Home > Libertarianism, Same Sex Marriage > Why we can’t get the govt out of the marriage business

Why we can’t get the govt out of the marriage business

May 18th, 2011

In my previous post, rebutting the Libertarian Party of MN’s position on same sex marriage, I mention that I have written about why the government can’t really get out of the marriage business. It is interesting to me how common this argument has become.   I think lots of people just wish this whole topic would go away, and they hope that privatizing marriage will somehow make that possible.  Rather than restating all my arguments, I’m going to repost and relink to some of my articles. Suffice to say, that I don’t think the argument for privatizing marriage works.

Here is one called, Privatizing Marriage is Not the Answer to the Same Sex Marriage Debate.  Comment away!

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  1. Leo
    May 18th, 2011 at 17:42 | #1

    Dr. J.

    Thank you for posting this and your previous post. I have previously commented on this blog that if marriage becomes merely contract law, then the rich and powerful will have stronger positions in those contracts, just like they do in business contracts. The party with the stronger economic bargaining position will prevail. Marriage law, as distinct from business contract law, can and should have provisions that protect inherently weaker parties: typically children and women “who have given the best years of their lives” to their marriage and are divorced as their husbands seek new and younger brides. Marriage law, therefore, should not be gender neutral or degendered or reduced to an economic contract.

    If the traditional family continues to be weakened by the deplorable social trends noted on this blog, the government will try to fill the vacuum with greater intervention in the lives of its citizens. The government will go broke trying to replace the traditional family. Libertarians, therefore, should be supporters of the traditional family as a counterweight to an intrusive and literally paternalistic state.

  2. Paul of Alexandria
    May 19th, 2011 at 08:08 | #2

    Marriage _is_ a contract! I don’t know where we have gotten this idea that marriage is only a private issue between the spouses, but it’s pernicious! For the past 5000 years, marriage has been a public contract between a man and a woman: the woman agrees to grant the man sexual access (usually, but not always exclusive), bear his children, and (usually) keep his home. In return, the man agrees to meet her sexual needs (usually exclusively) and protect and provide for the woman and any children she bears.

    There is, of course, much more than that – due to the importance of the family in society, but that is the basis of marriage for every society across the world. (See “Man on Earth: A Celebration of Mankind: Portraits of Human Culture in a Multitude of Environments” by John Reader, HarperCollins, 1990). Marriage is blessed by every religion that I know of, but it is fundamentally a creation of society and instituted by government.

    Marriage is promoted and sanctioned by government because is is a fundamental element in maintaining order in a society. In addition to its role in taming males and channeling the sexual instincts of both sexes and in ensuring that children (essential to any society) are cared for and taught the necessities of civilized behavior, it also serves an important role in population control; generally, the more limited the resources (particularly in island cultures) the stronger the prohibitions on extra-marital sex and the more barriers there are to getting married.

  3. May 19th, 2011 at 13:07 | #3

    @Paul of Alexandria Great summary. I particularly liked the “marriage is blessed by every religion that I know of, but it is fundamentally a creation of society and instituted by government” point. That’s right, it IS government, it governs human behavior within society. Government can’t get out of the government business.

    One could also say marriage was created by God in the sense that society and government was created by God, and in recognition of that, it became blessed and supported by religions, which were also a form of law and government and created by God, but of course religion and government are not the same, there is only one ruler and government over a region, while religions have no territory and can coexist.

    And you mention the role in limiting premarital sex, another function that goes along with that is in prohibiting incestuous sex or underage sex and approving of sex.

  4. Ruth
    May 19th, 2011 at 13:11 | #4

    @Paul of Alexandria
    “…generally, the more limited the resources (particularly in island cultures) the stronger the prohibitions on extra-marital sex and the more barriers there are to getting married.”
    We are in need of a significant correction to our moral compass, which gives the current economic crisis a silver, or even gold, lining.

  5. Sean
    May 19th, 2011 at 15:49 | #5

    I don’t think marriage has to be government-sanctioned. I think government only got involved in marriage in the first place to protect the public, such as children being married off for money or power. If you look at the few limitations on who may marry, or how often, there’s not that much going on. Plus when you look at how many committed couples don’t marry, maybe marriage really isn’t that big a deal anymore.

  6. Leo
    May 19th, 2011 at 17:17 | #6

    @Paul
    I agree that marriage is a contract, but it is not and should not be a free-form contract as are business contracts. Family law is and should be different from business contract law.

