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.

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

  1. Sorry, but libertarians are right in this. One need not deny the sanctity of marriage or its importance to healthy families in order to advocate that the state not promote or regulate marriage formally. The sad state of marriage and families in America has little to do with policy failure; it has much more to do with the lack of Christian engagement in culture. The family prospered for centuries without state involvement. The impulse to legislate an institution like marriage in order to achieve certain social outcomes is a fully progressive one.
    I, for one, do not need nor want the state to recognize, reward, or otherwise protect my marriage. I can think of far more agreeable and effective voluntary methods for having my marriage contract enforced.


  2. The point about the child’s interest is a very good one that is rarely focused on. People want fast easy commitments in all things with little thought. There isn’t much more thought put into marriage than what kind of phone to buy. Even though some choices like a marriage affect far more people than a bad phone choice.


  3. I would support the govt getting out of the marriage business, and letting churches give out marriage certificates much like a baptismal one. I care more about God’s blessing on a marriage than the changing ways of govt that are mainly to increase tax revenue and various things once you are considered married vs not married


  4. I have no arguments with the first sentence of your final paragraph, and the conclusions you draw there.
    I also note that what govenrment calls marriage is unrelated to what God calls marriage. God’s version of marriage, for example, cannot generally be terminated. The church and the state diverged when divirce became legal. The current angst over homosexual “marriage” misses the point that the state’s version diverged from God’s version long ago. A church which recognizes a state marriage license as an actual marriage joins the state in mocking God.
    So, given that the state mocks marriage and state-sanctioned “marriage” doesn’t generally accomplish any of the things for which we value marriage, how should the church procede? How can our society protect children when the state doesn’t enforce marriage?


  5. I disagree with those who think the government has no role in marriage. The difference, as you talked about in your post, comes down to what happens to children and what happens during disputes. The fact is, the government cannot even in principle get “out of the marriage business” unless we ignore children and the merging of lives that occurs during marriage. I suspect that’s why those who endorse the libertarian version are focused on the adults involved instead of the children.

    Beyond this, I don’t find libertarian arguments compelling in the first place. Catholic Thomistic philosopher Ed Feser wrote a great article years back about his abandonment of libertarianism for conservatism and I agree with his rationale. Libertarianism is untenable. It sounds really good (and there are lots of good things in it) but while it succeeds at critiquing the idea that we are not a giant Commune of people by emphasizing individualism, it fails utterly at accounting for the fact that we are not really isolated individuals, but families. The family is the fundamental unit of society because of human nature itself.

    A good government, in the classical sense, seeks to make it easy for people to be good. And you can’t do that without the correct view of human nature. It’s true that a smaller government has less power to screw this up than a large government, but a -good- government, regardless of size, is successful in making it easy to live a virtuous life. And you just can’t get around the centrality of marriage and children when talking about virtuous living, since it’s the natural process by which all people enter the world and become adults.


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