Love, Marriage, and the State
This book is about the proper relationship between marriage and state—and yet it’s so much more: an exhaustively researched work on all aspects of love and marriage. So it would be sad if readers uninterested in its political theme passed up the book. Here I will focus the link between marriage and state, but don’t take that to mean that Chartier’s larger purpose is unimportant or uninteresting.
His marriage ideal has in my view everything to recommend it, if our standard is the flourishing of reasoning social beings. Along the way he demonstrates the inadequacies of alternative models, both traditional and modern—marriage is best seen as neither a union essentially for the raising of children nor a contractual framework to facilitate a series of narrowly self-regarding transactions. Rather, his “vision is rooted in an understanding of marriage as the actualization of love. … a properly marital commitment is a commitment to the creation or solidification of a shared identify, a we, and that this will entail a variety of more specific commitments to communication, truthfulness, vulnerability, acceptance, attentiveness and understanding, respect, equality, and, preferably, exclusivity.”
As one might anticipate, Chartier’s model of marriage has this political implication: if gays and lesbians would flourish in such marriages fully as much as heterosexuals—and why wouldn’t they?—the state should not have failed to recognize same-sex marriage. (Thankfully it no longer does.)
Chartier, however, would “delink” marriage and the state even it were to decide to foster marriage as he conceives it. Why is that? The quick answer is that as a natural-law, pro-market left-libertarian, he doesn’t want the state to do anything at all. Individuals ought to be left free to enter into the consensual arrangements of their own choosing. But he does not leave matters there.
“If there were an argument for state involvement in the marriage business,” Chartier writes, “it is implicitly also an argument for several other things. It is, in particular, an argument for the state’s placement of roadblocks in the path of those who want legally to divorce. And it is also an argument for a state-defined one-size-fits-all marriage contract. Neither the roadblocks nor the Procrustean contract make sense.” This is because marriage “is a complex moral relationship, marked by diverse and often unenforceable expectations and shaped by the partners’ individuals goals and circumstances. I argue, therefore, that people should be free to design their own marital arrangements, and, if they like, to embody them in legally enforceable agreements free of state involvement.”
Does this position conflict with Chartier’s favoring one conception of marriage over others? It does not: “The point is not that all models of marriage of equally satisfactory, but that the direct or indirect use of state power — of force — to mandate acceptance of a particular vision of marriage is deeply problematic. A liberal society can leave room for a diverse array of individual models of marriage without endorsing the view that all are equally worthwhile.”
Many arguments have been made on behalf of a state sanction of marriage. Chartier surveys them and finds them wanting. Two points strike me as especially strong. First, people too easily conflate society and state. “Social norms,” Chartier writes, “don’t depend on state action: they can get underway without it, and may be more robust without it.” The state, after all, did not create marriage. Even if politicians promised to foster a widely accepted marital social norm, the temptation to engage in social engineering (via the tax code or in some other way) would be strong. In contrast, nonstate fostering of norms tends to strike a reasonable balance between stability and dynamism, with free individuals exercising the ultimate check.
Second, the marriage statists’ argument that (in Chartier’s summation) “a state-defined marital status fosters clarity about people’s goals in marriage” has it exactly backward. Rather, “if the goal is to be clear about people’s intentions and understandings, alternative arrangements reflecting enforceable agreements affirmatively embraced by the parties would offer insight into both—more insight, arguably, than an arrangement in which they enter a status that doesn’t feature explicit definition. An intention to achieve permanence can obviously be reflected in marital agreements formulated by partners as much as or more than by the state’s faux marriage contract.”
Chartier also rebuts those who fear that a negotiated marriage contract would undermine marital commitment, for example by explicitly raising the possibility of divorce. “It is difficult to see that people’s well-being will be furthered by failing to think about the possibility of divorce,” he responds. “Divorce will continue to be an option whether partners think about it or not. Leaving marital agreements in the hands of the state doesn’t change this and, indeed, seems likely to make people more inclined to accept the lowest-common denominator no-fault regime which the state will (and no doubt should, as long as it remains in the marriage business) continue to embrace.”
