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Part of our Special Section on Same-Sex Marriage:


Marriage and the State

Liberty over Tradition

By Alastair Cleve

What is the role of government? Former University of Chicago economist Ronald Coase would have us believe that the role of government is twofold: to reduce transaction costs and to solve market failures. This would involve the protection of contracts, the development of tort law, some physical infrastructure, and a common defense. It might also be advisable to have some basic market regulations protecting public goods and utilities. Many libertarians believe that government's fundamental role is to provide a default setting in which the rules are the same for everyone and in which market competition is protected. Added to this is the belief that individuals ought to be allowed to contract with one another. If dissatisfaction with the terms of this default system arise, individuals may create their own terms through contracts—so long as they do not violate the fundamental rules of society. This leads to the development of private associations, universities, roads, arbitration courts, and much else.


Despite government's necessity, the libertarian's allegiance belongs to the individual, not to society. Government is necessary for the sake of the liberty of the individual. Libertarians defend Mill's Harm Principle, which states that assuming the individual does not harm another individual, his behavior should not be prohibited. Admittedly, certain market transactions produce tremendous negative externalities, which is why legislation exists to protect underground aquifers from ground pollution or why it is illegal to drive while inebriated. Nevertheless, the libertarian is always skeptical: could water be privatized such that the owner is incentivized to protect his water, thereby making environmental protection laws unnecessary? Does physical infrastructure need to be maintained by the state, or could private individuals do a better job? Are strict labor market regulations—such as the Americans with Disabilities Act or the Federal Minimum Wage—actually necessary? Do trade barriers really benefit the country?


Outside of the exceptions already made, the libertarian is awfully skeptical of government involvement: he recognizes that private individuals are, on average, twice as efficient as the government. He believes that much physical infrastructure can be privatized, that strict labor market regulations only serve to increase unemployment and fatten the pockets of organized coalitions, and international free trade creates competition, thereby putting downward pressure on prices and upward pressure on quality. The libertarian is equally skeptical of social legislation: laws against marijuana, for example, ought to be abandoned. Currently, they feed organized crime and lead to drug violence and excessively high rates of incarceration. Not only would the legalization of marijuana save lives, it would also help the public purse by reducing the number of individuals who are incarcerated at $20,000-30,000 per year.


So far, we have only discussed the ends of government sanctioned by a few economic and philosophical principles. But, what about morality? What is the role of morality in a government? Despite popular characterization, libertarians are very moral individuals: they subscribe to the belief that the individual's rights must always be preferred, except in extreme cases. They have the right to choose their own government and secure those rich blessings of organized liberty. Individuals do not, however, have the right to thrust moral institutions upon the personal behaviors of other individuals. Consequently, the libertarian sees no role for the government within the institution of marriage. If two or more individuals wish to contract special arrangements between themselves, they may. But, the institution of marriage as it currently stands violates the core of libertarian morality. It selects a special group of individuals and provides special legal rights to those individuals. In summary, it violates the Equal Protection Clause of the Fourteenth Amendment.


While libertarians would prefer the complete disengagement of government from the institution of marriage, we argue that, if it must exist, then it must be open to all individuals such that it no longer rests in violation of Constitutional right. Consequently, we support same-sex marriage, and, by extension, polygamous marriage—so long as all parties agree to the terms of the contract. And it is with this in mind that I shall address some common arguments against the libertarian position.


Libertarians often receive the argument that the institution of marriage cannot be eliminated because it would be too difficult or would cause too much trouble. However, many institutions—such as the Interstate Commerce Commission (ICC)—have been eliminated without significant trouble. Society did not fall apart. Furthermore, the argument that the elimination of the institution would be too troublesome is dangerous to liberty: by that measure, many of history's greatest injustices would not have been undone for fear that they cause undue unrest. Difficulty is never an adequate argument for inertia in the cause of liberty, which the libertarian holds as most important.


