One thing you’ve got to hand to the libertarian approach: it’s pretty easy to understand. Live and let live. Keep the civil government out of it. A lot of libertarians like to talk about how the definition of marriage is not for the civil government to make. They believe marriage is a private and consensual contract, and it therefore shouldn’t matter what the civil government says about it. One libertarian group said, “Real equality would be a government that is not in charge of marriage.”
I agree that the civil government is not ultimately responsible to define marriage, yet at the same time, the government must have a clear definition of marriage in order to enforce the private stipulations of marriage contracts. Civil government may not be the source of our definition for marriage, but it must enforce our definition. The civil government should not be responsible for marrying people, but it must know all the people in its jurisdiction who are married. Because a distinction must be made between having jurisdiction over (“being in charge”) and having jurisdiction in. The civil government, even in a libertarian system, has the responsibility to enforce the stipulations of contracts. And marriage is a good bit more than just your everyday contract. When a married couple produces children and wealth, all of a sudden things start getting very complicated. This means the civil government needs to have a clear working definition of marriage. It needs to know who is, and who is not, married. It needs to have a legal system for what happens when people break marriage commitments.
In other words, the libertarian system for marriage equality works really well until it doesn’t. As long as people are reasonable and decent, the civil government need not be involved. But civil government, especially in a libertarian system, is not around for the normal times or the good and reasonable people. It’s around for the times when everything and everyone goes to pot. A good people need almost no government. But, in case you haven’t noticed, we are not living among a good and decent people.
I guarantee that if a fully libertarian social and moral system were implemented, there would be some really bizarre stuff going on. Polygamy. Incestuous marriages. Spinsters wanting to marry their cats. You name it. In a libertarian system, there really isn’t much more than a sliding moral framework to deny these “marriages.”
Most libertarians say these other kinds of marriage would be illegal because they are not “consensual” arrangements. In other words, one party is harming the other. But “consent” and “harm” are slippery concepts. Some children grow up in incestuous relationships. They are warped in their perspective to such an extent that they think what they are doing is normal. Would an incestuous marriage in this case be considered “consensual”? A libertarian might answer: “But they are messed up in the head. They don’t know what’s good for them.” Really? My libertarian is starting to sound a lot like a big government type at that point. So government has to come in and protect the warped individual from himself? What happened to “live and let live”? The other “freakish” cases are just as difficult to navigate in the libertarian model.
And the prospect of homosexual marriage within a libertarian system is also prone to criticism. The question for the libertarian ethic is: What if homosexuals are harming each other? What if what they are doing is actually bad for them, and they are so warped in their minds, they just don’t see it? Should the civil government come in and stop them from their self-destructive behavior? Should the police keep them from hurting others? Should they be allowed to adopt children, when those children might be raised in a destructive environment? The libertarian ethic has no real answer for these issues because it has no internal standard to appeal to for morality. And perhaps that is as it should be. Like I said, the civil government shouldn’t be the source of our law. It should just enforce our law. And a system of government, no matter how free or just, will be just as incapable of providing a moral framework. So where should that law come from? Who does define marriage?
Tomorrow we’ll talk about the failure of natural law as a source for societal morals.