Apr
24
Should the State Get Out of the Marriage Business?
I have long said that, while solidly conservative, I have a libertarian streak. A small streak perhaps, but it’s there, in that I can at least sympathize with some of the thinking. Granted, I should probably do more reading to better understand certain libertarian positions. One of those is the suggestion that marriage is solely a private and/or religious institution, and the government has no call for setting rules and demanding licenses and such.
My instinct for limited government urges me to agree, but I needed to think it over more before backing the idea. As it happens, I am now reading the book What Is Marriage? (2012/2020) by Sherif Gergis, Ryan T. Anderson, and Robert P. George, and the chapter “The State and Marriage” has a section on this libertarian position. (Note, I believe the authors are all Roman Catholic, but their arguments are largely non-sectarian and (so far) with few references to Scripture.) I found it quite helpful in thinking the issue through, so I am sharing an excerpt below for your own consideration….
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“To be sure, civic associations should bear most of the burden (or, as we think, the honor) of upholding marriage culture. Churches, synagogues, mosques, and temples, schools and recreation leagues, Boy Scouts and Camp Fire [Girls], and countless other voluntary associations form each generation’s habits of mind and heart for marriage (and much else). Nevertheless, the state should lend a supporting hand. By regulating marriage entry and exit, and by helping and sometimes requiring the government as well as individuals and civic institutions to treat certain couples as a unit, marriage law sends a strong public message about what it takes to make a marriage — what marriage is. This in turn affects people’s beliefs, and therefore their expectations and choices, about their own prospective or actual marriages. The mutual influence of law and culture is confirmed by empirical evidence on the effects of no-fault divorce laws. But if easing the legal obstacles to divorce has had an effect, surely removing even the hassle and stigma of a legal divorce would. The state’s influence on marriage is extensive.
Indeed, it cannot be otherwise. Abolishing civil marriage is practically impossible. Strike the word ‘marriage’ from the law, and the state will still license, and attach duties and benefits to, certain bonds. Abolish these forward-looking forms of regulation, and they will only be replaced by messier, retroactive regulation — of disputes over property, custody, visitation, and child support. What the state once did by efficient legal presumptions, it will then do by burdensome case-by-case assignments of parental (especially paternal) responsibilities.
The state will only discharge these tasks more or less efficiently — that is, less or more intrusively. It can’t escape them. Why not? Because the public functions of marriage — both to require and to empower parents (especially fathers) to care for their children and each other — require society-wide coordination. It is not enough if, say, a particular religion presumes a man’s paternity of his wife’s children, or recognizes his rights and duties toward their mother; or if the man and his wife contract to carry out certain tasks. For private institutions can bind only their own; private contracts bind only those who are party to them. A major function of marriage law is to bind all third parties (schools, adoption agencies, summer camps, hospitals; friends, relatives, and strangers) presumptively to treat a man as father of his wife’s children, husbands and wives as entitled to certain privileges and sexually off-limits, and so on. This only the state can do with any consistency.
But more than inevitable or necessary, it is fitting that the state should do this. Consider a comparison. Why don’t even the strictest libertarians decry traffic laws? First, orderly traffic protects health and promotes efficiency, two great goods. Second, these goods are common in two senses: private efforts cannot adequately secure them, and yet failure to secure them has very public consequences. It is not as if we would have had the same (or even just slightly less) safety and efficiency of travel if people just did as they pleased, some stopping only at red lights and others only at green. Nor would damage from the resulting accidents (and slower shipments, etc.) be limited to those responsible for causing it. To ensure safe and efficient travel at all, and to limit harm to third parties, we need legal coordination. Indeed, it is no stretch to say that the state owes its citizens to keep minimum security and order; to these we have a right. Finally, unlike private association, the state can secure these goods, without intolerable side effects. All this makes it appropriate for the state to set our traffic laws.
In an essay solely on political theory we might argue the details, but here we can extract from this example a widely acceptable rule: If something would serve an important good, if people have a right to it, if private groups cannot secure it well, everyone suffers if it is lost, and the state can secure it without undue cost, then the state may step in — and should.
All these conditions are met in the case of marriage. Marriage is not just about private problems and rewards, for which private solutions are enough. At stake are rights, and costs and benefits (externalities) for all society. Rights, because wherever reasonably possible, parents are entitled to bring up their own children — and children have a right to their own two parents’ care, as affirmed by the United Nations Convention on the Rights of the Child. And externalities are in play because failed marriages burden innocent bystanders, including children and ultimately all society. As we have seen, not only is it impossible for private groups to secure well the interests at stake but it is also many times more effective, less intrusive, and less costly for the state to do so by reinforcing marital norms than by picking up the pieces from a shattered marriage culture. Finally, promoting conjugal marriage need not and should not involve prohibiting any consensual relationship. For all these reasons, libertarians should favor the regulation of marriage — which is, again, practically inevitable anyway.”
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I’ll be vacationing out of state next week, but I hope to have the next post prepped and scheduled before I leave. Continuing my excerpt from the What Is Marriage? book, it will take a look at the public/social benefits of marriage.
Meanwhile, if you have a favorite resource to suggest regarding this issue from a libertarian or other perspective, please share it in the comments.
