Posted on 07/07/2015 8:28:42 AM PDT by Reddy
At first glance, it sounds nice to say we should “get government out of the marriage business.” Marriage, as far as the state is concerned, would be merely a private relationship contract, with no reference to the lasting features of natural marriage between a man and woman, and its connection to the bearing and raising of children.
Many libertarians, including Rand Paul, and now even some conservatives, claim that this will solve the same-sex marriage controversy. Few understand the logical implications of their argument. There are at least seven reasons why “marriage privatization,” if really achieved, would profoundly harm citizens and society.
(1) Private “relationship contracts” would immediately legitimize and permit polygamy, group marriages, incest and other aberrant relationships.
Anthropologist Stanley Kurtz notes that even if marriage is “privatized,” government “still has to decide what sort of private unions merit benefits … under this privatization scheme.” We would end up with the “same quarrels over social recognition that we got before privatization.” Government will have to deal with polygamous, polyamorous, and incestuous relationships also attempting to obtain contracts under the new scheme as well as attempts by heterosexual acquaintances to make “marriages of convenience” to obtain things such as spousal medical insurance. Legitimizing these aberrant relationships would only further dilute the meaning of natural marriage as a norm in society.
(2) It would increase the sexual exploitation of children through human sex-trafficking.
Marriage laws that currently regulate the age at which a person can be married protect children from sex-slavery and even from desperate parents from certain impoverished countries who may seek to exploit or manipulate minor children into “arranged” marriages for financial gain. News in London now reports 15 and 16 year old girls are being duped into “marrying” ISIS operatives and are running away from home. This would be easy in the U.S. if marriage were a private contract.
(3) It would overburden courts and side-step legal protections for children and abandoned spouses, replacing them with court ordered damages, penalties and state-coerced action.
If a legislature repealed marriage statutes and did nothing to define or regulate the creation and or dissolution of marriages, then by default, parties would be left only with legal contracts to address child custody, visitation, alimony and property rights. If the parties breached these private contracts, litigation would ensue regarding the intent, interpretation, and enforcement of those agreements — many of which would likely be drafted by non-lawyers with vague and confusing terms. Courts would issue penalties, damages and would have to order private parties to enforce contracts, often with draconian results. Real-life economic and practical hardships would befall untold thousands of single mothers where men to abandon their families – or even take forcible physical custody of small children — where no such contract was in place.
The creation of plural marriage and group marriage contracts would create the legal equivalent of the “Wild-Wild-West.” These “prenuptial-like” marriage contracts would also further undermine the idea of marriage as a lasting, life-long covenant. Instead of keeping government out of the marriage business, this move would do just the opposite. The great irony of marriage privatization is that it would only increase the state’s involvement in the lives of its citizens.
(4) It ignores what’s best for children.
Arguments to privatize marriage, whether made by scholars or politicians, tend to ignore what is best for children. Economist Jennifer Roback Morse, who has strong libertarian credentials, argues that marriage privatization would come “at the expense of children,” and “is a concept developed by adults that will benefit only adults.”
In the common law, whenever children are involved in divorce, custody disputes, adoption or dependency proceedings, the legal standard has always been is the best interest of children involved. With the redefinition of marriage to include same-sex unions, “adult desires” have been allowed to trump what’s best for children. Dissolving marriage law would have the same effect. When men divorce the mothers of their children without these private agreements, single mothers would be left with no laws to protect or support their children.
(5) It would create more social maladies, broken families, and human suffering.
Throughout history, marriage has been always been regulated in some way. In small and cohesive societies, this was usually done through strong social mores and religious institutions. In larger, more diverse and modern societies, marriage has also been regulated through law and public policy. This is part of what separates civil societies from more primitive ones. For this reason, completely privatizing marriage could be a sociological disaster.
Today’s inner cities are “Exhibit A” to the poverty, crime, fatherlessness and devastation that emerges when marriage and family structures are weak, fragmented or nonexistent. This measured collapse in inner cities would move even faster into every area of communities if marriage is legally abolished and reduced to private contracts.
(6) It would cost taxpayer’s big-time.
Maggie Gallagher has called marriage privatization a “fantasy” since “there is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems.” A study by the Institute for American Values concluded that the cost to U.S. taxpayers from family fragmentation as a result of divorce and unwed childbearing was $112 billion annually.
Sadly, the political left in America feeds on divorce, broken families, and unwed childbearing. Strong marriages and families help break the grip of an ever-growing administrative state, freeing her citizens from poverty to reach their fullest economic potential as creators of wealth rather than being chronic recipients of distributed wealth.
(7) It would grow government.
