We cannot escape the fact that marriage is
an intrinsically public institution. We can’t avoid making collective
decisions about its meaning and purpose. If we don’t do it explicitly,
we will end up doing it implicitly.
As a libertarian myself, I have been quite
disappointed that the “default” libertarian position on marriage has
become little more than a sound-bite: “Let’s get the state out of the
marriage business.” With all due respect, this position is unsound.
I will not be able to respond to this sound-bite with another
sound-bite. The issues surrounding marriage are too deep. But I am not
deterred from trying to persuade thoughtful readers who are up to the
task of following a complex and unconventional argument wherever the
search for truth may lead.
I make three points in this series of articles. First, in today’s
article, I show that it is not possible to privatize marriage. Second,
in tomorrow’s article, I show that the attempt to privatize marriage
will not result in an increase in freedom, but will actually increase
the role of the state. Finally, in the third article, I show that
attempting to privatize marriage will perpetrate great injustices to
children. Any of these reasons is sufficient to put an end to the “get
the government out of the marriage business” mantra. All three of these
reasons taken together form a compelling case for absolutely opposing
the redefinition of marriage and for working tirelessly to create a
robust cultural norm of one man, one woman, for life.
“Get the government out of the marriage business,” or its close
cousin, “Leave it to the churches,” is a superficially appealing slogan.
When I hear this, I often get the feeling that it is a way of avoiding
the unpleasant dispute currently raging over the proper definition of
marriage. I sense that its proponents are hoping we can remove this
whole contentious topic from the public square and put it into the
private sector. Each person or group can have its own version of
marriage. The state, with its powerful coercive instruments, need never
get involved in resolving this seemingly impossible stalemate.
While I understand this impulse, I believe it is fundamentally
misguided. Taking a stand on the purpose and meaning of marriage is
unavoidable. Here is why.
Marriage is society’s primary institutional arrangement that defines
parenthood. Marriage attaches mothers and fathers to their children and
to one another. A woman’s husband is presumed to be the father of any
children she bears during the life of their union. These two people are
the legally recognized parents of this child, and no one else is.
The grandparents are not; the former boyfriend is not; the nanny who
spends all day with the kids is not. These two hold their parental
rights against all other competing claimants. This is an intrinsically
social, public function of marriage that cannot be privatized.
You might reply, “Dr. Morse, your understanding of marriage is all
about parenthood, and not about marriage itself. Not every marriage has
children, after all.” And it is perfectly true: not every marriage has
children. But every child has parents. This objection stands marriage on
its head by looking at it purely from the adult’s perspective, instead
of the child’s. The fact that this objection is so common shows how far
we have strayed from understanding the public purpose of marriage, as opposed to the many private reasons that people have for getting married.
If no children were ever involved, adult sexual
relationships simply wouldn’t be any of the state’s business. What we
now call marriage would be nothing more than a government registry of
friendships. If that’s all there were to marriage, privatizing it
wouldn’t be a big deal. But if there were literally nothing more to
marriage than a government registry of friendships, we would not observe
an institution like marriage in every known society.
Perhaps libertarians might concede that marriage attaches children to
their natural biological parents. They might even agree that this is a
fine and necessary thing—and then try to imagine that the institution
now known as marriage could be replaced by private agreements among
prospective parents. I will argue later that this policy will inflict
serious injustices on children. For now, I want to show that it is an
illusion to think that these contracts can dispense with any and all
state involvement.
Disputes that arise between the contracting parties must be resolved
by an overarching legal authority. Let’s face it: that overarching legal
authority always will be some agency of the government. “Getting the
government out of the marriage business” amounts to refusing to define
marriage on the front end. But the state will end up being involved in
defining what counts as a valid marriage or parenting contract, on the
back end, as it resolves disputes. We cannot escape this kind of state
involvement.
No-fault divorce provides an analogy. No-fault divorce allows one
party to end the marriage bond for any reason or no reason. In effect,
the state redefined marriage by removing the presumption of permanence.
Marriage became a temporary arrangement rather than a permanent union of
a man and a woman. No-fault divorce was supposed to increase personal
freedom.
But the result of this legal change has been state involvement in the
minutiae of family life, as it resolves disputes over custody,
visitation, and child support. Family courts decide where children go to
school, or to church. I’ve even heard of a family court judge choosing a
teenaged-girl’s prom dress because the divorced parents couldn’t
resolve the issue.
Married spouses disagree with each other over all sorts of issues, of
course. But it is literally unthinkable that the state would be
involved in resolving these kinds of disputes in an intact marriage. One
might have thought that no-fault divorce would “get the government out
of the divorce business.” In fact, it did no such thing. The government
got out of the front end of deciding what counted as a valid reason for
divorce. But the government reappeared on the back end, in a far more
intrusive form, as it decides how to divide family assets and resolve
post-divorce conflicts.
Furthermore, “leaving marriage to the churches” is a fantasy. At this
point in history, churches are not the ultimate legal authority for
anything. There is exactly zero chance that the state will permit
religious law to be the legal authority for its members on issues such
as custody, visitation, and child support. In fact, the “Lifestyle Left”
has spent considerable energy marginalizing the churches, reducing even
further their ability to shape the behavior of their members and
influence the wider society. They’ve done this, I might add, with
scarcely a peep of protest from libertarians.
Even if the state did grant churches binding legal authority over
their own members, the state would still be drawn into disputes between
people in mixed religious marriages, as well as people of no religion at
all. Thus, what appears to be “leaving it to the churches” will be in
fact no such thing. The state will end up shaping people’s behavior by
how it chooses to resolve the disputes that will inevitably arise.
Finally, getting the government out of the business of giving out
marriage licenses does not mean that the government will be completely
neutral with respect to kinds of relationships. The government is
already deeply involved in many aspects of human life that affect
people’s decisions of what kind of relationship to be in. For instance,
government’s policies regarding welfare, health care, and housing have
contributed to the near-disappearance of marriage from the lower
classes, not only in America, but throughout the industrialized world.
Miss Octo-Mom, to take a specific example, thought it was in her
interest to give birth to fourteen children without ever even having a
relationship with a man, much less being married to one. Surely
government policies had something to do with her decision-making.
Agencies of the state provided her with income support, free medical
care, the use of a stranger’s sperm, as well as legal assurance that
said sperm donor would never show up and bother her. Every one of these
policies has implied views about marriage. If libertarians ever succeed
in getting the government out of all of these areas of life, maybe we
can talk about making the government “neutral” with respect to marriage.
Until then, forget it.
In short, the idea that we can get the government out of the marriage
business in the early twenty-first century is an illusion. Marriage
performs an irreducibly public function, of attaching mothers and
fathers to their children and to one another. Given the current scope
and size of the government’s activities, the state cannot be completely
neutral with respect to different types of relationships.
We simply cannot escape the fact that marriage is an intrinsically
public institution. We can’t avoid making collective decisions about its
meaning and purpose. If we don’t do it explicitly, we will end up doing
it implicitly. “Privatizing marriage” is impossible. Adopting this
position on the marriage issue as an attempt to avoid conflict is
unworthy of thoughtful adults.
But the attempt to do the impossible is not harmless. In my next
article, I will show that “getting the government out of the marriage
business” will actually amount to an increase in the size and scope of
the government.
Jennifer Roback Morse, Ph.D., is the Founder and President of the Ruth Institute, a project of the National Organization for Marriage Education Fund. She is the author of Love and Economics: It Takes a Family to Raise a Village, available in paperback and digitally at the Ruth Institute store.
