New Hampshire Bill Would Abolish Marriage Licensing (Updated)

To my knowledge, HB 569 is the first bill ever drafted and introduced in a legislature that would abolish government marriage licensing. The bill is the brainchild of libertarian Republican members of the New Hampshire state house. Currently, New Hampshire has same-sex marriage, but with the current Republican supermajority in both houses of the legislature, that policy is in serious jeopardy.

The libertarian position on marriage is that it is a contract that should be recognized and applied by the courts, but that the government has no business, in general, decreeing who may or may not make the contract or imposing any prior conditions, as licensure does. (There is a libertarian case against recognizing consensual adult incestuous relationships.)

While some conservatives are making positive noises about HB 569, it has come under harsh attack from the left. Check out this discussion at the shrill left-wing site if you have the stomach. Democrats are insisting that the bill “abolishes marriage,” because it calls two-person unions “domestic unions” in the statutes. But since when did people define their marriage according to statute anyway?

Democratic opposition to getting government out of deciding who may and may not marry shows that their support for same-sex partnerships is not an issue of civil liberties for them, but instead of imposing their own cultural progressivism on society. Of course, there are surely some Democrats for whom this generalization is false, but in truth, the vast majority of at least the partisan, active Democrats are turning out to be hypocrites on this issue. They never sell same-sex marriage on the argument, “homosexual relationships are morally acceptable and socially desirable, and the government should give its stamp of approval on them.” But that’s apparently what they really mean. (Why aren’t they supporting government licensing of polygamous marriages?)

Now, to be clear, I don’t have any moral problem with homosexuality as such. (The rampant promiscuity of certain gay subcultures is another matter.) But that shouldn’t matter one bit. The government should not be taking moral stands on the issue. By deciding to license some marriages and not others, that’s precisely what government is doing.

Perhaps an analogy might help our progressive friends. Imagine that government is currently funding Christian churches, as some state governments once did. The government decides which churches meet certain doctrinal criteria and gives them a “license” that entitles them to benefits. As society becomes more religiously diverse, campaigners lobby for “church equality” – the government should also give licenses to synagogues, mosques, Hindu temples, and so on. Every house of worship should be recognized as a church and licensed, making them eligible for government benefits. Eventually the campaign succeeds, and government benefits are now available for churches of all religions.

A libertarian proposes a bill to get government out of the church licensing business; it wouldn’t abolish all government benefits for churches, since some of those are established by the federal government, but it would end the practice of deciding who does and does not count as a church. Christian conservatives are upset that Santerians and Scientologists now get to call their establishments “churches” and enjoy official government approval. Some of them support the libertarian bill as a best available compromise, while others insist on restoring “traditional churchdom.” Surprisingly, the left comes out harshly against the bill. “The bill abolishes churches!” they cry. “If government doesn’t tell us what is and isn’t a church, how will we ever know? Hands off my church!” In the background are underrepresented non-faith traditions such as deism and atheism. They aren’t religions, so they can’t have churches, so they can’t get licenses or benefits.

If you don’t think that the First Amendment’s establishment clause “abolishes churches,” then you shouldn’t claim that ending government marriage licensing “abolishes marriage.”

UPDATE: Denis Goddard tells me that the NH Freedom to Marry Coalition, which is generally more liberal and Democratic than either libertarian or Republican, backs HB 569. Good for them. This also suggests that the left is more divided on the issue than I supposed.

28 thoughts on “New Hampshire Bill Would Abolish Marriage Licensing (Updated)

  1. Oh yeah, the “live free and die” crowd want to abolish marriage. Hmmmmm that’s one way to deal with their zealotry.

  2. A quibble, Jason. You write: “But since when did people define their marriage according to statute anyway?” Isn’t the answer to this question something like “forever”? There is a mutual relationship between laws and people’s behavior; each influences the other. States have considered it in their interests to regulate marriage in various ways basically as long as there have been states, and I am confident that those regulations have in turn helped to shape people’s views about marriage.

