Free Forty Million Americans: Privatize Marriage
Or When Premises Collide

by Stephen Safranek

by Stehen Safranek

Civilization is built upon the family. It is the primary relationship within which all values are transmitted to future generations. From the family grows the clan and the tribe, and ultimately the city and the state. Although this idea of the beginning of the state may not be recognized in the 21^st century, the concept of marriage and family is at the heart of a political and social debate throughout America and beyond.

Debate about marriage is necessary because its costs and consequences impact all of us. It is at once the most personal and the most public of acts. In the debate about marriage, those who stand for "traditional" marriage and those who want to adjust that term to modern times all work within a worldview that places the state at the heart of the debate. Into that debate we must inject the view that persons, and voluntary groups of persons should not have their behavior mandated by the state.

The failure to allow voluntary organizations to help manage marriage is perhaps understandable, but it is the core source of many of the problems we confront today.

Marriage is an ancient institution; like all human institutions it works best when the parties involved know that their various investments will be respected and the intention of the marriage contract enforced. This is the essence of "purposeful behavior" as viewed by economists such as Murray Rothbard.

We do not willingly invest in relationships or businesses if we do not have a reasonable expectation that our investment will be safe and realize the type and kind of profit we expect. Through most of human history marriage has been the institution that was used to ensure the safety of the children and the perpetuation of subsequent generations; an expensive endeavor. The idea of natural rights was not at issue, marriage was originally formed before any known system of philosophy and before any understanding of the causality described through economics. Indeed, it was marriage that gave rise to economics not vice versa.

The current chaos surrounding marriage cannot be resolved by more state action. Instead, if the state uncouples itself from marriage and allows persons to be "purposeful" actors in marriage, many of the problems with marriage will be resolved.

Marriage is an institution in which humans invest enormous capital; it is therefore important that those investments be protected. Indeed, marriage may be for some an investment that will last for more than 50 years. Consequently, like long terms bonds on public works projects, stable expectations are critical. The term capital here cannot be narrowly conscripted as cash or its equivalents. Instead, capital is the entire process in which persons invest themselves.

Marriage involves three critical personal, social and legal aspects all of which are "capital" investments for those entering marriage. First, marriage always includes a series of agreements and compromises between the two or more persons involved in a marriage projecting into the distant future (contract). Second, marriage naturally gives rise to the birth of children who must be nurtured by the parents (children). Third, marriage may involve the most intimate joining of two persons who have become one (commitment or covenant creating a status). All three of these elements, contract, children and covenant, have long been considered part of marriage in America. Historically, the law was arranged to promote and protect these three aspects of marriage.

A variety of laws promote and protect these aspects of marriage. Children born within a year of the death of a husband are legitimate heirs (children). No person even has the ability to disprove this fact except the mother. Children born within marriage are the children of the parties. An outsider does not have the power to prove otherwise (covenant). Spouses cannot testify against each other even if one of them wants to do so (covenant). Adults must give consent to be married (contract). A party to the marriage can terminate it in the state in which they reside (covenant as status). Some or all of these three aspects of marriage are generally intended in and created in every marriage.

Because the present state model takes no account of covenant, externalizes the value of children and asserts its own view of the contract, marriages fail at exceedingly high rates.

To understand why this is taking place we must examine how this happened.

For centuries the Catholic Church was the arbiter of the dissolution of marriage in Europe. Marriage was a life time commitment. At that time, all three elements of marriage were specifically recognized legally and therefore dissolution of marriage was limited to those instances when a real covenant was not seen to have occurred at the moment of consent, i.e. an annulment was given. When England broke with the Catholic Church, the long established and considered rules created by the Catholic Church were largely followed. These rules were essential in such an age. Without stable rules surrounding marriage, the most valuable things a parent could leave a child or spouse, real property, would be destabilized. And, since the descent of such property was largely based upon relationship to an heir, marriage was important. Henry VIII could have sired a child in many ways. However, only in marriage could he sire a legitimate heir with real property and inheritance rights.

By the time America freed itself from English rule, America did not control the dissolution of marriage through a particular church. Practices of marriage dissolution, such as those followed by the Puritan Church, were giving way to civil solutions. In America marriage dissolution was early on considered a matter of legislative power, i.e. a "bill of divorce" was granted.

