Anyone familiar with the lineaments of the debate over same sex marriage will have encountered what we might call the Libertarian Variation. This is the view that all the commotion surrounding this dispute could be avoided if only we could persuade the state to have done with marriage altogether, leaving it a strictly private affair. Most commonly the it will be advanced with a kind of cry of exasperation: "I just want the government out of the marriage business!" The cry is less one of realistic hope for policy reform than a forlorn utterance of resignation.
Commonly Libertarian Variation will be advanced by someone with enough perception to realize that the standard compromise in favor of tolerance on all sides -- gays can have their recognition, but don't worry, no one will ever be forced to participate -- is not now a realistic option, and probably never was. In short, the Libertarian Variation is commonly advanced by someone who realizes, deep down, that, indeed, churches will be forced to open their grounds to gays, that wedding photographers will be forced to accept business for marriages they have a principled opposition to. Coercion has happened, and will happen. Hence our poor libertarian's exasperated cry of resignation.
Pity the libertarian, friends. His ship has sailed. Alas for us all that it has, for I even, reactionary that I am, can see much merit in the libertarian position on matters such as these, at least on the level of intellectual abstraction. But that ship has sailed. The state will no sooner get out of the marriage business than it will the taxation business. Consider the appalling level of state intervention into private life that has commenced through the instrument of the no-fault divorce:
Under “no-fault,” or what some call “unilateral,” divorce — a legal regime that expunged all considerations of justice from the procedure — divorce becomes a sudden power grab by one spouse, assisted by an army of judicial hangers-on who reward belligerence and profit from the ensuing litigation: judges, lawyers, psychotherapists, counselors, mediators, custody evaluators, social workers, and more.
If marriage is not wholly a private affair, as today’s marriage advocates insist, involuntary divorce by its nature requires constant government supervision over family life. Far more than marriage, divorce mobilizes and expands government power. Marriage creates a private household, which may or may not necessitate signing some legal documents. Divorce dissolves a private household, usually against the wishes of one spouse. It inevitably involves state functionaries—including police and jails—to enforce the divorce and the post-marriage order.
Almost invariably, the involuntarily divorced spouse will want and expect to continue enjoying the protections and prerogatives of private life: the right to live in the common home, to possess the common property, or—most vexing of all—to parent the common children. These claims must be terminated, using the penal system if necessary.
Few stopped to consider the implications of laws that shifted the breakup of private households from a voluntary to an involuntary process. Unilateral divorce inescapably involves government agents forcibly removing legally innocent people from their homes, seizing their property, and separating them from their children. It inherently abrogates not only the inviolability of marriage but the very concept of private life.
At the very least, anyone arguing for the government to get out of the marriage business ought to be willing to take a serious run as overturning this regime of unilateral or no-fault divorce. Yet I think we can all envision what will happen if a Conservative were to answer the Libertarian Variation along the sketched out above lines:
As is so often the case, the libertarian fails to observe the striking irony that efforts to use legislation to "liberate" people from the bonds of social stigma, tradition, mores, etc., often result in a vast expansion of the power of the state vis-a-vis the private sphere. No-fault divorce was promoted as a liberation like any other, a chance to throw off the yoke of paternalism, sexual dominance, prudery, and the rest. But alas, the atomization of the individual from his or her natural web of social relations, exemplified above all in the family, only empowered the state. It has long been said that no barrier against tyranny is so secure as the sturdy weight of the front door of the family household. A society where the state has no power to penetrate into the privacy of the family home, save in the most extraordinary circumstances — where the family may stand boldly against even the most persistent bureaucrat — is a society where liberty will flourish.
It is too bad that we threw that all away for the wreck of family life we have before us now.
But I would ask that any reader inclined to reach for the Libertarian Variation to consider seriously what chances his favored solution has if it cannot even count on him to oppose so egregious a violation of his principle as the no-fault divorce. Let him consider those chances, and then consider whether maybe he is reaching for the Variation out of simple resignation.