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Privatizing Marriage Will Expand the Role of the State

Privatizing Marriage Will Expand the Role of the State

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Published by betsyk1
Libertarians are being taken in by rhetoric that sounds libertarian but, in fact, will lead to a dramatic shift in the balance of power between the state and civil society, indeed between the state and the natural order itself.
Libertarians are being taken in by rhetoric that sounds libertarian but, in fact, will lead to a dramatic shift in the balance of power between the state and civil society, indeed between the state and the natural order itself.

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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
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
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.
In my previous article ,I showed whyit is
 
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
 
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
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
social practice of sexual exclusivity withinmarriage, attaches children to their biological parents.In exceptional cases where the naturalparents could not care for their children, thechild may be placed for adoption. But
 
adoption does not undermine the biological basis of parenthood. In fact, everythingabout adoption screams thatbiologymatters. Natural parents do not give uptheir children lightly, and mothers have theopportunity to change their minds aftertheir babies are born. The state does notremove children from their natural parentswithout good cause, and with proceduralsafeguards. In most jurisdictions, adoptedchildren have some opportunity to discovertheir biological origins.But when the family courts get involved inresolving disputes between contracting
 
parents, they are being asked to giveparental rights to someone who is notrelated to the child, either by blood oradoption. Let us call this person a "non-parent." In response to these cases, thecourts are defining a new category ofparenthood. The "
defacto
parent" categoryusually involves multi-part teststodetermine whether the non-parent should be counted as a parent. The court theninquires into issues such as how much carethe non-parent provided and whether thechild called her "Mommy." The statedecides that a person not related to a child, by either birth or adoption, can count as aparent. A perfectly fit mother can becompelled to allow her former lover accessto her child, against her own wishes.Think about it. The concepts of "mother"and "father" are natural, pre-political
 
concepts, immediately intelligible to thehuman race. Up until now, the state hasseen its role as simply recording this naturalreality. But now parenthood is becomingthe creation of the state. This is what"contract parenting" will come to mean: thestate taking over parenthood and recreating
 
it for its own purposes. Do you seriouslythink this can possibly be a "libertarian" orminimum-government move? I do not thinkthat it can.The call to "privatize marriage" is anattempt to transfer an important structureof the market-contract law-into the family,
 
where it does not properly belong.The belief that we can solve the conflict overthe definition of marriage by "letting themarket decide" is a confusion between theprivate and the public, a confusion betweenhow marriage functions for an individualfamily and how marriage functions as apublic institution. Perhaps an analogy toproperty law will help clarify the issue.Most libertarians have no trouble seeingthat the system of property and contract lawis something different from an individual's
 
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
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.
personal property or a particular contract hemight have made. Under an economicsystem of private property, people get to dopretty much what they want with their ownproperty. But backing up all those personaldecisions is a public system, administered by the government and sustained by the
 
consciences and habits of the populace. Theminimal but robust legal structure ofprivate property makes possible a dizzyingarray of individual activity and a wideswath of personal liberty.The institution of marriage is comparable to
 
the market system in this sense. We get todo most of what we want, most of the time,inside our marriages. No one comes tocheck up on us, unless we do somethingreally egregious.The freedom of particular couples issupported by and made possible by the
 
institutional structure of marriage andfamily law. Marriage provides boundarieson people's behavior: you have sex withyour spouse and no one else; you take careof the children born to you and yourspouse; you respect the parenting decisionsof other families. And until the advent ofno-fault divorce, you stayed married, unlesssomeone did something really awful.With this analogy in mind, imagine anEconomic Leftist makes this proposal: "youadvocate private property, I advocatecommunism. Why should the governmentdiscriminate against me and other economicminorities? Why should the taxpayerssupport the system of private property andcontract law, which offends me, and benefits you? You capitalists can pay foryour own property rights system. Privatizeproperty law."
 
This is not an offer of compromise, but ademand for complete capitulation. If thestate ceases to support the property rightssystem, one of the key institutions ofcapitalism will be out of commission, andthe whole system closer to collapse.
 
"Privatizing marriage" is comparable to"privatizing property." The uncertaintyabout your own expected behavior, theweak incentives for proper behavior byyour spouse, the cost of gettingjustice doneif someone violates the terms of theagreements: all of these things add up to an
 
extremely weak "marriage" institution. Infact, this amounts to the complete de-institutionalization of marriage, smuggledin, under the guise of "privatization."And that weak marriage institution meansthat marriage will lose its ability to providestructure for people's lives. Getting marriedand having kids are life-changingexperiences that you don't do yourself verymany times. People won't have theguidance of either law or social practice infiguring out what to do. If you try to domarriage and parenthood by trial and error,

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