A common libertarian reaction to issues like same-sex marriage is to say that govt should get out of the marriage business, and let any consenting adults agree to whatever behavior and contracts they please. Religions could perform whatever ceremonies they please. This is standard libertarian doctrine, as they believe that just about any problem is better solved by private contracting than by govt.
A libertarian magazine, Reason, published an article
attacking this view. The article seemed like heresy to many. Here is a video attacking the article
The trouble with the libertarian argument is that you cannot make a binding legal contract for sexual services, or child custody, or child support. That is, American law will not uphold such a contract.
When the govt gives benefits like tax-free inheritance or joint tax returns or green cards, it is not going to do that for random groups of people writing their own contracts.
Maybe the libertarians would say that in their perfect world, there would be no taxes or green cards anyway. Let me know if that ever happens anywhere.
I have posted a libertarian definition
, but I don't think I ever explained how family law is a huge blind spot for libertarians.
There are web sites for matching alternative parents
. You can find your own match from people all over the world, and write your own contract to divvy up the parental rights and responsibilities however you please. It seems like a libertarian paradise until you learn that none of it works, and none of the contracts are enforceable. These web sites have very few people who even try, once they find out the complications.
Libertarians might say that such contracts should be enforceable, but as far as I know, there is no libertarian explanation of how that would ever work. Even hard-core libertarians seem to accept that in anything but a traditional two natural parent family, some family court judge gets to decide the BIOTCh (best interest of the child). Some of them even brag that this is the truly libertarian view, because it protects the rights of the child.
I happen to think that some contracts could be enforced with minimal government intervention, in my hypothetical libertarian society. But it does not matter. I cannot convince the libertarians, or Republicans or Democrats or anyone else.
I have occasionally praised the merits of the American nuclear family, as shown in the 1950s and 1960s TV shows like Leave it to Beaver, and Ozzie and Harriet. Some readers complain that this is antiquated, or unrealistic, or coupled with obsolete moral values, or not sufficiently respectful of feminists or LGBTQIA folks, or contrary to liberal political goals. Maybe so, but those families are the only free ones. All other arrangements are subject to micro-management by the family court.
I post these arguments because of the widespread view that if too much govt is the problem, as I have often argued on this blog, then the libertarians might have a solution. The libertarians do not have a solution. They either ignore the problem, or make proposals that will make it worse.
The best proposed solution is shared parenting
, as advocated by the Fathers' rights movement
, National Parents Organization
, and this blog. Some states have passed laws in this direction, declared a presumption of shared parenting unless some judge finds it contrary to the BIOTCh.
But even with these laws, the parents still have no individual constitutional rights to their kids, and the family court judge is firmly in control of child custody issues, parenting plans, and finances.
Here is Rand Paul's libertarian response
to the US Supreme Court mandating same-sex marriage:
While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract. ...
Do consenting adults have a right to contract with other consenting adults? ...
Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party. ...
Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party.
He is disconnected from reality. The family court already ignores marriage for most questions about child custody, parenting, and support. Getting away from recognition of marriage has only increased govt control over private lives.
Paul has many other libertarian views
, but is strangely silent on what is the biggest govt usurpation of our liberties.
A more libertarian approach view requires:
* Abolish forced child support.
* Give single or divorced parents constitutional rights to the care, custody, and upbringing of their kids, just as married parents have.
* Abolish BIOTCh, special masters, forensic psychologists doing anything but DMS-5 diagnosis, and guardians ad litem.
* Reduce family court jurisdiction to monetary remedies of contractual disputes, such as dissolving joint property after divorce.
* Establish paternity by marriage or DNA test.
These changes seem as far-fetched as other radical ideas, such as the anti-feminist TWRA (Traditional Women’s Rights Activist)
. They want to re-instate the husband as legal head of household, with an obligation to support his wife and kids, and re-instate the Tender Years Doctrine, so the mom is in charge of young kids. There is a certain logic to this, but most people would reject it as sexist.
Anyway, I post this to further explain the hopelessness of reforming the system. Fathers are slaves, and not even the libertarians recognize that or object to it.