Most arguments regarding the role of government in marriage are made with the assumption that government should have a role at all.

Why is this? Is it a vestige of a time when church and state were less separate, or are there secular/societal interests that have been there since the start?

  • I don't understand your question. What role should have the government in the marriage? What country you have in mind? – Danubian Sailor Dec 15 '12 at 18:31
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    @lechlukasz USA, as a prominent if random example. More specifically, the whole gay marriage brouhaha going on. – user4012 Dec 15 '12 at 18:47
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    @lechlukasz - restrictions on who is and isn't considered married, who is authorized to pronounce people as being married, rules on divorce, etc... etc... – user4012 Dec 15 '12 at 18:53
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    @lechlukasz - how so? Depending on how you define "marriage", it would very much be marriage. A set of people proclaming their (hopefully) romantic love to each other and a formal desire to live as a family. – user4012 Dec 15 '12 at 19:24
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    @lechlukasz - a "set" because that's a mathematical term. A marriage requires N beings - that's a set. That's one of the LEAST confusing and ill defined terms you can find in politics :). "People" is a convenient shortcut, and is required from certain definitions (e.g. marriage as a contract requires both parties to be competent to sign one; a non-human is generally not considered a valid contract member IIRC) – user4012 Dec 15 '12 at 20:10

[... I have deliberately left a lot of the answer unreferenced, as it already ballooned, please ask in comments for any clarifications you desire for parts you consider unreferenced ...]

The reason there's a lot of confusion and conflict over government's legislation and regulation of "marriage" is because "marriage" is 4 independent but interconnected things (there may be even more facets I didn't include, but 4 seems more than enough for our purposes):

  1. A spiritual/romantic union of a set of people into a family. I'm loosely using the term "spiritual" here, since a vast majority of human culture in history viewed such union as being declared "in the eyes of $deity".

    Please note that when viewed from this angle, the government really has no legitimate interest to legislate or regulate marriage. It's basically a Barney view of marriage: "I love you, you love me, we're a happy family".

  2. A legal contract between a set of people (either explicit, or implicitly governed by prevailing laws). This is of course the main Wiki/dictionary definition.

    On one hand, as a legal and financial matter, the government seemingly has some reasons to legislate here.

    However, one can legitimately point out that there's no truly good reason for the government to get involved into the content of the contract (as opposed to its enforcement) between private parties.

    Here, as in many other aspects, a more classical-liberal worldview lands on "no reason", simply because it is a private contract, whereas more pro-government minded people see just as much reason for government to legislate as in any OTHER private contracts (e.g. minimal wage laws, union laws).

    Additionally, one can also raise an objection of "even if the state needs to legislate both the content AND the enforcement of the contrasts, why does the state then need to legislate WHO are the valid people to be able to enter into contract are?". Same story here - both liberals and conservatives consider it very much OK for the state to legislate who gets to enter into contracts (union laws and gay marriage, respectively); whereas libertarians consider it none of state's business ever.

  3. An economic union of a set of people into a family to promote economic well-being.

    Purely theoretically (I won't bother citing research unless asked in comments), people living a family life fare better economically than those living separately, which is beneficial to society at large. As such, the government may propose an argument that it has a legitimate reason to legislate marriage since it impacts on overall economic health of society. Personally, I find that argument weak but I feel compelled to state it as a legitimate one.

  4. A cultural construct (an evolutionary stable strategy) which evolved in order to both regulate procreation, and to channel lower-status males into supporting and caring for offspring and society, driven by biological reality of being unable to verify male parentage before the advent of DNA testing in late 20th century (and humans being consummate K-strategists reproductively).


There are 3 reasons why governments legislate marriage:

A) First of all, if you ask "why civil government and not churches", the reason is historical. At some point in the past, churches decided to offload some of the bureaucratic functions on the civil government.

I think digging deeper into this belongs more on History.SE, but a fairly good summary can be found here. The main driver turning marriage into a state business in Europe was Protestantism (Martin Luther declared marriage to be "a worldly thing . . . that belongs to the realm of government") and for Catholic countries, French Revolution.

  • Please note that marriages were always "legislated" to a certain extent, by custom or religious laws. But the registration of marriage was much less formal - for example, in Christian Europe, before 1215, you didn't even need to be married in a church in Christian society, or by a priest. Ditto in Roman times.

  • Also note that in a lot of societies governed by religious governments (At the very least, all 3 major Abrahamic religions), at some point in history there was no difference - even when a separate civil government existed, all laws governing marriage were the religious laws, 100%. That was because in Abrahamic religions, a marriage was basically a religious social construct - commanded by and sworn in front of a deity.

  • Also, from historical point of view, the civil government taking over the legislation from churches was not due to "having to deal with many religions or atheists", as a naive guess may be made. The many relgions angle was never in play (E.g. Jewish religious authorities deal with marriage between Ashkenazi Jews in medieval Europe); and there weren't really any "atheists" as a demographics in Western countries until well after the state got into marriage game.

