In Part One of this article I very briefly laid out some of my concerns about libertarianism in general. I noted that as a Christian I have various difficulties with it, and find myself more closely aligned with conservatism. And as one very much concerned about the institution of marriage, and the vicious assaults now on it, I must now examine why the libertarian position on marriage is unacceptable.
The main way in which I will do this is to simply make use of an excellent three-part article which has just appeared by marriage and family expert Jennifer Roback Morse. I have reviewed her helpful material elsewhere, eg.: https://billmuehlenberg.com/2003/11/11/a-review-of-love-and-economics-why-the-laissez-faire-family-doesn%E2%80%99t-work-by-jennifer-roback-morse/
Here I wish to just offer some choice snippets from these three very important articles. So here is some of her reasoning: “As a libertarian myself, I have been quite disappointed that the ‘default’ libertarian position on marriage has become little more than a sound-bite: ‘Let’s get the state out of the marriage business.’ With all due respect, this position is unsound….
“Marriage is society’s primary institutional arrangement that defines parenthood. Marriage attaches mothers and fathers to their children and to one another. A woman’s husband is presumed to be the father of any children she bears during the life of their union. These two people are the legally recognized parents of this child, and no one else is. The grandparents are not; the former boyfriend is not; the nanny who spends all day with the kids is not. These two hold their parental rights against all other competing claimants. This is an intrinsically social, public function of marriage that cannot be privatized.
“You might reply, ‘Dr. Morse, your understanding of marriage is all about parenthood, and not about marriage itself. Not every marriage has children, after all.’ And it is perfectly true: not every marriage has children. But every child has parents. This objection stands marriage on its head by looking at it purely from the adult’s perspective, instead of the child’s. The fact that this objection is so common shows how far we have strayed from understanding the public purpose of marriage, as opposed to the many private reasons that people have for getting married.
“If no children were ever involved, adult sexual relationships simply wouldn’t be any of the state’s business. What we now call marriage would be nothing more than a government registry of friendships. If that’s all there were to marriage, privatizing it wouldn’t be a big deal. But if there were literally nothing more to marriage than a government registry of friendships, we would not observe an institution like marriage in every known society.”
She concludes her first piece this way: “Finally, getting the government out of the business of giving out marriage licenses does not mean that the government will be completely neutral with respect to kinds of relationships. The government is already deeply involved in many aspects of human life that affect people’s decisions of what kind of relationship to be in. For instance, government’s policies regarding welfare, health care, and housing have contributed to the near-disappearance of marriage from the lower classes, not only in America, but throughout the industrialized world….
“In short, the idea that we can get the government out of the marriage business in the early twenty-first century is an illusion. Marriage performs an irreducibly public function, of attaching mothers and fathers to their children and to one another. Given the current scope and size of the government’s activities, the state cannot be completely neutral with respect to different types of relationships.”
In her second article she demonstrates how governments will get bigger if we privatise marriage: “The call to ‘privatize marriage’ is an attempt to transfer an important structure of the market—contract law—into the family, where it does not properly belong.
“The belief that we can solve the conflict over the definition of marriage by ‘letting the market decide’ is a confusion between the private and the public, a confusion between how marriage functions for an individual family and how marriage functions as a public institution. Perhaps an analogy to property law will help clarify the issue.
“Most libertarians have no trouble seeing that the system of property and contract law is something different from an individual’s personal property or a particular contract he might have made. Under an economic system of private property, people get to do pretty much what they want with their own property. But backing up all those personal decisions is a public system, administered by the government and sustained by the consciences and habits of the populace. The minimal but robust legal structure of private property makes possible a dizzying array of individual activity and a wide swath of personal liberty.
“The institution of marriage is comparable to the market system in this sense. We get to do most of what we want, most of the time, inside our marriages. No one comes to check up on us, unless we do something really egregious. The freedom of particular couples is supported by and made possible by the institutional structure of marriage and family law. Marriage provides boundaries on people’s behavior: you have sex with your spouse and no one else; you take care of the children born to you and your spouse; you respect the parenting decisions of other families. And until the advent of no-fault divorce, you stayed married, unless someone did something really awful.”
