Finally, New York legalized gay marriage. I'm happy gay couples are now treated the same as straights, but the victory will be bittersweet. After all, gaining the ability to marry means being subjected to state control over your personal contracts. ... I wish the state would get out of the marriage business. Marriage should be a private contract. Legal issues that marriage raises --like inheritance, alimony, visitation rights in hospitals --can be handled through voluntary contracts between consenting adults.On the surface this seems like a reasonable stance, one to which I must admit I used to be party to. There are just a few big problems with this.
First, the marriage contract itself confers upon the participants approximately 1 400 rights and privileges that they did not have while single. Furthermore, not all of these rights can currently be secured by private contract. As such without state-sanctioned marriage same-sex couples cannot possibly have all the same rights and the lengths to which they must go to enumerate and obtain the available rights via private contract would be onerous.
Second, issues concerning inheritance, health-care decisions, and child custody to name a few become more open to lawsuit under private contract. There is I believe in the case of terminally ill individuals a greater incentive, and greater possibility of success, for relatives claiming their rights as the next of kin to invalidate such same-sex private contracts through the legal system. While marriage does not eliminate such problems (see Terry Schiavo case) it does severely mitigate them.
Third, when such conflicts do arise how are they resolved? They go to arbitration which generally means they end up in court. Yes, it would be nice if all contracts were honored and all parties acted in good faith; but even if that is the case there may be some instances where the meaning of a contract is open to interpretation. Even Ayn Rand realized this and set up such a quasi-governmental system in her book Atlas Shrugged:
We are not a state here, not a society of any kind -we’re just a voluntary association of men held together by nothing but every man’s self-interest. I own the valley and I sell the land to the others, when they want it. Judge Narragansett is to act as our arbiter, in case of disagreements. He hasn’t had to be called upon, as yet.Randian naivete aside, even in the world of private contracts it is assumed that disputes will arise and a method for resolution is put in place. This is an activity for which the judiciary already has the infrastructure, precedence, and experience necessary. So why make this more difficult than it needs to be? While Stossel’s vision isn’t totally without merit, it is without practicality.
Incidentally, I have seen this line of thinking as an argument against the extension of marriage to same-sex couples. That is, same-sex couples should simply sign a mutually agreed upon contract*. Such reasoning has never been very convincing to me since anything less than full marriage rights cannot, by definition, confer full marriage rights upon its participants.
Oh and by the way, congrats to my home state.
*as if marriage itself isn’t a mutually agreed upon contract