…marriage—we will show—has enough objective structure apart from spouses’ preferences, to be legally regulated.1
…As we deprive marriage policy of definite shape, we deprive it of public purpose.2
These two statements are from chapter one, “Challenges to Revisionists,” in What Is Marriage? Man and Woman: A Defense. I discussed the structure of marriage described in chapter two, “Comprehensive Union,” in No Longer Two, But One: The Structure of Marriage. and No Longer Two, But One: The Inherent Characteristics of Marriage. In chapter three, “The State and Marriage,” Sherif Girgis, Ryan T. Anderson, and Robert George turn to fully addressing both libertarians and the Left on civil regulation of marriage.
…some on the libertarian Right say that marriage has no public value, and call for the state to get out of the marriage business altogether. Voices on the Left say that marriage has no distinctive public value; they say that the state may work it like clay, remaking marriage to fit our preferences.3
Their answer to the libertarian Right is based on the objective structure of marriage and the public value of marriage:
By regulating marriage entry and exit, and by helping and sometimes requiring the government as well as individuals and civic institutions to treat certain groups 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 a 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? Firstly, 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 associations, 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.4
They undergird their argument by citing the benefits of marriage both to family members and to society at large. Marriage “tends to help spouses financially, emotionally, physically, and socially,”5 and children thrive best when reared by their married biological parents.6 Marriage also “helps create wealth, helps the poor especially, and checks state power.”7 Ryan Anderson reiterates some of their arguments in his commentary for The Heritage Foundation, Redefine Marriage, Make Government Bigger; when government ignored the structure of marriage by denying permanence was an inherent characteristic, the impact on society at large was devastating.
Indeed when the law redefined marriage by introducing no-fault divorce, it taught something about marriage: that it need not entail a real commitment to permanency. It used to be that divorce was issued for fault—the three A’s of common law: abuse, abandonment and adultery—but no-fault divorce allowed a spouse to divorce for any reason or no reason at all. And as a result divorce rates rose from single digits to nearly 50 percent.
And the costs were high.
A Brookings Institution study found that $229 billion in welfare expenditures between 1970 and 1996 can be attributed to the breakdown of the marriage culture and the resulting exacerbation of social ills: teen pregnancy, poverty, crime, drug abuse and health problems. A 2008 study found that divorce and unwed childbearing cost taxpayers $112 billion each year. Utah State University scholar David Schramm estimated that divorce alone costs local, state and federal governments $33 billion each year.
Libertarians who want to get government out of the marriage business are in denial of the importance and widespread influence of legal regulation of marriage.
Related articles by Jennifer Roback Morse at The Witherspoon Institute Public Discourse:
- Privatizing Marriage is not the Answer to the Same-Sex Marriage Debate March 10, 2009
- Privatizing Marriage Is Impossible April 2, 2012
- Privatizing Marriage Will Expand the Role of the State April 3, 2012
- Privatizing Marriage Is Unjust to Children April 4, 2012
The Heritage Foundation pamphlet, What You Need To Know About Marriage: Questions and Answers Driving the Debate, contains some of the same information and reasoning found in What Is Marriage? Man and Woman: A Defense. I highly recommend it as an overview of its main points.
My posts on the book, What Is Marriage? Man and Woman: A Defense, are more than a book review or report. Because I think the authors brings so much help and clarity to the ongoing debate on marriage, I’m working through their arguments to support or augment your own thinking on marriage. I recommend buying the book and working through it on your own, and I hope these posts spark your interests. If anything is unclear, please let me know. Any misinterpretations of the authors’ intents are obviously my own, and I will correct any that I discover. Previous posts on What Is Marriage? and references for this post are listed below the fold.
- “What Is Marriage?”
- A Marriage Debate At Cross Purposes
- An Overview of the Consequences of Redefining Marriage.
- An Outline of What Is Marriage?
- Redefining Civil Marriage Guts The Rationale For Civil Regulation
- No Longer Two, But One: The Structure of Marriage
- No Longer Two, But One: Inherent Characteristics of Marriage
Ceramic ornament used on the top of a wedding cake in Birmingham, England in August 1959, Andy Mabbett, Creative Commons Attribution-Share Alike 3.0 Unported license.
1,2,3,4, 5,6,7Sherif Girgis, Ryan T. Anderson, and Robert George, What Is Marriage? Man and Woman: A Defense (Encounter Books, New York NY: 2012) 16, 21, 37, 40–41, 44, 42–44, 42.