In sum, “It seems as if enforceable agreements crafted by the parties can offer greater security than the state’s marriage contract (as, for instance, by instituting severe financial penalties for misbehavior), if that’s what the parties want. Nonstate entities can offer partners a shared public identity and standing as a social unit. … Arguably, state sponsorship helps to safeguard their relationship. But they can choose similar, or more demanding, arrangement by private agreement. And they will be the ones choosing, in any case.”
Several pages later he drives home the point specifically for conservatives: “The state is not the driver of culture (ordinarily a key conservative talking point), and there can be a thriving marriage without state involvement. … Conservatives should favor delinking marriage and the state: churches and other social institutions would be free to embody conservative values in marriage ceremonies and agreements without securing a political consensus on these values. As long as marriage remains a state-sponsored practice, marital rules will need to satisfy politicians. And there is no a priori reason to expect politicians to support particularly conservative values, especially when societal mores are in flux. … By contrast, there will be no confusion about the status of Christian marriage if Christian marriage is the province of Christian churches and members of the Christian clergy. Those churches that object, for instance to same-sex marriage will have no need to worry about the impact on their beliefs and practices of a nationwide legal definition of marriage as gender-neutral. Those churches that oppose no-fault divorce will obviously be free to promote marital agreements that pose roadblocks to divorce. And so forth.”
In other words, delinking marriage and the state would minimize social conflict by depoliticizing this important matter and letting people pursue their own values.
This brings us to same-sex marriage. As long as the state is involved with marriage, Chartier writes, it ought to recognize same-sex marriage. Hence he approves of the U.S. Supreme Court’s ruling in Obergefell, if not entirely with its grounds. While Justice Anthony Kennedy identified access to civil marriage as a “fundamental liberty,” Chartier “would have preferred to see the Supreme Court’s decision rooted firmly in the Constitution’s Equal Protection Clause.” This makes sense because if the government were to cease recognizing any marriage at all, no one’s liberty would be violated. There is no right to have the state bless one’s marriage. (People could still marry through nonstate institutions.) However, nonrecognition of same-sex marriage when the state recognizes different-sex marriage indeed violates the Equal Protection Clause. More fundamentally, it also violates one of the pillars of classical liberalism: equality before the law. Of course, for a libertarian like Chartier state recognition should impose no positive obligations on bakers, photographers, or anyone else. (If state-sanctioned marriage today entails tax-financed or other coerced benefits, those benefits, not same-sex marriage, should be opposed.)
But Chartier does not let things go at that. While he opposes state efforts to compel others to respect same-sex marriage, he nonetheless believes they should do so. In his final and refreshing chapter “Same-Sex Marriage, with or without the State,” he argues that marriage as he conceives it is not only good for individuals—by among other things fostering virtue—but also for communities. Therefore same-sex marriage should be recognized as a good. “Taking seriously the capacity of marriage to further the development of virtue thus means making marriage available to same-sex partners. … A moral relationship with a partner fosters moral relationships with other members of one’s community. … Civil society depends on an array of intertwined communities. Marriages are among the most important of these communities. Strong marital relationships contribute to the growth and flourishing of healthy communities.”
The upshot, Chartier concludes, is that even someone who believes homosexual relationships are immoral should respect same-sex marriage because “Providing people involved in such relationships with the option of marriage will help them contribute to each other’s welfare and to that of their communities and societies. So someone who regarded these relationships as involving immoral conduct might well support affording them communal recognition as a means of promoting the goods offered participants and others.”
This is is humane and well-argued book on behalf of love, marital commitment, and social inclusiveness. It deserves wide attention.
Sheldon Richman is executive editor of the Libertarian Institute, a senior fellow at the Center for a Stateless Society, a contributing editor at Antiwar.com, and proprietor of the Free Association blog.