How sound marriage laws enhance liberty

A sincere question often raised in the debate over the definition of marriage is whether it is appropriate for government to be in the marriage business at all. For those of us who believe in the principle of limited government, it is a question that deserves serious thought. There is much to say about why it might be appropriate for government to have laws regarding marriage even in a limited government system. Here I will offer a few practical considerations.

First, the most contentious issue today regarding marriage is whether the jurisdiction of the government over marriage will be greatly expanded. Until very recently, the laws regarding the eligibility to marry were extremely simple and limited. They were based on natural relationships between men and women, the kind that have always been recognized as unique in all kinds of human societies because of their potential to provide a mother and father for children. In the United States, the state merely recognized these relationships and required that to have the legal status of marriage conferred upon them a couple need only not be married to someone else and have the ability to consent (including reaching a certain age, a common-sense requirement). Some states added an extraneous requirement related to race in order to hijack the social capital of marriage to promote an evil notion of racial supremacy. The U.S. Constitution was amended after the Civil War to make clear that our laws ought to be colorblind, though it took many decades for that principle to begin to be fully honored.

With same-sex marriage, the power of the state expands dramatically to encompass a new role: not merely recognizing as a legal matter what is true as a natural reality — that there are two sexes whose union is unique in type and effect— but creating an entirely new kind of institution meant to give the government’s stamp of approval to any kind of relationship favored by adults. As a corollary, the government would now begin to tamp down definitions of family such as the idea held by many religious people and others that marriage is inherently the union of a husband and wife.

On this matter, some erstwhile advocates of small government have nothing to say. Not only do they not oppose the takeover of the marriage institution, they favor it, adding merely that ideally the government will get out of the marriage business. It would make more sense to oppose government expansion in the marriage business and then gradual disentanglement of the state from other areas of social life, but most often what we hear is support for redefinition and the wish that after expanding its jurisdiction over marriage, the government will (magically?) decide to drop the whole business altogether. My grandmother often said, “If wishes were fishes we’d all have a fry.”

I have recently publicly proposed a thought experiment. In 1787, every state in the new union had strict divorce laws and a very, very limited tolerance of “family diversity.” In 2012, we have exceedingly loose divorce laws and an increasingly expansive legal recognition of new family forms. The question is: Are we freer now than we were then? It may be easier to get out of a marriage contract (on paper, though not in reality), but do we have more liberty when a broad swath of the adult population has to get court permission to schedule time with their children or faces collection proceedings from the state for child support?

These and similar questions merit pondering for those inclined to surrender on the redefinition of marriage in the hopes that someday the dream of a world without marriage law will come to pass. Sincerely considering them might lead to a different conclusion — that maintaining a basic, well-defined legal structure to house the social institution of marriage enhances, rather than threatens liberty.