This public route was deemed necessary in early America because marriage was considered a public good and therefore its dissolution needed to be for the common good. This idea, collectivist in nature, denied to individuals their contract right and ignored the covenant many had made. However, its purpose was clear – to protect other citizens from having to care for children or a spouse unable to care for themselves. As typically occurs, the creation of this "public good" led to the sense that all incidents of marriage were completely under state control – ignoring economics and natural rights. The rights of any persons joined in marriage were deemed to be state issues.

The consequences of this state model are perfectly predictable. When racial discrimination was a central part of politics, states prohibited persons of different races from marrying. When the eugenics movement swept across America, criminals and those deemed unfit were prevented from marrying or were sterilized to prevent their "breeding."

Marriage’s legacy in America has therefore been one of complete state control of marriage and its incidents. Although Adam Smith's Wealth of Nations was published just as the Revolution was beginning in 1776; the Austrian understanding of human action works made no impact on this issue and still is absent today. Instead of human action and choice, the heavy hand of legislation is the only tool used to shape marriage.

The importance of human choice has never been revisited in such a way as to reveal the conflict of premises between individual choices and state mandated ones. The fallacy that the state knows the good of two persons as a "public good," and the popularity of utility theory, tools for wealth transfer, were gaining acceptance.

By the middle of the 1800's America had placed divorce in the hands of the courts and approximately 100 years later in the 1960's, beginning in California "no-fault" divorce swept through America. Both state court determinations – based upon "fault" and "no-fault" – ignore the principles upon which American government was founded; the right of the individual to determine for themselves what forms and contracts best served their needs.

Interestingly, although divorce has gone through these different stages, marriage – the allowance of it and what it means to people and who could perform it – have been quite stable. Most people knew what was expected; most honored the commitment because of the social and personal costs of failing to do so. Common law marriage has been known since time immemorial. In order to eliminate the need to "prove" that a marriage had occurred, states increasingly disallow "common law marriage" and require a license to be married. This is one of those innovations made for the benefit of proof – nothing is considered a better piece of evidence than a signed license registered by the state. Such licenses are remarkably easy and inexpensive to obtain. Furthermore, the actual marriage can be witnessed by a variety of persons including priests and ministers. The "marriage" laws of most states encompass a few short statutes setting forth age and relationship limitations. These limitations go to the ability of the individual to make informed choices before an agreed age and to cultural values common to nearly all human cultures.

Today marriage – the legal creation of the state of being married – through a license is one of the easiest legal events of great significance.

The ease with which marriage is contracted fails to make participants aware of the weight and significance of the contract they are signing.

Dealing with problems upon the dissolution of marriage or disputes that may arise even within marriage can be incredibly complex. The more a marriage actually encompasses contract, children and covenant, the more difficult a dissolution is to manage. Because the raising of children is complex, a vast array of laws and supervision is required when dissolution of such marriages occur. Covenant and contract are also complex. "No-fault" dealt with those complex realities by imposing a one size legal norm – contract and covenant are of no legal importance. It was the imposition of a Soviet Standard much like the USSR handled the production of clothing in the 50s; one size, one color, and it hardly fits anyone. But some profit from this apparatus – state divorce courts have grown to prodigious levels, an array of social workers, therapists and other "experts" are enriched by the divorce bonanza ushered through state divorce gates. These courts and these experts hold virtually every family in their jurisdiction in complete control – their judgments can be disturbed only upon a showing of an abuse of discretion. The inscription on those courthouses should read like the inscription on the gates Dante places at the entrance to Hell, "abandon all hope, ye that enter there."

In dissolution proceedings no-fault generally takes account only of the financial aspects of contracts. Labor, sacrifice, and the complete giving necessary for marriage are deemed a gift to the marriage and cannot be compensated. Yet, when, as is necessary, a woman relinquishes a job in order to have children and care for them, the foregone financial opportunity of the wife is not compensated for by the husband who agreed to have children. The countless acts of self-sacrifice necessary to a good marriage are deemed of no importance by the law.

When one party files for divorce that party cancels the covenant and any long term agreements. The life the couple has lived is deemed essentially "even" no matter how much fault is involved. Promises made and promises broken are of no merit.