    It does not follow from that that state regulation has been good or bad, but I think it is naive to think that people’s views about such an important social institution as marriage has not been shaped by their culture, one principal part of which is the state.

    1. Let me clarify what I meant by “defining your marriage according to statute.” Certainly, laws create incentives that affect behavior. The benefits and costs that law and court rulings have attached to marriage surely influence people’s decisions about whether to get married.

      But when my wife and I talk about our marriage, we don’t go running to the statutes to see how the law defines it. If the word “marriage” didn’t appear a single time in the entire state code, it wouldn’t affect our relationship one iota. Calling “marriages” “domestic unions” in the statutes does not seem likely to affect people’s incentives or behaviors at all. (For that reason, I’m also a little surprised that conservatives and liberals see the terminological issue as so important. But apparently they do.)

  3. I think that the influence of institutions like state regulations on marriage goes further than providing incentives for behavior. I think they can also condition people’s concepts as well. That is, I think that what people mean when they use terms like “marriage,” “domestic union,” “civil union,” etc. is informed largely by cultural and historical institutions. The state is one central such institution, though not of course the only one.

    So although I may agree with you that a mere terminological change should not have any real effect on how we understand ourselves and our relationships, I think that it can as a matter of psychological fact have such effect. And I suspect that may be partly why so many people, liberals and conservatives alike, battle over the terms.

  4. Great article and great report, thanks for sharing and your keen insight into this matter. I look forward to reading more.

  5. interesting…I bet if we switched to the FairTax….a system of taxation based on how much you consume rather than one that punishes success like the income and property tax system does…..we would likely see many of the financial benefits that allows government to regulate marriage licensing disappear

  6. “Marriage” means something. To most of us, it means a union for life, typically a parenting partnership, and typically a father and mother partnering. “Domestic Unions” do not mean all that–in fact, they are nearly undefined. If you are raised in a culture where there is no shared meaning of “marriage” or of “domestic union” then getting married is pretty much meaningless. Most people choose marriage because of what it means to the culture in which they have grown up–which has been fairly universal until very recently in the West (even polygamy shares the same core meanings).

    If legal definitions of marriage change now, of course current marriage aren’t necessarily affected–it is future generations that are potentially affected. Legal definitions will eventually trickle down into broader cultural definitions. Choosing a “domestic partnership” does not have the same understood obligations of fidelity, cooperation, team parenting, etc. that are implied with marriage. Of course, marriage isn’t always practiced that way (which is one reason some conservative people are concerned about divorce rates and infidelities, etc.), but that doesn’t change the marital ideal–at least not yet.

    Our society has much at stake for people marrying and loyally raising the next generation, and having a government willing to endorse such a practice only helps reinforce practices that have a social good. It does open the door to some sticky issues we are dealing with now on same sex marriage, but if the solution to those issues is to get out of the marriage business altogether, then society is not just metaphorically throwing the baby out with the bathwater, I fear.

  7. I have a few serious quibbles with this post. First, you claim “the liberatarian position on marriage is…” Do you really think yours is “the” libertarian position, rather than “a libertarian position?”

    Second, your statement “when government decides to license some marriages and not others,” you are evading the heart of the debate. It is not about government licensing some marriages and not others (such as the case when interracial marriages were illegal in many states). The debate is about the definition of marriage. To many, taking gender out of marriage is to take marriage out of marriage. Biologically, race is an extremely trivial human characteristic (indeed, many biologists dispute the very concept of human races). The same cannot be said of gender or sexuality. Even at a biological level (not to mention social or cultural), sexuality is very complex, having genetic, hormonal, anatomical, cognitive, and emotional aspects that are deep, profound and poorly understood.

