Marriage and the Limits of Contract

By Morse, Jennifer Roback | Policy Review, April-May 2005 | Go to article overview

Marriage and the Limits of Contract


Morse, Jennifer Roback, Policy Review


MARRIAGE IS A naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state. The drive toward a legalistic view of marriage is part of the relentless march toward politicizing every aspect of society.

Although gay marriage is the current hot-button topic, it is a parenthetical issue. The more basic question is the meaning of love, marriage, sexuality, and family in a free society. I define marriage as a society's normative institution for both sexual activity and the rearing of children. The modern alternative idea is that society does not need such an institution: No particular arrangement should be legally or culturally privileged as the ideal context for sex or childbearing.

The current drive for creating gay unions that are the legal equivalent of marriage is part of this ongoing process of dethroning marriage from its pride of place. Only a few self-styled conservative advocates of gay marriage, such as Andrew Sullivan and Jonathan Rauch, seem to understand and respect the social function of marriage. Marriage as an institution necessarily excludes some kinds of behavior and endorses other kinds of behavior. This is why the conservative case for gay marriage is so remarkable: It flies in the face of the cultural stampede toward social acceptance of any and all sexual and childbearing arrangements, the very stampede that has fueled so much of the movement for gay marriage.

This article is not primarily about gay marriage. It isn't even about why some forms of straight marriage are superior to others. Rather, the purpose of this article is to explain why a society, especially a free society, needs the social institution of marriage in the first place. I want to argue that society can and must discriminate among various arrangements for childbearing and sexual activity.

The contrary idea has a libertarian justification in the background: Marriage is a contract among mutually consenting adults. For instance, libertarian law professor Richard Epstein penned an article last year called "Live and Let Live" in the Wall Street Journal (July 13, 2004). In it, he treated marriage as a combination of a free association of consenting individuals and an institution licensed by the state.

But the influence of the libertarian rationale goes far beyond the membership of the Libertarian Party or the donor list of the Cato Institute. The editors of the Nation, for instance, support gay marriage but do not usually defend the sanctity of contracts. This apparent paradox evaporates when we realize that the dissolution of marriage breaks the family into successively smaller units that are less able to sustain themselves without state assistance.

Marriage deserves the same respect and attention from libertarians that they routinely give the market. Although I believe life-long monogamy can be defended against alternatives such as polygamy, it is beyond the scope of a single article to do so. My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage.

A natural institution

LIBERTARIANS HAVE EVERY reason to respect marriage as a social institution. Marriage is an organic institution that emerges spontaneously from society. People of the opposite sex are naturally attracted to one another, couple with each other, co-create children, and raise those children. The little society of the family replenishes and sustains itself. Humanity's natural sociability expresses itself most vibrantly within the family. …

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