Divorce and the Privatization of Marriage

Slate's David Boaz offers a simple solution to the gay marriage debate: privatize marriage. The state, Boaz explains, should treat marriage "like any other contract: The state may be called upon to enforce it, but the parties define the terms. When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties." The brilliant thing about this solution is that it has the potential to do much more than satisfactorily resolve the gay marriage debate. It could also help address a major social ill: divorce.

Empirical research over the last several decades has demonstrated that divorce has very negative consequences for children. Children of divorce are more likely to develop behavioral and psychological problems, perform poorly in school, and experience long-term financial instability than children whose parents remain married. Part of this difference can be explained by the prior characteristics of parents who choose to get divorced in the first place, but researchers agree that a non-trivial portion of the difference is caused by divorce itself. Despite this disturbing data, all 50 states have "no fault divorce" laws (i.e. divorce-on-demand), and defenders of "traditional marriage" have done little or nothing to challenge these laws. The general feeling among legislators seems to be that since states set the terms for marriage, those terms must be flexible and permissive enough to accommodate a wide spectrum of Americans.

The privatization of marriage would allow individual couples to circumvent the "no fault divorce" laws, and to set their own terms for contract termination. Undoubtedly a large segment of the population would continue to make it easy to dissolve the marriage contract, but religious organizations such as the Mormon and Roman Catholic churches could be expected to demand stronger terms for the marriages they sponsor. Even some non-religious Americans might opt to protect themselves against nonchalant contract dissolution. In short, the privatization of marriage would not only allow liberals their Constitutional freedom for social innovation, but would also allow conservatives to implement stronger, socially-beneficial safeguards in their own, more traditional marriages.