Marriage and the Role of Government in a Free Society

The seventh in a series . . .

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**Audio recording is below.

“Of the world’s countries, America is surely the one where the bond of marriage is most respected and where they have conceived the highest and most just idea of conjugal happiness.”—Alexis de Tocqueville, Democracy in America, (Vol. I, Part 2, chapter. ix)

Over the course of the previous six essays in this series on the nature and meaning of marriage in a free society (see here, here, here, here, here, and here), we have examined various aspects of what marriage is and is not and why marriage properly defined and understood is crucial to a healthy and civil society. In our concluding series of essays on marriage, we shift gears and consider two final questions: first, what is the proper role of government in marriage, and second, will laws supporting what we have called postmodern “marriage” expand or contract the sphere of freedom in America?

To help us answer these two questions, we shall reconsider the all-too-common question posed by the Boston Globe that we examined in our previous essay on “Marriage Nihilism.” The Globe asked: “How would gay civil marriage affect your lives, liberties, or opportunities, or your own marriages?” This is an important question that must be answered.

In our two previous essays on “The Meaning of Marriage Equality” and “Marriage Nihilism,” we considered how same-sex marriage would affect the institution of marriage morally and socially. In the next few essays, we shall consider how metaphysical and postmodern marriage would affect our lives, our liberties, and our opportunities politically and legally. Specifically, we want to know whether government in a free society should have the power to coerce people into accepting postmodern marriage via laws, indoctrination, and censorship. Let us recall that one of the principal arguments for postmodern marriage is that Americans should be free to live however they choose and to love whomever they choose. In other words, does postmodern marriage expand or diminish freedom?

In today’s essay, I examine the role of government in metaphysical or true marriage (i.e., the union of one man and one woman that is monogamous, sexually exclusive, and permanent).

Metaphysical Marriage and Government

On the metaphysical view, government has a legitimate but limited role to play in marriage. Let’s begin by stating clearly what the government of a free society must not do relative to marriage.

Generally speaking, government should not be in the business of defining and enforcing the content of private, non-contractual human relationships. It should not determine, for instance, what it means to be a friend, a brother or sister, a lover, or a son or daughter. These relationships can be just as intense and important to the individuals involved in them as those of a married man and woman, and yet we do not and would not want the government regulating such relationships. The manners and mores associated with such relationships are best regulated through informal cultural norms and individual choices. The same is true of romantic, non-marital sexual relationships. In a free society, the State has no business in either endorsing or forbidding certain kinds of voluntary relationships between consenting adults. Nor should government be involved in propping up the self-esteem and dignity of certain individuals or groups.

Likewise, government should never attempt to create a social institution like marriage simply by ordering it into being and forcing individuals to accept it. This much is therefore certain: first, marriage is not and should not be created by government; and second, government should not function as a social engineer regulating the content of private, voluntary associations. Instead, its proper role should be limited to serving as a rights-protecting, rights-enforcing agency that ensures all adult relationships are voluntary and that the rights of children are protected.

The government of a free society may, however, recognize and facilitate certain kinds of relationships by providing them with a legal framework through which their forms and formalities are defined objectively and protected either by law or through written contracts. In order to fulfill this role, however, the government must know what marriage is. There is no time or place in world history where governments did not draw a line and say “this is marriage” to the exclusion of all other relationships. Governments do the same, for instance, regarding driver’s licenses and restrictions on who can vote. Even today, some proponents of same-sex marriage want to draw a line in the sand and exclude (which means to discriminate against) polygamous and polyamorous relationships from the status of marriage.

For marriage to be recognized in law, it must be understood and identified as some particular thing as opposed to something else or to nothing at all, and it must have a definition that distinguishes it from all other relationships. This is the only way that contracts or laws could be made to identify, distinguish, and protect marriage from all other relationships. The alternative to defining marriage as something particular (i.e., as having objectively grounded characteristics rather than whims and desires) is to say that it is nothing in particular and thereby obliterate its meaning altogether.

Regarding metaphysical marriage (i.e., true marriage), government has a strictly delimited role as a rights-respecting, rights-protecting agency. In other words, the proper role of government in marriage should be largely laissez-faire. From the perspective of the men and women who seek conjugal union, the rights-protecting role of government in marriage is twofold: first, to recognize and then protect the rights of married couples as a marital unit from outside interference, i.e., the right to their marital union, and, second, to serve as a neutral arbiter in settling legal disputes between husbands and wives as separate individuals.

