A Same-Sex Marriage Question for Some Libertarians

By On June 29, 2011 · 39 Comments · In Current Events, Libertarianism

A question for my libertarian friends who think legalizing same-sex marriage is problematic because it extends the state’s involvement in the institution:

Suppose everyone paid taxes to Social Security but benefits were only available to white folks, leading to someone proposing to make benefits also available to non-whites. Would you argue that was wrong?  Would you argue it was bad because it was extending the state’s involvement in retirement decisions?  Would you just keep saying that the state should be out of the retirement business?  Would you go that far in letting the perfect be the enemy of the better?

With the modern libertarian movement so focused on the size of the state, it often forgets that classical liberalism is also committed to equality under the law, and, arguably, was committed to that before the focus on limiting the state. After all, the 19th century classical liberals were anti-slavery, anti-racist, and part of the first wave of feminism.

I’ll have more on this at my Freeman Online column on Thursday morning.

UPDATE: That article is online now here.

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  • http://kenny.lindberg.myopenid.com/ kenny

    The problem with  most libertarians, I would think is that the state is involved in marriage at all.

    • Hyena

      That’s his point. Say that, for purely mechanical reasons, eliminating marriage would take 10 years to do. Even with everyone agreeing in year one that marriage should be eliminated, it will take 10 years before it actually happens because of all the work that would need to be done.

      Knowing that, should we also agree that we’re going to make marriage an equitable institution while we wait for the repeal process to finish up?

  • http://twitter.com/KipEsquire KipEsquire

    FWIW, Social Security actually DOES discriminate against blacks, who as a demographic group have a lower life expectancy than whites.

    And let’s not forget the spousal benefit, which is denied gay couples under DOMA.

  • Steven Horwitz

    Kip:  yes, the present discounted value of Social Security is different for blacks and whites for the reasons you say, but that is not the result of SS being inherently discriminatory in the way my hypothetical poses.  The differences in life expectancy might be the result of discrimination elsewhere but there’s nothing inherently discriminatory about SS.

  • http://twitter.com/VALiberaltarian VA-Liberaltarian

    I think this clearly demonstrates the problem in fixating on the “size” of government as measured by spending or revenue.

  • Anonymous

    I think this is another part of the reason why Libertarianism is simply viewed as another flavor of Republican partisanship by many in the public. You’d think that the default Libertarian position would be a complete lack of laws concerning marriage.

    • http://anomdebus.myopenid.com/ anomdebus

      The default libertarian position is for a complete lack of laws concerning marriage. Do you have evidence of a substantial portion of libertarians arguing “the current state of affairs is good, but don’t extend the benefit to anyone else”?

      Note: merely omitting of gesticulation in the direction of  ”of course there should be no marriage law” is not evidence of positive affirmation of the status quo.. Regurgitating that stuff all the time gets boring after a while.

    • Steven Horwitz

       As Aeon says below, that is my ideal and the ideal of the libertarians I’m criticizing.  The debate here is really over the world of the second best.  Given the state’s involvement in the institution, what should be done?  My argument is only that when the state provides a benefit it is obligated to provide that benefit for all, and that this idea of equality before the law is, in fact, part of the classical liberal/libertarian tradition as well.

      It’s different, I think, if we’re talking about the state directly coercing people.  So, for example, I don’t think “equality before the law” is the overriding principle in answering the question whether the state should draft women as well as men. 

      As for whether there are libertarians taking the position I”m criticizing, there are plenty.  They are among my Facebook friends and friends of friends, though less common (but not absent) among libertarian intellectuals.

  • Aeon Skoble

    There’s a maxim: don’t let the perfect be the enemy of the good.  Yes, _ideally_, the state would not be in the business of saying who gets to be married.  But in the actual world, the state confers this privilege on some couples while denying it to others.  Equality before the law means that gay couples should have the same prerogatives as straight couples to have their unions be legally valid.  That’s the point of Steve’s analogy. 

  • Hyena

    Let’s say the answer is “no, we shouldn’t have equitable marriage over none”. Possible reasons:

    (1) State marriages are themselves illegitimate uses of state power and each additional state marriage is a new abuse. Thus we should keep marriage inequitable since we are otherwise increasing the total abuses of the state. Equity isn’t an issue because an inequitable arrangement is no more a problem than an equitable one.

