Get Government Out of Marriage

Reality TV star Kody Brown recently went to court in an attempt to invalidate Utah’s anti-polygamy law, reigniting a conversation about plural marriages that many thought was a settled issue back in 1890, when the Church of Latter-day Saints banned the practice among the only sizable American religious sect that ever condoned it in the first place. Brown and his four “sister wives” argue that Utah’s draconian law infringes on their right to associate in an atypical family structure – which it does. The obvious solution is simple: get government out of the marriage business.

“Marriage” means a lot of things to a lot of people. Some subscribe to a traditional view of marriage in which a man and a woman form a mini-kingdom; the man brings in the treasure and makes executive decisions, while the woman manages the day-to-day of the household. Even this “traditional” view varies widely by culture. Post-feminism, that view of marriage has been eclipsed in Western thought by a different relationship in which a man and woman are equal partners building a life together on their own terms. More and more people today are realizing that same-sex couples can enjoy the same kind of relationship with great results.

Yet, the government only recognizes one kind of marriage, and it has developed a particular set of laws governing who may participate in it and to what extent. But why is the government involved at all? In 2003, the Supreme Court struck down Texas’s archaic anti-sodomy law under the premise that citizens possess a freedom of “intimate” association that is protected under the 14th Amendment. If we can sleep with whomever we want in whatever way we please, why can’t Kody Brown form a familial partnership with four women, every one of who agrees happily to the arrangement?

Society is moving beyond rigid, traditional social institutions and into a diverse panoply of personalized relationships. Open relationships, polyamorous relationships, relationships that turn gender roles on their heads – these are all tolerated in modern Western civilization. People create new ways to structure their lives according to their unique needs and build relationships with others on their own terms, rather than bending their desires and personalities to established social expectations.

American marriage law uses the traditional Christian rubric to determine its rules. Except in a handful of states, a marriage is one man and one woman. In custody agreements, mothers are given preference. Sexual fidelity is expected from both parties. But it doesn’t have to be this way, and as society becomes more heterogeneous the law must change to meet the needs of a more diverse population. From the government’s perspective, marriage should just be a contract. Let people draw their own terms.

Photo Credit: david_shankbone

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Jason Orr

Jason is a student at Harvard Law School and writes on legal and policy issues. A 2009 graduate of the College of William and Mary, he worked at the Institute for Justice in Arlington, Virginia, before reentering academia. Jason's views have been published in a number of print and online news outlets, including the Washington Post and the Daily Caller.

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