Marriage and limited government

The following is from the Winter 2010 issue of the Harvard Journal of Law and Public Policy:

Although some libertarians propose to “privatize” marriage, treating marriages the way we treat baptisms and bar mitzvahs, supporters of limited government should recognize that marriage privatization would be a catastrophe for limited government.   In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability. As absentee fathers and out‐of‐wedlock births become common, a train of social pathologies follows.   Naturally, the demand for governmental policing and social services grows.

…Strengthening the marriage culture improves children’s shot at becoming upright and productive members of society.  In other words, our reasons for enshrining any conception of marriage, and our reasons for believing that the conjugal understanding of marriage is the correct one, are one and the same: the deep link between marriage and children.

In an idealized world where government simply does not respond to increases in a demand for services, the argument above would not be relevant.  But in the world we actually live in, it makes a lot of sense.

18 thoughts on “Marriage and limited government

  1. But we wouldn’t be getting rid of marriage in the case that Jason and others have proposed. We’d only be getting rid of state run marriage. Do you think that the incidence of marriage would go down without state sanction?

    1. I wonder what the Constitutional basis is for the idea that the federal government should be picking and choosing which “cultures” to implement in law? I myself thought it was part of the point that those things were left at least to states, if not to the individuals whose doings comprise the culture in question. Is the idea really that we look to the Harvard Journal for advice on how we may coerce each other?

  2. How does the government ceasing to dictate which marriages shall be recognized translate to the dissolution of the structured family? Moreover, is this to imply that the structure of family has somehow NOT been disintegrating over the past half-century? The above stated position is woefully lacking in substance and/or evidence, and ignores the various destructive culture wars that have historically resulted from giving government contol over peoples’ familial and/or moral behavior and decisions.

    1. The issue isn’t about government recognizing some marriages and not others. It is about people seeking to call relationships marriages that are not marriages.

      1. I don’t deny the truth of the position that marriage is essential to a successful society. I merely take issue with the notion that somehow government can implement this policy without stepping into the murky realm of dictating culture. Furthermore, I don’t see government as a relevant factor in peoples’ decisions on what to consider a marriage. If homosexual couples declare themselves and present themselves as married, with or without a government paper attesting to that fact, they will be considered married by those who choose to do so, and will not by people who choose not to. So too, the lack of a government paper will not stop heterosexual couples from declaring themselves married, not will it deter society from regarding then as such. Most people are not dependant upon the government to provide their moral views as to what constitutes a proper union and family. Therefore I find it unlikely that privatization of marriage will have a significant effect upon our nation’s moral fabric. However, even if that were the case, the notion that widespread acceptance of homosexual unions will negatively effect our society, while possibly correct, in no way overrides the freedom to contract, anymore than would the obvious negative effects of Islamization override the freedom to worship or assemble.

  3. I have to heartily disagree here on both practical and ethical accounts.

    Firstly, it doesn’t seem clear to me that removing barriers to marriage in the form of state licensing would decrease the number of marriages. In fact, I would expect the opposite to be true.

    But on a deontological note; I’m not really sure government should be in the business of endorsing cultural norms – particularly when it comes to marriage. You could use the same aforementioned logic to push for laws MANDATING marriage or even OUTLAWING divorce.

    You can make a point (although I believe a weak one) that state-controlled marriage provides for a more productive citizenry – but I don’t believe the endgame for most libertarians is simply having a more productive citizen.

    1. I think the US Constitution is (among other things) an exercise in choosing and endorsing a particular set of cultural norms—many of them implicit, but there nonetheless.

      1. If that’s so, the norms the choosing of which it expresses don’t make any allowance for picking and choosing cultural norms other than those you see it as expressing. But I don’t think it primarily an expression of cultural norms at all. That sophistic path is a way to it saying whatever you want it to say. Conservatives seem to be keen on that path when it is useful to them and “constitutionalists” when it is not.

      2. Yes, there is no such thing as the neutral liberal state – but the state many of us libertarians want is one dedicated to protecting individual liberties (namely, property rights broadly understood) and little else. It seems like the state should protect all contracts between consenting adults (except for those which alienate inalienable rights or threaten the government’s ability to protect property rights – like tech transfers between citizens and foreign states) without deciding which ones it agrees with and which ones it does not. So the state should recognize and protect marriage contracts. That means that you simply want the state to define what marriage is in a more restrictive fashion than others – but on what basis? If religious, then we have problems since we want the liberal state to avoid partiality to any one religious (or non-religious) view. So I think you are left with either Jason’s position (no state marriage) or state recognition of gay marriage (at least in some states). And I think that is the real world you ask us to consider since I have a hard time believing that Americans at large will accept a nationwide position in which gay marriage is outlawed even if some states want it. Are you ok with the federalist alternative to no state marriage?

      3. But I much prefer the Constitution to the ideal liberal state conceived of by many idealists.

        One reason is that even though the libertarian state I would define would look somewhat similar to the one you would define, I am also conservative, in that I don’t think we are well served by tossing aside universal, age-old social institutions for the moral whims of the moment. That is a kind of intellectual hubris that doesn’t serve libertarians well.

      4. Sven,

        Indeed discarding the old in the name of the new could serve us poorly – but only to the extent that the new is deficient in regards to our principles (whatever they may be). An appeal to novelty may be crass, but appeals to antiquity are often crass for the exact same reasons. In instances where transitions represent a high cost coupled with little certainty, a conservative mindset might be warranted. In contrast, to have had a conservative stance on, say, slavery would have served no one by both libertarian and current conservative standards.

      5. I very much agree that all that is old is not good, and all that is new is not bad.

  4. There are many benefits provided by the state in its recognition and regulation of marriage. These benefits are designed to strengthen the economic basis of marriage and in its role as the proper arrangement for raising children.

    De-constructing marriage, as we have done over a long period of time has led to high rates of out of wedlock births with all the resulting social problems that causes. Washington Post columnist Colbert King has recently taken up this cause and provided statistics to show that those DC wards with the highest number of single mothers have the highest crime rates, lowest school graduation rates, highest drug use, highest AIDS rates, and more.

    Departing from the historical definition of marriage recognized by the state (one adult, unrelated woman to one adult unrelated man) will further the decline of marriage by creating too many options. We now have domestic partnership, civil unions, common law marriage (in some states) and are proposing to add marriages between two members of the same sex.

    The arguments now being used to argue for allowing homosexuals to marry are increasingly being used by proponents of polygamy, polyamory, abolition of age of marital consent and even to argue that incest is harmless if the participants are adults and no children result. I don’t see how these other groups are denied given that the “rights” arguments have been very successful.

    What happens is that all of these choices become viewed as equally valid. What do you do with children who are abused, neglected, or abandoned by a group of “married” individuals? How are “divorces” conducted? What about inheritance issues? The state will have to step in, so by removing state sanction of marriage as we know it will not avoid state involvement.

    While it is true that some individuals will be adversely affected by the retention by the state of the historical definition of marriage, the alternative looks worse.

    1. What exactly is the causal story by which a policy that is not in place is responsible for the problems you cite?

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