While most of the football team’s worth of Republicans running for president have reacted to the Supreme Court’s same-sex marriage decision with straightforward rejections, Rand Paul decided to get cute about it. “Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party,” he argues in an editorial in Time. “So now, states such as Alabama are beginning to understand this as they begin to get out of the marriage licensing business altogether. Will others follow?”
Paul suggests that marriage shouldn’t be a standard-issue government contract but instead be treated like a business contract, written from scratch by couples for every new marriage. On the surface, it’s an appealing argument. Modern Americans in particular are infatuated with the idea that every relationship, like every person, is unique and individual, which is why weddings have become a competitive sport of self-expression. Why not extend that mentality all the way down to the details written into the wedding contract?
Paul’s plan to privatize marriage rather than share it with gay people is reminiscent of how segregationists reacted to Brown v. Board of Education. Rather than allow their children to go to school with black students, white people throughout the South started private, often religious schools, nicknamed “segregation academies.” It wasn’t just schools, either. As my colleague Jamelle Bouie explained recently, the decline of the public pool is also a symptom of this reactionary urge to privatize an institution rather than share it with people who conservatives consider undesirable. That the same logic is being whipped out by Paul is no big surprise. This is a man who famously opposed the Civil Rights Act that made the “privatize instead of share” goal harder to achieve.
But although this strategy has a lengthy conservative pedigree, it’s hard to imagine it really taking off as a way to shut gay people out of marriage. If the government really did stop issuing standard marriage contracts and couples were forced to write their own contracts, all that would do is make marriage a privilege of those who can afford lawyers. It wouldn’t preserve marriage as a right for straight people—it would just turn it into a benefit for the wealthy. And those people already have an option to write a contract—called a prenuptial agreement—that supersedes the standard wedding contract, if they want. The only thing Paul’s brilliant plan would do is ensure that most Americans, gay or straight, would never legally marry at all.
Considering that conservatives are already up in arms about the out-of-wedlock birth rate, most aren’t going to be thrilled by a plan that ensures that the overwhelming majority of babies are born outside marriage. Paul’s gambit is a reminder of why libertarianism is a philosophy of angsty teen boys that withers upon contact with the real world.