Tuesday, we reported that the state of Alabama is poised to pass a law that will simply eliminate the practice of issuing a state-recognized marriage license. The reason for this push centers around consternation on the part of state judges who don't want to issue marriage licenses to same-sex couples.
Set aside how you feel about same-sex marriage for a minute. What's wrong with the idea of "getting government out of the marriage business"? As a libertarian, I'm generally in favor of the government doing as little as possible, so what could possibly go wrong?
It turns out, quite a lot.
See, state governments are already intertwined in the marriage business, like it or not, and simply eliminating marriage licenses will not solve anything. Instead, it will throw millions of important everyday decisions that have for centuries proceeded in an orderly fashion into total chaos. See, being in a legally recognized marriage isn't just about living with another person; rather, it's mostly about simplifying decisions that people seldom think about until something tragic happens. State laws — including the laws of Alabama — include dozens (if not hundreds) of default positions built in that rely on the idea of a legally recognized marriage.
Here are some examples: If you die without a will (as an estimated 65 percent of Americans do), then Alabama law provides that your spouse gets most of your estate, in keeping with what most people's wishes probably would be if they sat down to think about it.
Likewise, if you die and you have children of a legally recognized marriage, then your spouse automatically gets custody — again, in keeping with what virtually everyone would want to have happen if they thought about these things ahead of time (they seldom do). Likewise, consistent with the law of virtually every other state, Alabama law establishes paternity with a presumption that the husband is the father of a child born in a legally recognized marriage, which is important in a whole host of settings. Moreover, Alabama law provides (consistent with most states) that your spouse has authority to make medical decisions on your behalf if you are ever incapacitated.
I could go on and on. Search for "spouse" in the Alabama code, and I'm sure you would find hundreds if not thousands of results. These laws reflect general societal expectations about who should be empowered to make important decisions, have custody of children, and obtain property/be responsible for debts in the event of death of a spouse.
If a state has no way to determine whether a person is in a valid marriage or not, it has no quick and easy way to answer a whole slew of questions that will immediately become grounds for endless litigation — to say nothing being completely unable to prevent things like bigamy.
But if these problems seem bad, the problems just get worse when you consider what would happen to couples who got married without a license if they decided to get a divorce.
Without a legally recognized marriage, it's not entirely clear how a legally recognized divorce would even occur in the first place. But even if you ignore this logical inconsistency, it's tremendously easy to foresee the abuse Alabama is about to subject its citizens to.
Imagine, for instance, attempting to divide property (even under an equitable division regime like Alabama's) that a couple obtained in a divorce if the more financially well-off spouse decided to just claim that they had never actually been married and therefore was entitled to keep all the property. A man or woman might well claim that they were just "shacking up" with the other person for the last 20 years and therefore are entitled to take all their stuff with them.
Without a marriage license to prove that a legally valid marriage actually occurred, you can expect that this will happen with regularity, especially since kicking marriage licenses (and their attendant requirements) out the door throws the door wide open as to what a legally recognized marriage even is.
The simple truth is, without a legally recognized and recorded marriage, there can't be a legally recognized and recorded divorce. And that presents a whole different (and more serious) set of problems.
See, as much as people generally want their spouses to inherit most of their estate and have authority over their medical decisions if they are incapacitated and so on, they really don't want those things to be true after a divorce. Very few people I know who have been divorced want their ex-spouse to still get most of their estate after they die. Almost no people want their ex-spouse to continue to have the ability to make life-and-death medical decisions for them (for obvious reasons). And the list goes on and on and on.
Sure, it's possible for people to still make sure their wishes are carried out by maintaining current wills and durable powers-of-attorney. People can do these things, but by and large they don't. How many people do you know who have current, recently updated wills and durable powers-of-attorney on file? I'm betting very few. And even if Alabama residents were advised that as a result of this law, they needed to go out and get them, a huge portion of the population still wouldn't, or wouldn't be able to afford a competent attorney for the job.
I suppose it would be at least theoretically possible for a legislature to remove the state from the marriage business in a manner that would not instantly create total chaos and upset the entire societal order. However, a bill that simply says that the state won't issue marriage licenses anymore does not get the job done.
Frankly, the entire Code of Alabama would need to be substantially rewritten as part of a thoughtful, deliberative process that ensured that people were not shocked and surprised when divorce or death happened. I suspect that if the Alabama legislature were to begin such a project, they would immediately determine that it was not worth the hassle, but maybe I am underestimating their commitment to not recognizing same-sex marriage.
However, what they are doing now is a bad idea that is being pushed through with little or no actual thought for how it will affect the every day citizens of the state.
