Should we just get government out of the marriage business? That question is increasingly common in the debate over same-sex marriage. J. Max Wilson has made some good comments on this question. The 2012 legislative session has made me think about another angle on the question.
We seem to have gotten government out of the marriage business but only at the cost of inviting government further and further into individual lives.
Looking at our current divorce laws suggest that, as a practical matter, we are pretty close to having government out of the marriage business. While the government still issues marriage licenses and relies on the designation of marriage for some purposes (taxes, estates, etc.), with no-fault divorce, the government doesn’t even pretend to support or enforce marital vows. Anthony Esolen writes:
[N]o-fault is patently unjust: very often it subjects the wronged party to the whim of the guilty; it rules out of bounds the most commonsense considerations in matters of the custody of children; and it reduces marriage to a status some miles below that of a business contract. If one partner at a gas station embezzles funds and uses them to buy stock in the competition, does he get to claim half of the original station? Does she get to compel her partner to provide her support as she buys even more stock? Would not such malfeasance land you in jail? Why do we take the ownership of corporations more seriously than the establishment of coherent families?
These are good questions.
The irony, of course, is that as the government has retreated from even holding people to the agreements they made when they married, there is still interminable litigation surrounding families. We seem to have gotten government out of the marriage business but only at the cost of inviting government further and further into individual lives. With the increasing failure of marriages, the government has become enmeshed in providing for those who can no longer rely on the support of a spouse, in enforcing visitation, in supervising parent-child interactions, in refereeing disputes about schooling, and on and on. An intact marriage is a model of laissez faire when contrasted with a divorce (or even cohabitation when children are involved).
The government really doesn’t need to be more involved in marriage (as it is being asked to do with same-sex marriage). The traditional role of creating a basic legal structure to reflect a natural arrangement with real meaning and binding obligations is enough. The law just needs to treat the promises made by married couples as real and refrain from intervening in an ill-considered attempt to help individuals escape the consequences of their choices.