The Libertarian and Conservative Case for the Abolition of Marriage Laws

by Peter S. Rieth

Amidst the ever louder public debate over the question of "gay marriage" or civil unions for same-sex couples, one view which seems to have gained little public exposure is the position in favor of abolishing all marriage laws everywhere and leaving the issue of marriage to be regulated by the private market place. I propose to examine this view in detail, demonstrating along the way how this libertarian methodology of dealing with the problem of marriage policy would eventually lead to the realization of the conservative goals of strengthening family, faith and patriotism.
The Left and Marriage
American Liberals and members of the political Left would likely reject this position because the prime reason why they favor "gay marriage" or civil unions for same-sex couples is that they believe all people should have equal access to government regulation of personal and social life. They would not put it quite this way, but it is essentially their position. To abolish marriage laws would, in the liberal left’s view, deprive all people of the "right" to file joint tax returns, or a number of other "rights" that the state has imagined for us over the years. All of these imagined "rights" granted by the state are not, of course, natural rights, but rather positive rights akin to the New Deal’s "Four Freedoms" – freedom from fear, want, and so forth and so on – invented rights that, politically, are fit for demagogues in a populist regime and that are intellectually groundless.
The political Left would never consider the viewpoint that many "rights" which they champion for homosexual couples – such as visitation rights – might be achieved in a free society via contracts between consenting adults. Far better, the Left generally believes, to let "experts" in public administration regulate things for us – we mere plebians are left to simply fill out all the paper work.
There is, of course, another reason why the political left favors same-sex marriage or civil unions, and that is a more insidious reason. Although they would never agree with the likes of conservatives like Harry Jaffa on the principle that since the law molds the customs and habits of citizens, thus the law must itself be molded by moral customs and habits; the left would concur that the law molds customs and habits. It is the fervent desire of the social engineers of the political left to enhance their power and prestige by forming men into the type of citizens who need the state to control and command their daily lives. There is, as every good conservative understands, no faster way to achieve this general dependency of citizens on the state than to undermine the one private social institution that we might call a fully functional voluntary polis – the family. I have no doubt, from my observation of both the practice and theory of the political left over the years, that many of them hate the family and wish to "liberate" us from this old institution.
The Right and Marriage
Nietzsche noted in one or another of his writings that as cultures decline, so too the number of laws meant to preserve them seem to multiply. Thus things that at one time did not seem to need legal mandates are being proposes as new laws by conservatives. There is perhaps no more direct example of this than the proposals to create a Constitutional Amendment in the United States that defines marriage as being between a man and a woman. One almost wants to consider whether, at this rate, we shall not next be amending the constitution to say that "a father is understood to be a man" or that "dogs are not cats." As moral relativism and multiculturalism progress in or schools and in our culture, the notion that words can be used to signify things, and that language is a tool for communication rather than confusion becomes out of date and old fashioned. In light of this, conservatives often feel that they must rescue common sense by using the full force of the state apparatus to do so. The most extreme example of this was William F Buckley’s call to tolerate a totalitarian bureaucracy in the United States as a necessary price to pay in order to halt communism (predictably, communism is long halted; the bureaucracy remains and grows). The impulse to use the state as a means to coerce virtue, or even the recognition of common sense, is a powerful temptation – and is perhaps the a particularly fatal temptation for conservatives who should know better.
How Civil Marriage Laws actually operate
Before getting carried away with the notion that the political question before us is one of conservative traditionalism versus the liberal enthusiasm for social engineering and the universality of "social" justice, let us explore for a moment how contemporary civil marriage laws actually operate.
It should be noted from the outset that it is illegal in all states, and in all member states of the European Union (thus in the West) to get married in a Church without concurrently being "married" by the civil authorities. I begin with this observation because this fact should be alarming for all of us, but seems rather to be "quite normal" and non-controversial. "Why," someone might ask, "would anyone wish to get married without also having their marriage valid in the eyes of the law?"
This viewpoint presumes, of course, that the law is there to protect the marriage that we have consecrated in Church. It is not an uncommon viewpoint, in fact, to regard the law as generally being there to protect any number of given rights we have as individuals or to guarantee the fulfillment of obligations that we have contracted out to others.
This viewpoint of the law as beneficial protector of rights is, in fact, the cornerstone of modern democratic society (whether socialist democrat, liberal democrat or even Christian democrat). But libertarianism, and particularly public choice theory as well as the general political economy of "unintended consequences" teaches us to be wary of the law as a protector of anything.
This is something that any man or woman who has gone through a divorce will surely attest to. In a divorce, the parties to a civil marriage turn to the law to redress their grievances. Suddenly, in most cases, they realize that the civil law is not concerned with the just redress of grievances, but rather only with the application of a law that is all too often predicated on the notion that – far from being a binding contract to love and care for spouses, marriage was more like a "lifestyle choice", made for temporary gratification of whims. Divorce courts rarely end up satisfying both parties. They compound the damage by usually taking a very long time to come to a decision, thus prolonging the anguish of the disillusion of a civil union.
