Should government get out of the marriage business?

Jeffrey Miron writes:

The gay marriage debate gained renewed intensity last week when a federal judge struck down California's Proposition 8 ban on gay marriage. Supporters of gay marriage hailed the decision as a crucial blow for civil rights; opponents assailed it as an assault on fundamental moral and religious values.

Oddly, both sides agreed on one thing: that government should define and "supply" marriage.

But it is the government's role in marriage that's at the heart of the problem.

Marriage means two things in modern society.

Religious marriage is a custom, ceremony or rite that some couples wish to pursue. Religious marriage is not the subject of the legal controversy; no one is proposing that governments bar religions from supplying religious marriage to same-sex couples.

Civil marriage is a legal institution created by governments. It is, in essence, just a bundle of contracts involving the marrying couple, their children and others. A marrying couple gets legal rights and responsibilities about division of property, inheritance, guardianship of children and other issues. The government enforces this bundle of rights and responsibilities.

The question is, does the government need to specify a particular bundle of contracts, enforce this bundle and call it "marriage"?

The answer is no.

In an opposing article, Bob Maistros argues that

government has a clear interest in preserving the salutary effects of matrimony on health and preventing the public-health nightmare associated with all forms of sex outside it: higher risk for STDs, deadly HIV, other infectious diseases, emotional illness and various kinds of cancer. Not to mention the pathologies linked to single parenthood: crime and juvenile delinquency, teenage pregnancies, dropouts, suicides, runaways, obesity, drug abuse, divorce and homelessness.

So if I were a policymaker, I would want to promote, not abandon, the one relationship proven to boost prosperity, improve health, and reduce these social ills -- and avoid sanctioning, tacitly or otherwise, relationships that present clear hazards to health and well-being.

I can't say whether these claims about the personal and social benefits of marriage are true (and we must always ask: compared to what?), but some are at least plausible. Even so, a key question is whether it is acceptable for the government to enforce (or nudge people towards) preferred behaviours for the greater good.

My instinctive answer is 'no', but this debate quickly descends into thorny philosophical questions. Miron prefers to argue on utilitarian, or 'consequentialist' grounds:

What is Libertarianism?

The traditional version, often referred to as philosophical or rights-based libertarianism, asserts that government policy should never infringe individual rights or freedoms. Philosophical libertarians oppose virtually all government intervention since regulations, taxes, mandates, prohibitions and the like all limit individual freedoms.

A different version of libertarianism, often referred to as consequential libertarianism, opposes most government interventions because these appear to generate adverse side-effects that are worse than the problems they were designed to alleviate. Consequential libertarians share the policy conclusions of philosophical libertarians for the most part, but they disagree in some cases. In addition, consequential libertarians argue for small government based on consequences rather than rights.

In my view the consequential approach has several advantages over the philosophical perspective.

No doubt there are advantages to this approach, and often it is easy to make a consequentialist argument against this or that government intervention, but it is more difficult to see how to apply it to situations where the costs and benefits are difficult to assess or highly subjective.

And even when we can agree on the costs and benefits, some infringements on personal liberty seem unacceptable. Consider slavery — could any amount of public benefit justify it?