No-fault was instituted in the 1960's on the promise of making a painful process easier. The argument in favor of those laws was straightforward: people are getting divorced; requiring people to prove fault or to fight each other over the incidents of marriage was messy (besides some people were making up "fault" in order to get divorced); simple, clear rules will make it easy for those who want to get divorced to get divorced; therefore we should have no-fault divorce. This message resonated throughout legal America and led to a simplification of divorce laws. However, this simplification failed to take into account many facts about marriage and how divorce and marriage affect society.

While jettisoning the notion of fault, legislators ignored the underlying premises on which marriage law rested. Instead of contract, children and covenant, marriage was seen as a choice to be unchosen at any time – no questioned asked. In so doing, no-fault ensured that the purposive activity necessary for healthy marriages was valued as nothing. Both natural law and Austrian economics can predict the outcome of such laws.

Anytime individuals engaged in ongoing relationships can retain their profits and sever their liabilities, the motivation to do so is great. Human nature being what it is; no-fault divorce provided a justification for the least ethical to take and even secret assets and depart. Moreover, its very structure encouraged even those who were ethical to be less so by rewarding fault and bad faith.

No-fault divorce has worked as promised for those who bring little into a marriage, commit little in the marriage itself and have no children. In such marriages – marriage as simple barter – the divide the goods in half and send the adults on their way mentality serves the ends sought by the proponents of no-fault divorce. Indeed, parties to such marriages often consent to the dissolution in a short hearing, sharing the minimal filing fees. This simplicity has allowed many to treat marriage as a frivolous Las Vegas event that can be dissolved when seen in the sobering light of main street USA; but in so doing it has allowed us to confuse completely different types of marriages. Vegas marriages hold little capital and so couples were never at risk of loss during the marriage.

Yet, good stable marriages and the raising of children require huge risk. Marriages that involve children, contract and covenant are nevertheless treated legally in the same manner as the Las Vegas marriage. Because the law treats marriage as no-fault, but because people recognize that marriage involves covenant, contract and may involve children, rational people are discouraged from marrying. Other rational people who enter marriage do not have children and do not take risks – thereby ensuring that the marriage will never be capable of becoming what it can become. Moreover, those who do not want covenant, contract or children are actually encouraged to marry – no-fault says you have a free way out. Given these three rational responses, divorce rates have predictably risen.

When states adopted no-fault dissolution laws, they failed to account for the ability of the law to shape attitudes and actions. Nobody was prepared for the tsunami of broken families swept into domestic courts or the assets gobbled up by courts, attorneys and other forms of loss. The legislatures came up with an idea and applied it to America's families without even considering that those families deserved at least as much consideration as a rare species of lizard. No one thought of mandating an Family Environment Impact Report. Nobody thought of even preserving a few families in Human Life parks or Zoos where traditional marriages could be observed.

Theory was applied directly to the lives of millions and the theory, unexamined for the potential impact, ignored the reality of a marriage as a vehicle for holding the capital investment of two individuals making a shared investment unique to that couple. In fact, no contract built on a collectivist model can work for any specific couple.

Virtually nobody predicted that countless marriages involving children would dissolve. Nobody predicted that numerous long time marriages that appeared happy to everyone and to one of the spouses would end in dissolution. Nobody predicted that nearly 50% of all marriages would fail. No-fault created a devastating legal reality – marriage was no longer attached to contract, commitment or children. Instead, marriage was about autonomous fulfillment that could be judged by either spouse at any time in the marriage.

As marriage continues to be shaped, society itself will be reshaped to deal with the new situations created by these new realities. What the "no-fault" proponents failed to recognize, the new marriage proponents fail to recognize all the more – marriage is easy, the consequences of marriage including its dissolution are not. Marriage as mandated by the State today destroys the capital of trust, embeds deceit and mangles lives.

Throughout America, hundreds of thousands of cases are managed by divorce "judges" and social workers who must monitor custody, visitation and support of minor children. Putting that kind of power into the hands of individuals who are all too human invited abuse and such abuse has become endemic. The number of divorce and custody cases has reached dizzying heights. Even the direct costs of this tsunami are staggering.

