Should government get out of the marriage business?

Dina sent me three articles by Jennifer Roback Morse, post on The Public Discourse. The articles answer the charge from social liberals and libertarians that we should “get the government out of marriage”.

Here’s the first article which talks about how government will still be involved in marriage, even if we get rid of the traditional definition of marriage, because of the need for dispute resolution in private marriage contracts. She uses no-fault divorce as an example showing how it was sold as a way to get government out of the divorce business. But by making divorce easier by making it require no reason, it increased the number of disputes and the need for more government to resolve these disputes.

Here’s the second article which talks about how the government will have to expand to resolve conflicts over decisions about who counts as a parent and who gets parental rights. With traditional marriage, identifying who the parents are is easy. But with private marriage contracts where the parties are not the biological parents, there is a need for the state to step in and assign parental rights.

Here’s the third article which talks about how marriage is necessary in order to defend the needs and rights of the child at a time when they cannot enter into contracts and be parties to legal disputes.

The third article was my favorite, so here is an excerpt from it:

The fact of childhood dependence raises a whole series of questions. How do we get from a position of helpless dependence and complete self-centeredness, to a position of independence and respect for others? Are our views of the child somehow related to the foundations of a free society? And, to ask a question that may sound like heresy to libertarian ears: Do the needs of children place legitimate demands and limitations on the behavior of adults?

I came to the conclusion that a free society needs adults who can control themselves, and who have consciences. A free society needs people who can use their freedom, without bothering other people too much. We need to respect the rights of others, keep our promises, and restrain ourselves from taking advantage of others.

We learn to do these things inside the family, by being in a relationship with our parents. We can see this by looking at attachment- disordered children and failure-to-thrive children from orphanages and foster care. These children have their material needs met, for food, clothing, and medical care. But they are not held, or loved, or looked at. They simply do not develop properly, without mothers and fathers taking personal care of them. Some of them never develop consciences. But a child without a conscience becomes a real problem: this is exactly the type of child who does whatever he can get away with. A free society can’t handle very many people like that, and still function.

In other words I asked, “Do the needs of society place constraints on how we treat children?” But even this analysis still views the child from society’s perspective. It is about time we look at it from the child’s point of view, and ask a different kind of question. What is owed to the child?

Children are entitled to a relationship with both of their parents. They are entitled to know who they are and where they came from. Therefore children have a legitimate interest in the stability of their parents’ union, since that is ordinarily how kids have relationships with both parents. If Mom and Dad are quarreling, or if they live on opposite sides of the country, the child’s connection with one or both of them is seriously impaired.

But children cannot defend their rights themselves. Nor is it adequate to intervene after the fact, after harm already has been done. Children’s relational and identity rights must be protected proactively.

Marriage is society’s institutional structure for protecting these legitimate rights and interests of children.

I recommend taking a look at all three articles and becoming familiar with the arguments in case you have to explain why marriage matters and why we should not change it. I think it is important to read these articles and to be clear that to be a libertarian doctrine does not protect the right of a child to have a relationship with both his or her parents.  Nor does libertarianism promote the idea that parents ought to stick together for their children.

The purpose of marriage is to make adults make careful commitments, and restrain their desires and feelings, so that children will have a stable environment with their biological parents. We do make exceptions, but we should not celebrate exceptions and we should not subsidize exceptions. It’s not fair to children to have to grow up without a mother or father just so that they adults can make poor, emotional decisions and have fun.

2 thoughts on “Should government get out of the marriage business?”

  1. Excellent recommendation. I am quite surprised by the upcoming Supreme Court marriage definition that is coming into challenge( I suspect it is a smokescreen for other issues given the many current failures of the government)

    In regards to changing the definition of marriage here is my take and I will quote Ayn Rand (liberal to the nth degree)

    “Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).”

    While this is true – so is “A minority has no right to vote away the rights of a majority; the political function of rights is precisely to protect majority from oppression by minorities (and the largest majority on earth is hetrosexual ).”

    What I am REALLY CURIOUS ABOUT IS Exactly “what right have been voted away” ?
    I always ask “exactly what rights have been voted away or removed by the majority rights (hetrosexual) in regards to minority (homesexual, bisexual,polygamy, zoophilia and everything else in between)?” And to please reference any case law, bill, or voting function that has removed existing “rights” If I am mistaken please point out what has been voted away, I would sincerely like to know.

    And as mentioned earlier, “a majority has no right to vote away the rights of a minority” by Ayn Rand and “a minority has no right to vote away the rights of a majority “.



  2. Marriage is society’s institutional structure for protecting these legitimate rights and interests of children.

    The problem we have right now is a government that refuses to acknowledge this.

    THAT definition of marriage has already been changed in such a debilitating way – no-fault divorce is minor compared to abortion rights which make it quite clear that the rights of the child are completely irrelevant to the rights of the parent.

    If government doesn’t think the point of marriage is for this reason, then they have no right sanctioning marriage of any kind. Their investment in it is to produce a stable society. But I no longer believe that government’s end goal is a stable society.

    Stable societies don’t need oversight from a large government – an unstable society does and freely gives the government permission to interfere. Why would our governing elite want to change that paradigm?


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