    Finally, I think your conception of marriage as simply a contract/arrangement between two people is very simplistic and naive, not to mention profoundly ahistorical. Marriage is one of the most universal of all social institutions across all time and cultures, and governments have, almost as universally, been involved in the marriage business to one extent or another (though often through the auspices of the state church, rather than through statute). Indeed, the notion of marriage as a private contract is a very modern one and completely disconnected with the history of the institution. It does have some contractual elements, but until quite recently, it has never been considered solely a private affair. To do so profoundly diminishes our humanity.

    Many libertarians glibly advocate the elimination of government involvement in marriage as if it had no more import than the deregulation of rental car arrangements or the removal of licensing requirements for dog groomers. There is much, much more at stake here.

    1. Marriage since its inception has always been a religious construct. I concur however, that the idea of marriage being a “solely private contract” is a modern one.

      Just because governments eventually became involved in marriage, is not a good enough reason to maintain the status quo. Now to seek the government’s anointment before considering his or herself married is what truly diminishes one’s humanity.

    2. Been meaning to respond to this for a while, but only just now got to it.

      I take it to be a core principle of libertarianism – and, indeed, liberalism more generally – that government ought to remain neutral among competing conceptions of the good. No particular religion, philosophy, or way of life should be promoted or denigrated by the state, because to do so would be to force the citizens to fund the promotion of a particular, controversial viewpoint. (Nothing in this implies, of course, that the state should tolerate the non-accommodating acts of others, even if inspired by their conception of the good: murder, theft, fraud, etc.)

      By licensing marriages, government violates this principle. Licensing only straight marriages discriminates against gay people who believe that “marriage” legitimately includes them. Licensing gay marriages discriminates against conservatives who believe that “marriage” must exclude them. Both kinds of licensing discriminate against polyamorists. The only way for government to remain neutral among legitimate, competing conceptions of the good in marriage is to refuse to take a stand on the issue, to end licensure altogether. Instead, the government must treat marriage as simply a private contract, and enforce that contract. Of course marriage is “more than” a private contract. But the only legal status marriage should have is as a private contract.

      1. But are you assuming a strict devotion to the right being prior to the good is the only way to be a liberal. I would say it is one way, but certainly not the only way (in addition to the fact that it is extremely impractical and a vast majority of the population is never going to think this way about ethics or the role of the state).

        I would say Mill is liberal; certainly Smith and Jefferson (and many of the American founders) are liberals who wouldn’t adhere strictly to the notion that the state should be neutral about the good. Strong, non-neutral notions about the good are in the Declaration and the US Constitution. Many rule-utilitarians are strong liberals. Even Aristotle, with all his illiberal notions, certainly contains many of the seeds of liberalism.

        The right is part of the good, and the good is part of the right, and any attempt to claim otherwise or to claim that the state can be neutral is just philosophical gamesmanship.

        What makes one a liberal is a belief in liberty as the core (but not necessarily only) public value.

      2. I would take the priority of right over the good as essential to liberalism defined as a philosophical position. If liberalism is defined as a set of policy positions, or a basic standpoint that liberty should “count for something,” then I agree that this ethical perspective is not intrinsic to it.

        I would add that the position does not necessarily condemn government non-neutrality as a mere byproduct of other, legitimate functions. For instance, if by punishing human sacrifice government also happens to send the message that the Aztec religion is false, we’re just going to have to accept that. But in the case of marriage licensing, the whole point of having government involved is to send a moral message about private, consensual decisions. I think any philosophic-liberal, from Rawls to Nozick, would have a problem with that.

      3. The problem with your position, as I see it, is that you interpret “philosophic” so narrowly as to only include those who take the right as prior to the good–which rules out a lot of philosophers. For instance, Mill wouldn’t argue that the state should be non-neutral about the good, and I think it is a huge stretch to view him either as a non-liberal or a non-philosopher. I think a rule-utilitarian framework is a much stronger ground for liberalism than is some sort of mythical state of nature reasoning, ala Locke (though neither is the ground I would choose).