In Michigan, a majority of all the active civil cases in state courts involve marriage dissolution. Some statistics show that the direct cost of divorce is $350 per family/year. But the present and future indirect costs dwarf this figure: costs borne by parties for lawyers, lost worker productivity, increased crime activity, increased mental illness and a host of unknown consequences. The public – even those who choose not to marry, and those who choose to marry with commitment and children – bear these costs.

Antagonism and distrust across gender lines and within families is also rising. One of the costs of no-fault divorce is the very fabric of family trust and continuity.

It need not be so. Nothing prevents the state from loosening its control over marriage and a movement for reform in the direction of individual rights and intermediate institutions is both needed and developing.

One of the most important and beneficial ways marriage reform can occur is to allow individuals to choose their own private marriage contract – along with the means, outside of the State, to mediate and enforce that contract.

One such movement could take place within Catholic and Jewish churches. Both of these institutions have established courts and procedures to deal with marriage issues. The TrueMarriage project is currently encouraging Catholics and others to establish clear agreements and procedures to adjudicate marriage issues.

Because the variety of commitments often involve concepts specific to certain faith communities, the state must allow alternative dispute mechanisms in those communities. This is a natural role for churches, which have always been a source of stability in the lives of individuals. These organizations would judge the marriage that the party entered. Thus, those who want a Baptist marriage could agree to be bound by the standards of a chosen Baptist denomination. Catholics, Evangelicals, Jews, and other religious groups could do the same. Moreover, a variety of private institutions could develop forms and standards to satisfy the needs of other people. And, those who like the state system could continue to choose nothing at all, though I suspect those so choosing would be few. Such freedom would ensure that the state is not imposing its Vegas concept of "marriage" on those who marry. Instead, the parties to the marriage, like all who enter significant contractual relationships, could create a contextualized process resolving disputes that arise in the relationship.

Perhaps the most difficult issue in the development of such institutions is cost. Each organization would have to develop a pricing mechanism for those entering marriage in order to "insure" for marital disputes. The actual costs of dissolution and costs of monitoring a divorce or separation with children would be difficult to fully calculate. But it could be done. Each organization would need to determine for itself how the cost of covenant breaking would be imposed and upon whom it would be imposed in the dissolution proceeding. To some degree, it would become clear over time which form of marriage was less expensive. However, one significant public problem remains in the marriage debate – children?

Currently, every family in America pays the cost associated with children of divorce. Not only do married and single citizens pay for the court system, they pay for the long term social costs of the dissolution. It is impossible to calculate the cost of divorce on children – to monetize it. How does one measure the effects of divorce on children over their lifetimes and the lifetime of their children? An accurate calculation could take generations.

Yet, this calculation was previously done. Previous generations – for generations and generations – thought that the costs of divorce were generally too great for society to bear. Thus, those who entered into marriage could not remove themselves from it, or could only do so in circumstances that were rare. This was the calculation done on the real costs of marriage, the costs discounted by the move to no-fault divorce. Certainly, faith communities and those willing to commit to main street marriage should not have their purposive activity ignored.

Even though the specter of "no-fault" hangs over all marriages, most Americans still believe in and want enduring marriages. Knowing that a marriage may be more difficult to destroy, and knowing that one's actions – virtuous actions oriented to achieving a lasting commitment and vicious action oriented toward breaking a commitment – have real consequences will only lead to more enduring marriage. Rewarding good conduct will encourage more of it as honorable behavior encourages trust and the investment of further relationship capital into the future.

When our investment in marriage is easily destroyed, it is natural that we reconsider whether or not marriage is purposive today. As issued by the State it is not; it is an agreement whose dissolution transfers wealth into the hands of those who have grown like barnacles on the whole system. We created these encrusted constituencies because we failed to use the principles of natural rights and the insights gained from an informed understanding of how markets impact human choice.

Strong marriages, even more than well run prosperous businesses, provide the capital for a more stable and prosperous future for all of us. Through our choices, given the freedom to choose, we can ensure that the stable family life that so many want is within their reach.

No excuse exists for allowing a state structure of divorce – worthy of the former Soviet bloc – to limit what is arguably the most purposive human activity.