MCViewPoint

Opinion from a Libertarian ViewPoint

How the State Seized Control of Marriage | Mises Wire

Posted by M. C. on December 5, 2022

Because marriages can have such far-reaching effects even for those not directly involved, government officials as well as family members of the betrothed have long sought ways to exercise power over who gets married to whom. The desire to exercise this sort of control can be seen in the negative reaction to changes in the Catholic Church confirmed by Pope Alexander III. In the late twelfth century, Pope Alexander clarified that marriages did not require the approval of government officials—or even church officials—to be valid and legally binding. Rather, a valid marriage required only the consent of both the husband and wife. No other parties possessed a veto.

In the year 2021, there’s not really anything remarkable about this in the minds of most people. To most modern thinking, marriage is just yet another thing that is to be regulated and modified according to the whims of a civil government’s lawmakers and judges.

https://mises.org/wire/how-state-seized-control-marriage

Ryan McMaken

Both the US Senate and the House of Representatives are expected to pass new same-sex marriage legislation in coming days. The legislation is expected to codify what is already de facto law in the US under the US Supreme Court’s ruling in Obgerfell v. Hodges. The legislation further solidities federal law stating that states are required to recognize same-sex marriages that are legal in other US member states. The legislation also ensures that same-sex spouses will continue to be eligible for federal benefits through programs like Medicare and Social Security. The legislation does not mandate that each state government establish its own provisions for same-sex unions, however.

In the year 2021, there’s not really anything remarkable about this in the minds of most people. To most modern thinking, marriage is just yet another thing that is to be regulated and modified according to the whims of a civil government’s lawmakers and judges. Even among those who think there ought not be any federal role in marriage legislation, very few dispute that the governments of the member states themselves—or foreign national governments, for that matter—can rightfully exercise immense legislative authority over the regulation of marriage. The only disagreement is often over how government officials ought to regulate marriage, and to what ends.

“Historically, the Government Was Very Uninvolved in Marriage.”

The only dissenters to this consensus appear to be some libertarians like Ron Paul. For example, in 2012, Paul told a rally audience “I’d like to see all governments out of the marriage question. I don’t think it’s a state decision. I think it’s a religious function.” These comments followed earlier comments from Paul contending that “Biblically and historically, the government was very uninvolved in marriage.”

Paul is right in saying that marriage historically had (often) been a matter for religious authorities instead of agents of the civil governments. Yet, given the rise of the modern sovereign state, which is currently the ultimate legal authority on virtually all matters, it has become difficult to even imagine the particulars of the historical reality to which Paul refers.

Nonetheless, state regulation of marriage—and the ensuing secularization of marriage that followed—is a historical development that was part of the larger trend toward the expansion and consolidation of state power that began in the late Middle Ages. It was during this period that states gradually came to exercise monopolistic authority over all of society’s institutions including the towns, the nobility, and even the monarchies themselves. Also brought under the state’s power were the churches and state control of marriage was an important component of this. State control of marriage, that we now consider to be so normal, was simply one aspect of the state building that set the stage for our modern era of nearly untrammeled state power.

Privatized Marriage in the Middle Ages

Because marriages can have such far-reaching effects even for those not directly involved, government officials as well as family members of the betrothed have long sought ways to exercise power over who gets married to whom. The desire to exercise this sort of control can be seen in the negative reaction to changes in the Catholic Church confirmed by Pope Alexander III. In the late twelfth century, Pope Alexander clarified that marriages did not require the approval of government officials—or even church officials—to be valid and legally binding. Rather, a valid marriage required only the consent of both the husband and wife. No other parties possessed a veto.

This necessarily reduced the power of both parents and local government officials in regulating marriage. For example, even in a case in which certain parents were insisting that their son marry a preselected woman of the parents’ liking, the son could do an end run around the parents by simply marrying someone else without their permission. For those who felt outside pressure to be especially overwhelming, a couple seeking marriage could pursue a “clandestine marriage” potentially conducted entirely without the parents’ knowledge and without outside sanctioning or church solemnization at all. These secret unions might incur a temporary ecclesiastical sanction, but this did not invalidate the marriage, and there was nothing the parents or government officials could do to invalidate the union. (Notably, the consent model also limited the church’s ability to veto proposed unions or otherwise directly control the formation of marriages.)

This “consent model” of marriage was not exactly acclaimed by Christendom’s parents and government officials. After all, Alexander’s efforts to make marriage requirements more uniform and accessible interfered with officials and family organizations that had long exercised considerable control over marriage at the local level. Customs varied considerably from place to place, but now the pope was telling everyone that couples could marry without the consent of others so long as they conformed to a short list of prohibitions designed to avoid incest, polygamy, and other conditions believed to be prohibited by divine law. According to Andrew Finch, in Pope Alexander’s view:

Marriages of love were to be promoted at the expense of those of economic convenience or feudal necessity and the church was made to stand as guardian for individual freedom in this area. This was, however, a vision very much at odds with existing notions of parental and feudal authority.1 

What resulted was an essentially private system in which marriages could be contracted among individuals with a presumption of validity. Outside adjudication only became necessary when there were disputes over whether or not a marriage was valid or if one of the parties was accused of somehow violating the agreement. This arbitration was done through private, international ecclesiastical courts staffed by church personnel and through which a plaintiff or defendant could appeal to a transnational Pope. This system of law was outside the control of the civil governments courts which were staffed by a temporal king’s appointees and allies.

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