Dr. Jennifer Roback Morse argues why the libertarian knee-jerk reaction to privatizing marriage is not only impossible, but a bad idea altogether. Her arguments are quite persuasive, and are contained in three parts:
- Privatizing Marriage is Impossible
- Privatizing Marriage Will Expand the Role of the State
- Privatizing Marriage Is Unjust to Children
It’s important to approach this topic logically and objectively, and weight her arguments carefully. I doubt I do much justice to what she wrote above, but hopefully my summary will help people understand it more readily.
Part I: Privatizing Marriage is Impossible
Although she doesn’t begin with this argument, it is the first thesis that needs to be given before any other discussion can be had. Marriage is not about friendship or relationship between husband and wife. It is about building family with children. No, not every couple who decides to marry produces children, but that is not the point either. Simply put, “not every marriage has children. But every child has parents.” Hence, marriage is the beginning of family, You cannot have family without it.
The objection against public sentiment on marriage (that marriage is about love or relationship building) is evidence of how self-centered we have become. Marriage is about, and will always be about, building families to welcome children into this world. As long as society has any interest in children at all, then society necessarily must have an interest in the conditions under which those children are brought into the world. You cannot separate this simple fact unless you divorce our interest in children altogether from our societal interest.
The crux of her argument is identical to why you can never completely privatize contracts. Ultimately, every contract is subject to review by some court, because there are certain contracts that simply can’t be made. At the beginning, the natural mother and natural father share rights over their child that no one else can claim to have, by virtue of them being the physical parents of the child. This is a law that is written in nature’s code. It is obvious and self-evident. Suppose we did allow mothers and fathers to enter into contracts that detail how they would handle the responsibility of rearing the child. What would society allow them to contract, and what would we disallow? As long as you admit that certain agreements are simply invalid for one reason or another, then you must also argue that certain agreements between mother and father may also be invalid. Hence, the state will be involved in matters of parenting and family, no matter what.
In fact, she argues quite effectively that as we have approached marriage with a more laissez-faire attitude, the state has become even more involved in marriage than before. That’s because society has an interest in the welfare of the children, and in order to protect the children under the new form of marriage many states have adopted, the courts and CPS has had to move in to fill the vacuum that was previously filled by traditional marriage.
Hence, it is evident that we can never have a privatized marriage arrangement. As we approach such a thing, the state becomes even more involved in family issues. The best way to limit government’s role in family life is to define marriage as that institution which will limit the state’s involvement in family affairs and yet protect the children. That is the marriage that libertarians should support whole-heartedly.
II. Privatizing Marriage Will Expand the Role of the State
Although some of this argument was hinted at in the last article, she goes into more detail as to how and why this expansion occurs in the face of privatized marriages.
Simply put, “The state will pretend to get out of the marriage business all right, but then the state inevitably will be caught up in the business of defining who counts as a parent.”
The problem we see is when we separate legal parentage from biological parentage. In a court of law, all you used to have to do is find the biological parents, and see what they want with the child. If the argument can be made that they are not fit for parenting, then the child is given new parents. Under the new legal constructs we have adopted over the last few decades, this process has become infinitely more complicated, requiring new laws and agreements and precedents just to find out who the “natural” parents are.
Think about what is happening. Now, mother and father are becoming legal constructs defined by the state. This is an enormous power and responsibility over every single person’s life. Rather than rely on natural law to determine who the parents are, we turn to the legislatures and courts to tell us. Is this the kind of society we want to live in—where the most important decisions in our lives are being made by courts and representatives? I would think this is completely opposite to what libertarians want to have, a society governed by people governing themselves, with minimal interference by the state.
Adoption is a special case that respects the right of the biological parents to parent. Here, a clear legal line from the biological parents to the legal parents is crated through a private contract. The courts only have to review whether the transfer has been done legally and whether the new parents are fit to adopt at all, and ensure that the needs of the child are satisfied, and then there is no further investigation needed.
Dr. Morse makes a good point that I think escapes many libertarians. We cannot have a free society unless certain laws are enforced universally, particularly property rights. To imagine a society where people choose whether they will respect property rights or not is to imagine chaos, or worse. Likewise, by eliminating the natural right to parentage, we are inviting chaos into our society, a chaos that is not a foundation for greater freedom but a lack of it.
Dr. Morse then goes on the attack on every so-called advance in sexual liberty, and points out in plain, terse language that the effect has been less freedom and liberty, not more. Who steps in to clean up the resulting mess? The state, of course. It’s quite clear how this kind of “liberated” behavior is not liberty at all, any more than people arbitrarily deciding what is and is not mine doesn’t create prosperity and liberty.
III: Privatizing Marriage Is Unjust to Children
The bottom line here is children are incapable of making rational decisions in their self-interest. They need someone to represent them, protect them, and even train them into adulthood.
The family is the institution that makes liberty possible. When we have families with a loving, responsible father and mother who teach their kids basic values and principle of libertarianism, then we have a free society where people leave each other alone and where people are free to do what they like in their own self-interest. You simply cannot have one without the other. Take out the family, take out the education that occurs in the home, take out the experience of living together under the same roof, learning to work together, learning the first and most important life lessons or responsibility and independence, and you have a nation full of irresponsible children who, if given freedom, would quickly sell themselves into slavery.
It is quite clear that, as a society, we have a strong interest in seeing every child grow up into mature adulthood. Since this training only occurs in the family, then we, as a society, have a strong interest in seeing families that are functional. This is why we need to have traditional marriage.
I hope you see where moral issues now enter into libertarianism. Libertarians, in my mind, are right on so many issues, but fail, completely, to understand the full extent of their ideas on moral liberation. Society does have an interest in morality. That’s why I consider myself a Republican before a Libertarian. I believe that we do need moral laws, such as marriage laws. I believe it is in our self-interest, individually and as a society, to see that certain basic standards are kept universally, especially the standard of traditional marriage, and that it is in our self-interest to see the state enforce such standards.