Similarly, libertarians reject the argument that traditional marriage must be defended on the ground's that it has existed for centuries. This amounts to the argument that tradition for tradition's sake is desirable: that we ought not to experiment with new ways of ordering society or producing goods and services. If the Founding Fathers had believed this, we would still be Englishmen. If Henry Ford had believed this, we would not have an assembly line. Creative destruction—both economically, socially, and politically—is necessary to the growth and prosperity of a free society. To deny a free society the fundamental right of social, economic, or political experimentation is to condemn that society to stagnation and ultimate decay. Stubborn conservatism in the face of new ideas is a threat to liberty itself.


It is furthermore argued that traditional marriage is necessary to provide a good and proper home for children: that the institution has existed for centuries. That the institution exists in modern American society to protect children is not an argument for its continued existence. By that argument, slavery is desirable, for it has existed for centuries. Perhaps aristocracy, too, is desirable, given its long history. Historically, marriage began as a form of ownership: it was the means by which men could lay claim to their property, women. Over time, it evolved, and, in many cases, conferred the advantage of increased chances of survival. In short, marriage was, in many ways, a microcosm of society itself. It was a way of organizing people. That children are products of marriage has less to do with marriage itself and more to do with human sexual behavior. Humans, like most species, have been successfully raising children for centuries without the intrusion of third-party institutions. In fact, heterosexual marriage is not the leading factor contributing to child success: stability is. There is no evidence to support the claim that gay men and women are unable to maintain stable homes.


A common rallying cry for proponents of traditional marriage is that, without it, our society would descend into mad decay. We would lose our moral compass, and individuals would no longer know how to behave. This type of thinking is paternalistic at its core: the suggestion is that we do not know how to live. Institutions are necessary to ensure that suitable moral behavior is ensured. This argument has been repeated ad nauseum to justify countless hierarchical institutions: women were originally thought unfit for participation in a democracy. The separation of races was considered necessary for racial and social purity. Should they mix, moral and social decay would ensue. Society would soon fall apart. If individuals were given too much choice, anarchy would take place. Such thinking is certainly unsupportable, yet its appeal remains strong. One common measure of social decay is the rate of divorce. It is assumed that just because higher crime rates in cities occurred after the rate of divorce began to increase is evidence that traditional marriage must be protected and promoted. What is often overlooked is the logical flaw of the argument: just because one event occurs before another does not imply causation, much like correlation does not imply causation. Higher crime rates in inner cities are likely attributable to higher levels of poverty, not to higher levels of divorce. Furthermore, violent crime in the United States has continued to decrease in recent years despite a non-decrease in the rate of divorce. Clearly, society is not falling apart.


Furthermore, while a high divorce rate is seen as a sign of social decay, libertarians suggest that it is the obvious consequence of the free expression of civil right. Why should it not be the case that the divorce rate rise as women were granted equal civil rights? It is likely more accurate to suggest that the current divorce rate accurately represents the proportion of marriages that are unhappy. The suggestion that the low divorce rate of the nineteenth century is an indication of happiness is wholly unsupportable. Much more likely is that, under tremendous social and legal pressure, the rights of countless women were usurped in the name of tradition. Their happiness was less important than social stability. Insofar as marriage reflects the active flexing of the right to pursue happiness—a most fundamental American right—is the extent to which marriage is a good thing. In many ways, divorce is social tort law. If I feel that my partner has violated his obligations in our marriage contract, I have the right to terminate the contract—i.e. divorce him—and seek compensation in a court. In this way, divorce is both highly American and highly democratic.


Fundamentally, libertarians do not believe that it is the role of government to promote one activity over another because the former activity confers positive externalities. The most successful societies are the freest societies, and, experimentation, necessary to the very fabric of a free and democratic society, must not be trampled. If marriage must exist, then, by extension, let everyone participate in it. If, however, we are truly serious about our principle of freedom, we would eliminate the special legal privileges regarding marriage and allow individuals to make decisions for themselves. We would allow individuals to choose the living arrangements that they find most propitious to their happiness. And, if they choose to contract obligations between themselves, then it is the only obligation of government to uphold the terms of that contract. That is the true spirit of liberty.