Many a libertarian has uttered the phrase “why is government in the marriage business anyway?” in the context of the controversial gay marriage debate. Like most libertarian formulations, it is consistent with the libertarian’s overall desire for consistency. It appears bold and insightful. It gets at first principles. But does this argument really make any sense? After all, why not also say, “why is the government in the property business?” Should the government be defining what is and what is not property?
Government involvement in marriage is more like government’s involvement in property and less like, say, drug laws. Libertarians, like most of us, believe in property rights. Property has a meaning and concept outside of law. Even in Somalia, people know what it is to say “that is mine.” John Locke said property originally arose as people mixed their labor–which they indisputably owned–with the unclaimed resources of the “state of nature.” But property is a hell of a lot less effective without legal recognition. Property, like marriage, has historically had legal recognition because the institution will exist in some form with or without legal recognition, and it will be strengthened by legal protection. The state must deal with property, as it must deal with married people. And it must do so in both cases to distribute tangible goods, adjudicate competing claims, and, in the cases of married people, arrange for the custody of children.
Certain activities and relationships, permanent features of the human landscape, aren’t going anywhere. Marriage is one. Friendship another. Property another. Violence is one more. So the state deals with them in one way or another, giving recognition, punishment, or being indifferent as the case may be. And that treatment usually varies based on the social good or harm that the activity in question does. The state doesn’t create these things out of thin air. They have meaning apart from what the laws say. They are recognized by the state because they do some social good or social harm. But their fundamental meaning and claim to social recognition doesn’t rise and fall with the state’s imprimatur.
As in the case of property, states don’t create marriage. They recognize it. While there is a legal definition of marriage, that definition arises from and accords with an existing series of practices. If the state were to describe an old Buick as a marriage, it would not become so. Gay marriage, like “roommates” or “friendship,” doesn’t really have a legal meaning outside of its creation by the state. It has no historical contours. It is au courant. Its advocates’ chief claim to legal recognition, other than the desire for social approval, is also to eat at the trough of the welfare state.
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I’ve also noticed how the libertarian/ wimpy ‘conservative’ wings have taken on this ‘marriage business’ tactic lately. The argument is basically, ‘some people don’t like gay marriage, so if we don’t issue marriage licenses, there’s no gay marriage! yuk yuk yuk!’ It’s completely idiotic.
The issue is the overall acceptance of sexual deviancy in our society. The gay activists merely took the marriage license route as a convenient means to achieve their goals. If there were no state-recognized marriages, they’d just hit us from some other angle. The libertarian approach is pure smoke and mirrors, rhetorical sleight of hand used to obscure the central issue.
Agreed. And it misses the point. When the state recognizes something already in existence–like marriage or property–it is not changing society. It is protecting society, even if it must define these things on the margins and make a handful of people unhappy. When the state creates “Gay Marriage” or something similar, it is engage in social engineering, calling something something that it is not, requiring the rest of us to pretend that it is is what is legally defined to be, and punishing those who dare to resist.
Where are all these libertarians who believe in “freedom” going to be when nondiscrimination laws are applied to gay marriages. Where will they be when the welfare state expands its benefits to include these gay partnerings?
A great many libertarians are so scared of their reputation and being called conservative that they love to embrace these social issues. Incidentally, no one really agrees with them, votes their way, or gives them much slack for their consistency.
[...] Mr. Roach on government and marriage: "Government involvement in marriage is more like government’s involvement in property and less like, say, drug laws." I’m not sure I agree with this argument, but it’s worth reading in full. [...]
“As in the case of property, states don’t create marriage. They recognize it. While there is a legal definition of marriage, that definition arises from and accords with an existing series of practices. ”
Marriage as officially defined does not accord with an existing series of practices.
The problem is that since the mid 1850s, the state has been trying to remake marriage and human nature into something it is not, and can never be, and every time its failure becomes obvious, it redoubles its efforts.
A “conservative” effort to make marriage what it was in the 1950s, or 1900s, is not conservative at all. From the point of view of almost anyone in the last thousand years or so, it looks as hippy dippy radical as gay marriage, a project suitable for nuts and fruits.
What problem do you mean “since the mid 1850s”? How was the state trying to remake “marriage” and “human nature” back then?
Due to the fact that women get pregnant and men do not, women have to accept less favorable terms in marriage than men to get men to volunteer to stick around. If a man invests in a wife and kids, he is going to engage in mate guarding behavior, which restricts a woman’s freedom. To abolish those aspects of marriage, is to abolish marriage. If something called marriage continues, it continues with men making markedly reduced investment in children and the future.
Reading old books, it is apparent that before these reforms, people knew their ancestors far back, and that patriarchs tended to build for the next centuries. After these changes, they did not.
Mr. Donald may be referring to the extension of property rights to married women in the 1800′s, and the relaxation of divorce and contraception laws in the 1900′s. I would be interested in hearing his explanation though.
Whatever the case, the difference between marriage in the early 1900′s and marriage from past centuries is one of degree. Gay marriage, on the other hand, is a categorical difference – a complete redefinition.
Mr. Roach writes : “Property, like marriage, has historically had legal recognition because the institution will exist in some form with or without legal recognition, and it will be strengthened by legal protection. The state must deal with property, as it must deal with married people. ”
Or you could write, the family is prior, as cause, to society, not unlike the soul is the cause of us being men. And just as we don’t ‘deal’ with our soul, nor does the state ‘deal’ with the family. Men are by nature political and the family is the foundation of society.
Society ‘deal’ing with marriage is finally no different in understanding than the libertarian’s unnatural understanding of the compact because ‘deal’ing separates marriage from being intrinsic to society.
It’s not historical recognition, but that which is natural to us which we also see existing historically.
What liberals decline to understand is that a notion of what man is precedes situational analysis in all cases regardless. They thrill to lurid portraits of fanged Nazi opponents but can’t appreciate that this persistent behavior merely adds to their own sickened portraiture and the profile of liberalism generally.
There is a class of people that is pathologically unable to reflect on the damage caused by the application of the gay marriage grid to society. These types and this feeling are and have been dominant politically. That is a bad sign and a just cause to root for major shifts and shuffles of the deck.
I agree entirely with Mr. Donald. Marriage existed in multiple forms prior to modern times, notably the polygamous variety widespread in pre-Christian and non-Christian cultures that the US tried actively to stamp out (which is what I assume he is referring to).
Marriage is not “like” property law, it “is” contract law. It’s uniqueness comes only from being mixed up with pyschological ideas like romance and religious ideals like chastity.
We could easily have a series of contract laws that dealt with different aspects of marriage on an ad hoc basis, and most people would probably like this just fine. The truth of this is obvious all around us, where there are step-parents and adoptions with legal ramifications.
Under the current situation, where the government is in the business of recognizing love as a special contract category, it is also in the business of saying whose love is acceptable. Given our other egalitarian political assumptions, it is no surprise that gays are upset by this.
The problem I perceive, is that a eighteen year old woman can contract to enormous educational debts which cannot be expunged through bankruptcy, but cannot contract to always be sexually available to one man, and never to any another.