Should the Government be Involved in Marriage?

The debate over same-sex marriage has prompted a lot of thinking about the nature of marriage itself. One solution to the current crisis has been mooted by libertarian writers: privatise marriage. Here Patrick Burke, a libertarian, explains why marriage is special and governments still have a role.

Libertarians believe in having as little government as possible and for this they have good reasons. The chief role of government, in libertarian eyes, is to protect its citizens from harm. First, from aggression by other nations, which government can do by having an effective foreign policy and military. Second, from aggression by criminals, which government can do by having a just and effective system of justice: police, courts of law and prisons. When all this has been done—not exactly a small item—libertarians believe government has pretty much finished its job. The rest should be left to the free agreements of individuals with one another. For every action of government uses, or threatens to use, physical force, and to use force on people when they have not done any harm is contrary to human dignity. It also makes everybody poorer than they need be, as Adam Smith demonstrated long ago. The happiest and most successful society is the one that leaves people what Smith called their “natural liberty.”

Marriage does not seem to fall under any of the aggressive activities that people need to be protected against. If a man and a woman want to get married, that is their own affair because it does not harm anybody else. It belongs to the most intimate sphere of life, the bedroom, and we do not want government in our bedroom. This is why for many centuries marriage was regulated by the church, not by government. For a thousand years in mediaeval Europe marriage disputes were settled in church courts under church rules. Reasoning along such lines, some libertarians—notably Ron Paul—are now calling on government to take itself completely out of marriage.

This reasoning is not entirely wrong, but it leaves out something essential. Marriage is a contract. No doubt it is much more than a contract. In the Christian view it is also a sacrament: a visible sign of an invisible grace. But whatever else it may be, it is at least a contract. It is a solemn public agreement. When we get married, we pledge to share our life with another person. As in any contract, we lead the other person to rely on us to carry out our promise. In any contract, if we break our promise, we cause harm to the other person because we cause them to lose everything they have invested in it. This is why government is involved in all contracts, and rightly so. Marriage creates rights.

In marriage especially, more than in any other kind of contract, we can cause immense, lifelong harm beyond any possibility of repair.  Marriage creates the most intimate of human relationships, making us most vulnerable to one another. We have led the other person to give up her or his life alone, relying on us to share our life with them in place of that, so that the two of us can build up a new life together. If we break that promise, we can easily destroy the other person’s life. But that life is just as valuable as mine. If I break the other persons’s life, I deserve to have my own broken.  Of course, if a marriage is irretrievably broken, there must be some provision for that. The message of the New Testament is that the provision should be compassionate.

Marriage is especially for the sake of the children. They have been brought into the world through the unity of their parents, and they need that unity to continue.  If their parents break up, many children never recover. It mars their whole life. Children have rights, and it is the task of government to protect those rights.

Marriage involves property. Every family needs to have family property, property that belongs to them not as individuals but as members of the family. Children especially need this. But property always must be governed by rules. If one spouse dies, what provision is made for the other, and for the children? Disputes can arise, which need to be settled authoritatively, and therefore by government.

All societies we know of have had definite rules about marriage, usually presupposing a definition of marriage. There are some kinds of theoretically possible “marriages” that all societies have rejected. None give legal recognition by government, which would involve distinct property rights, to “marriages” between fathers and their sons, or between mothers and their daughters. The action of government is needed to set these rules.

The jurisdiction of the church over marriage during the middle ages did not remove marriage from the purview of government but was a result of the traditional union of church and state. As the Roman civil authority collapsed in the face of the barbarian invasions, the Christian bishops, already officials of the state since the emperor Theodosius, remained and took responsibility for what was left of civil society. The subsequent feudal states in effect gave authority to the church, as they also gave the universities certain rights of self-government. But they always retained the power to take it back, which the modern state has done.

The theory that marriage does not need government is foolish and irresponsible. It is related to the even more foolish and irresponsible theory that society itself does not need government. Some libertarians argue, with Murray Rothbard, that all the responsibilities of government can be carried out by the market. It is true that many of them in our day can be, because government has claimed authority in so many areas of life where it does not belong. But a true market is always only a free one, and is not compatible with the unjust use of force. The fact is, however, there will always be people who use unjust force, including in marriage. In the face of them, the market is helpless. Only government can ensure a free and true market. As John Locke argued, true freedom is always freedom under law. Likewise, marriage needs to be protected by the law.

In the Western world marriage has fallen into relative disfavor. Couples now often live together without marriage and have children without marriage, or deliberately have children without a spouse. It is not clear that this is a great benefit either to them or to the society, for a successful marriage is by far the most satisfying of all human relationships. If we ask why marriage is currently in decline, an important reason is undoubtedly that government has abdicated its responsibility for protecting it. Divorce should be possible, but it should not be easy, just as marriage should not be easy. By making divorce easy, even frivolously easy—usually a unilateral breaking of the contract—government has emptied marriage of its most basic value, which is the guaranteed and dependable sharing of a life together. Although government is needed, then, that is not to say its role has always been benign. The current attempts by members of the legal profession to label same-sex unions  “marriages” testifies—if we needed any more testimony—to the foolishness and cupidity of the legal and political class to whom we have entrusted our laws, who are willing to have the society they govern pay any price if only it will reelect them.

