What is Marriage
and Why Do We Need It?
Part 2 of the
Libertarian Case for
What is marriage? Marriage has both public purposes and private purposes. These purposes are different.
The essential public purpose of marriage should be to attach mothers and fathers to their children and to one another. This purpose is essential, in the sense that if we didn’t need to do it, we wouldn't need marriage. If our young were born through some non-sexual process, or were born as adults, it is doubtful that anyone would have come up with the idea of lifelong sexually exclusive union of a man and a woman. Marriage has emerged in virtually every known society.
Attaching children to mothers and fathers is a public purpose, as opposed to all the private purposes people might have in getting married. Private purposes might include getting married to get health insurance, to make a public statement of love, to wear a pretty dress and have a fancy party, or to irritate one's previous boyfriend. All of these private purposes, taken together, do not add up to a public reason to have a social institution of marriage in the first place.
What is marriage? Marriage defines parenthood.
Marriage is our society's primary institutional arrangement defining parenthood. A woman's husband is presumed to be the father of any children she gives birth to during the life of their union. This is called the legal "presumption of paternity." This, coupled with a social practice of sexual exclusivity within marriage, attaches children to their biological parents.
These two people, the natural parents, are the legally recognized parents of their child, and no one else is. The grandparents are not; the former boyfriend is not; the nanny who spends all day with the child is not. Biological parents hold their rights against all other competing claimants. This is an intrinsically social, public function of marriage that cannot be privatized. Our common law has the wisdom to accommodate exceptional situations. Where the natural parents cannot care for their children, the child may be placed for adoption. However, adoption does not undermine the biological basis for parenthood. In fact, everything about the adoption process screams that biology matters.
Biological parents do not give up their children lightly. The state does not involuntarily remove children from their natural parents without good cause and procedural safeguards. In most jurisdictions, adopted children have some opportunity to discover their biological origins. Thus, adoption accommodates exceptional situations, without undermining the basic biological reality of parenthood. Perhaps most importantly: adoption is a child-centered institution that gives children the parents they need, unlike artificial reproductive technology which is an adult centered institution.
What is marriage? Marriage attaches the child’s parents to each other.
In addition to the attachment between parents and children, marriage also recognizes and protects the attachment of parents to one another. The child is the common project of the man and the woman. Recognizing both biological parents as the legal parents protects the legitimate interests of each in caring for their child. Neither parent can legally exclude the other from the parental rights to relationship and decision-making. Neither parent can legally abandon their responsibilities for the family.Attaching parents to each other is important because it protects the legitimate interests of children. Unlike adults, the child does not need autonomy or independence. The child is entitled to a relationship with and care from both of the people who brought him into being. The parent's relationship with each other provides the vehicle that allows the child to be in relationship with both parents. Therefore, the child has a legitimate interest in the stability of his parents' union.
No child can defend these entitlements himself. Nor is it adequate to make restitution after these rights have been violated. The child's rights to care and relationship must be supported pro-actively, before harm is done, for those rights to be protected at all.
What is marriage? Marriage is adult society's institutional structure for protecting legitimate interests of children.
One might object that some marriages don’t have children. This is perfectly true, but this objection views marriage strictly from the adult's perspective, instead of from the child's perspective. Remember that every child has parents. Depriving a child of relationships with his or her parents is an injustice to the child, and should not be done without some compelling or unavoidable reason.
Taking the perspective of the child also explains why marriage is not a special case of the market, and why family law is not a subset of contract and property law. Children are not, and intrinsically cannot be, "contracting parties." Children are "protected parties." Property law cannot do the job of family law because children are not objects to which other people have property rights. Children are persons with rights of their own.
What is marriage? As you can see, from a public policy perspective marriage encompasses many broad and important issues, none of which are centered around adult feelings. Marriage between a man and a woman is the last truly private sector.
This is part 2 of our series, The Libertarian Case for Man/Woman Marriage. Other parts are located here:
Part 1: What is the definition of marriage?
Part 2: What is marriage and why do we need it? (you are here)
Part 3: Gay Marriage Facts
Part 4: Marriage equality creates new inequalities
Part 5: Marriage Laws: How Should the State View Marriage? (you are here)
Part 6: History of Marriage
Part 7: Gay Marriage means Genderless Marriage
Part 8: Government and Marriage
Return to the home page: What is Marriage?