[Paleopsych] Policy Review: Jennifer Roback Morse: Marriage and the Limits of Contract

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Policy Review, No. 130: Jennifer Roback Morse: Marriage and the Limits of 
Contract
http://www.policyreview.org/apr05/morse_print.html

[She used to teach in the economics department at George Mason University. 
An example of a woman who had a big dog when she needed a baby, she was 
more transformed by having one than anyone I know. And she looked much 
lovelier. She has returned to her Roman Catholicism. I have not actually 
read the article yet, but if it's like her book, I am almost entirely in 
agreement. Moses and Solomon were early sociobiologists.]

    Jennifer Roback Morse is a research fellow at the Hoover Institution,
    and the author of Smart Sex: Finding Lifelong Love in a Hook-up World,
    and Love and Economics: Why the Laissez-Faire Family Doesn't Work,
    both from Spence Publishing.

    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. A minimum-government libertarian can
    view this self-sustaining system with unadulterated awe.

    Government does not create marriage any more than government creates
    jobs. Just as people have a natural "propensity to truck, barter and
    exchange one thing for another," in Adam Smith's famous words from the
    second chapter of The Wealth of Nations, we likewise have a natural
    propensity to couple, procreate, and rear children. People
    instinctively create marriage, both as couples and as a culture,
    without any support from the government whatsoever.

    The sexual urge is an engine of human sociability. Our desire for
    sexual satisfaction draws us out of our natural self-centeredness and
    into connection with other people. Just as the desire to make money
    induces business owners to try to please their customers, so too, the
    desire to copulate induces men to try to please women, and women to
    try to attract men. The attachment of mothers to their babies and
    women to their sex partners tends to keep this little society
    together. The man's possessiveness of his sexual turf and of his
    offspring offsets his natural tendency toward promiscuity. These
    desires and attachments emerge naturally from the very biology of
    sexual complementarity with no assistance from the state.

    But this is not the only sense in which the institution of marriage
    arises spontaneously. In every known society, communities around the
    couple develop customs and norms that define the parameters of
    socially acceptable sexual, spousal and parental behavior. This
    culture around marriage may have some governmental elements. But that
    cultural machinery is more informal than legal by far and is based
    more on kinship than on law. We do things this way because our parents
    did things this way. Our friends and neighbors look at us funny if we
    go too far outside the norm.

    The new idea about marriage claims that no structure should be
    privileged over any other. The supposedly libertarian subtext of this
    idea is that people should be as free as possible to make their
    personal choices. But the very nonlibertarian consequence of this new
    idea is that it creates a culture that obliterates the informal
    methods of enforcement. Parents can't raise their eyebrows and expect
    children to conform to the socially accepted norms of behavior,
    because there are no socially accepted norms of behavior. Raised
    eyebrows and dirty looks no longer operate as sanctions on behavior
    slightly or even grossly outside the norm. The modern culture of
    sexual and parental tolerance ruthlessly enforces a code of silence,
    banishing anything remotely critical of personal choice. A parent, or
    even a peer, who tries to tell a young person that he or she is about
    to do something incredibly stupid runs into the brick wall of the
    non-judgmental social norm.

    State impartiality in a free society

    The spontaneous emergence of marriage does not imply that any laws the
    state happens to pass will work out just fine. And it certainly does
    not follow that any cultural institutions surrounding sexual behavior,
    permanence of relationships, and the rearing of children will work out
    just fine. The state may still need to protect, encourage or support
    permanence in procreational couplings just as the state may need to
    protect the sanctity of contracts.

    No libertarian would claim that the presumption of economic
    laissez-faire means that the government can ignore people who violate
    the norms of property rights, contracts, and fair exchange. Apart from
    the occasional anarcho-capitalist, all libertarians agree that
    enforcing these rules is one of the most basic functions of
    government. With these standards for economic behavior in place,
    individuals can create wealth and pursue their own interests with
    little or no additional assistance from the state. Likewise, formal
    and informal standards and sanctions create the context in which
    couples can create marriage with minimal assistance from the state.

