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Privatizing MarriageWill Expand the Role of the State
by Jennifer Roback Morse, Ph.D.
This article was first published at PublicDiscourse.com on April 3, 2012.
Libertarians are being taken in by rhetoricthat sounds libertarian but, in fact, will leadto a dramatic shift in the balance of powerbetween the state and civil society, indeedbetween the state and the natural orderitself.
impossible to get the state out of themarriage business. Marriage attachesmothers and fathers to their children and toone another. This is an irreducibly public
function. Yet attempting to do theimpossible is not harmless. Assigning thestate animpossible task amounts to givingit a blank check.That is because the attempt to privatizemarriage will hinder the ability of marriage
to perform its essential public function.Nonetheless, children still need to beattached to mothers and fathers somehow.The state will pretend to get out of themarriage business all right, but then thestate inevitably will be caught up in the business of defining who counts as a parent.Up until now, that job has been largely leftto Mother Nature, with the state simplyrecording the natural reality of parenthood.You can see this process at work by lookingat disputes between same-sex partners over
child custody. These kinds of disputes arealready redefining parenthood. Some of thecases involve various kinds ofcivil unions.Some of these cases involve agreements between the would-be parents. Thedifficulties these cases present illustratehow problematic it really is to attempt to
"privatize marriage."The typical case involves a woman who hasa baby through artificial reproductivetechnology. Usually the father is ananonymous sperm donor, and so he has been safely escorted out of the child's life, before the child was even born. Thedisputes arise because the mother no longerwants her former sex partner to haveanything to do with her child. Whateveragreements they may have made prior tothe child's birth have broken down. Enterthe state.The traditional way of determiningparenthood is through biology. The womanwho gives birth to the child is the legallyrecognized mother. Her husband, if any, ispresumed to be the father of any childrenshe gives birth to. This rule, called the"presumption of paternity," coupled with a