    (2) Equitable marriage is strategically problematic because it removes any remaining impetus for marriage elimination.

    (3) State marriage places the institution under state control, allowing the state to determine what marriages are. Therefore all rulings by the state harm anyone with a differing conception of marriage. If the majority does not want to include gay marriage, then it would be strictly more transgressive to allow it.

    (4) Support for equitable marriage taints the supporter with the coercion of the state while abstention does not.

    • http://www.facebook.com/people/Matt-Missett/35303482 Matt Missett

      With regards to Hyena’s #1, I don’t buy that each additional marriage is a new abuse of state power. The injustice of the state’s involvement in marriage is that it can decide who can and cannot be legally married, therefore deciding who can and cannot receive the benefits that come with having an “official” marriage. So the injustice here is mainly hurting those who are unable to marry at all under the state’s current definition of marriage. The situation for those who cannot get married does not get any worse with each additional “legal” marriage. 

      There are two ways we can eliminate the discrimination against those who cannot currently get married:1. Eliminate all of the state’s power to define or control marriage 2. Change the state’s definition of marriage to make it more inclusive I think most of us reading this blog would probably agree that option 1 is better, but I would argue that option 2 is more just than the status quo, even if it leads to a larger number of total marriages. This is a good example of making the better the enemy of the perfect as discussed by Steven and Aeon above. 

      • Anonymous

        There is no way to keep the state out of the contract enforcement business, unless you want to go back to shotgun wedding days.  You can keep the state out of the contract writing business.  The state would need to be involved in the notarizing, making sure the contract was validly agreed to and not forged or coerced, and enforcing the terms.  Which would mean that gay marriage, bigamy, maybe marriage of children would be back on the table.  If someone wanted to sign a contract that allowed for no divorce whatsoever, no marrying other people after you marry me, that would be legal too.  Whether allowing potentially abusive contracts is a good thing is open to judgment.

        If the state is out of the contract enforcement business, then either the contract doesn’t really mean anything or you are just exchanging one gun for another.

      • Hyena

        But if we’re granting benefits for marriage, aren’t those benefits prima facie unjust vis-a-vis non-marriage and so each grant itself a new abuse of power as sure as a government granted monopoly in Smithfield in addition to Rogerston would be?

  • http://twitter.com/lunchstealer Dave

    I always couch my support for allowing gay marriage in terms of either repeal of  restrictions on marriage, or a prohibition on any government staffer who issues marriage licenses to deny said licenses based on the gender of the applicants.  That way, I’m not supporting state marriage, so much as opposing state discrimination.  I take it for granted that in Libertopia individuals

  • Dan Waxman

    Suppose everyone paid taxes for the enforcement of drug prohibition, but the harsh legal penalties associated with drug prohibition only affected black folk, leading to someone proposing to extend them to non-whites. Would you argue that was wrong?

    If the implementation of equality under the law exacerbates an injustice, it’s not obvious to me that we, as libertarians, should in general choose equality under the law. I’m not saying I disagree in the particular case of gay marriage, but I think the general point stands.

  • Steven Horwitz

    Guest:   As a I said above – “It’s different, I think, if we’re talking about the state directly
    coercing people.  So, for example, I don’t think “equality before the
    law” is the overriding principle in answering the question whether the
    state should draft women as well as men. “

    • Anonymous

      Hi Steve:
      Thanks for the post and follow-up comments. Let me make a guess…I predict you get much more push-back on this from your Austrian-minded, anarchist friends, than you do from minimal state libertarians. The Murray Rothbard-inspired ararchists hate the state with such a passion that it sometimes, IMHO, drives them to defend what I consider absurd positions, such as the present case. 

      • Steven Horwitz

        Mark,

        You’re creating a false dichotomy there.  The majority of my Austrian-minded anarchist friends are NOT Rothbardians but Hayekians.  They are better on this question.  Yes, the Rothbardians tend to be the ones making the argument I’m criticizing, but the dividing line between them and those who accept it is NOT “Austrian” or “anarchist” but “Rothbardian.”