    Nor would a libertarian claim that people should be indifferent about
    whether they are living in a centrally planned economy or a
    market-ordered economy. No one disputes the free speech rights of
    socialists to distribute the Daily Worker. It does not follow that
    impartiality requires the economy to reflect socialism and capitalism
    equally. It simply can't be done. An economy built on the ideas in The
    Communist Manifesto will necessarily look quite different from an
    economy built on the ideas in The Wealth of Nations. The debate
    between socialism and capitalism is not a debate over how to
    accommodate different opinions, but over how the economy actually
    works. Everything from the law of contracts to antitrust law to
    commercial law will be a reflection of some basic understanding of how
    the economy works in fact. Somebody in this debate is correct, and
    somebody is mistaken. We can figure out which view is more nearly
    correct by comparing the prosperity of societies that have implemented
    capitalist principles with the prosperity of those that have
    implemented socialist principles.

    There are analogous truths about human sexuality. I claim the sexual
    urge is a natural engine of sociability, which solidifies the
    relationship between spouses and brings children into being. Others
    claim that human sexuality is a private recreational good, with
    neither moral nor social significance. I claim that the hormone
    oxytocin floods a woman's body during sex and tends to attach her to
    her sex partner, quite apart from her wishes or our cultural norms.
    Others claim that women and men alike can engage in uncommitted sex
    with no ill effects. I claim that children have the best life chances
    when they are raised by married, biological parents. Others believe
    children are so adaptable that having unmarried parents presents no
    significant problems. Some libertarians seem to believe that marriage
    is a special case of free association of individuals. I say the
    details of this particular form of free association are so distinctive
    as to make marriage a unique social institution that deserves to be
    defended on its own terms and not as a special case of something else.

    One side in this dispute is mistaken. There is enormous room for
    debate, but there ultimately is no room for compromise. The legal
    institutions, social expectations and cultural norms will all reflect
    some view or other about the meaning of human sexuality. We will be
    happier if we try to discover the truth and accommodate ourselves to
    it, rather than try to recreate the world according to our wishes.

    Which freedom?

    Distinguishing between competing understandings of "natural freedom"
    will clear up one source of confusion in this debate. Jean-Jacques
    Rousseau presents a view of natural freedom quite different from the
    modern economic libertarian understanding. In Part I of A Discourse on
    Inequality Rousseau describes sexual pairing in the state of nature:

      As males and females united fortuitously according to encounters,
      opportunities and desires, they required no speech to express the
      things they had to say to each other, and they separated with the
      same ease. The mother nursed her children at first to satisfy her
      own needs, then when habit had made them dear to her, she fed them
      to satisfy their needs; as soon as they had the strength to find
      their own food, they did not hesitate to leave their mother
      herself; and as there was virtually no way of finding one another
      again once they had lost sight of each other, they were soon at the
      stage of not even recognizing one another.

    Rousseau could be describing the modern hook-up culture, down to and
    including the reluctance of hook-up partners to even talk to each
    other. He seems to define "natural" as acting on impulse and "freedom"
    as being unencumbered by law, social convention or even attachment to
    other people.

    Libertarians cannot accept these definitions. Being free does not
    demand that everyone act impulsively rather than deliberately.
    Libertarian freedom is the modest demand to be left alone by the
    coercive apparatus of the government. Economic liberty, and
    libertarian freedom more broadly, is certainly consistent with living
    with a great many informal social and cultural constraints.

    Rousseau specifically depicted a state of nature that is not only
    pre-political, but nonsocial. Whether he intended this as a
    description of some long-lost, pre-social time, or as a goal to which
    the good society should aspire, his version of the state of nature is
    surely unnatural in this sense: A widespread nonsystem of impersonal
    sexual couplings has never occurred in any known society. In no known
    society have the ruling authorities, whether governmental or informal,
    been completely indifferent to the forms sexual couplings take, or the
    context in which sexual activity takes place. Nor has any belief
    system, whether religious or philosophical, ever claimed that sexual
    activity is intrinsically meaningless, having only the meaning
    individuals privately assign to it.

    Until now.

