I think that many Latter-day Saint libertarians have fundamentally misunderstood marriage. As a libertarian this refers to me — I once thought of marriage as a civil contract, and I once supported the position that the government should remove itself completely from marriage. This is the way libertarians have often thought about the issue:
We should take all of the legal benefits and obligations of marriage (survivorship, duty to fidelity, duty of care and support, autonomy in family affairs, etc.) and unbundle them from the idea of “marriage.” Marriage would then be a solely religious commitment that has no legal consequences or implications whatsoever (any more than baptism does). Couples who marry could privately contract with each other (via a civil union) for the legal entitlements that marriage usually entails. Judges could not enforce any such obligations unless the partners explicitly consented to them by contract. Such civil unions or private contracts would be available to anyone who so wanted to commit themselves, be they man and woman, man and man, sisters, roommates, best friends, etc.
At least, that was the general idea. I bought into it for a long while. Not anymore.
The central principle of marriage is that certain duties and privileges are taken on by default in the conjugal union. That is, that parents have inherent obligations to their children, as well as to each other — duties and privileges that are conferred upon the individuals by nature and nature’s laws when they unite for the purposes of creating new life. Those duties precede and transcend the government — just like “property rights” do.
Governments don’t create property rights, but they do acknowledge them, and provide recourse for those wronged in those rights. In the same way, governments do not create the duties and privileges of marriage, but they do acknowledge them, and can provide recourse when those duties are neglected or those privileges abridged. Such recourse can and should balance the wrong against liberty concerns, in the same way we try to balance recourse for property infringement against liberty concerns.
To claim that all marriage is simply private contract implies that these duties and privileges are artifacts of contract — that parents have no natural duties to their children or to each other unless explicitly agreed to by contract. Do we really want to make that claim? What a scary world! If we believe those duties and privileges are natural endowments by nature, then the “all marriage is private contract” position is as non-sensical as the claim that we have no natural right to property, and no recourse when our property rights are infringed, unless we explicitly contracted to those rights with the person who infringed them.
To extend those duties and privileges to non-conjugal unions (same-sex marriage) implies that they are grants of the state and artifacts of political action. It would thus put to rest the idea that the duties and privileges of marriage — including the autonomy of the family in civil affairs — is a natural endowment by nature and nature’s laws (as a consequence of conjugal union). This is equally scary. Now, we can recognize that some of the privileges of marriage are grants of the state (tax breaks, etc.), but many are not (family autonomy in civil affairs, duty to fidelity, duty of care and support, survivorship, etc.). But do we really want to claim that all of them are?
In addition, such a view does not require that we support marriage licensure, or any probing government intrusion into the conjugal union. The idea is that the duties and privileges of marriage do not require government approval. Even before marriage licensure, couples who marry by ecclesiastical authority alone could still seek recourse from civil authority if the privileges of marriage are abridged or trespassed by other parties, etc. Such an understanding of marriage is supported by the fact that conjugal unions that are not formally registered through civil marriage, but which lead to offspring and a domestic life ordered to the care and raising of children, are often granted those same privileges through what has been called common-law marriage. Again, this illustrates the idea that the duties and privileges of marriage precede both state action and contract, but which state action can formally recognize and respect (even if solemnized only by ecclesiastical authority). Also, the fact that childless couples face lower barriers to separation and divorce in most jurisdictions illustrates that the state is recognizing duties and obligations that arise from the conjugal union and procreation.
From this perspective, non-conjugal unions can contract for those same duties and privileges — but for non-conjugal unions, they are the creation of contract, not a natural endowment, so an explicit contract is necessary. Thus civil unions are permissible, but are philosophically distinct from marriage. Marriage doesn’t require the contract, but civil unions do. On the surface they may look the same in function, but one is artifactual, while the other is natural. And one can hold this distinction while making no moral judgments against same-sex civil unions; one can even celebrate them, but still understand that the duties and privileges of such unions are created by contract, while the duties and privileges of conjugal unions are natural endowments as a consequence of procreation, and that they are thus philosophically distinct and thus treated differently in the eyes of law (in civil unions, we look at the words of the contract, but for marriage, we consult the natural law).
Finally, we consider property to be a natural right, but that doesn’t mean that there are no important philosophical debates to be had about the boundaries of those rights, or when government should or shouldn’t provide recourse. For example, are ideas “property”? Are works of fiction “property”? Are performances “property”? Many argue that if we expand the definition of property rights beyond the natural endowment by nature and nature’s laws, we end up undermining the very idea of property and, in fact, perhaps even abridging property rights. This debate can have statutory implications — we might support laws that limit the definition of property if courts began to grant property status to non-property, and by so doing abridged real property rights.
In the same way, the debate over the extent and boundaries of the duties and privileges of marriage becomes a legitimate debate — just as government has to delimit the definition of property in order to provide recourse for people, it must also delimit the definition of marriage. And such a debate might very well have statutory implications. We just hope that the law defines both according to their natural law definitions.
For Latter-day Saint libertarians, this approach has the added advantage of allowing us to fully and unabashedly support the leaders of the Church in their support of traditional marriage, without relinquishing our understanding of government and libertarianism.