John Stemberger is an Orlando Attorney who is President of the Florida Family Policy Council.
The libertarian wave gaining momentum in America has brought powerful arguments to reduce the size of government, eliminate the national debt, and lower taxes. All are goals which conservatives would heartily agree with. But while some libertarian ideas have contributed strength to the body politic in America, the movement has also brought some ideas that would have destructive and unintended consequences.
One of those ideas is summarized in the phrase “Get government out of the marriage business”. This saying is consistent with much libertarian thought which argues for an unfettered “liberty” to engage in any consensual sexual activities people choose without government regulation or interference.
The idea of privatizing marriage by reducing the relationship to merely private contracts, maybe on file with the state, seems to have been introduced largely in response to the same-sex marriage controversy. Many politicians appear to be using the idea as a “solution” or a political “way out” of the controversy. While there are some serious minded people advocating for the idea, truth be told, the vast majority of proponents are using it merely as a convenient political shield attempting to deflect criticism taking a stand on the issue.
There are at least seven reasons why “marriage privatization” would be damaging to the future of a civil society.
1) Private “relationship contracts” would immediately legitimize and permit polygamy, group marriages, incest and other aberrant relationships. Harvard-educated anthropologist Stanley Kurtz has written that marriage privatization would be a “disaster”. He argues that government “still has to decide what sort of private unions merit benefits… under this privatization scheme”, and that “we also get the same quarrels over social recognition that we got before privatization.” He commented that the government will have to deal with polygamous, polyamorous, and incestuous relationships also attempting to obtain contracts under the new scheme as well as attempts by heterosexual acquaintances to make “marriages of convenience” to obtain things such as spousal medical insurance. Legitimizing these aberrant relationships would only serve to further dilute the meaning and significance of natural marriage in society as a desired institution.
2) Abolishing marriage laws could increase the sexual exploitation of children through human sex-trafficking. Marriage laws which currently regulate the age at which a person can be married protects children from human sex-slavery or even desperate parents from certain impoverished countries who may seek to exploit or manipulate minor children into “arranged” marriages for financial gain.
3) Relationship contracts would overburden courts with rising litigation disputes and would side-step legal protections for children and abandoned spouses replacing them with court ordered damages, penalties and state-coerced action. If a legislature repealed marriage statutes and did nothing to define or regulate the creation and or dissolution of marriages, then by default, parties would be left with only using legal contracts to address child custody, visitation, alimony, and property rights. If the parties breached these private contracts, litigation would ensue regarding the intent, interpretation, and enforcement of those agreements—many of which would likely be drafted by non-lawyers with vague and confusing terms. Courts would issue penalties, damages and specific performance ordering private parties to enforce contracts often with draconian results. Real-life economic and practical hardships would befall untold thousands of single mothers where men abandon their families – or even take forcible physical custody of small children– where no such contract was in place.
The creation of plural marriage and group marriage contracts would add further to the uncertainty of this new “wild-wild-West” of legal results. These “prenuptial-like” marriage contracts would also further undermine the idea of marriage as a lasting, life-long covenant, serving to further weaken and destabilize society. Instead of keeping government out of the marriage business, this move would do just the opposite. The great irony of marriage privatization is that it would only increase the state’s involvement in the lives of her citizens.
4) This solution is by adults, for adults, and ignores what’s best for children. Arguments to privatize marriage, whether made by scholars or politicians, are never discussed in terms of what is best for children. Jennifer Roback Morse, a libertarian author and scholar with the Witherspoon Institute, is a critic of marriage privatization and argues that the logic of marriage privatization “at the expense of children, is a concept developed by adults that will benefit only adults.”
In the common law, whenever children are involved in divorce, custody disputes, adoption or dependency proceedings, the legal standard has always been “what is in the best interest of children?” As in the same sex marriage debate, when personal autonomy meets the best interests of children, courts routinely allow “adult desires” to trump what’s best for children. Deregulating marriage law would have the same effect. When men divorce the mothers of their children without these private agreements, single mothers would be left with no laws to protect or support their children.
5) The consequences could further sink our society into new depths of social maladies, broken families, and human suffering. Throughout history, marriage has been always been regulated. When societies were cohesive or small, marriage has been regulated by strong social mores, by religious institutions, or by cohesive cultural norms. In more diverse and modern societies, marriage has been regulated through law and public policy. This is part of what separates civil societies from more primitive ones. For this reason, completely deregulating marriage could be a sociological disaster.
Today’s inner cities are “Exhibit A” to the poverty, crime, fatherlessness, and devastation that emerges when marriage and family structures are weak, fragmented, or nonexistent. This measured collapse in inner cities would move even faster into every area of communities if marriage is legally abolished and reduced to private contracts.
6) The taxpayer’s costs resulting from family fragmentation and unwed childbearing would sky rocket under marriage privatization. National Review Columnist Maggie Gallagher has called marriage privatization a “fantasy” since “[t]here is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems.” A study by the Institute for American Values concluded that the cost to U.S. taxpayers from family fragmentation as a result of divorce and unwed childbearing was $112 billion annually.
Sadly, the political left in America feeds on divorce, broken families, and unwed childbearing. Strong marriages and families help break the grip of an ever-growing socialist-leaning state, freeing her citizens from poverty to reach their fullest economic potential as creators of wealth rather than being chronic recipients of distributed wealth.
7) A free society with minimal government interference depends on legal norms for marriage, family structure, and child bearing. Government has a compelling interest in defining, regulating, and promoting marriage because of the self-governance it creates when children are socialized in this environment. At the most basic level, marriages—and the families they create—produce social order in homes, neighborhoods, states, and nations. Marriage channels masculine energy in socially productive ways, protects women, and increases almost every category of human flourishing. Research is clear that a married biological mother and father is objectively the optimal context for rearing children. Marriage benefits not just those in the relationships, but the businesses, economies, and communities around them. Marriages, and the families that flow from them, tend to produce more productive citizens who create wealth and contribute to society.
The failure of marriages and families has caused the rapid expansion of the welfare state, dramatic tax increases, and has contributed to increasing the national debt. Roback Morse argues “[i]t is simply not possible to have a minimum government and a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. The destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms… A free society needs marriage.”
In conclusion, it is important to realize that marriage is not merely a private, religious institution; it is also a public institution deserving of public protection. It is remarkable how many educated people believe that defining and regulating marriage cannot be justified in any other way than citing to the Bible or some religious authority. Many young people view efforts to legally define marriage as illegitimately advancing a purely theological doctrine. Therefore marriage is commonly misunderstood as an exclusively Christian belief rather than a necessary and universal human institution. Marriage serves not only people of faith but also the common good of society. Princeton professor Robbie George states, “Family is built on marriage, and government—the state—has a profound interest in the integrity and well-being of marriage, and to write it off as if it were purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake”.
Removing the protection and regulation of marriage by law could be more destructive to the institution than anything we have seen to date. Reducing marriage to legal contracts would harm the future of marriage in culture and society. It could produce profoundly negative changes leading not just to the further damaging of this vital public institution, but also destructive to maintaining a civil society itself.
This article was originally published on The Stream on July 5, 2015