    We now live in an intellectual, social, and legal environment in which
    the laissez-faire idea has been mechanically applied to sexual conduct
    and married life. But Rousseau-style state-of-nature couplings are
    inconsistent with a libertarian society of minimal government. In
    real, actually occurring societies, noncommittal sexual activity
    results in mothers and children who require massive expenditures and
    interventions by a powerful government.

    Let me construct a hypothetical family to illustrate what I mean. In
    contrast to Rousseau's mythical state of nature, my hypothetical
    family occurs all too frequently in real-life modern Western
    democracies.

     man and woman have a child. The mother and father have no permanent
    relationship to each other and no desire to form one. When the
    relationship ceases to function to their satisfaction, it dissolves.
    The mother sues the father for child support.

    The couple argues through the court system over how much he should
    pay. The woman wants him to pay more than he wants to pay. The court
    ultimately orders him to pay a particular amount. He insists on
    continuing visitation rights with his child. She resists. They argue
    in court and finally settle on a periodic visitation schedule to which
    he is entitled.

    The agreement works smoothly at first. Then the parents quarrel. At
    visitation time, the mother is not home. He calls and leaves a nasty
    message on the answering machine. They quarrel some more. She says his
    behavior is not appropriate. He smokes too much and overindulges the
    child in sweets. She says the child, who is now a toddler, is
    impossible to deal with after visits. He quits paying child support.
    The court garnishes his wages to force him to pay. He goes to court to
    try to get his visitation agreement honored. The court appoints a
    mediator to help the couple work out a solution. The mother announces
    that she plans to move out of state. He goes to court and gets a
    temporary order to restrain her from moving. She invents a charge of
    child abuse and gets a restraining order forbidding him from seeing
    the child.

    Say what you like about this sort of case. You may think this is the
    best mere mortals can do. You may think this contentiousness is the
    necessary price people pay for their adult independence. You may blame
    the mother or the father or both. Or perhaps you think this is a
    nightmare for both adults as well as for children. But on one point we
    can all agree: This is not a libertarian society.

    Some libertarians might focus on the specific activities of the family
    court, regarding them as grotesque infringements of both parties'
    privacy. Agents of the government actively inquire into, pass
    judgments upon and intervene in the most intimate details of this
    couple's life. Or we might view the entire existence of the court
    system as an outrageous subsidy to this couple, paid by the rest of
    society. When the woman asks for the state's help in collecting child
    support, the state provides this service at no charge to her. When she
    makes a charge of child abuse, the state keeps the man away from her
    and her child. If the charge is proven to be unfounded or frivolous,
    the state does not require her to pay compensation for its expenses or
    the man for his losses.

    This is not the posture of a night watchman state.

    The state solicitude for the mother and her child is a direct result
    of father absence. Without a father's assistance, this woman and her
    child are more likely to become dependents of the state. The state
    believes, quite reasonably, that it is more cost-effective to help the
    mother extract assistance from the father than to provide
    taxpayer-funded financial assistance. Aggressive programs for tracking
    down "dead-beat dads" become a substitute for providing direct
    payments through the welfare system as conventionally understood.

    A radical individualist might argue that the state should allow this
    couple to sink or swim on its own. If the man abandons her, tough luck
    for her and her child. If she kicks the man out, for good reason or no
    reason, tough luck for him. The social order simply cannot afford to
    indulge people who can't get along with their closest and most
    intimate family members. If the state would get out of the family
    business or charge people the full cost for the use of its services,
    fewer people would get into these contentious situations. People would
    be more careful in forming their intimate childbearing unions.

    But our current ideological environment makes this position
    impossible, however much it might appeal to the radical individualist.
    The political pressures for the state to intervene on behalf of the
    unmarried mother are simply overwhelming. The welfare state is so
    entrenched that singling out unmarried mothers at this late date is
    not plausible. Given that reality, it is not realistic to expect the
    state to cease and desist from all the activities of the family court,
    no matter how intrusive or highly subsidized they may be.

