Should the State be Involved in Marriage?

In my various writings on the topic of same-sex ‘marriage’ (for a complete list, click here) I have argued that government has a duty to recognize marriage as being between a man and a woman. But perhaps the state should get out of the marriage business completely. Perhaps the state should not be involved at all in publicly recognizing certain types of relationships as being marriage. This is the position taken by radical libertarians
and it is an attractive solution to the ‘gay marriage’ debate, even among Christians. According to this line of thinking, once the state begins pronouncing that certain types of relationships are marriage, this itself shows that government has overstepped its God-appointed mark.

In a Christian Voice article , ‘Why Gay Marriage is a Public Threat Part 2‘, I addressed this position. “If it were true that the state has no business recognizing certain types of relationships as being marriage, then how far do we extend that?” I asked. For example, is it wrong for the government of a nation to recognize certain types of relationships as being marriage, but okay for the government of the state or shire or county to recognize certain types of relationships as being marriage?

Let’s try to be completely consistent with the libertarian position and say that it is wrong for government to recognize certain types of relationships as being marriage all the way
down to the level of village government. That would mean if there was a small tribe of a thousand people in the jungle of South America, that it be wrong for them to have formal or informal mechanisms in place for recognizing who was married and for then using those mechanisms to generate the presumption of paternity or to settle disputes about
inheritance or other matters. Few libertarians would want to go that far, and yet it is hard to see how that example is qualitatively different to the situation today, where the people of the community have certain formal mechanisms in place for identifying a legal marriage. Whether one does this through the large-scale community of the state or a small-scale community of the village or tribe, it is in principle the same thing, namely, formal some type of formal way to recognize the difference between being married and being not married.

Whenever you have a community that has formal or informal mechanisms in place for recognizing a marriage, then questions of what can count as marriage will arise and have to be settled by the community. Whether that community is represented by the gathering of local chiefs, or whether there is a de facto tradition of common law that is appealed to, or whether there is the apparatus of the modern state, the basic principle is the same: the civil community has mechanisms in place for recognizing what is and is not a marriage.
But let’s suppose this wasn’t the case and the radical libertarians have a point: we should abolish civil marriage completely. In their book What is Marriage?, Girgis, Anderson and George suggest some of the consequences that would arise if such a state of affairs were realized:


Sherif Girgis, Robert George and Ryan Anderson, authors of the book What is Marriage?

Abolishing civil marriage is practically impossible. Strike the word ‘marriage’ from the law, and the state will still license, and attach duties and benefits to, certain bonds [benefits such as the presumption of paternity]. Abolish these forward-looking forms of regulation, and they will only be replaced by messier, retroactive regulation – of disputes over property, custody, visitation, and child support. What the state once did by efficient legal presumptions, it will then do by burdensome case-by-case assignments of parental (especially paternal) responsibilities.

“The state will only discharge these tasks more or less efficiently–that is, less or more intrusively. It can’t escape them. Why not? Because the public functions of marriage–both to require and to empower parents (especially fathers) to care for their children and each other–require society-wide coordination. It is not enough if, say, a particular religion presumes a man’s paternity of his wife’s children, or recognizes his fights and duties toward their mother; or if the man and his wife contract to carry out certain tasks. For private institutions can bind only their own; private contracts bind only those who are party to them. A major function of marriage law is to bind all third parties (schools, adoption agencies, summer camps, hospitals; friends, relatives, and strangers) presumptively to treat a man as father of his wife’s children, husbands and wives as entitled to certain privileges and sexually off-limits, and so on. This only the state can do with any consistency.

But more than inevitable or necessary, it is fitting that the state should do this. Consider a comparison. Why don’t even the strictest libertarians decry traffic laws? First, the orderly traffic protects health and promotes efficiency, two great goods. Second, these goods are common in two senses; private efforts cannot adequately secure them, and yet failure to secure them has very public consequences. It is not as if we would have had the same (or even just slightly less) safety and efficiency of travel if people just did as they pleased, some stopping only at red lights and others only at green. Nor would damage from the resulting accidents (and slower shipments, etc) be limited to those responsible for causing it. To ensure safe and efficient travel at all, and to limit harm to third parties, we need legal coordination. Indeed, it is no stretch to say that the state owes its citizens to keep minimum security and order: to these we have a right. Finally, unlike private associations, the state can secure these goods, without intolerable side effects. Al this makes it appropriate for the state to set our traffic laws….

If something would serve an important good, if people ha a right to it, if private groups cannot secure it well, everyone suffers if it is lost, and the state can secure it without undue cost, then the state may step in–and should.


2 thoughts on “Should the State be Involved in Marriage?

  1. In the US, marriage licenses started being introduced by state (informal to formal) in the 1920s as I understand it.

    My understanding further is that since the introduction of state marriage licenses, for tax rate purposes (“filing jointly”) and other matters, some level or levels of government (I’m vague here because I’m not sure and there may be state-to-state variations) will not recognize marriage without a state license (though it may over a period of years for any given couple merge unlicensed marriages with common law marriages). A certificate of church wedding, for example, would not suffice for state purposes the way a state marriage license would.

    I have heard some pastors officiating at weddings pronounce, “By the power vested in me by the state of ______, I now pronounce you man and wife.” Others omit “by the state of ______,” I suppose implying divine rather than state sanction.

    Further I have heard from a man with a J.D. degree, though perhaps not otherwise confirmed (unless by one other), that there are examples of court cases in the US in which child custody was denied based in part on state marriage license: Where the state controls marriage licensure, the state claims control of children of marriage (or where child education comes in question, in some home schooling cases).

    Whether marriage licensure was claimed as exclusive grounds for denying child custody is more than I know, but may be doubted on the assumption of some other initiating cause.

    If my understanding is accurate, of course, the state would have limited power to control if only for pragmatic and economic reasons, but that power would be more likely come to the surface for example where the given marriage itself is in jeopardy on other grounds. And as I have read, in former years, cases at law have included affirmations of the vested interests of the state in the protection of stable and healthy marriages. The state is largely comprised of the sum of its families, and rises or falls with them. (Whether such affirmation continues in the majority opinion of the US Supreme Court is somewhat in question at least as I understand it.)

    Can anyone confirm, deny, or elucidate?

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