Justin Katz takes issue with a comment I made the other day. The point I was trying to make was that there is no reason for governments to recognize marriage (as opposed to enforcing whatever contracts individuals happen to make) unless governments have some legitimate role, however limited, in encouraging moral behavior and good character.
We tend to think of public policies in either welfarist or libertarian terms. Many of us reject, or think we reject, the idea that the promotion of morality is a legitimate aim of the government (although I suppose most people would allow that the inculcation of good habits can be a kind of incidental byproduct of, e.g., laws against theft).
But neither welfarism nor libertarianism allows much of a defense of marriage laws. A libertarian conception of marriage law is always going to be vulnerable because people will be making analogies to situations where everyone has the liberty to swing his fist until it hits someone else’s nose. “How would those people’s polygamous union affect your marriage?” will be the question. If you can’t count in cultural effects that occur through subtle influences on people’s behavior and beliefs, you’ve lost that argument.
A welfarist conception of marriage creates another impossible situation for anyone who wants to resist a slide toward a purely contractarian view. You would have to show conclusively that certain types of unions don’t promote the public welfare in social-scientific terms. You would have to show, for example, that kids raised by threesomes get colds more often than other kids. And even that wouldn’t really work–you’d never be able to show that bad outcomes would happen every time a threesome was recognized as a family unit by the government.
If marriage laws promote liberty and social welfare, as I think they do, they do so precisely by encouraging moral behavior–by channeling sexual behavior, in a pretty non-coercive way, into desirable patterns. I don’t think that this point, incidentally, ought to be the exclusive property of either side of the same-sex marriage debate. I gather that Jonathan Rauch, a thoughtful supporter of same-sex marriage, believes something similar to what I’ve just said. He thinks that the morality that marriage laws promote, and should promote, is a morality of commitment. Same-sex couples can qualify. Opponents of same-sex marriage, on the other hand, tend to think that the public moral good that marriage laws promote is tightly bound up with procreation in a way that means that legal status for same-sex couples cannot serve that good.
If you don’t see a legitimate role for government in promoting morality at all, on the other hand, then you would support same-sex marriage only as a move toward a contractarian policy. Ultimately, I think, you would have to say that marriage is none of the government’s business.