  7. Paul of Alexandria
    May 20th, 2011 at 07:06 | #7

    @John Howard
    Thank you.
    The purposes of government are: 1) keep internal order, 2) safeguard the society against external threat, and 3) do those things that smaller levels of society (e.g. the family, the village, etc) cannot do. Examples of the latter include stockpiling food for famine, building temples and large communal structures, and road and sewer construction and maintenance. Promoting the family falls into category 1; it’s one of the best mechanisms for keeping internal order in a society ever invented (which is why God promotes it, I’m sure).

  8. Paul of Alexandria
    May 20th, 2011 at 07:09 | #8

    @Leo
    Absolutely. For one thing, businesses don’t have children to consider.
    It is interesting, though – in medieval Europe, part of the marriage ceremony (at least for the upper classes) would entail reading the formal marriage contract out loud. The equivalent of today’s pre-nuptial agreement.

  9. Paul of Alexandria
    May 20th, 2011 at 07:16 | #9

    @Sean
    “I think government only got involved in marriage in the first place to protect the public”
    You miss the point: this is the primary raison d’etre for marriage in the first place! Marriage is NOT a “personal action”, it is a public commitment performed for the benefit of the society as well as that of the individuals involved.

    Jesus answered and said to them, “The sons of this age marry and are given in marriage. But those who are counted worthy to attain that age, and the resurrection from the dead, neither marry nor are given in marriage….” Luke 20: 34,35. If humans were perfect (as we will be after the resurrection) than marriage would not be necessary – we would act properly automatically. However, we’re not, and contractual institutions like marriage are necessary in order to keep order in society.

  10. Sean
    May 20th, 2011 at 18:44 | #10

    “Marriage is NOT a “personal action”, it is a public commitment performed for the benefit of the society as well as that of the individuals involved. ”

    Marriage is both a personal action and a public commitment, suitable for same-sex and different-sex couples.

  11. May 21st, 2011 at 08:22 | #11

    @Sean Never suitable for same-sex unions because by the very definition of the institution it is for opposite sex unions. You keep trying to destroy real marriage by your demands for same-sex faux marriage. You cannot call a circle a square without destroying the nature of the square.

  12. Leo
    May 21st, 2011 at 10:14 | #12

    Under libertarian principles, “marriage” would be a private contract. It would not be limited to couples and limited only by the ability to enter into any contracts. The “personal actions” contemplated in the contract need not in this view resemble anything usually thought of as marriage. One can imagine a platonic marriage contract designed solely for economic purposes. Moreover, that private contract would only be binding on the signatories of the contract. No public recognition of that contract would be required by anyone not a signatory except as it might touch on things like the establishment of joint ownership of property and joint liability for torts. It would also be suitable for a relatively free form of trading sexual rights and property rights, which is why I am opposed to a purely libertarian solution. There would be too much room for exploitation.

    Traditional marriage is or should be designed for the protection of women and children. Traditional marriage helps protect economically vulnerable spouses, in particular childbearing women, from opportunistic behavior than can arise due to inherent asymmetries in the life profiles of the spouses. Exluding excluding homosexuals from traditional marriage is therefore functional rather than discriminatory.

  13. Sean
    May 22nd, 2011 at 04:49 | #13

    “Never suitable for same-sex unions because by the very definition of the institution it is for opposite sex unions.”

    I’m wondering, in how many countries and states will same-sex marriage have to be legal before you acknowledge it exists? I mean, at some point, you have to stop acting like it’s not around or isn’t “real.” You may not approve of it, but like divorce, another aspect of marriage many people disapprove of, it certainly exists and is real.

    Otherwise, you have awfully strong feelings about something that doesn’t exist!

  14. Ruth
    May 22nd, 2011 at 21:23 | #14

    @Sean
    The Emperor is now acknowledged to be clothed in every area of the land!

  15. Leo
    May 22nd, 2011 at 22:02 | #15

    In every state where it has been put to a vote of the people, 31 states so far, the people have held that the definition of marriage is opposite sex unions only. Several other states have that definition by legislation without a referendum.

    95% of the world’s population lives in countries where marriage is defined as a heterosexual institution.

    So for the vast majority of the world, and for the vast majority of states in the U.S., marriage is by definition heterosexual, as it has been defined for centuries. A few states, not one where the people have been allowed to vote on the issue, have relative recently adopted a different definition of marriage. Under current law, other states and the federal government are not required to recognize that new definition.

    Delaware is already redefining what a parent is. (You never answered Dr. J’s questions about that as I recall.) Who knows what might be legally redefined next.

    Even if a state legally defined a square as a circle, there would always some independent thinkers who would not accept the new definition, and to them, at least, squares and circles as previously defined would still exist. Only in an Orwellian world would the old definition disappear down the memory hole.