In short – just like a government post office doesn’t deliver mail on time and a government train doesn’t run on time – so to the lack of a price mechanism and any real pressure from market forces of supply and demand leads government courts to fail in the delivery of their promised goods: justice.
Why, you might ask, did people not think about this before getting married? Why not sign a prenuptial agreement or a separate civil agreement? The standard answer, if ever this question is asked, is usually that to do so would be unromantic and somehow introduce some element of doubt into what ought to be a firm and serious desire to form a lasting union.
Libertarian political economy leads me, however, to suggest another answer: whenever the government takes it upon itself to craft fiat laws of inter-personal conduct and impose them on humans, humans tend not to think independently about said aspects of interpersonal conduct, and by force of habit cede their responsibilities to the government that has in effect taken them away from the individual. In other words – moral hazard functions in the realm of marriage no less than in the realm of government flood insurance. Since government promises the redress grievances justly in an eventual divorce case, and since marriage laws promise a plethora of rights to spouses and promise the execution of duties from spouses – potential spouses do not think at all about what marriage entails – they have been conditioned to focus on the proverbial ceremony and not on the nature of the relationship.
Imagine if business were expected to run this way? Imagine if government regulated the terms of employment contracts or set the rules of trade? Isn’t it likely that traders and businessmen would become more and more careless – since the issue is out of their hands by fiat anyways? Isn’t this, in fact, what happened on Wall Street or in the Banking Sector, where government control and regulation reached such grotesque heights, that all traders were left with was the option of buying high, and all bankers were left with was the option of selling credit at low interest rates? Once the government introduces top down command and control – it conditions the market to act within an unnatural, mandated framework. Why would it be any different with government command and control of marriage?
Catholicism, Marriage and Civil Marriage
I wish to speak here of one specific example, because it is an example I am familiar with – namely the issue of Catholic Marriage and Civil Marriage laws. I do not mean to suggest here that the Catholic Church is somehow more deserving of attention than other Churches, institutions or individuals, but rather – alongside what I hope is slowly becoming a logical argument in favor of the abolition of marriage laws – I would like to demonstrate my argument by way of a practical example.
I am a practicing Catholic, having been through one year of preparation for Communion and Confirmation within a Jesuit Order (something I am very proud of), and have given much thought to the following conundrum:
Catholics define marriage as a sacred union of a man and a woman before God. Because it is sacred, it is also a sacrament, which in the Catholic religion is perhaps the most intimate relationship imaginable between a man and God. As such, Catholics naturally believe that marriage cannot be dissolved. To suggest that it can would be akin to suggesting that the sun didn’t shine yesterday when clearly we saw that it did.
It is, however, possible – to continue the metaphor – that having violated some precepts of our religion (let’s say we gluttonously drank too much) – we found ourselves staring into a Police flashlight, thinking that this very shiny thing was actually the sun. For anyone who has ever experienced excessive intoxication, you will understand this metaphor quite well. In such a case, no matter how convinced we might be that what we saw was the sun – no matter. Witnesses will testify otherwise, and it will turn out that we did not, in fact, see the sun – but only a bright flashlight dimly thought to be the sun in our state of mindless intoxication.
In its’ wisdom – the Catholic Church recognizes that this unfortunate metaphorical scenario could well be a true event in the case of marriage. That is to say, Cannon law recognizes that it is possible that, under certain very specific circumstances, a Catholic Wedding ceremony – in spite of having nominally been performed – was actually never in fact performed. Thus Catholic Cannon allows for the Church to declare something that once was thought to have been a wedding null and void – as never having actually taken place.
Contrary to what many people might think, the Catholic Church’s private court system deals with thousands of such annulment cases on a yearly basis. In the majority of instances, these cases are brought to the attention of the Church by a devote Catholic who was betrayed by their spouce (by "betrayed" I mean in the full sense, not the narrow sense of sexual betrayal – I mean that someone betrayed their wedding vows and left the other person). The Church must then determine whether or not this marriage was ever valid in the first place. In the majority of cases where annulment is granted, it is on the basis of psychological immaturity of one or more of the parties participating in the wedding ceremony.
The Church is very thorough in its’ investigations. Unlike civil divorce courts, the Church is interested in truth and justice – and not in the satisfaction of the desires of the participants to the court case. It does not matter what people "want" – all that matters is what they have done, and what it means.
Those who do not agree with this system are, of course, free to simply ignore it. The Catholic Church does not have and does not seek to have any state sanctioned legal powers of coercion towards anyone. Yet Catholic Courts function with a power greater than most government courts precisely because it is the voluntary consent of Catholic parishioners which fuels them. So many Catholics wish to live virtuous lives that they insist on clearing up what has developed into a bad situation rather than remaining outcasts in the eyes of the Church. The Church has thus set up these private courts to deal with the matter.