In the first instance, government recognizes marriage through registration and licensing. In doing so, it protects the status and interests of married couples as a single, integrated unit against third parties who may seek to interfere in their marital union (e.g., legal cases involving next of kin); it assists in transferring property from one generation to another; and it supports their right to raise any children born of their conjugal union free of outside interference.

In the second instance, government recognizes marriage by providing a default legal framework for adjudicating disputes between husbands and wives. Marriage is—in part—a contract between a man and a woman, which means that its general rights and responsibilities should be known and spelled out in advance, such that the role of the government is limited to ensuring that the union is consensual and that its terms are known to both parties and enforced if necessary. Men and women who seek a permanent and exclusive union look to the government to serve as a neutral third party in adjudicating disputes that may arise between husbands and wives (e.g., joint property issues, spousal abuse, divorce, alimony, child custody and support, etc.).

But there is another important perspective from which to view the role of government in marriage, i.e., from the perspective of any children born to a married couple. The rights of children must be protected as well. Children come into the world defenseless and dependent on their parents, and the parents have a moral and a legal responsibility to protect their children’s right to life, and they also have a moral and legal right to be the adults who do so. Sadly, not all parents fulfill their responsibility. As part of its legitimate oversight role in marriage, government is therefore properly concerned with protecting the rights of children from abuse, neglect, or abandonment.

Public recognition of marriage permits governments to identify the parents of children. Without it, governments would face a difficult, if not a nearly impossible, task of determining the paternity of abandoned or abused children. Marriage solves that problem. The first line of defense in protecting the rights of children is for government to know who their biological parents are. Government-recognized marriage therefore acknowledges the procreative potential of heterosexual relationships, and it provides a legal structure that protects the bearing and rearing of children by their natural parents. The presumption of marriage is that husbands and wives will only have children within the context of their conjugal relationship, and they will raise them together as a family.

Thus, a proper government may issue marriage licenses with the ultimate goal of protecting children from abandonment, neglect, and abuse. Marriage joins husbands and wives together to become lifelong mothers and fathers. Were it not for children, there would be no need for the government to be in the marriage business other than to adjudicate what could otherwise be private contracts. If marriage were simply about defining the relational rights and responsibilities of two adults, pooling their resources, and sharing experiences and love, then again there would be no reason to have marriage recognized with its own distinct legal structure as opposed to a private contract.

In a free society, government should not regulate private relationships other than to adjudicate contracts between private parties. Moreover, a proper government should not be in the business of recognizing or sanctioning love, feelings, affection, self-esteem, or friendship. Proponents of a free society should not want the government issuing “friendship licenses” or “romance licenses,” for instance. While governments should have no interest in friendships, romantic unions (including even the most intense and intimate relationships heterosexual or homosexual), and the consensual sexual relationships of adults, they do have a vested interest in marriages. In fact, marriage is the only private personal relationship for which a government has a legitimate interest in providing some minimal degree of public recognition beyond mere contractual adjudication. Government has a vested interest in the perpetuation of the society over which it governs, and so it has a special interest in providing a salutary legal structure for the social relationship most responsible for reproducing and educating the individuals who make up the society. In other words, it has a special interest in the health and well-being of marriages by protecting the rights of married couples.

Marriage is different—radically different—from all other kinds of relationships. It is different from friendships and non-marital romantic relationships (heterosexual and homosexual). These different kinds of relationships can be just as intense, close, and loving as those of married couples. And yet, we do not permit or want the State to regulate friendships or romantic relationships (heterosexual and homosexual) above and beyond any contractual arrangements concerning the disposition of property, next of kin, and power of attorney. Government recognizes different kinds of contractual relationships, but it does not call them marriage. They go by different names because they are different kinds of association serving different ends.

Marriage, unlike other personal relationships, serves an objective public good: responsible procreation so that children are not hurt and society is perpetuated. This is one of the few instances in which we can say that a government policy is in the “public interest.” Only the most radical nihilists would oppose the protection of children and the preservation of civil society if not the species. (And yet, such people do exist, and they pose an existential threat to a free society.)

On the metaphysical view, government therefore has what we might call a minimal, “Night Watchman” role in overseeing the conditions necessary for the creation of families and the rearing of children. A properly limited, rights-respecting government has an interest in providing the basic legal scaffolding supporting the natural family, particularly regarding the entry and exit points (i.e., marriage, divorce, and death).

