Keep Government in Marriage, It's the Libertarian Thing to Do


There is a rising libertarian argument that goes like this: “We need to stop being distracted by these debates about marriage.  Government has no business telling us who can or cannot marry.  Marriage ought to be a private contract.  If government got out of the marriage business and allowed it to be a private contract, people would have more liberty and the size of government would decrease.”

If you have or are making that argument, please stop.

First, let me explain that there is a logical fallacy that you’re promoting with this argument.  Namely, that government defines marriage.  No.  Marriage is a pre-political institution much like murder is a pre-political crime.  Government defined neither marriage, nor murder; it merely affirmed in civil law what was already law in the moral and natural law sense.  In fact, by implicitly granting government the right to define marriage (and thus regulate it), this modern libertarian argument ascribes more power to government then they should.  As Kevin DeYoung rightly observes:

What an irony: the many young people (and a growing number of young Christians) who support gay marriage on libertarian grounds are actually ceding to the state a vast amount of heretofore unknown power. No longer is marriage recognized as a pre-political entity which exists independent of the state. Now the state defines marriage and authorizes its existence.

Government did not create marriage.  Therefore, government cannot destroy marriage.  When we grant government the right to create marriage (rather than affirm what marriage is), we grant to it the power to destroy it.

But, let’s also look at the central point here – and I’m going to do this in summary form of a much longer argument because I have a really full desk to empty today.  The central point is whether or not getting government out of the “marriage business” reduces the size of government and, ergo, increases liberty.

I submit that it does not and, if anything, the reverse is categorically true and empirically verifiable.

For one thing, it is downright impossible.  Government regulates this human institution above all others for a variety of reasons.  The 1,000+ incidents of marriage in Federal law govern the effects that flow to and from this central institution of society.  Everything from the transfer of estates to adoption to spousal support to bank accounts to the presumption of paternity of children conceived in a marriage.  There must be a mechanism for government to regulate the flow of these rights and privileges and that is the marriage license.  It is simply impossible for government to extricate itself from ‘the marriage business’ without causing untold damage and raising havoc across our society.

But more than that, consider removing the marriage license, what would happen?  Would the size of government shrink?  Absolutely not!  Consider – as just one example – the presumption of paternity.

Most of you have probably not thought of this legal doctrine much, but most of us have benefited from it.  Legally speaking, a husband is presumed to be the father of any children born while married to the mother.  There is no court, no legislation, no DNA testing needed.  If a husband and wife have a child, legally speaking, the husband is presumed to be the father and the child receives the blessings (and burdens) of that relationship.  That presumption is made effective via the marriage license.

Now, take away that legal presumption.  More or less government?  More - exponentially more!  More or less individual liberty?  Less, invasively less!

Now, rather than being presumed to be the father of children to his marriage, the husband must affirmatively assert his claim and defend his claim against any challengers.  Not only will this, in the end, require a legal determination, likely by a black-robed agent of the state (i.e., a judge), but he will also be required to furnish biological proof that he is the father of the child.

In one fell swoop, we have increased the size of government.  Where the presumption of paternity assumes the husband is the father and no further bureaucracy is needed, without that presumption – at a minimum – a judge (and with him comes his staff of clerks, bailiffs, court reporters, etc.) to legally determine his rights and responsibilities.

With that increase in government comes also a decrease in individual liberty.  Why?  Consider how you scientifically determine biological paternity: DNA testing.  Now, rather than the husband being presumed to be his baby’s father, he must submit to having his bodily fluids collected by a government agent (another increase in the size of government) and having that DNA processed (more government) and stored on file (yet more government).  That is not libertarianism.  That is statism at its finest.

I could go on, but I’ll close by pointing you to a classic failure that helps prove this point: no-fault divorce.  When pitched almost 40 years ago, no-fault divorce (divorce for any reason or no reason at all, as opposed to the prior system that required a showing of fault (adultery, abuse, etc.) of one of the parties to the marriage) was billed as a streamlining of the divorce system, a way to make divorce easier and reduce the caseload of family courts across the country.  Not only that, proponents of no-fault divorce then (and now) make the bizarre case that it will strengthen marriage by functioning as something of a steam release valve by letting those "trapped" in a marriage to extricate themselves without significant damage. 

Is that true?  Has that happened?  Is there more individual liberty and less government as a result of government getting out of the divorce business?

Nope.  Family court dockets today are exploding.  Claims of nepotism and cronyism have necessitated additional layers of bureaucracy so that one party to the divorce is not disadvantaged by the social or political connections of the other.  Court appointed attorneys have expanded their role in seeking the “best interests” of the children to the no-fault divorce.  Court programs have exploded to monitor spousal and child support, creating a cadre of police to enforce state-mandated payment.

What of individual liberty?  Parties to a no-fault divorce now face the prospect of surrendering their paycheck, first, to the state to ensure spousal and child support.  In some cases, the state determines when or if an individual may visit (and for how long) with the divorcee’s biological children.  Again, the list continues.

DeYoung, writing specifically with some warnings against same-sex “marriage,” again explains why government ought to remain involved in marriage in general:

We must consider why the state has, for all these years, bothered to recognize marriage in the first place. What’s the big deal? Why not let people have whatever relationships they choose and call it whatever they want? Why go to the trouble of sanctioning a specific relationship and giving it a unique legal standing? The reason is because the state has an interest in promoting the familial arrangement which has a mother and a father raising the children that came from their union. The state has been in the marriage business for the common good and for the well-being of the society it is supposed to protect. Kids do better with a mom and a dad. Communities do better when husbands and wives stay together. Hundreds of studies confirm both of these statements (though we all can think of individual exceptions I’m sure).

In other words, government regulates this relationship (unlike your friendship with your best friend from high school) because it has a societal interest in promoting individual liberty (I can take care of my wife and children without being told how by the government) and reducing the size of government (marriages take care of their own relieving the need for more government).

So, my libertarian friend or my fellow citizen who wishes for the day where the government will stop telling people who they can or cannot marry: stop asking for government to get out of the marriage business.  It is bad public and social policy, bad for my marriage and yours, and detrimental to individual liberty on the whole.

Jeremiah DysComment