I’ve discussed several times the issue of marriage from the libertarian perspective. Here (part 1) and here (part 2) I gave an overview of the problems of marriage and society. Here I explained why there is no libertarian necessity for the state to observe so-called same-sex marriage. And here I tried to point out that RC Sproul doesn’t really address the central problem of marriage in his defense of State-defined marriage relationships. Now Doug Wilson has a short piece, which I won’t analyze in detail, which I think tries to solve some of the holes in the Sproul piece, without referencing that piece. The issue is, where does the Government’s use of force come in? All that does not require force can be handled on the free market, obviously (an intramural libertarian debate is whether those things which require force can be handled on on the free market –let’s leave that aside for now). Wilson claims to be okay with this. However, he thinks that marriage requires some sort of force and therefore, this is the role of the magistrate.
Ignoring his misleading statement about how he is a “theocratic libertarian” (I’m getting real tired of these theocratic attempts to redefine libertarianism against its historical meaning and development) he writes:
In my argument, I have said that marriage necessarily results in issues of property, inheritance, and custody, and that the magistrate is the one appointed by God to sort such things out. This is because the sorting of such issues frequently requires force, physical force. I do not want the elders of the church bearing the sword to collect child support. I do not want the minister of the church to have the authority to evict someone from his home to enforce the terms of the divorce settlement. The weapons wielded by the church are not weapons of that sort, and must never become weapons of that sort (2 Cor. 10:4).
Let’s leave aside the so-called anarcho-capitalism for a moment and assume a tax-funded “minimal, night-watchman” state that is strictly restricted to the protection of life, liberty, and property (sort of a Misesian state). Wilson states that Marriage necessarily results in issues of property, inheritance, and custody. In some senses, this is not true and in other senses this is unhelpfully true. Let me explain. Whether marriage results in issues of property depend on whether or not there is an actual conflict between the husband and wife. If there is no conflict regarding “who owns what” or “what is to happen to the property” in case of a tragedy because the marriage relationship is healthy, no “government force” is ever needed. Arbitration and the need for “sorting things out” only comes as a result of a conflict. Moreover, the first parties to “sort such things out” are the married individuals themselves. It is only in the case where there is no reconciliation or solution that a need arises to bring in a third party. But even more importantly, all partnerships face issues of property and so the extent to which marriage needs government, all occurrences of potential conflict in society will need arbitration. In other words, whether or not a man and a woman have entered into a covenant relationship between themselves and God is immaterial to the necessity of arbitrating a conflict. Would we have a judge refuse to hear the competing claims to a property without proof of their covenant relationship?
The issue is not whether a body in society that has a legitimate claim to use force should be present, the issue is whether that force in contingent on the marital status of the couple. Wilson’s claim that the church should not handle such matters is, as I have indicated time and again, entirely agreeable; the problem is whether the government’s role in arbitrating conflicts depends on the covenant relationship of the conflicting parties. When two male roommates both purchase a tv for their college apartment (like my roommate and I did), does the fact that they are not married mean that their inability to solve their dispute renders third party arbitration as illegitimate? I sincerely doubt it.
Disputes may require forceful intervention, regardless of whether to disputing parties are married.
In addition to the articles cited in the first paragraph, I have since found the following statement by Charles Hodge from his Systematic Theology on marriage:
Marriage is a divine institution. (1.) Because founded on the nature of man as constituted by God. He made man male and female, and ordained marriage as the indispensable condition of the continuance of the race. (2.) Marriage was instituted before the existence of civil society, and therefore cannot in its essential nature be a civil institution. As Adam and Eve were man led not in virtue of any civil law, or by the intervention of a civil magistrate, so any man and woman cast together on a desert island, could lawfully take each other as husband and wife, It is a degradation of the institution to make it a mere civil contract. (3.) God commanded men to marry, when He commanded them to increase, and multiply and replenish the earth. (4.) God in his word has prescribed the duties belonging to the marriage relation; He has made known his will as to the parties who may lawfully be united in marriage; He has determined the continuance of the relation; and the causes which alone justify its dissolution. These matters are not subject to the will of the parties, or to the authority of the State. (5.) The vow of mutual fidelity made by husband and wife, is not made exclusively by each one to the other, but by each to God. When a man connects himself with a Christian Church he enters into covenant with his brethren in the Lord; mutual obligations are assumed; but nevertheless the covenant is made with God.
As the essence of the marriage contract is the mutual compact of the parties in the sight of God and in the presence of witnesses, it is not absolutely necessary that it should be celebrated by a minister of religion or even by a civil magistrate.”