  • Also, from history, we see that all societies restricted who could get married (at the very least, most had incest prohibition).

B) Second, in the era of public benefits in 20th century, it's a way of distributing resources to dependents.

A government which distributes benefits for a family member (Social Security, public aid) needs to have a formal legal proof of dependency. This is somewhat of a facet of definitions #2 and #3 above.

C) Third, it's a way to control the society better, sometimes for "morality" purposes; to essentially prevent "bad for society" (from some governing group's point of view) marriages that are presumed to unbalance the equilibrum of society. From restricting interracial marriage in many states in USA in early 1900s, to restricting "immoral" polygamy of Mormons, to fights over gay marriage in late 1990s around the world.

  • Please don't mistake it for "right wing"/"conservative"/"theocratic" phenomenon - marriage was controlled a lot more rigidly in USSR and Nazi Germany than in the USA during the most rigid controls, without any religious component whatsoever.

  • This purpose basically stems from the view of marriage #4 in the list above.

  • As noted, this form of legislation/control was historically almost always present, but usually resided in church and not secular laws. The reasons and justifications vary, but the underlying motivations don't.

D. A way to control individuals in society. This is hard to clearly distinguish from (C), but basically this is more about controlling sexual urges/energy of everyone than about filtering out "bad" marriages. It was also clearly stemming from defition #4 above, but it was also more about pure sex than anything else (and as such, this form of control very frequently extended well beyond marriage, into controlling sexuality in general. See for example prohibition of porn in USSR).


As you can seen, when viewing the marriage from those distinct points of view, a society (as exemplified by government) may have some reasons, more or less legitimate, to legislate/regulate marriage, depending on which view you take.

  • In many countries people do have an influence on the content of the contract. For example, people may choose to marry with or without having their subsequently acquired property automatically shared. – gerrit Dec 16 '12 at 16:54
  • @gerrit - there's a difference between "people have influence", and "are 100% free to make any arrangement the 2 of them want with the government having no say about any details" (aka "the governmen has no influence") :) – user4012 Dec 16 '12 at 17:18
  • There are many contracts that two people could freely sign without it being called a marriage by the law. In practice, a marriage contract involves more than two parties, because it gives both particular rights (by the government) that they don't have otherwise. But this starts to turn into a definition on law rather than politics. – gerrit Dec 16 '12 at 17:42

Marriage is, among other things, a contract between two1 people, which confers certain benefits on each of them - for instance:

  • Automatic inheritance rights, without the need to write a will.
  • Visitation rights in the event that the spouse is hospitalized or incarcerated.
  • The right to be notified if the spouse is killed or injured in war.
  • Special treatment as part of the terms of some contractual agreements (e.g. employer-provided healthcare).

Notice that these benefits are similar to those typically conferred on family members.

Essentially, in this context marriage is a way of legally defining two1 people as members of the same family who are not related by blood, and extending rights typically associated with those of family members to them.

Since legal rights are defined by the state, it has an interest in deciding who gets to enjoy them, and may decide, for example, that is or is not in the interests of the state or society's well-being to extend them to people of the same gender, or different races2.

1 Or, potentially, more than two. I'm not familiar with the legal mechanisms employed where someone may legally be married to more than one person, so I don't know whether such marriages are typically treated as one contractual agreement between all of them, or multiple bilateral contracts.

2 Mentioning same-sex and inter-racial marriage in the same breath may be seen as provocative. That's not my intent - it's simply that these are two well-known examples where a state has been faced with the decision of who can legally marry in recent times.

  • Sorry, -1. Most of those benefits are not strictly necessary for the state to enforce (e.g. can be easily obtained with minimal fuss sans state involvement, such as inheritance via a will or hospital visitation via whatever legal document's needed for that); or aren't even usually restricted to married people (employer healthcare is usually provided to non-spouse primary beneficiary in many companies; and to the best of my knowledge, is not a legal requirement for married spouses in the first place). – user4012 Dec 16 '12 at 1:49
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    I'd like the third bullet (notification rights), since it actually controls government action. – user4012 Dec 16 '12 at 1:53
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    @DVK In my defence, I was attempting to answer the title of the question - "Why do governments legislate marriage?", rather than its body, which is essentially "why should they?". But I will take the downvote on the chin :-) – user97 Dec 16 '12 at 1:56
  • Another reason for DV is that your bullets #1/2 and probably #4 are really covered by my answer's facet #2 ("A legal contract between a set of people (either explicit, or implicitly governed by prevailing laws") – user4012 Dec 16 '12 at 2:00
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    @DVK A subtle and interesting point. I'd probably argue that for the government to know who's married, it needs to decide what it thinks that word means - and legislation is how government decides on the definitions of terms. That would probably be too much of a tangent to incorporate into the answer, though ... – user97 Dec 16 '12 at 2:13

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