One of the important virtues of marriage as a social institution is that it facilitates a great deal of voluntary cooperation with a minimal legal structure and interference by the government. It sanctions and protects millions of mini societies (or “little platoons,” as Burke called them) made up of married mothers and fathers and their biological children. These small social units serve to educate children to become self-governing adults, and they are how a community of individuals perpetuates itself. If a husband and wife fulfill their basic responsibilities as parents, the government should have no interest in their marriage. In this way, marriage is the ultimate instantiation of the Hayekian system of spontaneous order: it is a bottom-up, self-regulating, self-replicating, voluntary system of long-term cooperative action that requires no guidance from the State. It only asks of the government that the metaphysically grounded rights associated with marriage be protected.

Not all romantic relationships in a free society, however, will result in marriage. Non-marital romantic relationships can be heterosexual, homosexual, polygamous, and polyamorous, and sometimes those relationships will seek to imitate or replicate some or all of the characteristics and protections of marriage (e.g., a legally recognized union that is monogamous, sexually exclusive, and permanent).

How might the government of a free society deal with these kinds of relationships?

Let’s consider the case of same-sex relationships. In a free society, recognizing and protecting the rights of individuals is the only proper foundation of justice, which includes protecting the right to freedom of association and the corollary right to form contracts. Regarding romantic and sexual unions, that which is done between consenting adults in the privacy and sanctity of one’s home should be no business of the government. Every individual adult living in the United States should feel free and safe to experience and fulfill their various romantic and sexual needs unregulated by government and without fear of punishment. This we should do with all due and deliberate speed.

In a free society, there are many different kinds of relationships that are or can be defined by contracts and deserving of a separate and distinct legal status, including long-term, even permanent romantic relationships of various descriptions, e.g., common-law “marriages,” same-sex relationships, polyamorous, and polygamous relationships. Romantic homosexual unions are real, and they can be just as intense as heterosexual relationships, just as meaningful to the individuals who experience them and just as long-lasting as marriages, but they are a different kind of relationship and so they deserve a different kind of legal status.

The proponents of a free society should support liberalizing and/or expanding the law to include the recognition of such relationships. We should work quickly to ensure that homosexuals do in fact have the same rights to make contracts that heterosexuals do. Homosexual partners in a permanent romantic union should have the freedom to form private contracts that would recognize their right to establish a legal, next-of-kin relationship different from their birth status. (This right should also be extended to unmarried heterosexual couples as well.) Furthermore, they should be granted legal provisions guaranteeing their rights relative to inheritance and tax law and to issues concerning, for instance, hospital-visitation rights. Homosexuals, like heterosexuals, should not be the object of State force that violates their right of free association, nor should they be denied the ability to form private contracts.

Expanding the regime of justice does not, however, require a state-mandated change in the definition of marriage. Other than enforcing private contracts, the State should have no legitimate interest in the private life of a long-term homosexual union. To all intents and purposes, properly designed civil unions afford homosexuals equal treatment under the law. In fact, most, if not all, of the legal goals of the postmodern marriage movement could be achieved in the absence of same-sex marriage.

In a free society, a wide range of romantic and non-romantic relationships could and should take legally recognized and legally binding vows that consummate mutual pledges of loyalty and support. This would allow polygamous and polyamorous relationships, for instance, to form as “civil partnerships” dedicated to securing various legal and personal protections for their relationships. In fact, such protections could be extended to a wide variety of non-marital relationships, including those of heterosexual siblings or friends who might wish to provide or care for each other throughout life and who might want to establish one or the other as legal “next of kin.”

An objective approach takes the moral condemnation of homosexuality, polygamy, polyamory, and other forms of romantic association out of the legal-political sphere. In a truly free society, individuals will remain free to engage in these relationships while other individuals will be equally free to judge and condemn those relationships if they find them abhorrent. What cannot be permitted in a free society is using the coercive force of the State to either criminalize such relationships or to criminalize the thought, speech, and actions of those who do not sanction them. In other words, Christian traditionalists may not use the coercive force of the State to outlaw homosexual acts just as secular Leftists may not use the coercive force of the State to outlaw Christian traditionalists from expressing and acting on their principles.

The approach I’m suggesting has the virtue of requiring only small changes to the law and to society, and it would require no expansion of the State, nor the violation of anyone’s rights. In fact, it is the one and only solution that expands the rights of individuals. It is a Hayekian solution to a Hayekian problem. It is the solution that would give everyone what they want (if what they want is really what they say they want), but it would not disrupt or upend society and cause social civil war. More importantly, it is the solution most in accord with the principles and institutions of a free society. The objective case against postmodern marriage is strengthened if we expand the category of civil union to include those appropriate legal rights from which same-sex couples and polygamous and polyamorous relationships may have been unjustly excluded in the past.

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