Privatizing Marriage

Privatizing Marriage is not Therefore, the child has a legitimate interest
in the stability of his parents’ union. No

the Answer to the Same-Sex child, however, can defend these
Marriage Debate entitlements himself. Nor is it adequate to
make restitution after these rights have been
By Jennifer Roback Morse violated. The child’s rights to care and
relationship must be supported pro-
Far from settling the marriage debate, ‘getting actively, before harm is done, if those rights
the state out of marriage’ will reduce liberty, are to be protected at all.
leave cultural questions simmering, and harm
our nation’s children. Marriage is adult society’s institutional
structure for protecting the legitimate
One proposed solution to the divisiveness interests of children. Marriage attaches
of the same-sex marriage debate is to have mothers—and especially fathers—to their
the government get out of the marriage children, and attaches mothers and fathers
business altogether. This proposal is to one another. As a result, marriage is
appealing because it seems to remove every society’s preferred context for sexual
marriage from the realm of political activity and child-rearing. The often-heard
contentiousness. We could mimic a market- objection that some marriages don’t have
type solution, in which individuals can children stands the rationale for marriage
make their own decisions about the on its head. It views marriage strictly from
meaning of marriage, and we need not the adult’s perspective.
make any collective decision. But these
appearances are deceiving. We need to This is why marriage is not simply a special
think through what it actually means to say case of the market, and family law is not
that the government should “get out of the simply a subset of property and contract
marriage business.” law. Marriage exists to meet the social
necessity of caring for children, who are not
What is the social function of marriage? We and cannot be contracting parties. They are
can answer this by taking the perspective of protected parties. At the same time,
the child as a rights-bearing person and marriage should protect the interests of
asking what it is owed. Unlike adults, the both parents in pursuing their common
child does not need autonomy or project of rearing their children.
independence. The child is entitled to a
relationship with and care from both of the The genius of marriage as an institution is
people who brought him into being. just this: by providing an extremely
Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078
www.jennifer-roback-morse.com • email: drj@jennifer-roback-morse.com • 760/295-9278
©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the
Ruth Institute.
minimal legal structure, the state facilitates deceptive.
a huge amount of voluntary cooperation.
The state doesn’t care about the details of The motivation to form a contract of a
particular couples’ arrangements. As long particular kind or indeed any contract at all
as they fulfill the basic requirements, the depends largely on the “default” alternative
state has no further concern. Marriage is a position. For instance, a strong social safety
largely self-regulating, voluntary system of net decreases the mother’s economic need
long-term cooperation between parents. If to form a stable parenting alliance with the
we “get the state out of the marriage father. The state may decline to enforce
business,” though, this is the structure we certain kinds of agreements if it perceives
need to replace. things like sexual exclusivity or permanence
to be oppressive relics of a backward time.
But what would it even mean for the state Through the combination of tax policy,
to “get out of the marriage business?” parental leave policy, education, housing
Presumably any couple, gay or straight, and many other policies, the state can show
could create any “contract” they like to implicit favoritism toward parenting as a
govern their relationship. In effect, solo activity or as a partnered activity,
everyone would have civil unions, and no without ever explicitly declaring a
one would have the default contract now preference for one over the other.
known as marriage. At the same time,
presumably, a couple could have any house This is why the idea of “getting the
of worship bless their union, on any terms government out of marriage” is an illusion.
agreeable to the couple and to the house of The state can, by changing the terms of
worship. We could have a Muslim contract these and many other social parameters,
that mandates that the bride be a virgin, a greatly influence the types of contracts
Las Vegas drive-through wedding contract, people form. We have simply moved the
and anything in between. Religious bodies problem, and the conflict, back a step.
could only impose religious penalties, such Instead of fighting over marriage, we will
as banning offenders from the sacraments still have to slug it out over these
or temple worship. background conditions. “Government
neutrality” sounds good on the chalkboard,
Part of the appeal of this proposal is that the but in fact, it is not possible.
state appears to be neutral and even-
handed. The state is not favoring any one In one sense, the government has already
religious group, or any particular form of removed itself from the marriage business
relational contract. But this appearance is by ceasing to enforce the most basic features
