Yes, Marriage Is worth Defending

Even from a Non-Christian Perspective

“Should We Defend Marriage?”

I’m sympathetic to the libertarian argument (made by many, including many Christians) that the state should completely get out of the marriage business.  From this point of view, we can avoid all the rancorous public fights over same-sex marriage, etc. if we can all agree that it’s not the government’s business whether a given couple (or group, in the case of polygamy or “polyamory”) is “married”.

Ultimately, however, I’m inclined to disagree.  Even judging only by non-religious utilitarian criteria, I think the state should recognize—and (if only by recognizing) encourage—marriage.  Think about it this way:

Traditionally, marriage is understood partly as a contract—a covenant, as you say.  The state does not (and cannot) comprehend the part of the covenant that involves God, but it can lay the legal foundation for marriage to be a binding contract between the husband and wife.  As C. S. Lewis says in Mere Christianity,

…those who are in love have a natural inclination to bind themselves by promises.  Love songs all over the world are full of vows of eternal constancy.  The Christian law is not forcing upon the passion of love something which is foreign to that passion’s own nature: it is demanding that lovers should take seriously something which their passion of itself impels them to do.

(book III, chapter 6, “Christian Marriage”)

Two people in love naturally incline toward promising to stay with each other through thick and thin—in a word, toward marriage—but without the involvement of the state, there can be no legally binding contract; in other words, the husband and wife would still be free to say they’d stay together until death did them part, but the promise would have no legal force, no enforcement mechanism.  It is my understanding that under the old at-fault divorce laws, part of the enforcement mechanism was that in divorce proceedings, judges would take, say, adultery into account when dividing up the couple’s property.  That is, a man could cheat on his wife—and then maybe he would be eligible for divorce, because infidelity was one of the legal grounds for divorce—but his wife would get all his stuff.  That’s a huge disincentive to break his promise—his original promise to his wife, his “I do”.  It’s not that I want people to be legally forced to stay together when they’d rather throw in the towel and separate, but the heavy penalty or disincentive for doing so will necessarily affect their thinking (even if only unconsciously, in the back of their minds) during the relationship, and make them less likely to feel like separating.

This is why even just changing our laws from at-fault divorce to no-fault divorce has already weakened marriage considerably—we don’t just need to defend marriage, we need to build it back up.  Bringing economics into this kind of thing has the potential to be reductive, but I think John Lott’s explanation is helpful here:

Suppose, for example, that a man wants to leave his wife.  With at-fault divorce, the husband must get his wife to agree to the divorce and essentially has to pay her for the right to leave the marriage.  The more that the wife has invested in the relationship, the more she will demand in compensation before she will let the husband have the divorce.  But no-fault divorce laws reverse this situation and greatly weaken the wife’s bargaining position—if the husband wants to leave, the wife has to bargain to try to convince him to stay in the marriage.

(Freedomnomics, page 165)

So, look at it this way:  Contrary to what the libertarians would wish, it is impossible for the government to be merely neutral toward marriages; through its laws, it will in effect put a thumb on the scale, either in favor of marriage or against it.  If the state refuses to help couples enforce the contracts which they, of themselves, want to bind themselves with, then the differences between men and women and just differences among individuals will make the incentives to end a marriage pile higher with every year that the marriage continues.  If, on the other hand, the state offers robust protection for marriage, it can help provide countervailing incentives to stay together through the years—again, as the couples themselves tend to want in the first place.

Look at it yet another way.  Some say that the state shouldn’t bring its coercive power into the sensitive, deeply personal world of marriages; from a libertarian standpoint, we have more liberty when the government restricts us less—in this case, when the government doesn’t restrict our free choice to stay married or to leave our spouse.  Yet, surprisingly, this argument goes both ways:  More liberty for me in the present—when, hypothetically, I’m married and considering divorce—means less liberty for me in the past, when I wanted to be free to bind myself with a marriage contract in the first place.  We can’t have it both ways; necessarily, the government’s actions will restrict our liberty at one point or the other.

Given all this emphasis I’m putting on liberty and choice, I am inclined to think that the legal innovation of “covenant marriage”, recently adopted in a few Southern states, is a good idea.  I haven’t followed those developments closely, but it is my understanding that, basically, a state which has long since changed from at-fault to no-fault divorce, without changing back generally, adds a second option for couples seeking to marry: “covenant marriage”, which can be dissolved only on certain grounds (adultery, physical abuse)—in effect, opt-in at-fault divorce.

In any case, yes, I think we should defend marriage, and we shouldn’t be embarrassed about it.  It’s something Christians, libertarians, and feminists should unite behind, if possible.  Barring that, I think we Christians have some solid, religiously neutral public-policy arguments on our side.