Opinionated @ CFE

The Myth of Government-Free Marriage


I’ve seen a trend among my libertarian friends to try and argue that the solution to the entire same-sex marriage debate is to completely remove government from any involvement in marriage. I can see where this would have some kind of appeal. After all, the goal of same-sex marriage is to force those who do not support it to do so using the power of government. Libertarianism holds special contempt for using the force of government to make people do things to which they object. Unfortunately, their solution is pure anarchy and undoes one of the central and proper powers of government.

Contracts between private parties are central to functioning society. They allow individuals to spell out the terms of an arrangement and penalties for failing to oblige by those terms. A contract has no power unless you have a mechanism by which you can seek relief if a party to the contract violates it. If a contract is vague or leaves some terms undefined, we have to operate with some assumptions as to what would constitute fair terms to both parties. If we didn’t, a contract for purchasing a stick of gum would require reams of paper and months of legal review. For obvious reasons, we have to have some kind of assumed terms for various transactions lest we be paralyzed by an inability to enter into more casual contracts.

This is where government comes in and provides much-needed services to ensure contracts can function. Our system of laws, as imperfect as it may be, establishes some basic assumptions to use in the absence of anything more specific. It also provides a way to force a party that doesn’t live up to the terms of the agreement to either comply or provide compensation for abrogation. If we didn’t have these two things, contracts would be unworkable monsters and “might makes right” would be the only way to enforce a contract.

Legally speaking, the marriage contract is no different. Two people enter into an agreement. If one of them breaks the agreement, the other needs some kind of element of force to either seek redress or compliance. In the absence of a meticulously-detailed prenuptial agreement, we have to have some set of assumptions to work from. It sounds really good to say “keep government out of my marriage”, but who are you going to run to when a spouse decides to seize all of the joint property and change the locks on you? Without someone to enforce the terms of the contract, marriage becomes a lot like a casual dating relationship.

My fellow libertarians have fallen into the trap of thinking that simple mantras can solve complex problems. The reality is that they make a good starting point for discussion, but they are rarely implementable on their own. The marriage debate is no different.

15 Responses to The Myth of Government-Free Marriage

  1. Daniel Hardman

    Very astute observation, Jesse. I agree 100%.

  2. This argument made me think a little bit harder on something that yes, I had considered to be a simple, but non-realistic solution.

    However, I still don’t find the need for government intervention. Governments do not need to provide a contract when individuals and private organizations can just as easily provide them, with more tailored definitions.

    If one person doesn’t want to sign a contract, then just make sure you marry the right person. Or hide your money in a secret account.

    • It’s important to know that government intervention in these contracts is invited by one or both parties to it when there is a failure to meet the terms. As a society, I think we should have a right to say “you know what? We’re just not going to get in the middle of that kind of arrangement. Figure that out on your own.” Without those limits, we effectively get forced, by government power, to endorse those things.

  3. The corollaries to gay marriage are heavy handed anti-discrimination laws and public school normalization. Gay couples have successfully gone fishing to financially punish people who have a religious exception to their lifestyle and don’t wish to use their personal property or business to support it. If their is no freedom to act on religious principles, there is no freedom.

    The other concern is the state morality teaching people they can no longer protest against gay marriage if they disagree with it. Last week New York schools were requiring students to role play homosexual relationships, under the guise of discouraging teasing, and school officials claimed parents had no recourse nor right to consent. I was subjected to similar teacher based moral humiliation in California public schools. It’s psychologically abusive to call out a student with moral views to stand by them self and ostracize them from their peers. These days they just let the teacher off if you complain.

    Lately, I’ve been considering adoption as a solution, cutting the figurative baby in half. Legally, marriage is replaced by the government allowing people to adopt each other as a spouse in an equal, protected relationship. No one is forced to call it a marriage if they do not wish. Private entities aren’t required to support marriage, fertility, benefits nor adoption services. This still protects assets, visitation, inheritance, taxes, etc. and equal protection and access to government services, without enforcing a state, de facto moral code at odds with the moral traditions of over half the world.

    • That’s really the crux of the issue. The debate isn’t about marriage at all. It is about using the force of law to try and re-shape society in dramatic ways. It’s about as counter to the core “live and let live” philosophy of libertarianism as you can get.

      • “It’s about as counter to the core “live and let live” philosophy of libertarianism as you can get.”

        No, you’re thinking of “murder-suicide”.

  4. Another point to this great article: marriage is a public good. It is in government’s interest to promote and protect marriage because of the incomparable job it does of a) providing long-term emotional, social and physical nurturing for men, women and children b) raising stable, healthy children and c) producing rising generations. No other institution or arrangement can do what marriage does. It truly is a public good worthy of the unique definition, status, incentives and protections it receives, if government’s role is to protect the inalienable rights of life, liberty and the pursuit of happiness.

