I have said many times that there is a simple solution tot he gay marriage debate, but when I explain both the right and the left thinks my idea is impossible. Still, since I have a forum of my own, I figure I should try one last time to explain how easy it is to solve the gay marriage debate.

Marriage is essentially composed of two parts, religious and civil. The religious element is irrelevant, as far as the state is concerned. Once someone has a marriage license, the state does not care what ceremony takes place, as long as a religious or civil official signs off on the license.

The civil component is the relevant part. This is the bundle of rights and responsibilities, as well as tax benefits and burdens, that concern the state. It is this part of marriage over which the fight has been waged to recognize gay marriage.

So, if one side wants the state to include gay couples in this bundle of civil rights and responsibilities and the other wants to limit those rights to only heterosexual couples, how do we resolve this argument without upsetting anyone?

My answer is simple: We get rid of marriage as a state function.
 
There is no reason that the state should be involved in marriage at all. Marriage may have many beneficial civil functions, but it is still at heart a religious institution, and we have generally shied away from involving the state in religious institutions. Marriage has been one of the few areas in which our secular government has involved itself in religious matters, and I think one in which the state should not be involved.

So, what would happen if the state were no longer involved in marriage?

Not much would change on the religious side, obviously. Churches, synagogues, mosques, and so on would continue to perform ceremonies as they did before.

On the civil front, the only change would be the elimination of legal recognition of marriage, and the end of marriage licenses. Instead, couples who wished to have the same rights and responsibilities of married couples would have to have lawyers draft contracts establishing those rights, rather than relying upon a state definition of the status of married couples. Of course, lawyers would probably soon develop a standard set of "marriage contracts", and the process would become cheap and easy, but it would become a wholly private matter, not part of the state.

And what would be the benefits?

First, marriage would no longer be up for debate. Religious groups could decide who they would and would not marry, as they do now. But in terms of civil rights, no one would be married. Gay couples, straight couples, polygamous marriages, and so on, all would be purely private matters covered by private contracts. The state would not care who lived together nor under what contract they did so. It would all be a purely private matter, and no variety of couple would have any more recognition from the state than any other.

Second, marriage would no longer be a one size fits all affair. There would be no state defined divorce law, no need for additional pre-nup contracts, the rights, responsibilities, property ownership, child support, and so on could all be spelled out in contract beforehand. Of course, some interpretation would be needed in cases where items were omitted, but in general, it would allow couples much more control over the terms under which they are married.

And what would be the downside?

I am sure some social conservatives will tell me that the state must be involved in marriage to preserve society, but I just don't see it. Marriage would still exist under my plan, it would just be a private affair, with or without religious figures involved, and have no state recognition. I just don't see how removing state involvement from marriage will lead to any social decay. If anything, by removing some contentious issues such as gay marriage and polygamy from public debate, I think it will help society , not hurt it.  By freeing people to pursue the dictates of their own conscience without government interference, it seems to be a benefit, not a loss.

On the other hand, I can see two very real areas in which problems will arise.

First, tax law will obviously need to change. Either tax law will need to recognize those under some form of marriage contract and allow for some form of joint filing, or it will have to completely ignore marriage and require every individual to file independently. The first choice creates a number of problems, as private contract would allow for group marriage, polygamy, polyandry, polygyny, and many even more complex forms of marriage, making recognition of such contracts a massive headache for the IRS. So, as long as we have a personal income tax, I would think my marital reforms would require that marriage no longer be recognized in taxation, and each individual pay independently. (This does create problems concerning dependents and child deductions, but those don't seem insurmountable, though they will require more thought than I can give at the moment.)

Second, employer insurance will obviously have problems dealing with the new private marriage laws. If an employee is in a gay marriage, or a group marriage, will the company provide insurance for the partner, or partners?

However, this is not an insurmountable problem either. It is only a problem now because we are so used to the state defining marriage, and mandating coverage by employers. When those conditions no longer apply, employers will begin to solve the problem for themselves, negotiating with insurers as to which marriages will and will not be covered, and so on. In short, once the state is no longer involved, private citizens will decide for themselves how best to proceed.

Of course I doubt this short essay has sold anyone on my answer. We are just too familiar with marriage as a state institution for our thinking to change quickly. Still, I think as long as marriage remains something defined by the state, we will continue to have rather heated arguments over what marriage actually means. Only once it becomes a private matter, between the parties involved (and their religious leaders, if any) will we see an end to the debates over what is and is not an "allowable" marriage.

UPDATE 04/01/2008

I wrote of a clarification of this post. It elaborates on parts of this post, as well as addressing some issues I ignored in the essay above.