Like other valuable institutions in our society, marriage and the family have been systematically weakened over the last fifty years, especially by the current obsession with equality. Many people have come to view marriage and the family, no longer as treasures to be protected but as haunts of oppression and exploitation, a’ la Marx. But libertarians are not Marxists. You cannot love freedom and also love Marx who wanted to abolish it. Libertarians are not anarchists. Libertarians believe in law and government, because without law and government there is no freedom. For the same reason libertarians should also believe in marriage and the family.

This article by Thomas Patrick. Burke, president of the Wynnewood Institute was originally published on MercatorNet.com under a Creative Commons Licence. If you enjoyed this article, visit MercatorNet.com for more.

Thomas Patrick Burke

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Thomas Patrick. Burke is President of the Wynnewood Institute and is the author of "The Concept of Justice: Is Social Justice Just?" and "No Harm."

  • Dave

    Generally agree, but in this insane society where the federal government seems to do a lot of harm and very little good, it would probably be good to maintain DOMA and otherwise get the feds out of marriage.

  • MarkRutledge

    The family is the foundation of any society, and marriage is its cornerstone.  The government should be involved to prevent meddling and to adopt policies which passively bolster the strength of marriage as an institution.

    • Mal

      Right. The Chinese, from the time of Confucius, have considered marriage to be the fundamental unit in society – a unit that need to be protected and strengthened. They believe that only in primitive societies will this not be the case. I suppose we could say the only in decadant societies will marriage be treated poorly or with contempt.

  • http://anziulewicz.livejournal.com PolishBear

    While it’s true that the Constitution doesn’t define “marriage,” the federal government has complicated the issue by taking a vested interest in married couples for the purposes of tax law and Social Security (among the 1,138 legal benefits, protections, and responsibilities that are automatically bestowed on couples once they marry). Therefore this is not an issue that can be left up to the states to decide individually, since it wouldn’t do for a Gay couple that is legally married in Iowa, for instance, to become automatically UN-married once they decide to move somewhere else.

    Religious beliefs are irrelevant to this debate, because (1) the United States is not theocracy, and (2) churches will continue to be free to conduct or deny ceremonies to whomever they want.

    Procreation and parenting are irrelevant, since (1) couples do not have to marry to have children, and (2) the ability or even desire to have children is not a prerequisite for getting a marriage license.

    This is simply a matter of treating Gay and Straight couples equally as the 14th Amendment would seem to stipulate. I can’t imagine how simply acknowledging the existence and rights of Gay couples is going to cause the collapse of civilization.

    • Mal

      The central point is that no other relationship, no matter how loving, is akin to marriage. When two people from the two genders – male and female – existing in our nature commit themselves to a naturally unite, merge, blend into one there is a marriage. This is how for thousands of years all the religions as well as the secular Chinese have seen it. Human nature created this marriage – not politicians and judges. So, these people have no right to corrupt or re-define something that nature has created. Other realtionships are other relationships; they are not and cannot be marriage.

      • Elizabeth Bernard

        Even if this were true, why on earth are you asking the very institution that is doing everything it can to make religious and civic insitutions completely irrelevant in public life to be the last defender of male/female marriage?   The federal government has absolutely no interest in defending anyone’s religious interests.  I am continually shocked when I hear Catholics, of ALL people, wishing to use the power of the State to enforce their views when they abhor it when it is done by those whose views are opposed to those of the Church, and they seem shocked that the State would support what Catholics believe to be immoral policy.  The government has no interest in maintaining morality.  They have an interest in making religious institutions superfluous in our society because such institutions are the last thing that stand between the state and total control of the people.  It’s called the road to tyranny, and we are on it.  The only way to get off of it is to stop looking to the state for any help whatsoever, and to strengthen your own organizations to fight off the onslaught of State intrusion.  If you want to protect marriage as an institution, you must do it through traditional vehicles of moral teaching, like the Church and the family.  Expecting it from the government is simply ludicrous.

        • Mal

          Read my post again please. I clearly said that these people – the politicians and judges – have no right to corrupt or re-define something that is designed in our nature. Yes, the two genders. This is why we have been created male and female.

  • Dave

     As a US Congressman and Presidential candidate, most of Ron Paul’s statements on the scope of government relate to the federal government. He recognizes the role of the state government to licence and regulate marriage. He definitely wants the federal government to take itself completely out of marriage, although he supports the DOMA Act, so that no state is forced to recognize a marriage as it is defined in another state.

    http://web.archive.org/web/20070207225148/http://www.house.gov/paul/congrec/congrec2004/cr093004.htm

    Overall, great article!