Now – consider this for a moment: an entire system of private courts, run by a Church, on a purely voluntary basis – all dealing with a problem that the majority of people think cannot be dealt with except by the government. Naturally, all of this costs less than what government divorce courts cost as well. The Catholic Church generally charges the equivalent of the monthly salary of a parishioner who wishes to have his case heard. Thus, if you make 1,000 USD per month – that is what you pay. I f you make 1,000,000 USD per month – that is what you pay. Hence the wealthy pay more and the poor pay less, but both pay what is proportionally just in lieu of their income. In practice of course, this means that the wealthy subsidize the poor (voluntarily), but the poor do not become corrupted by this because they must pay a sum which, proportionally for them, is nevertheless high enough to be felt in their households budgets. It is, from the point of view of ethics, a wonderful situation that promotes virtue. Not surprisingly – at the core of this system is the principle of liberty, or faith – which is in effect the same thing, since it is impossible to have true faith except freely.
Now imagine for a moment if two Catholics wish to be married and protest against civil marriage under the pretext that the civil marriage laws violate their religious convictions. What religious convictions, you ask? The religious conviction that marriage cannot be dissolved. The majority of civil laws in the world allow for divorce, and the path towards divorce is ever easier. Why should I, as a Catholic, be forced to marry someone who might receive legal sanction one day if they wish to leave me? What if I am not satisfied with the notion of possibly signing a prenuptial agreement because a long train of abuses at the hand of government agencies has taught me not to trust them – including not to trust their courts or their capacity to uphold contracts? What if my would-be spouse feels the same way?
If we declared ourselves leaders of a new church – let’s call it the "unregistered, informal church of God" – we could go off to the forest, perform our wedding vows, and be done with it. We, however, being Catholics, have made a free choice – to entrust our marriage to the Catholic Church. What now? Why can we not have a Catholic wedding without a Civil Ceremony?
This problem is actually not as abstract as you might think. The Catholic Church is often forced to break the civil law and grant Catholic Weddings without civil ceremonies to people who, due to prior civil divorces, might lose their social security benefits, alimony payments and other hard one legal compensations. Now you might say that they should lose them, because if someone remarries, then they do not "need" them. But this is all predicated on the state’s notion of justice, which is to say – injustice.
If a person enters into a contract that stipulates that a) there is a God, and b) we are vowing before this supreme God to be together forever – then you would think that the breaking of this contract by one of the parties ought to carry with it a very hefty punishment. Catholics believe it does – but only in the court of the Final Judge. Here on Earth, civil courts often reward people who turn out to have been irresponsible husbands or wives who have left their loyal spouse. The least that the injured party can expect is to collect compensations and not have to be put in the agonizing situation of choosing between recovering some of their costs or marrying again.
These kinds of situations exist, of course, because the civil law considers marriage a mere "life style choice" – one that can be reversed essentially whenever one party to the wedding wants. If a Catholic argued in civil court that he or she had been cheated, that they entered into a life-long contract, the government court would tell them that the only contract the law recognizes is the civil marriage contract – and that one clearly stipulates that you can divorce whenever you feel like it. Ergo – there is no possibility for a Catholic to gain justice through government divorce courts. In fact, the existence of these courts precludes it – since Catholics do not believe in divorce, and the nature of the marriage contract inherent in the sacrament of Catholic marriage precludes it.
This is one – only one – example of how civil marriage laws violate the individual rights of citizens to practice their religion. It is also an example of how a voluntary religious order (in this case the Catholic church) regulates matters pertaining to marriage with the full consent of parishoners. It is an example which should make conservatives pause whenever they consider advocating for more government control over marriage.
A Libertarian Method towards the Conservative Goal of preserving Family, Faith and Patriotism
Conservatives ought to advocate for the abolition of marriage laws for essentially the same reasons they advocate for the abolition of gun regulation, business regulation or a number of other command-and-control regulations and laws. They ought to do this not for the morally relativistic purpose of "tolerating" whatever individuals want to do, but for the thoroughly morally objective reason of ensuring the conditions for virtue in a political community. The condition for virtue in a political community is, of course, freedom.
Marriages and families, as well as faith and patriotism, are only true and good when they are freely chosen. I hope that this is not a controversial argument. Conservatives often say that it is in the nature of man to wish to find happiness in the community of his fellows. Nature has given us a variety of instincts, sexual, psychological, emotional – for the satisfaction of which we require a spouse, children, good neighbors, a meaningful life of labor, and numerous other activities which are the traditional realm of republican citizenship. Independent of whether or not we are more or less optimistic about the nature of man, I think it is impossible to disagree with the proposition as it stands above that all that is arguably good and virtuous ceases to be so if men do it out of fear or through coercion rather than out of a true faith or rational, free choice.
Marriage is perhaps the most intimately private and personal of all social institutions because unlike governments, schools, factories, universities, corporations and other social bodies – marriage is made up of only two people; and they must have not merely consensus or mutual self-interest to function – they must nurture a true, deep, and ever- lasting love. (I admit, of course, that "marriage" – according to some, might be defined as short-lived, consisting of three individuals and a dog, and requiring nothing but whim – and if there are people who wish to define it so for their own purposes; or in whatever other way – they may have the freedom to do it; though I do not speak of them here because I presume that it is not the goal of conservative social policy to promote such relationships).
If there were no laws on the books regarding marriage – and ever man who wished to marry a woman had to either create their own institution for doing it, redefine marriage to mean something arbitrary or marry in an established religious institution – I submit to you that the following would happen:

1. Those who created their own institutions in order to marry themselves would either create new, long lived churches rooted in their deep love and virtue which would – by the power of their example nurture more such marriages or they would create a short-lived sham which would give shape to their childish folly and have no further impact beyond their separation in not too long a time after. The former situation is a conservative ideal – the latter situation, while deplorable, is a limited harm done to two individuals by one another – and they bear the psychological and emotional costs of this harm.
2. Redefine marriage in such a way as to make it immaterial to this essay.
3. Marry in established religious orders with their own body of private church, synagogue or mosque laws governing marriage – thereby making it extremely difficult to actually lead to a situation wherein people would marry who had no intention of staying married, or who thought that the civil laws would somehow sanction their later change of hearts. Would we still have people leaving their spouses? Yes. Would they be able to benefit financially and otherwise from this immoral decision on the basis of civil laws which protect the right to divorce? No. They would, in fact, if ever their vows turned out to be worthless, lose all credibility in said religious community – which would be strengthened by the loss of such elements form their midst.

Thus, by restoring full responsibilities for the regulation of marriage to individuals and churches, we would restore the grand sense of overwhelming obligation that a man and woman ought to feel before what is supposed to be a mighty institution. Surely this serves the development of strong families, secures faith, and ultimately leads to the patriotism of a people who love their country because it gives them the means to be self-governing men and women?
It is not, you will note, my contention that the abolition of marriage laws will lead to perfect marriages. Rather, it is to show that private regulation of marriage is a fact and a tradition (at least in the Catholic church, and I expect in many others), that this is a matter that individuals have been dealing with well for ages – and that to take away the powers and responsibilities of the individuals and their churches for marriage is to mold dependents rather than independent citizens.

August 3, 2011

Peter S Rieth [send him mail] is an American citizen, born in Poland and educated at Hillsdale College, Michigan.

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