Some libertarians, notably Ron Paul, say it should not. Another says that is foolish and irresponsible.
The debate over same-sex marriage has prompted a lot of thinking about the nature of marriage itself. One solution to the current crisis has been mooted by libertarian writers: privatise marriage. Here Patrick Burke, a libertarian, explains why marriage is special and governments still have a role.
Libertarians believe in having as little government as possible and for this they have good reasons. The chief role of government, in libertarian eyes, is to protect its citizens from harm. First, from aggression by other nations, which government can do by having an effective foreign policy and military. Second, from aggression by criminals, which government can do by having a just and effective system of justice: police, courts of law and prisons. When all this has been done—not exactly a small item—libertarians believe government has pretty much finished its job. The rest should be left to the free agreements of individuals with one another. For every action of government uses, or threatens to use, physical force, and to use force on people when they have not done any harm is contrary to human dignity. It also makes everybody poorer than they need be, as Adam Smith demonstrated long ago. The happiest and most successful society is the one that leaves people what Smith called their “natural liberty.”
Marriage does not seem to fall under any of the aggressive activities that people need to be protected against. If a man and a woman want to get married, that is their own affair because it does not harm anybody else. It belongs to the most intimate sphere of life, the bedroom, and we do not want government in our bedroom. This is why for many centuries marriage was regulated by the church, not by government. For a thousand years in mediaeval Europe marriage disputes were settled in church courts under church rules. Reasoning along such lines, some libertarians—notably Ron Paul—are now calling on government to take itself completely out of marriage.
This reasoning is not entirely wrong, but it leaves out something essential. Marriage is a contract. No doubt it is much more than a contract. In the Christian view it is also a sacrament: a visible sign of an invisible grace. But whatever else it may be, it is at least a contract. It is a solemn public agreement. When we get married, we pledge to share our life with another person. As in any contract, we lead the other person to rely on us to carry out our promise. In any contract, if we break our promise, we cause harm to the other person because we cause them to lose everything they have invested in it. This is why government is involved in all contracts, and rightly so. Marriage creates rights.
In marriage especially, more than in any other kind of contract, we can cause immense, lifelong harm beyond any possibility of repair. Marriage creates the most intimate of human relationships, making us most vulnerable to one another. We have led the other person to give up her or his life alone, relying on us to share our life with them in place of that, so that the two of us can build up a new life together. If we break that promise, we can easily destroy the other person’s life. But that life is just as valuable as mine. If I break the other persons’s life, I deserve to have my own broken. Of course, if a marriage is irretrievably broken, there must be some provision for that. The message of the New Testament is that the provision should be compassionate.
Marriage is especially for the sake of the children. They have been brought into the world through the unity of their parents, and they need that unity to continue. If their parents break up, many children never recover. It mars their whole life. Children have rights, and it is the task of government to protect those rights.