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These three policies can be summarized as follows:

Recognize only marriages between a man and a woman.

Recognize same-sex and opposite-sex marriages.

Don’t recognize marriage of any kind, but leave this role to private associations.

In addition to marriage laws, states can adopt civil union or domestic partnership laws that grant legal protections, inheritance rights, hospital visitation rights, and child custody arrangements to unmarried couples who live together and enter into a legal arrangement. A number of states have made such arrangements available to gay and lesbian partners. In 2003, Massachusetts, by a ruling of its Supreme Court, became the first state to accord legal recognition to same-sex marriage (policy 2). In 2008, California’s Supreme Court also ruled in favor of a right to same-sex marriage, but a few months after the ruling, a majority of the electorate overturned that decision in a statewide ballot initiative. In 2009, Vermont became the first state to legalize gay marriage by legislation rather than by judicial ruling.23

Policy 3 is purely hypothetical, at least in the United States; no state has thus far renounced the recognition of marriage as a government function. But this policy is nonetheless worth examining, as it sheds light on the arguments for and against same-sex marriage.

Policy 3 is the ideal libertarian solution to the marriage debate. It does not abolish marriage, but it does abolish marriage as a state-sanctioned institution. It might best be described as the disestablishment of marriage.24 Just as disestablishing religion means getting rid of an official state church (while allowing churches to exist independent of the state), disestablishing marriage would mean getting rid of marriage as an official state function.

The opinion writer Michael Kinsley defends this policy as a way out of what he sees as a hopelessly irresolvable conflict over marriage. Proponents of gay marriage complain that restricting marriage to heterosexuals is a kind of discrimination. Opponents claim that if the state sanctions gay marriage, it goes beyond tolerating homosexuality to endorsing it and giving it “a government stamp of approval.” The solution, Kinsley writes, is “to end the institution of government-sanctioned marriage,” to “privatize marriage.”25 Let people get married any way they please, without state sanction or interference.

Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want…. Let couples celebrate their union in any way they choose and consider themselves married whenever they want…. And, yes, if three people want to get married, or one person wants to marry herself, and someone else wants to conduct a ceremony and declare them married, let ’em.26

“If marriage were an entirely private affair,” Kinsley reasons, “all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage.” Kinsley suggests that domestic partnership laws could deal with the financial, insurance, child support, and inheritance issues that arise when people co-habit and raise children together. He proposes, in effect, to replace all state-sanctioned marriages, gay and straight, with civil unions.27

From the standpoint of liberal neutrality, Kinsley’s proposal has a clear advantage over the two standard alternatives (policies 1 and 2): It does not require judges or citizens to engage in the moral and religious controversy over the purpose of marriage and the morality of homosexuality. Since the state would no longer confer on any family units the honorific title of marriage, citizens would be able to avoid engaging in debate about the telos of marriage, and whether gays and lesbians can fulfill it.

Relatively few people on either side of the same-sex marriage debate have embraced the disestablishment proposal. But it sheds