The State Can’t “Get Out of the Marriage Business”

April 30, 2012

In the last few years, some libertarians have responded to the ongoing fight between conservatives and liberals about whether to redefine legal marriage by asking, why is marriage the state’s business in the first place?

Via Wintery Knight, Jennifer Roback Morse has a new series of three articles explaining why the libertarian “third way” is not an option:

“Privatizing Marriage Is Impossible”

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.

“Privatizing Marriage Will Expand the Role of the State”

Yet attempting to do the impossible is not harmless. Assigning the state an impossible task amounts to giving it a blank check.

“Privatizing Marriage Is Unjust to Children”

The primary business of the state is justice. Because children cannot be autonomous, adult society has an obligation in justice to provide institutional structures that protect their most basic interests.

My favorite for a logical, thorough, concise defense of (legal) traditional marriage is still this National Review editorial.  It argues against both the liberal redefinition (to include same-sex couples) and the illusory libertarian alternative:

Although it is still a radical position without much purchase in public opinion, one increasingly hears the opinion that government should get out of the marriage business: Let individuals make whatever contracts they want, and receive the blessing of whatever church agrees to give it, but confine the government’s role to enforcing contracts. This policy is not so much unwise as it is impossible. The government cannot simply declare itself uninterested in the welfare of children. Nor can it leave it to prearranged contract to determine who will have responsibility for raising children. (It’s not as though people can be expected to work out potential custody arrangements every time they have sex; and any such contracts would look disturbingly like provisions for ownership of a commodity.)

If anyone reading this still favors the libertarian “privatization” option, I would simply ask, what happens to the children?  I can guarantee you that not everyone will draw up a contract before producing offspring.  When someone dies without leaving a will, the law distributes his property in a standardized way, presumed to be what the average person would have wanted.  When, say, a couple breaks up, what will be the standardized way of dealing with children?  Is there any way it will be more efficient, less intrusive, or better for the children than simply having marriages licensed in the first place, as they traditionally have been?


Related entry: “Yes, Marriage Is worth Defending”

3 Responses to “The State Can’t “Get Out of the Marriage Business””

  1. Snoodickle Says:

    The National Review argument is so stupid it makes my head spin. Of course people can draw up private contracts allocating parental rights. They do all the time. If they don’t, or if they want out of a contract they have entered into, a statute or court allocates those rights. If two parties were to enter into a marriage contract, the parties would have joint custody and decision making over any children born of the marriage. If they want out of the contract, they file for divorce, and they either agree on allocation of parental rights or a court decides. What am I missing here?

  2. […] up in.  If you are able and willing to contemplate abstract ideas beyond the level of that video, I recommend National Review and Jennifer Roback Morse, who explain this at more […]

  3. Sure it can. Traditional marriage, same-sex marriage-government should not be involved in either.

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