Why Privatizing Marriage Won’t Work

Most of this post was originally published as Government & Marriage: Answering Libertarians. I’m republishing it under a different name because after the Supreme Court ruling on marriage the issue of getting government out of marriage has once more been raised as a solution to the same-sex “marriage” debate. Those who have wanted—and still want—to get government out of the marriage business are in denial of the importance and widespread influence of legal regulation of marriage. Not only that, but the horse has left that barn, and there’s no closing the door now!

To bring this issue up now also reflects a naive lack of understanding of the intent of many leaders and advocates of same-sex “marriage” to use the strong arm of government to impose legal recognition and approval of their lifestyle. And for some advocates Christians have always been in the cross hairs.

As time permits I will do a new post on why privatizing marriage won’t work and include some summaries and analysis of articles by Jennifer Roback Morse (see the bottom of this post), and other authors I have read on the topic. The arguments below are from the original post. Some, while not directly addressing same-sex “marriage,” are nevertheless clearly applicable. Ryan Anderson reiterates parts of the reasoning in Redefine Marriage, Make Government Bigger.

What Is Marriage bookmarked border…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. 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. (My emphases are in bold).

…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 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.

Signing the Register Edmund Blair LeightonThe 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 Those benefits however, are based marriage as the conjugal union of a man and a woman. We’ve lost a great deal through SCOTUS redefining the legal definition of marriage, but that’s for a later post.

Diamond Border

Related articles by Jennifer Roback Morse at The Witherspoon Institute Public Discourse:

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.
__________
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.
Signing the Register: Edmund Blair Leighton.

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