Should government get out of the marriage business?

Dr. Jennifer Roback Morse
Dr. Jennifer Roback Morse

Here are three articles by Jennifer Roback Morse posted at The Public Discourse. The articles answer the charge from social liberals and libertarians that government 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 intervention 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. Again, this will require an expansion of government to resolve the disputes.

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. Libertarianism means that adults get to do what they want, and no one speaks for the kids.

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 nearby. 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 adults can pursue fun and thrills.

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

  1. I wonder how this will all play out for the courts. They made their cake, now they will reap their just desserts. It is truly sad for the innocent children. May God have mercy on the children. The parents made their decision but the children did not.


  2. In some matters, the libertarian ideal of everyone doing their own thing and not having any demands placed upon them works well. The free market, for example, works well with a very hands-off approach. But if we let adults do what they want without any direction or responsibility when it comes to family matters, we deprive children of their rights.

    It is a legitimate purpose – one might say THE purpose – of government to protect the rights of everyone in society. That means children too. In fact, we have a greater responsibility to protect the rights of children than we do for adults because children cannot protect their own rights yet. Children are among the neediest and most vulnerable among us and they are also the future of our society and thus must be raised well in order for liberty to be preserved down the generations.

    In order to protect the rights and interests of children and protect the future of our civilization, we must require adults to form stable families and take responsibility for their children – and for that we need government to recognize and promote marriage.


  3. “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. Libertarianism means that adults get to do what they want, and no one speaks for the kids.”

    This is true, but we have to keep in mind that libertarianism is a political philosophy and does not attempt to provide a complete moral theory. So while it does not promote the idea of the family explicitly, unlike the state it does not promote its destruction by providing incentives for spouses to break their vows, kick the other spouse out of the house, file for divorce, and force the aggrieved spouse to pay child support or risk jail.

    Every single major problem with the institution of marriage today in the Western World can be directly tied to state intervention – no-fault divorce, imputed income, domestic violence laws and restraining order abuse, alimony, child support, paternity fraud and many other issues would not exist unless the state enforced such policies. They are coercive acts against at least one innocent person which would not be permissible under a libertarian system of voluntary contracts. Even prenuptial agreements are being overturned by courts.

    Simply getting rid of these state interventions would prevent the vast majority of divorces from occurring and the harm that is inflicted on children whose parents are rewarded by the current system for doing so.

    Yes, libertarianism would allow adults to exercise their rights, but unlike our current system, they would not be subsidized for their bad decisions and the consequences, and as a result such behavior would be naturally limiting.

    What we see today with marriage is an unnatural state that can only be sustained through state meddling and intervention.


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