    Nor does the sense of financial entitlement exhaust the entitlement
    mentality. Unlimited sexual activity is now considered an entitlement.
    Marriage is no longer the only socially acceptable outlet for sexual
    activity or for the rearing of children. It is now considered an
    unacceptable infringement on the modern person's liberty to insist
    that the necessary context of sexual activity is marriage with rights
    and responsibilities, both implicit and explicit. It is equally
    unacceptable to argue that having children outside of marriage is
    irresponsible. Women are entitled to have as many children as they
    choose in any context they choose. In this sense, children have become
    a kind of consumer good. Choosing to have a child is a necessary and
    sufficient condition for being entitled to have one. Given this social
    and cultural environment, it is completely unrealistic to think that
    we can muster the political will to deprive unmarried parents of the
    use of the courts to prosecute their claims against one another.

    Contrast this scenario with intact married couples. Not deliriously
    happy married couples with stars in their eyes at all times. Just
    ordinary, everyday, run-of-the mill married couples.

    No one from the state forces them to pool their incomes, if they both
    work. If they have the traditional gender-based division of household
    labor, no one forces the husband to hand over his paycheck to his wife
    to run the household. No one makes the wife allow him to take the kids
    out for the afternoon. No one has to come and supervise their
    negotiations over how to discipline the children. When he's too tough,
    she might chew him out privately or kick him under the table. When she
    lets them off the hook too easily, he might have some private signal
    for her to leave so he can do what needs to be done.

    The typical married couple has regular disagreements over money,
    child-rearing, the allocation of household chores, how to spend
    leisure time and a hundred other things. Every once in a while, even a
    stable married couple will have a knock-down, drag-out, (usually)
    private quarrel. But they resolve their disagreements, large and
    small, perhaps a dozen a day, completely on their own with neither
    supervision nor subsidy from any court.

    What's natural

    A skeptic might respond to my example of the dysfunctional noncouple by
    saying that their actions arise naturally from the society. Their
    spontaneous actions are entitled to the same libertarian endorsement
    as those of a married couple.

    A sophisticated analogy with the market must go beyond a ritual
    incantation of "leave us alone." Adam Smith recognized in the tenth
    chapter of The Wealth of Nations that "people of the same trade seldom
    meet together, even for merriment and diversion, but the conversation
    ends in a conspiracy against the public, or in some contrivance to
    raise prices." Smith understood that the "natural" tendency to cheat
    the public must be checked by legal and social norms. The law must
    prohibit some economic behavior. Equally important, the culture as a
    whole must socialize people into accepting self-imposed limits on
    their self-interested behavior. The need for laws and socialization
    did not lead Adam Smith to conclude that the market is a mere social
    construct that can be carelessly discarded.

    Likewise, the observation that men and women alike sometimes fail to
    live up to the ideal of lifelong married love does not prove that
    marriage is unnatural. We must ask ourselves the question about the
    family that Adam Smith taught us to ask about business: How can we
    direct natural human motivations into socially constructive channels?
    The answer is to create a cultural and legal order that supports and
    sustains lifelong married love as the normative institution in which
    to beget, bear, and rear children. Random sexual encounters, dissolved
    at will, are not socially responsible when children are involved.

    When Adam Smith's modern follower Friedrich Hayek championed the
    concept of spontaneous order, he helped people see that explicitly
    planned orders do not exhaust the types of social orders that emerge
    from purposeful human behavior. The opposite of a centrally planned
    economy is not completely unplanned chaos, but rather a spontaneous
    order that emerges from thousands of private plans interacting with
    each according to a set of reasonably transparent legal rules and
    social norms.

    Likewise, the opposite of government controlling every detail of every
    single family's life is not a world in which everyone acts according
    to emotional impulses. The opposite is an order made up of thousands
    of people controlling themselves for the greater good of the little
    society of their family and the wider society at large.

    Social costs of private conflicts

    Whether a couple loses the ability to negotiate, or whether they never
    had it in the first place, the dissolution of their union has
    significant spillover effects. The instability in their relationship
    is likely to be detrimental to their children. The children of
    unmarried or divorced parents are more likely than other children to
    have emotional, behavioral and health problems. As these children
    become old enough to go to school, they absorb more educational
    resources than other children because the school has to deal with
    lowered school achievement, poor school attendance, and discipline
    problems. As these children mature, they are more likely to get into
    trouble with the law, commit crimes, abuse drugs, and end up in jail.

