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.