  16. May 23rd, 2011 at 06:05 | #16

    @Sean SSM isn’t an “aspect of marriage,” and neither is divorce. Both are attacks on marriage. I don’t have feelings about something which doesn’t exist – I have feelings about being forced to say a circle is a square and 2+2=7. Neither of those exist either, but that doesn’t mean one can’t fight the forcing of them as existing.

  17. Sean
    May 24th, 2011 at 16:30 | #17

    Who is forcing you to say a circle is a square? What you want is to have YOUR definition of marriage, which recently has been defined to exclude gay people, prevail. I’ll bet there’s lots of things you don’t approve of, and don’t practice yourself, but that are legal.

    You can add same-sex marriage to the list.

  18. Rich
    May 24th, 2011 at 18:07 | #18

    Glenn, here, again, you fail because you ignore the fact that marriage equality ( gay marriage) does exist. It’s not something that exists in the abstract. Thousands of gay couples are married. It is here and it, quite happily, coexists with straight couple marriages. You seem to have no evidence that a gay marriage, in any way, harms a straight marriage which you purport to be your argument. Are you married? Has a gay marriage affected, in any way, your marriage?. Give up on the platitudes. Prove your point. @Glenn E. Chatfield

  19. Ruth
    May 24th, 2011 at 22:04 | #19

    Some of us are unwilling to say, “The Emperor is clothed!”, when he is, in fact, naked.

  20. May 25th, 2011 at 06:53 | #20

    @Sean No, marriage has a definition whether or not judges decide to make it something else. A judge can order someone to call a circle a square, but that will never change the intrinsic identify of that circle or the square. Marriage wasn’t recently defined to exclude homophiles and you know it. It is only recently that liberal, activist judges have redefined the word to include that which is not marriage.

    @Rich Just because homophile couples call their unions “marriage,” that doesn’t make it so. As noted with Sean, calling a circle a square doesn’t thereby make it one. SSM does not directly harm my marriage any more than a bank robber in some other town directly harms my family. But it affect society as a whole to its detriment. And by the government giving sanction to such unions it causes harm to EVERYONE who dares disagree with it. I have listed dozens of incidents on my blog wherein people suffer financial harm, job loss, legal punishments and required indoctrination classes just because they didn’t want to give approval to SSM or any other homophile union. When you demand approval and punish those who refuse it, that causes harm to everyone. SSM also neuters the institution of marriage, which is the bedrock of society. So I am harmed by living in a society collapsing around me.

  21. Sean
    May 25th, 2011 at 16:20 | #21

    “No, marriage has a definition whether or not judges decide to make it something else. A judge can order someone to call a circle a square, but that will never change the intrinsic identify of that circle or the square. Marriage wasn’t recently defined to exclude homophiles and you know it. It is only recently that liberal, activist judges have redefined the word to include that which is not marriage.”

    You have a preferred definition, and that’s fine. Most people disagree with you, and want the law to recognize the equal right to marry of gay couples.

    Society is not collapsing around you, but rather, your preferred version of society is changing.

  22. John Noe
    May 26th, 2011 at 17:57 | #22

    Great point Glenn: The argument that SSM has no effect on your marriage is the big trojan horse that the homosexuals are bringing in to further the agenda. One only needs to look at Massachusetts to see the effects of SSM on all of society.
    If you own a business thanks to SSM you must offer health benefits equally to SS couples. As has been noted in many health blogs, homosexual sex leads to higher rate of disease and premature death. The insurance actuarrial tables reflect this, and thus the rates of coverage costs more. Because of SSM previoulsly high insurance or uninsurable same sex couples are now getting the health insurance through their employer. Although the access is mandated by government to be equal, the costs are not. Thus either you the company pays the extra costs or it is passed onto your straight employees. Notice how the SSM activists always avoid the simple question as to why should your sexual conduct come out of my wallet.
    SSM forced adoption agencies to give children to same sex couples against the wishes of the agency, the parents offering the child, and most of all the children. If you believe like I do that children are a part of society then SSM has harmed society.
    The biggest effect is in the schools. Thanks to SSM the homosexual activists now get to go to your public school and recruit your children into their lifestyle whether you like or not. I urge anyone here to go to the Massresistance website for the proof.

  23. John Noe
    May 26th, 2011 at 18:03 | #23

    @ Rich: Just because something exists does not mean that society has to approve of it or endorse it and give it a license. An alcoholic could say we exist, but that does not mean our laws against drunk driving are unconstitutional.

    @Sean: He says that their are lots of things that we do not approve of but they are legal.So what. Just because something is legal does not mean we have to approve of it and reward it with a license. Adultery and swinging are legal but we do not give them our approval and licenses bearing societies approval of that practice.

