties incurred along the way.

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Anna Schwartz is a 1-L at Harvard Law School..






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