    These costs are more than purely private costs to the mother and
    father. The costs of health care, schooling, and mental health care
    are not entirely private in this society, no matter how much
    libertarians might wish they were. In modern America, a child who
    cannot behave in school is a cost to the local school district as well
    as to all the other children in the classroom. A seriously depressed
    person or a drug-addicted person is likely to make demands on the
    public health sector. If the child ends up in the criminal justice
    system, as the children of unmarried parents are significantly more
    likely to do, he or she will be a significant cost to the state.

    The demand that the government be neutral among family forms is
    unreasonable. The reality is that married-couple families and
    childless people are providing subsidies to those parents who dissolve
    their marriages or who never form marriages. Libertarians recognize
    that a free market needs a culture of law-abidingness,
    promise-keeping, and respect for contracts. Similarly, a free society
    needs a culture that supports and sustains marriage as the normative
    institution for the begetting, bearing, and rearing of children. A
    culture full of people who violate their contracts at every possible
    opportunity cannot be held together by legal institutions, as the
    experience of post-communist Russia plainly shows. Likewise, a society
    full of people who treat sex as a purely recreational activity, a
    child as a consumer good and marriage as a glorified roommate
    relationship will not be able to resist the pressures for a vast
    social assistance state. The state will irresistibly be drawn into
    parental quarrels and into providing a variety of services for the
    well-being of the children.

    The naked individual

    The alternative to my view that marriage is a naturally occurring
    pre-political institution is that marriage is strictly a creation of
    the state. The Supreme Court of Massachusetts notoriously asserted
    this position. If this is true, then the state can recreate marriage
    in any form it chooses. Implicit in this view is the decidedly
    non-libertarian view that the state is the ultimate source of social
    order.

    Listen to this self-described progressive bring the implicit
    connection between the expansive state and the deconstruction of
    marriage out of the shadows. Writing in the Nation in March 2004, New
    York University Queer Studies professor Lisa Duggan addressed the
    marriage promotion portion of welfare reform:

      Women and children . . . (according to the welfare reform model)
      should depend on men for basic economic support, while women care
      for dependents -- children, elderly parents, disabled family
      members, etc. Under such a model, married-couple households might
      "relieve" the state of the expense of helping to support
      single-parent households, and of the cost of a wide range of social
      services, from childcare and disability services to home nursing.
      Marriage thus becomes a privatization scheme: Individual
      married-couple households give women and children access to higher
      men's wages, and also "privately" provide many services once
      offered through social welfare agencies. More specifically, the
      unpaid labor of married women fills the gap created by government
      service cuts.

    This statement brings the statist worldview front and center. Under
    this vision, the most basic relationships are not between husband and
    wife, parent and child, but between citizens and state. The family is
    not the natural unit of society. The most basic unit of society is not
    even the libertarian individual, embedded within a complex web of
    family, business and social relationships. Rather, the natural unit of
    society is the naked individual, the isolated individual, standing
    alone before the state, beholden to the state, dependent upon the
    state.

    The libertarian approach to caring for the dependent is usually
    described in terse form as "let families and private charity take care
    of it, and get the government out of the way." This position is
    sometimes ridiculed as unrealistic or attacked as harsh. But the
    libertarian position, once fully fleshed out, is both humane and
    realistic.

    The libertarian preference for nongovernmental provision of care for
    dependents is based upon the realization that people take better care
    of those they know and love than of complete strangers. It is no
    secret that people take better care of their own stuff than of other
    people's. Economists conclude that private property will produce
    better results than collectivization schemes. But a libertarian
    preference for stable married-couple families is built upon more than
    a simple analogy with private property. The ordinary rhythm of the
    family creates a cycle of dependence and independence that any
    sensible social order ought to harness rather than resist.

    We are all born as helpless infants, in need of constant care. But we
    are not born alone. If we are lucky enough to be born into a family
    that includes an adult married couple, they sustain us through our
    years of dependence. They do not get paid for the work they do: They
    do it because they love us. Their love for us keeps them motivated to
    carry on even when we are undeserving, ungrateful, snot-nosed brats.
    Their love for each other keeps them working together as a team with
    whatever division of labor works for them.