Ruth Institute.
of the current “default” marriage contract: The most likely outcome, therefore, is that
stability and sexual fidelity. The no-fault few people would even attempt to create a
divorce revolution makes marriage less lifelong contract. The “prisoners’ dilemma”
than an ordinary contract. In most contracts, problem is at work here: it is publicly
the person who breaches must make some beneficial for society to have a norm of
kind of compensation to those who relied long-term marital stability, but it is in each
on his performance of the contract. Only in couple’s private interests to write an escape
marriage does the law permit people to clause for themselves into their own
dissolve the contract for any reason or no contract.
reason and never even offer an account of
themselves. Would getting the state out of marriage
make us freer? We can get a glimpse of the
Couples today are on their own when it answer to this by looking at the impact of
comes to maintaining a relationship stable no-fault divorce. Presented to the public in
enough to rear their children to adulthood. the name of personal liberty, no-fault
They may obtain some support from their divorce has led to an increase in the power
faith communities and social circles, but of the government over individual private
parents must make substantial investments lives. Family courts are one of the most
of human and financial capital, over a long intrusive institutions of the modern state,
period of time, with minimal contractual regulating how mothers and fathers spend
protection. their time and money. People under the
jurisdiction of family courts can have
Now we can see what “getting the state out virtually all of their private lives subject to
of marriage” likely means in actual practice. its scrutiny. This is not an increase in
It means eliminating the default marriage freedom: it is an unprecedented insertion of
contract, with these background conditions. the state into domestic matters.
We know that the state has already shown
itself to be uninterested in enforcing sexual Neither will an increase in “multi-partner
exclusivity and permanence. Social fertility” (we won’t be able to call it “out-of-
pressures to form stable unions are almost wedlock” childbearing any more) increase
non-existent. Yet the “social safety net” for personal liberty. The state currently gets
unmarried mothers and their children will involved in regulating disputes between
not go away, and in fact would probably be never-married parents, with all the same
strengthened if the government didn't problems of intrusive family courts.
recognize marriage as such. Historically, the state’s attempts to make
unmarried fathers to pay child support are
Ruth Institute.
much less successful than attempts to get another, every society does have
divorced fathers to pay. And taxpayers will preferences and beliefs about the proper
be on the hook for even greater context for sexual behavior and child
expenditures for additional social services, rearing. One way or another, we have to
since the outcomes for children are answer the question of what is owed to
predictably dismal. Personal liberty will children. We would be much better off
decrease, whether liberty is defined in terms having that discussion, honestly and
of privacy or economics. openly. As things now stand, we are
obsessing over fairness to adults while
Some might say we should completely avoiding even talking about what is owed
deregulate relationships between adults. to children. “Getting the state out of the
The only interest the state should have is in marriage business” is not a reasonable
the protection of children. The state compromise but a complete abdication of
shouldn’t care at all about the relationship our responsibility to face the important
between the adults, only whether the child’s question of how we provide children with
needs are being met. their just entitlements.
But this is essentially what we are already Jennifer Roback Morse, Ph.D. is an
doing with the children of unmarried economist and the Founder and President of
parents. The outcomes for these children are the Ruth Institute, a nonprofit educational
not the sort of thing we would want to organization devoted to bringing hope and
expand to the entire population. These
encouragement for lifelong married love.
She is also the author of Love and
children have poorer life chances in
Economics: It Takes a Family to Raise a
virtually every dimension we can measure,
Village and Smart Sex: Finding Life-Long
even taking into account their parents’ Love in a Hook-Up World.
lower incomes. The fact that the children of
unmarried mothers so often end up in the Copyright 2009 the Witherspoon Institute. All
child welfare system tells us that their needs rights reserved.
are not being met. Besides, we would have
to come to some consensus about what
needs children have that warrant state
protection.
In short, we cannot avoid the large, public

questions involved in the definition of
marriage, even if we want to. One way or
Ruth Institute.

Privatizing Marriage

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Privatizing Marriage

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Privatizing Marriage is not Therefore, the child has a legitimate interest

in the stability of his parents’ union. No

In short, we cannot avoid the large, public

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