Separation of State and Marriage?

It sounds like a good, free-market, Libertarian solution to the problem of same-sex marriage. Get the State out of the marriage business altogether. Let the churches handle it. If you're Mormon or Muslim and want a harem, get married in one of those faiths. If you want to marry your gay lover, find a church that'll solemnize that. The State says nothing about any of these, because the State has nothing to say, period.

That's a great idea, if we assume marriage is only about the people in the marriage.

Jennifer Roback Morse, writing at the Witherspoon Institute, begs to differ with this assumption.

What is the social function of marriage? We can answer this by taking the perspective of the child as a rights-bearing person and asking what it is owed. Unlike adults, the child does not need autonomy or independence. The child is entitled to a relationship with and care from both of the people who brought him into being.

I'll note the possible quibble about adoption and artificial insemination, and stipulate that a mother and father both make essential contributions to raising children.

Therefore, the child has a legitimate interest in the stability of his parents’ union. No child, however, can defend these entitlements himself. Nor is it adequate to make restitution after these rights have been violated. The child’s rights to care and relationship must be supported pro-actively, before harm is done, if those rights are to be protected at all.

Marriage is adult society’s institutional structure for protecting the legitimate interests of children. Marriage attaches mothers—and especially fathers—to their children, and attaches mothers and fathers to one another. As a result, marriage is every society’s preferred context for sexual activity and child-rearing. The often-heard objection that some marriages don’t have children stands the rationale for marriage on its head. It views marriage strictly from the adult’s perspective.

This is why marriage is not simply a special case of the market, and family law is not simply a subset of property and contract law. Marriage exists to meet the social necessity of caring for children, who are not and cannot be contracting parties. They are protected parties. At the same time, marriage should protect the interests of both parents in pursuing their common project of rearing their children.

Marriage is not just a contract, since it involves non-contracting parties. Indeed, it involves not just any children, but it also influences the rest of the community.

The genius of marriage as an institution is just this: by providing an extremely minimal legal structure, the state facilitates a huge amount of voluntary cooperation. The state doesn’t care about the details of particular couples’ arrangements. As long as they fulfill the basic requirements, the state has no further concern. Marriage is a largely self-regulating, voluntary system of long-term cooperation between parents. If we “get the state out of the marriage business,” though, this is the structure we need to replace.

Marriage doesn't just tie couples together. It doesn't just tie couples to their children. It promotes a certain structure in society, and influences how large numbers of people will treat each other, and what they will expect from each other.

In a way, it's kind of like the seed around which crystals form in a solution. Without the seed, crystals form slowly, if at all. With the seed, crystals form quickly and easily. Marriage is the institution that creates seeds around which the rest of society crystallizes.

If we replace marriage with something else, what will that something else look like? In the absence of a self-regulating, voluntary system, the alternatives are a different self-regulating, voluntary system, or specific laws designed to address the elements abandoned in the loss of that system. The specific legislative solution is likely to be less effective and more restrictive.

Would getting the state out of marriage make us freer? We can get a glimpse of the answer to this by looking at the impact of no-fault divorce. Presented to the public in the name of personal liberty, no-fault divorce has led to an increase in the power of the government over individual private lives. Family courts are one of the most intrusive institutions of the modern state, regulating how mothers and fathers spend their time and money. People under the jurisdiction of family courts can have virtually all of their private lives subject to its scrutiny. This is not an increase in freedom: it is an unprecedented insertion of the state into domestic matters.

And indeed, as the notion of sexual exclusivity has ceased to be enforced, the law has assumed the power to enforce child support against fathers who have had nothing to do with the offspring, and next to nothing to do with the mother. And indeed, sometimes in the face of proof that father and child are not genetically related.

In closing:

Some might say we should completely deregulate relationships between adults. The only interest the state should have is in the protection of children. The state shouldn’t care at all about the relationship between the adults, only whether the child’s needs are being met.

But this is essentially what we are already doing with the children of unmarried parents. The outcomes for these children are not the sort of thing we would want to expand to the entire population. These children have poorer life chances in virtually every dimension we can measure, even taking into account their parents’ lower incomes. The fact that the children of unmarried mothers so often end up in the child welfare system tells us that their needs 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 another, every society does have preferences and beliefs about the proper context for sexual behavior and child rearing. One way or another, we have to answer the question of what is owed to children. We would be much better off having that discussion, honestly and openly. As things now stand, we are obsessing over fairness to adults while avoiding even talking about what is owed to children. “Getting the state out of the marriage business” is not a reasonable compromise but a complete abdication of our responsibility to face the important question of how we provide children with their just entitlements.