  24. May 26th, 2011 at 22:45 | #24

    John: “Notice how the SSM activists always avoid the simple question as to why should your sexual conduct come out of my wallet.”

    That’s blatantly untrue. We address this question all the time. Stop the nonsense.

  25. John Noe
    May 27th, 2011 at 16:24 | #25

    It is blantantly true. I used to be in the insurance business. People who practiced risky human behavior had to pay more or were uninsurable. You are responsible for your conduct. This meant that homosexual couples because of their risky sexual conduct either paid more or were uninsurable. But they were the only human conduct that hijacked the civil rights laws.
    As a result the homosexual couple imposed the costs on their employer or on us straights. The higher cost of the mandatted insurance was borne by the employer or we straights had our rates and premuims increased to achieve “equallity” with homosexuals. This is like making smokers and non smokers equal.
    So one again the SSM activist avoid the simple question. Why should the added costs of your risky sexual lifestyle have to come out of my pocket?

  26. Sean
    May 27th, 2011 at 20:55 | #26

    Ok, John Noe, why should gay people have to pay an equal share of taxes if they don’t get full civil rights, such as the right to marry?

    “Adultery and swinging are legal but we do not give them our approval and licenses bearing societies approval of that practice.”

    Explain why society wouldn’t want to approve and license gay relationships, but does want to approve and license straight relationships. It makes no sense to distinguish between the two, especially since society approves of both kinds of couples doing the same kinds of things couples in relationships do: raise kids, have sex, share resources, grow old together, etc.

  27. May 28th, 2011 at 16:43 | #27

    @Sean You keep saying it all doesn’t make sense, all the while ignoring all the evidence against your ideology. Homophiles do indeed have FULL civil rights. The only right you don’t have which you want is the right to redefine marriage to include homophile couples. That is not a civil right. There is no right to redefine a word and the institution it describes just so you can then neuter it.

  28. Ruth
    May 28th, 2011 at 21:01 | #28

    @Sean
    According to your logic, why should a brother and sister who would like to marry each other but cannot because of incest laws, be forced to pay an equal share of taxes?

  29. John Noe
    May 29th, 2011 at 21:25 | #29

    Thank you Ruth and Glenn for your answers but since Sean asked me I will give my response.

    Homosexuals like singles are full payers of entitlement taxes into the system but do not get the equal benefits as male/female people do. This is because singles and homosexuals do not procreate and do not contribute future payers into the system. The marriage benefits were incentives by the state to encourage responsible procreation.
    Why should same sex couplles get the marriage license and incentive benefits to procreate if they willfully practice a sexual lifestyle that insures no procreation? This is a form of homosexual welfare. Get the tax breaks, not procreate with future payers into the system and then claim the right to collect the entitlements when old unless of course you die of AIDS before you have collected.
    Adultery,swinging, and homosexuallity are legal but we as society show that we do not approve of their practices by not giving them marriage licenses. A marriage license shows societies approval of the institution. Homosexuals are after that license because they are seeking societies approval of theri lifestyle.
    That is the purpose of why at NOM we want the people to vote and decide, not judges. When you win the vote fair and square only then can you claim approval. So far you have lost the vote in all of the elections . This shows you do not have societies approval.

    One last great point: You do not have a civil right of approval to the homosexual lifestyle. The moment you are granted that right then means that my civil right to decide on morals for myself has been denied.

  30. Sean
    May 30th, 2011 at 07:46 | #30

    “A marriage license shows societies [sic] approval of the institution.”

    Exactly. Society should approve of same-sex marriage for the same reasons it approves of different-sex marriage: honoring a committed relationship, encouraging the formation of couples who take care of each other (so the state doesn’t have to!), creating more secure environments for the raising of children. Plus, we can honor our nation’s constitution by giving equal rights to all citizens. And reduce the incidence of bigotry and violence against gay people. What more reasons do you possibly need to legalize same-sex marriage? Most Americans get it these days; why can’t you?

    You’re wrong: lacking any public purpose, gay people DO have a right to approval, if the government is giving approval to straight people. If the government is giving approval to one type of couple, it has to have a valid purpose for withholding approval of other types of couples.

  31. May 30th, 2011 at 17:48 | #31

    @Sean Here we go again with the victim card: no one can have a legitimate moral reason for disapproving perverse sexual behavior – it has to be “bigotry.” NO, Sean, NO ONE has the right to approval of their behavior. It is NOT a civil right, nor is it unconstitutional to deny special recognition for the homosexual death-style. You again say there is no reason for denying such, yet you have been given legitimate reasons on this site almost daily. You just don’t LIKE the reasons.

