Marriage Privatization - Advocacy - Public Policy Advocacy and Academia

Public Policy Advocacy and Academia

In 2007 the Center for Inquiry, a secular think tank, released a position paper authored by analyst Ruth Mitchell titled "Same-Sex Marriage and Marriage." The paper argues from the separation of church and state that as long as marriage is available to heterosexual couples it ought to be equally available to LGBT couples. Nevertheless, the position paper claims that state endorsement of civil unions for both types of couples is the most appropriate policy in light of separation of church and state.

The argument for marriage privatization has also been formulated in academic scholarship. In 2008 an argument for marriage privatization appeared in the public policy journal Public Affairs Quarterly. In that issue philosopher Lawrence Torcello offers a detailed model of marriage privatization based on the later political writings of the 20th century political philosopher John Rawls. The article is titled "Is The State Endorsement of Any Marriage Justifiable? Same-Sex Marriage, Civil Unions, and The Marriage Privatization Model.'

In the 1993 book Political Liberalism, Rawls argues that arguments in a pluralistic society must be hashed out in terms that all members of that society can understand if not endorse. This means that in making public claims one must refrain from religious or otherwise controversial metaphysical claims that cannot, in principle, be equally endorsed by reasonable persons. In doing this, one is relying on what Rawls refers to as public reason.

In his article, Torcello claims that any state endorsement of marriage represents an inappropriate public endorsement of a comprehensive religious or otherwise metaphysical doctrine, which underlies any particular definition of marriage. Accordingly, taking public reason seriously leads to the idea that legalization of same-sex marriage may be just as neutrally unbalanced as its ban. In place of the public institute of marriage, Torcello, like Dershowitz, argues that civil unions providing the full extent of marital benefits under law ought to be instituted for both heterosexual and homosexual couples. According to the argument, such civil unions ought to replace the current legal institute of marriage. Once privatized, marriage is open for individuals to define and embrace or ignore as they see fit, within the scope of their private religious or philosophical belief systems:

No religious model that rejects same-sex marriage would be required to perform same-sex marriages under this privatized model. Under this model a couple, either heterosexual or homosexual, would obtain a civil union in order to have public and legal recognition of their partnership; they would have a private marriage ceremony if they so chose in order to honor their private religious or philosophical concept of marriage.

In a July 2008 article appearing in The Monist titled “Privatizing Marriage” Harvard Law Professor Cass Sunstein and University of Chicago economist Richard H. Thaler offer arguments for the privatization of marriage. Thaler and Sunstein also take up the topic in their co-authored 2008 book Nudge: Improving Decisions about Wealth, Health, and Happiness. Sunstein and Thaler argue for marriage privatization among other positions under the heading of what they call “Libertarian Paternalism.”