Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: firstname.lastname@example.org • 760/295-9278
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life of their union. These two people are thelegally recognized parents of this child, and
no one else is.
The grandparents are not; theformer boyfriend is not; the nanny whospends all day with the kids is not. Thesetwo hold their parental rights against allother competing claimants. This is anintrinsically social, public function of marriage that cannot be privatized.You might reply, “Dr. Morse, your understanding of marriage is all about parenthood, and not about marriage itself. Not every marriage has children, after all.”And it is perfectly true: not every marriagehas children. But every child has parents.This objection stands marriage on its head by looking at it purely from the adult’s perspective, instead of the child’s. The factthat this objection is so common shows howfar we have strayed from understanding the
purpose of marriage, as opposed tothe many
reasons that people havefor getting married.If no children were
involved, adultsexual relationships simply wouldn’t be anyof the state’s business. What we now callmarriage would be nothing more than agovernment registry of friendships. If that’sall there wereto marriage, privatizing itwouldn’t be a big deal. But if there wereliterally nothing more to marriage than agovernment registry of friendships, wewould not observe an institution likemarriage in every known society.Perhaps libertarians might concede thatmarriage attaches children to their natural biological parents. They might even agreethat this is a fine and necessary thing—andthen try to imagine that the institution nowknown as marriage could be replaced by private agreements among prospective parents. I will argue later that this policywill inflict serious injustices on children. For now, I want to show that it is an illusion tothink that these contracts can dispense withany and all state involvement.Disputes that arise between the contracting parties must be resolved by an overarchinglegal authority. Let’s face it: thatoverarching legal authority always will besome agency of the government. “Gettingthe government out of the marriage business” amounts to refusing to definemarriage on the front end. But the state willend up being involved in defining whatcounts as a valid marriage or parentingcontract, on the back end, as it resolvesdisputes. We cannot escape this kind of stateinvolvement. No-fault divorce provides an analogy. No-fault divorce allows one party to end themarriage bond for any reason or no reason.In effect, the state redefined marriage byremoving the presumption of permanence.Marriage became a temporary arrangementrather than a permanent union of a man anda woman. No-fault divorce was supposed toincrease personal freedom.But the result of this legal change has beenstate involvement in the minutiae of familylife, as it resolves disputes over custody,visitation, and child support. Family courts