        Mill is on my mind because we are reading Ch. 5 of Utilitarianism (“On the Connection between Justice and Utility”) in my class this week. Here is a favorite snippet:

        “While I dispute the pretension of any theory which sets up an imaginary standard of justice not grounded on utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain classes of moral rules, which concern the essential of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life; and the notion which we have found to be of the essence of the idea of justice—that of a right residing in an individual—implies and testifies to this more binding obligation.” [emphasis added]

        Mill might agree with you on marriage if he were around today, but I don’t think he’d buy into the idea of a state that is neutral about the good.

        And licensing marriage does more than send a message about private, consensual decisions. You want to reduce marriage to a sexual contract between consenting adults, little different from a long-term relationship between a prostitute and her client. But, for most of history, marriage has been the set of interacting norms involving married partners, their children and the larger community that serves a primary purpose of the continuation of the species and one in which children require the training to become free and responsible adults.

      4. And where would we all be today if Smith had written a treatise called “On the Duty of Nations?” 😉

      5. Actually, IIRC, in On Liberty Mill more or less explicitly endorses the state neutrality view – I’ll see if I can find the passage. I concede, nonetheless, that this view is probably inconsistent with utilitarianism – after all, if gov’t can make people happier by incentivizing “better” lifestyles, then a utilitarian should have no fundamental objection.

        I agree that marriage has all the social functions you cite. But then, so does religion. In our system, religion’s only legal status is as a private, nonprofit association. A religious person might well object that religion is much more than that – a set of social understandings, indeed, a comprehensive framework for understanding the world and our place in it. Nevertheless, this fact does not logically imply that government ought to put its imprimatur on religion or certain kinds of religion, any more than marriage’s social meaning automatically implies that government ought to put its imprimatur on marriage or certain kinds of marriage.

        BTW, my favored interpretation of the 21st century marriage contract is that it has (almost) nothing to do with sex, and that its value really comes from resolving time inconsistency problems in households where people are making qualitatively distinct, temporally disjunct investments of effort and finances.

      6. Let me ask you this: is the US Constitution non-neutral regarding religion? I think it is in many ways, but in a fundamental way it is not because it singles out religions and religious practice. One could also say it protects us not only in our religion, but it protects us from religion. There are those who think that the separation of church and state is not a Constitutional principle, but I think it is.

        But for the state to be neutral regarding religion (such as not endorsing in any way one particular religion over another) does not make it necessarily neutral about religion in general. So the question becomes, what is a religion? Can a business enterprise be a religion? Can a club, a family, a group of friends, a school, a fraternal organization, a sports team? etc. etc. Freedom of religion and the separation of church and state only have meaning if the terms religion and church have some meaning (implying that some things are religions and some are not)

        Similarly, at the heart of the debate about marriage is the question of what marriage is. Some things are marriages, and some things are not. A relationship that does not involve two people of different genders might be many things, but it is not a marriage (at least that is the central claim). Gays have the same rights as anyone else. But that doesn’t mean their is such a thing as gay marriage that would have any legal standing or meaning. Certainly that view is contested by many these days, but just because it is contested doesn’t make it correct (that would be a different debate).

        A reasonable-sounding solution is for the state to get out of the marriage business altogether. But I think much of what gives marriage its import is that it has long been state sanctioned and licensed (in societies where the church is heavily integrated with the state, an additional state license would not have as much meaning). That such a sanction means little to some participants doesn’t mean it should mean little or that the state sanction is a minor part of the institution as it has long functioned in our society. In a way, the state sanction reaffirms the religious non-neutrality because it is a means for the state to say a Catholic wedding is the same as a Jewish wedding, which is the same as a Hindu wedding which is the same as a non-sectarian wedding. It ties different people in a pluralistic society together in a way that little else can.

  8. Personally, I don’t have any moral problem with heterosexuality as such. (The rampant promiscuity of certain straight subcultures is another matter.) Know what I mean? ; )

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