But as marriage and family break down further with the help of the sexual revolution, the state steps in more fully: “Every ‘increase of freedom’ turned out to be another episode of lawlessness. No-fault divorce, out-of-wedlock childbearing, and the early sexualization of children, all seemed like good ideas at the time, ideas that would free us by relaxing oppressive social and legal constraints.
“But lawlessness turned out to impose constraints of its own. Children suffered from loss of connection with their parents. Parents suffered from loss of connection with their children. And adults found themselves ever more lonely and unable to sustain meaningful long-term relationships.
“And who generously and kindly steps in to clean up the mess? Why, the state, of course. The government now involves itself in people’s private lives far more than it ever did in the dreaded fifties. When people got married and stayed married, they had a greater capacity to take care of themselves, their children, and the elderly in their families. And who has led the charge in the deconstruction of the family? Why, the ‘Lifestyle Leftists,’ of course.”
Her final article examines how children are harmed when we privatise marriage and seek to put all family relations in terms of contracts. “Contracts are not meant to establish permanent or unlimited obligations. Contracts are of limited scope and duration. Parenthood is, and needs to be, forever. This is the fatal conceptual flaw of the contract parenting model. That is why adoption is not a contract. No one signs an adoption ‘contract,’ where one party agrees to deliver the child to another, who then has rights to the child. No. Adoption confers parental status permanently onto someone.
“The second and even more fundamental flaw of the contract parenting model: it treats the child as an object, something to be negotiated over. Even a cursory look at these cases shows that this is true. The adults don’t mean for it to be true. I have no doubt that these adults brought children into being in all good faith, and out of love. But they simply can’t help themselves. Good intentions do not suffice to overcome the structural tendency for ‘contract parenthood’ to objectify children far more often and deeply than natural parenthood.
“When a child is conceived naturally, inside marriage, the child is biologically, legally, and practically the child of both parents. The child can be a focal point for unity between the two people. Of course, things don’t always work perfectly or smoothly. But the biological parents, married to each other, have a great advantage: they both have a connection with the child. They’ve both got skin in the game, literally. When they are married to each other, they have made a commitment to work together to build a common life. The children are their common project.”
She concludes, “The primary business of the state should be providing justice. Children are the most vulnerable parties in any society. But children are particularly vulnerable in a society like ours that values autonomy and independence so highly. Children cannot be autonomous and independent. Adult society owes children an obligation in justice to provide institutional structures that protect their most basic interests. This is why it would be unjust to children for the government to attempt to ‘get out of the marriage business.’ Providing justice to the vulnerable is precisely the business of the government. If it doesn’t perform that function, it has failed.
“It is not possible to create a free society in which everyone begins life as someone’s ‘choice.’ It is not possible to create a lasting society that systematically undermines the biological basis for human identity. Privatizing marriage would perpetrate injustices on children, expand the power of the state, and in the end, prove to be completely impossible. In short, the state has a duty to be in the marriage business.”
I admit that by cutting and pasting from her three pieces I may have not presented the most accurate picture of her line of reasoning. But hopefully the bits I offer here will spur you on to read her argument in its entirety. Like her, I am certainly no fan of big government.
But like her, I am very much concerned about the wellbeing of children. While parents are the fundamental support and safe haven for children, societies – and even governments – have some role in nurturing and protecting those parents – as in a marriage relationship – so that child wellbeing can be allowed to flourish.
Thus when it comes to marriage, family, and children, I am no libertarian.
Part One of this article is found here: https://billmuehlenberg.com/2012/04/04/libertarianism-and-marriage-part-one/
http://www.thepublicdiscourse.com/2012/04/5069
http://www.thepublicdiscourse.com/2012/04/5071
http://www.thepublicdiscourse.com/2012/04/5073
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