    As we become old enough to be independent, we become attracted to
    other people. Our bodies practically scream at us to reproduce and do
    for our children what our parents did for us. In the meantime, our
    parents are growing older. When we are at the peak of our strength,
    stamina, and earning power, we make provision to help those who helped
    us in our youth.

    But for this minimal government approach to work, there has to be a
    family in the first place. The family must sustain itself over the
    course of the life cycle of its members. If too many members spin off
    into complete isolation, if too many members are unwilling to
    cooperate with others, the family will not be able to support itself.
    A woman trying to raise children without their father is unlikely to
    contribute much to the care of her parents. In fact, unmarried parents
    are more likely to need help from their parents than to provide it.

    In contrast to the libertarian approach, "progressives" view
    government provision of social services as the first resort, not the
    last. Describing marriage as a "privatization scheme" implies that the
    most desirable way to care for the dependent is for the state to
    provide care. An appreciation of voluntary cooperation between men and
    women, young and old, weak and strong, so natural to libertarians and
    economists, is completely absent from this statist worldview.

    This is why it is no accident that the advocates of sexual
    laissez-faire are the most vociferous opponents of economic
    laissez-faire. Advocates of gay marriage are fond of pointing out that
    civil marriage confers more than 1,049 automatic federal and
    additional state protections, benefits and responsibilities, according
    to the federal government's General Accounting Office. If these
    governmentally bestowed benefits and responsibilities are indeed the
    core of marriage, then this package should be equally available to all
    citizens. It follows that these benefits of marriage should be
    available to any grouping of individuals, of any size or combination
    of genders, of any degree of permanence.

    But why should libertarians, of all people, accept the opening premise
    at face value? Marriage is the socially preferred institution for
    sexual activity and childrearing in every known human society. The
    modern claim that there need not be and should not be any social or
    legal preference among sexual or childrearing contexts is, by
    definition, the abolition of marriage as an institution. This will be
    a disaster for the cause of limited government. Disputes that could be
    settled by custom will have to be settled in court. Support that could
    be provided by a stable family must be provided by taxpayers.
    Standards of good conduct that could be enforced informally must be
    enforced by law.

    Libertarians do not believe that what the government chooses to bestow
    or withhold is the essence of any social institution. When we hear
    students from Third World countries naively ask, "If the government
    doesn't create jobs, how we will ever have any jobs?" we know how to
    respond. Just because the government employs people and gives away tax
    money does not mean it "created" those jobs. Likewise, the fact that
    the government gives away bundles of goodies to married couples does
    not prove that the government created marriage.

    A free society needs marriage

    The advocates of the deconstruction of marriage into a series of
    temporary couplings with unspecified numbers and genders of people
    have used the language of choice and individual rights to advance
    their cause. This rhetoric has a powerful hold over the American mind.
    It is doubtful that the deconstruction of the family could have
    proceeded as far as it has without the use of this language of
    personal freedom.

    But this rhetoric is deceptive. It is simply not possible to have a
    minimum government in a society with no social or legal norms about
    family structure, sexual behavior, and childrearing. The state will
    have to provide support for people with loose or nonexistent ties to
    their families. The state will have to sanction truly destructive
    behavior, as always. But destructive behavior will be more common
    because the culture of impartiality destroys the informal system of
    enforcing social norms.

    It is high time libertarians object when their rhetoric is hijacked by
    the advocates of big government. Fairness and freedom do not demand
    sexual and parental license. Minimum-government libertarianism needs a
    robust set of social institutions. If marriage isn't a necessary
    social institution, then nothing is. And if there are no necessary
    social institutions, then the individual truly will be left to face
    the state alone. A free society needs marriage.

    Feedback? Email [4]polrev at hoover.stanford.edu. Or send us a [5]Letter
    to the Editor.

References

    3. http://www.policyreview.org/authorindex.html#jmorse
    4. mailto:polrev at hoover.stanford.edu
    5. http://www.policyreview.org/contact.html