Part II: Prof. Jennifer Roback Morse on Why Privatizing Marriage is Impossible


Today on Public Discourse, Jennifer Roback Morse explains how getting the state out of the marriage business will result in a larger, more-intrusive government. This is the second in a three-part series from Morse on privatizing marriage:

Libertarians are being taken in by rhetoric that sounds libertarian but, in fact, will lead to a dramatic shift in the balance of power between the state and civil society, indeed between the state and the natural order itself.

In my previous article, I showed why it is impossible to get the state out of the marriage business. Marriage attaches mothers and fathers to their children and to one another. This is an irreducibly public function. Yet attempting to do the impossible is not harmless. Assigning the state an impossible task amounts to giving it a blank check.

That is because the attempt to privatize marriage will hinder the ability of marriage to perform its essential public function. Nonetheless, children still need to be attached to mothers and fathers somehow. The state will pretend to get out of the marriage business all right, but then the state inevitably will be caught up in the business of defining who counts as a parent. Up until now, that job has been largely left to Mother Nature, with the state simply recording the natural reality of parenthood.

You can see this process at work by looking at disputes between same-sex partners over child custody. These kinds of disputes are already redefining parenthood. Some of the cases involve various kinds of civil unions. Some of these cases involve agreements between the would-be parents. The difficulties these cases present illustrate how problematic it really is to attempt to “privatize marriage.”


  1. Posted April 3, 2012 at 1:25 pm | Permalink

    I thought NOM was trying to stay "mainstream" with the arguments for preserving traditional marriage. This woman (Jennifer) is ultra radical!

  2. Ash
    Posted April 3, 2012 at 2:43 pm | Permalink

    Libertarians are being duped by the false message that this move to redefine marriage is one of liberty and small government. But there's hope that they will wake up to reality.

    I loved the private property analogy, by which Dr. J exposed how the "get the government out of it" position is actually one of capitulation. It's like a capitalist agreeing to privatize private property law in order to get a communist off his back.

    Another great point was when Dr. J said: "The Lifestyle Left has never taken the slightest responsibility for the harms they have already inflicted on others with these policies. They aren’t about to start now."

    We marriage supporters are going to make them start. We are wise enough to not let them inflict another change on the institution of marriage without a fight--not even if they do it in the name of "equality."

  3. Pat
    Posted April 3, 2012 at 5:06 pm | Permalink

    So... just treat everyone equally.

    Problem solved, Constitution upheld, other problems also solved, everybody happy...
    The only downside is that it's exactly what you're trying to avoid... but I think there's supposed to be an actual downside *before* you decide to do that.

  4. Publius
    Posted April 3, 2012 at 6:47 pm | Permalink

    Equality under the law does not mean treating all behaviors equality. That would work to the disadvantage of the weaker parties, especially children, but also a large number of women who would likely take responsibility for these children. Biology does not treat everyone equally, so the law must address that situation.

    If you read the articles, Mr. Morse points out why it is impossible to get government out of marriage, at least at this stage of history. Then she points out how attempts to do so will increase, not decrease government interference in our lives. In part three she will show how attempts to do so would harm children.

  5. Robert
    Posted April 3, 2012 at 7:01 pm | Permalink

    "Equality under the law does not mean treating all behaviors equality."

    Yeah, it kinda does, because if it didn't, the majority Xtian population could outlaw Saturday worship, which is crucial to Jews, but unimportant to Xtians. The majority right-handed population could outlaw signing your signature with your left hand, which is fine for right-handed people, but a major inconvenience (and insult) to left-handed people.

    There has to be a rational, logical reason to give one group special rights, but deny them to another group. Keep that in mind.

  6. Chairm
    Posted April 3, 2012 at 9:35 pm | Permalink

    Ash, that is a good quote to highlight:

    "The Lifestyle Left has never taken the slightest responsibility for the harms they have already inflicted on others with these policies. They aren’t about to start now."

    In my encounters with SSMers I say, okay, let's put your stated standards on the table; and then we will assess the SSM idea with those same standards.

    They routinely discard the standards when SSM is tested and cry foul that they be held accountable; and in a heartbeat they return to apply those standards to their attack against the marriage idea.

    This is the reason that SSMers are so vague when they answer the question, What is marriage? They do not want to be held accountable even to their own terms of argumentation.

    The most basic problem they have is that they complain that the man-woman criterion of marriage law is arbitrary and therefore unjust -- even as they fail to show how their proposed revision would be anything but arbitrary and unjust. They end-up making the case for de-institutionalization of marriage -- for privatization -- which in its own terms, as Dr J is now reviewing, is a very weak case indeed. Essentially, SSM through privatization is self-refuting.

    They simply refuse to be held accountable even as they pre-emptively declare that the demi-god "History" will hold marriage defenders accountable.

  7. Rene
    Posted April 4, 2012 at 4:17 am | Permalink

    I love it when people try to make a pile of steaming chicken poop a bowl of chicken noodle soup!

  8. Little man
    Posted April 4, 2012 at 6:42 am | Permalink

    I am sorry to say, but there is an element of insanity in some people associated with calling civil marriage the union (and i mean union) of two (or 3) people of the same sex. The behavior tends to trap some in something like a sect. It also becomes a biochemical vice. So, how can we expect a rational debate? Of course, not all people with so-called SameSexAttraction are insane; but if semi-insane people walk our streets now, why can't we expect to find sexually insane people out there? (i am attracted to persons of the same sex all the time, but not sexually - so SSA is a misnomer. And recognizing some persons as attractive to the opposite sex, is not SSA). The definitions are vague, the premises shift around, emotions take control over logic. What debate is possible? It is not strategy which makes debate impossible. First, they don't have valid arguments based on science. And, second, if they had, their emotional nature leaves no possibility for debate. Plus, they have been brain-washed into believeing there is no hope for them, and shouldn't look for hope (out of 'Pride'). Either way, there's no debate. There can't be. So, they pat each other on the back; and we do too.

  9. Little man
    Posted April 4, 2012 at 6:43 am | Permalink

    Rene: You eat that?

  10. Ash
    Posted April 4, 2012 at 8:47 am | Permalink

    Exactly, Chairm. The arguments for ssm are actually arguments for the privatization of marriage, whether certain SSMers know it or not. They want the "status" of marriage, but want to refute the theoretical basis that makes it important to society.

    I love how you spoke of their "demi-god" named "History." Reminds me of a great quote from Sherif Girgis:

    "...failure to recognize such unions on demand is a grave injustice, for which we shall have to answer to History, that dreaded deity (a liberal Democrat, it turns out) so often invoked against my coauthors and me."

    I was actually thinking about this quote while writing my first comment, but opted to leave it out. 🙂

  11. carson lauffer
    Posted April 4, 2012 at 3:59 pm | Permalink

    God help us. I'm so pissed off at the actions of a society that no longer cares about the sacrifices and rewards of a man and a woman devoting their lives together forever. I'm pissed off by a society that doesn't give a damn about the welfare of children but will readily stick them in a homosexualist environment that confuses lust with love and confuses political power with natural law.

  12. waitnsee
    Posted April 4, 2012 at 10:43 pm | Permalink

    I just love how folks love to accuse the Constitution of containing all sorts of regulations that are simply not there.

    It is almost as entertaining as the irony of watching people log into a website that is obviously intended for someone of a differing point of view so that they can point and accuse other people intolerance......for having a different point of view.... and for actually exercising a right (freedom of speech) that IS in the Constitution.......

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