  32. John Noe
    May 30th, 2011 at 18:06 | #32

    No I am right. Homosexuals do not have a right to government or societal approval. No human conduct or behavior has that right. If that was the case then drunks would demand the same civil right of approval as people who drink in a responsible way.

    Read the last sentence of my post carefully. Not one human form of conduct whether it be sexual or not has a civil right to approval. It that was so, then it would deny the public their civil right to regulate society and decide for ourselves which forms of human conduct we wish to approve.

    That is the reason why we have votes and elections. The moment your side wins fair and square at the ballot box, then and only then can you claim that society approves of your lifestyle. As much as I disagree with SSM, I support the democratic process of ballot questions. The power of we the people. Show me one state where your side has won the approval of society at the ballot box. You have lost every election.

  33. May 30th, 2011 at 23:44 | #33

    “If that was the case then drunks would demand the same civil right of approval as people who drink in a responsible way.”

    Hey, drunks DO have the same civil right of approval as everyone else. Take that back immediately. What is there a limit on how many drinks you can drink per week now?

    And I don’t think ballot questions are better than any other method of setting the law, whether it’s direct of representative democracy, or sharia law or fascism, they all suck. But the problem with ballot questions is that the public is manipulated into voting this way or that way and random events happen that swing the vote, they’re pretty terrible at arriving at the best choice. I don’t think we should kowtow to the random arbitrary public majority when the public doesn’t give a shit about the future and would love to watch the end of the movie, so to speak, play out during their lifetimes. I think the public is just about the last thing we should seek the advice and consent of. We’d do better polling insane asylums.

  34. Sean
    May 31st, 2011 at 15:52 | #34

    What’s a “civil right of approval”?

  35. Sean
    May 31st, 2011 at 15:55 | #35

    “Homosexuals do not have a right to government or societal approval.”

    Actually, they have, and should demand, the same rights as everyone else. They may or may not care about approval, but they have a constitutional right to the same rights. Including marriage.

  36. May 31st, 2011 at 20:43 | #36

    @Sean
    Yeah, that’s what I was wondering. We do prohibit things and approve of things, and everyone does have a right to have equal approval of their marriage procreating offspring, whether it is an interracial marriage or a May-September marriage, but people do not have a right to approval or permission for first cousin marriage or sibling marriage. Some states allow first cousin marriage, but that only proves that it is not a federal right that every state must allow and approve. Well, actually it does throw into state cousin bans into question, why couples would be prohibited in one state but allowed in another. But it is good to remember that lots of things we are allowed to do are not rights that cannot be prohibited if we decide to prohibit them.

  37. June 1st, 2011 at 07:56 | #37

    @Sean NO ONE has the right to societal approval. And marriage is not a right for the unqualified. What part of that don’t you get?

  38. bman
    June 1st, 2011 at 09:06 | #38

    Sean :
    “Homosexuals do not have a right to government or societal approval.”

    Sean: Actually, they have, and should demand, the same rights as everyone else. They may or may not care about approval, but they have a constitutional right to the same rights. Including marriage.

    The majority of courts have ruled that equal protection does not apply to same
    sex marriage.

    For example, a Texas court ruling for August 31, 2010 stated:

    “We agree with the numerous courts [across the nation] that have held that the
    right to legal recognition of a same-sex marriage is not a fundamental right
    for equal-protection purposes.”

    A detailed list of relevant court rulings is available at
    Courts

    Also, same sex marriage is not a civil right just as being married to many people at the same time (polygamy) is not a civil right.

    The thing that prevents polygamy from being legal is the moral view of marriage held by the American people collectively.

    That, however, is also what prevents same sex marriage from being legal. Its why people in 31 states have voted against ssm and its why three judges were fired in Iowa.

    So, “Whose morality should decide?”

    Consider obscenity laws. Courts have ruled that the morality of the community decides what is obscene. Should the morality of the porn pusher define morality for the community or should the “community” define morality for the community?

    The act of men having sex with men (MSM) is considered obscene conduct to every community in America. Adding “marriage” to “an obscene sexual behavior” would undermine the moral meaning of marriage held by the community and erode public morality
    in general.

    The homosexual minority does not have an “equal right” to define public morality for America. That right belongs to the American people collectively.

    Just as the community’s moral view of marriage can rightly prevent polygamy from being legalized, it can rightly prevent same sex marriage from being legalized also.

    Same sex marriage and/or polygamy are not entitled to government or societal approval, and a Constitutional right does not exist for those or any other alien form of marriage.

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