Without marriage, every aspect of a couple’s relationship would have to be contractually worked out from scratch in advance. This may — or may not — prove to be an onerous inconvenience (some people speculate that companies would start marketing canned contracts to couples). But without licenses or registration for marriages, many things, including establishing paternity, would get really messy. When a couple is in a recognized marriage, the children in their custody are presumed to be theirs — either because they bore them or adopted them.
Privatizing marriage, maintains Kuznicki, would mean giving up this presumption. This would create havoc, especially if a marriage breaks up. “[You’d] get a deluge of claims and counterclaims about child custody and paternity, as parents fought either to establish or relinquish custody without any clear advance guidance from the government about how they will be treated,” he insists. “It is hard to imagine the state being more in a private family’s business than this.” This is not mere speculation. Partly to avert such problems and ensure that children are taken care of, pre-liberal communities that govern marriage by religious norms give a great deal of say to family, neighbors, and village elders in every aspect of a couple’s life.
What all of this suggests is that privatizing marriage can’t sidestep the broader questions about who should get married to whom and under what circumstances.