  • Guest

    If marriage is a contract, then the state need only be involved as it is in other contracts, which is enforcing the terms of the contract.  The state needs no definition of marriage but society does.  The conflict is all about social acceptance and promotion of marriage and what that means.  For a healthy society that can only mean monogamous, male-female marriage.

  • Michael Paterson-Seymour

    Whether marriage may be usefully regarded as a contract, I rather doubt.  Certainly, in every legal code I know of, it is classified, not under the law of Obligations, but under the law of Persons.  It strikes me that it is primarily concerned with civil status.  it is worth noting that it was in France that mandatory civil marriage was first introduced.  This was done on 9 November 1791 and, not coincidentally, by the same Legislative Assembly that turned ten million landless peasants into heritable proprietors.  The two great principles, “the child conceived or born in marriage has the husband for father” and “the investigation of paternity is forbidden” were two sides of the same coin.

     I agree with PolishBear that civil marriage is not primarily concerned with procreation or parenting.  The law facilitates marriage in extremis and even permits posthumous marriages, in certain rare cases; this make sense, if its primary concern is with paternity and succession, but is difficult to explain on other grounds.

     No one will deny that the state has a clear interest in the filiation of children being clear, certain and incontestable.  It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property.  To date, no better, simpler, less intrusive means than
    marriage have been found for ensuring, as far as possible, that the legal, biological and social realities of paternity coincide.  And that is no small thing.

  • That Hat Lady

    The Libertarians argue this ad nauseum. Regardless, the traditional family is the basic unit of society. History has shown that governments that do not uphold traditional marriage suffer fallout of sin and chastisement from God.  Please read the Pontifical Council For The Family 2000 document on “Family, Marriage and De-Facto Unions.” Some outstanding persons and well-known experts from different parts of the world took part in order to analyze this delicate problem that has such great transcendence for the Church and the world. This document is the fruit of this study.  It takes up a current and difficult problem that touches the very heart of human relations, the most delicate part of the intimate union between the family and life, the most sensitive areas of the human heart. At the same time, the undeniable public transcendence of the present international political juncture makes it fitting and urgent to offer a word of guidance addressed especially to those who have responsibilities in this area.  It is they in their legislative task who can give juridical consistency to the institution of marriage or, on the contrary, based on an unreal understanding of personal problems, weaken the consistency of the common good that protects this natural institution.
    http://www.vatican.va/roman_curia/pontifical_councils/family/documents/rc_pc_family_doc_20001109_de-facto-unions_en.html 

  • Elizabeth Bernard

    I find it highly ironic that any Catholic would hold the government out as some sort of saviour of the protection of marriage when it has absolutely no desire to protect it.  It is a fatal mistake to believe that the government is EVER the institution that will support morality.   Building and supporting morality is the job of families and church institutions.  If protection of marriage has failed, it is their failure, not that of the government.  This is a poorly disguised attempt to continue to use the government to enforce what many in society see as the only acceptable form of marriage, between male and female.  And while this might be true, you would think Catholics would have had enough of the people using the government to force their particular brand of morality (or lack thereof) onto the people of this country, since that brand is so often at variance with what the Church finds acceptable.  Quit looking to the State to solve moral problems.  It is much more likely to cause them than to solve them.  If you want to protect marriage, teach your children and accept the responsibility for the outcome.  Do not expect the state to be your backstop.  

  • Tama

    “Marriage does not seem to fall under any of the aggressive activities that people need to be protected against. If a man and a woman want to get married, that is their own affair because it does not harm anybody else.”

    Same sex marriage does not harm anybody and the fact that same sex people cannot procreate as an argument is a moot point. Married heterosexual couples choose not to have children. Should they be banned from having a contracted marriage union because of that? Should we not allow infertile individuals to marry by contract?

    “In marriage especially, more than in any other kind of contract, we can cause immense, lifelong harm beyond any possibility of repair.  Marriage creates the most intimate of human relationships, making us most vulnerable to one another.”

    Maybe contracted relationships should be illegal. If breach of a contract of this nature causes “immense, lifelong harm beyond any possibility of repair” by virtue of the fact that it is contracted, then protect the people from this immense pain and keep the legal contract out of it. Since by virtue of the fact alone that having a contract makes things so much more painful in the end, don’t have one.
    From an evolutionary standpoint, monogamy is unnatural. Kudos to those who stay together, but why should we be threatened of such complications if we eventually break away from our partner? Marriage is governed how it is because humans are not wired for monogamy and lifetime matrimony. If holding a contract over a couples head is to prevent them from the “immense pain” of a break up, what is going to stop the “immense pain” they will experience if they feel forced to stay together?

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