  5. This is a bit of a straw man argument. Most Libertarians I know of who argue for getting government out of marriage suggest replacing government marriage with civil unions, open to any couple willing to contact with each other. I haven’t seen any prominent libertarians arguing against legally secured family relationships, just against the idea of a government enforced definition of what a family is. There is a difference.

    As for Sutherland arguing for using government force to secure their preferred definition of marriage I can only ask how well that is working out for them nationally. Every month more states make what they would call immoral marriage the norm. If government’s role were restricted only to securing civil union contracts they wouldn’t need to be as concerned about the continuing trend towards government preferential treatment for homosexual behavior.

    • That’s kind of where libertarians seem to lose themselves. If government agrees to mediate a particular form of contract, it is effectively endorsing its existence. There’s no way around that. If it weren’t, I don’t think that same-sex marriage advocates would be nearly as aggressive as they are. Their entire purpose is to use the force of law to create societal legitimacy and acceptance.

      If we firewalled that into being defined by local communities, I could shrug it off and choose to live in a community that won’t endorse it. In the real world, these issues are being taken to the all-or-nothing national stage. I’m the one getting it forced down my throat, yet somehow I’m the jerk. Go figure.

      • Civil unions don’t equal government forcing gay marriage “down your throat”. (eww). They just bring us back to the idea that one of the legitimate roles of government is enforcing a contract. Government gets no say in banning or preferring any type of family relationship. Is this what you object to? I think it cheapens marriage to argue that its primary value is that which government approval gives it.

        Marriage predates government. Marriage is a religious rite that has meaning beyond any government’s ability to define it. Marriage and family are included in those inalienable rights we’ve heard so much about and if we ask government to define it we also give government the power to corrupt it.

        I think this is a topic where conservatives seem to lose themselves. They seem determined to give government power to define a religious rite that is sacred to them and then they are surprised when that definition isn’t what they wanted.

        • Not directly, but they are directly used as a stepping stone. It seems that you and I have a fundamental disagreement as to if allowing government to mediate or enforce a contract means that it is endorsing it.

          And any two people can perform any rite they want and call it marriage. The only time a conflict arises if when those people expect the government to enforce specific rights and privileges ancillary to it. That’s the heart of the conflict, isn’t it?

          • I think the heart of our disagreement is that you don’t want people to be able to form a contractual relationship that allows them behavior you think is morally repugnant. I don’t care…as long as they aren’t shown to be hurting anyone or taking away someone else’s rights.

            I know that is just another way of stating what you just said…I just like my way better!

          • Isn’t that the heart of all law, a collective expression of shared morality? You and I would agree that we don’t allow someone to sell themselves into slavery because it is morally repugnant. We don’t let people under a certain age enter into contracts because it is morally repugnant. Heck, we have huge sections of code defining what is and is not a consensual sexual relationship because, again, we find some such arrangements to be morally repugnant. I don’t think you can’t honestly tell me that this isn’t the case.

            Again, you’re trying to play the “you’re a jerk” card over disagreement as to what those limits should be. I think you can and should do better.

  6. How is that the “you’re a jerk” card?

    I’m arguing that you didn’t give libertarians a fair shake in your original post. You accused them of arguing for anarchy when they are really just arguing for getting government out of the business of redefining a principle and idea I hold dear.

    The libertarian position on marriage is incredibly unlikely to be taken up anywhere in our country and that leaves me, an opponent of same sex marriage, stuck in the position of telling some people I don’t think their “marriages” are legitimate because they aren’t between a man and a woman. I do see a difference between government sanctioning same sex marriage and enforcing civil contracts between same sex couples. I’m not alone. Poll after poll have shown more support for civil unions than that which exists for legalizing same sex marriages. There is a difference.

    As to what you think I can and should do better…you may be right. Thanks for providing me the opportunity to comment here today. I like the new site.

    • Re-read your previous comment a little more carefully. The implication I walk away with is that you’re calling me a moral busybody while characterizing yourself as the “good guy” who just wants to leave people be.

      I think I understand most libertarians perfectly fine. I’ve been reading and watching their comments long enough to see that most of the arguments are a weak sauce “get out of the business” without any specifics. They are vague mantras with no specifics that leave everyone else trying to fill in the blanks. If you take a murky position, you can’t be too honestly offended when someone tries to force a clearer definition.

      The core problem with civil unions is that they are not a compromise, but merely a stepping stone towards seizing the term marriage and effectively undefining it. Every time they have been granted, the suits are immediately filed to try and take marriage. The point isn’t some kind of high-minded fight about “equality” (whatever that means), but rather using the power of government to force a societal change.

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