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Privatizing Marriage is Impossible

Privatizing Marriage is Impossible

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Published by betsyk1
We cannot escape the fact that marriage is an intrinsically public institution. We can’t avoid making collective decisions about its meaning and purpose. If we don’t do it explicitly, we will end up doing it implicitly.
We cannot escape the fact that marriage is an intrinsically public institution. We can’t avoid making collective decisions about its meaning and purpose. If we don’t do it explicitly, we will end up doing it implicitly.

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Published by: betsyk1 on Apr 03, 2012
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Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
Privatizing Marriage IsImpossible
 by Jennifer Roback Morse, Ph.D.
This article was first published at  PublicDiscourse.com on April 2, 2012.
We cannot escape the fact that marriage isan intrinsically public institution. We can’tavoid making collective decisions about itsmeaning and purpose. If we don’t do itexplicitly, we will end up doing it implicitly.As a libertarian myself, I have been quitedisappointed that the “default” libertarian position on marriage has become little morethan a sound-bite: “Let’s get the state out of the marriage business.” With all due respect,this position is unsound.I will not be able to respond to this sound- bite with another sound-bite. The issuessurrounding marriage are too deep. But I amnot deterred from trying to persuadethoughtful readers who are up to the task of following a complex and unconventionalargument wherever the search for truth maylead.I make three points in this series of articles.First, in today’s article, I show that it is not possible to privatize marriage. Second, intomorrow’s article, I show that the attemptto privatize marriage will not result in anincrease in freedom, but will actuallyincrease the role of the state. Finally, in thethird article, I show that attempting to privatize marriage will perpetrate greatinjustices to children. Any of these reasonsis sufficient to put an end to the “get thegovernment out of the marriage business”mantra. All three of these reasons takentogether form a compelling caseforabsolutely opposing the redefinition of marriage and for working tirelessly to createa robust cultural norm of one man, onewoman, for life.“Get the government out of the marriage business,” or its close cousin, “Leave it tothe churches,” is a superficially appealingslogan.When I hear this, I often get thefeeling that it is a way of avoiding theunpleasant dispute currently raging over the proper definition of marriage. I sense that its proponents are hoping we can remove thiswhole contentious topic from the publicsquareand put it into the private sector.Each person or group can have its ownversion of marriage. The state, with its powerful coercive instruments, need never get involved in resolving this seeminglyimpossible stalemate.While I understand this impulse, I believe itis fundamentally misguided. Taking a standon the purpose and meaning of marriage isunavoidable. Here is why.Marriage is society’s primary institutionalarrangement that defines parenthood.Marriage attaches mothers and fathers totheir children and to one another. Awoman’s husband is presumed to be thefather of any children she bears during the
 
Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
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
 public
 purpose of marriage, as opposed tothe many
 private
reasons that people havefor getting married.If no children were
ever 
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
 
Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
decide where children go to school, or tochurch. I’ve even heard of a family court judge choosing a teenaged-girl’s prom dress because the divorced parents couldn’tresolve the issue.Married spouses disagree with each other over all sorts of issues, of course. But it isliterally unthinkable that the state would beinvolved in resolving these kinds of disputesin an intact marriage. One might havethought that no-fault divorce would “get thegovernment out of the divorce business.” Infact, it did no such thing. The governmentgot out of the front end of deciding whatcounted as a valid reason for divorce. Butthe government reappeared on the back end,in a far more intrusive form, as it decideshow to divide family assets and resolve post-divorce conflicts.Furthermore,“leaving marriage to thechurches” is a fantasy. At this point inhistory, churches are not the ultimate legalauthority for anything. There is exactly zerochance that the state will permit religiouslaw to be the legal authority for its memberson issues such as custody, visitation, andchild support. In fact, the “Lifestyle Left”has spent considerable energy marginalizingthe churches, reducing even further their ability to shape the behavior of their members and influence the wider society.They’ve done this, I might add, withscarcely a peep of protest from libertarians.Even if the state did grant churches bindinglegal authority over their own members, thestate would still be drawn into disputes between people in mixed religiousmarriages, as well as people of no religion atall. Thus, what appears to be “leaving it tothe churches” will be in fact no such thing.The state will end up shaping people’s behavior by how it chooses to resolve thedisputes that will inevitably arise.Finally, getting thegovernment out of the business of giving out marriage licensesdoes not mean that the government will becompletely neutral with respect to kinds of relationships. The government is alreadydeeply involved in many aspects of humanlife that affect people’s decisions of whatkind of relationship to be in. For instance,government’s policies regarding welfare,health care, and housing have contributed tothe near-disappearance of marriage from thelower classes, not only in America, butthroughout the industrialized world.Miss Octo-Mom, to take a specific example,thought it was in her interest to give birth tofourteen children without ever even having arelationship with a man, much less beingmarried to one. Surely government policieshad something to do with her decision-making. Agencies of the state provided her with income support, free medical care, theuse of a stranger’s sperm, as well as legalassurance that said sperm donor would never show up and bother her. Every one of these policies has impliedviews about marriage.If libertarians ever succeed in getting thegovernment out of all of these areas of life,maybe we can talk about making thegovernment “neutral” with respect tomarriage. Until then, forget it.

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