Government has a compelling interest in defining, regulating, and promoting marriage because of the self-governance it creates when children are socialized in this environment. At the most basic level, marriages — and the families they create — produce social order in homes, neighborhoods, states and nations. Marriage channels masculine energy in socially productive ways, protects women, and increases almost every category of human flourishing. Research is clear that a married biological mother and father is objectively the optimal context for rearing children. Marriage benefits not just those in the relationships, but the businesses, economies, and communities around them. Marriages, and the families that flow from them, tend to produce more productive citizens who create wealth and contribute to society.
The failure of marriages and families has caused the rapid expansion of the welfare state, dramatic tax increases, and has helped increase the national debt. Jennifer Roback Morse argues that “it is simply not possible to have a minimum government and a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. The destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms. … A free society needs marriage.”
Marriage is not merely a private, religious institution; it is also a public institution deserving of public recognition and protection, quite apart from any religious or theological argument. Marriage serves not only people of faith but also the common good of society. “Family is built on marriage,” argues Princeton’s Robert George, “and government — the state — has a profound interest in the integrity and well-being of marriage, and to write it off as if it were purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake.”
Removing the legal recognition of marriage would devastate not just marriage and family, but civil society as a whole.
John Stemberger is an Orlando Attorney who is President of the Florida Family Policy Council.
© 2015 The Stream. All Rights Reserved.
Good article describing the replacement of traditional marriage with civil contracts.
Let the homosexuals have civil contracts. We stand for traditional marriage as between one man and one woman.
Like the government knows what is best for children.
It’s a scam by the dim-witted libertarians. They give us gay marriage THEN they tell us that “government should get out of the marriage business”, which it never will.
It was a big bait-and-switch by the pothead wing of the Republican party.
Only one reason is necessary to state -
IT’S NOT ABOUT “GAY MARRIAGE”!
It’s about criminalizing Christianity, and they’ll find another “issue” if this one doesn’t work.
Simplify. There is a public interest in recording legal contracts. Define a type of legal contract that includes certain elements that we now accord only to marriage. County clerk records the contract without having to morally sign up for same sex unions. Children cannot sign legal documents. Then, go to a church if you want a religious ceremony. Done.
No offense to John, but the new status quo already does all the harm he mentions. We have to act to distinguish between the government’s role in contract law and the religious role of marriage. Leave marriage to the church and let the government deal with tax breaks, hospital visits and other contractual roles. The idea that we undo what’s been done by separating marriage and civil unions is frankly 5 years too late. The court has spoken so we mush re-write the rules and take it back to the court to settle the next round. Removing the religious ceremony of marriage from government is the only remaining option. It’s up to states to remake their laws and remove marriage from government lexicon all together.
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Exactly.
Those calling for civil marriage contracts claim that after obtaining a civil marriage, those who desire to do so can get married in a Church.
But wouldn’t that mean you would then have two different types of “marriages”?
The libs will scream that this is unfair and discriminatory, and force Churches to perform same-sex ceremonies.
“The idea that we undo what’s been done by separating marriage and civil unions is frankly 5 years too late. The court has spoken so we mush re-write the rules”
What if this were the mindset following the Dred Scott decision? Or Prohibition?
force Churches to perform same-sex ceremonies
Saw this one coming, which is the point of the article:
It would overburden courts and side-step legal protections for children and abandoned spouses, replacing them with court ordered damages, penalties and state-coerced action.
Nope. The courts would be freed by contract, though it is possible Obama coukd decree “If you like your pre-nup, you can....”
Oh, please!
"Traditional" marriage has the following elements
1) It is permanent. Divorce is not permitted, and if it is, remarriage is not recognized.
2) It is sexually exclusive. Adultery is a crime. Alienation of affection is a tort where it is not also a crime.
3) In the case of separation or abandonment, children belong to their father. Unmarried women who become pregnant may not retain custody of the child, if born alive, UNLESS they have the means not to become a public charge.
THAT is traditional marriage, and the number of people who support it couldn't fill Giants Stadium for a rally.
This article is an attempt at slamming the barn door shut after the horse has run out.
Heterosexual marriage in the US is dying. In a generation it’ll be a relative rarity. Word has gotten around and few men will consent to it.
It would weed out the homosexual activists/charlatans from those who actually believe the crap they serve (pun works) by illustrating how many of them really want to be legally tied/bound to such contracts.
Thank you.
I’m holding the line. (Too bad there are so few of us)
“Recognizing religious marriage ceremonies as legal marriage and allowing “non-traditional couples” to enter into legal contracts if they so desire might be the better path”
I think that was the case until last week...
It's even worse than that, the anti-God libertarians have started using a holier than thou tone, to convince Christians that the true moral position is to quit fighting for conservative politics, and to drop out of politics, and leave that part of life to everyone else.
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