The meaning of marriage: State efforts to facilitate friendship, love, and child-rearing

San Diego Law Review 42 (3):979-1001 (2005)
[Opening sentences:]What business does the government have in sticking its nose into people’s private affairs? What affairs could be more legitimately private than relationships involving sex and love? LOCKEAN LIBERTARIANISM These questions resonate with many individuals across a wide range of ideologies and beliefs. For many of us these questions will strike us as rhetorical questions to which the obvious answers are “none” and “none.” These responses reflect a Lockean libertarian strain in the social thinking of many intelligent and thoughtful people. But of course matters are more complex, even as viewed from a Lockean libertarian perspective.1 Sex and love tend to bring about new children, and causing a child to exist is a social act with wide consequences for other people who could not be supposed to consent to bear these consequences. Libertarians will regard with equanimity the showering of externalities in the form of benefits that typically accompany the creation and upbringing of a responsible competent person who becomes a useful member of society. The libertarian will insist that the receipt of such benefits does not generate any reciprocal obligations to benefit those who benefit us in these unconsented to ways.—at least, not obligations that are legitimately enforceable and that justify forcible imposition on people’s liberty to lead their lives as they choose. But bringing children into the world can and often does impose net costs on people who do not consent to bear these costs. The introduction of one extra person may strain scarce resources...
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