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.
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.
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.