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.