        You might find this post of mine of interest:  http://austrianeconomists.typepad.com/weblog/2009/12/the-false-dichotomy-of-rothbardian-anarchism-and-hayekian-classical-liberalism.html

        • Anonymous

          OK, thanks for the clarification, and point well taken. How do you catagorize the von Mises Institute, which in some way seems to be the “official” representative of Austrian economics? My perception is that they are VERY Rothbadian, and this gives rise to the perception that I expressed.

          • Steven Horwitz

             They are one strand of thought in Austrian economics with no claim to be official.  Doctrinal differences aside, their version of Austrian economics is one that is largely disconnected from the economics profession, especially in comparison to the other strand of thought, associated with George Mason University (including me), which is very much engaged with the profession.  It depends on what you want to count as “official” or as “Austrian economics,” but if you want to identify the Austrian economists who are contributing to non-Austrian professional journals and attending the major professional meetings, the GMU crowd is generally recognized within the discipline as the “representatives” of Austrian economics.   The Mises Institute has a major web presence and offers terrific resources online, so if that’s what counts, then they are the “representatives.”

          • Anonymous

            Thanks. If you get a chance here, I would love to get a little better feel for the doctrinal differences between the Mises Institute crowd and the GMU school of thought. Or, maybe you can point me to a link where this is discussed elsewhere. 

          • Steven Horwitz

            Way too complicated for here Mark.  I’m not sure there’s an easy one stop source on this.  Here’s my presidential address to the Society for the Development of Austrian Economics that deals with one aspect of it.   http://www.gmu.edu/rae/archives/VOL17_4_2004/1-Horowitz.pdf

  • http://biggovernment.com/author/mwarstler/ Morgan Warstler

    Forget marriage rights.

    Rites of marriage as performed by a church as the only legitimate kind of marriage… and they should confer no legal obligation or benefit.
    Whatever the state observes as a contract (call it something else) agreed on by private parties and seeking the state’s adjudication is fine…  but that state can’t carry its own interest into that system.

    • Damien S.

      Why on earth should we consider church  marriage (which church?) to be the only kind of marriage.  It’s not like the church invented marriage. Religions get involved in marriage but they didn’t invent it, it’s a not quite universal human custom..

      • http://biggovernment.com/author/mwarstler/ Morgan Warstler

        Because it isn’t healthy for one word to have two completely different connotations to two completely different folks.   Too religious folks marriage is a compact between two people and their god and community.

        To the government marriage is a legal contract.

        Each church should can decide what marriage means to them.  Each government (in the US the state) can make the same decision.

        But churches can deny different folks the right to marry.  Government has no such right.

  • http://twitter.com/MichaelRapp Michael Rappaport

    I haven’t read all of the comments above, so perhaps you address this.  But isn’t the right way to analyze this is that allowing gay marriage is an improvement in equality (or equality under the law) but it is mainly a detriment to liberty.  So what libertarians should do depends on complex balancing of equality and liberty.  But it should be noted that libertarians don’t normally favor equality under the law over liberty.  Maybe they should, but they don’t seem to.   So that is what makes the case of gay marriage an especially interesting one for libertarians.  

  • Anonymous

    If the state gets into the business of licensing something, it’s better that the licensing regime be less onerous and inequitable rather than more.  And if the state requires a license for the legal and contractual benefits attendant on marriage, then subsequent  legislation  that qualifies this licensing regime by limiting arbitrary discrimination in the issue of licenses is a reduction, rather than an extension of state power.

    • http://twitter.com/MichaelRapp Michael Rappaport

      It all depends on how we understand the legal regime.  If the state grants licenses to kill, then we don’t want this expanded for liberty purposes (although perhaps for equality purposes).  If marriage entitles married couples to coerce others, then the same point applies (mutatis mutandis). 

      • Joel Hancock

        I think this is a very good point, Michael. It has actually caused me to rethink my position, which was more in line with the original post. So ultimately, the question comes down to “what is this license the state is granting,” right? 

        So how does the state’s licensing of marriage “entitle married couples to coerce others” in some way that they wouldn’t be able to in the absence of the state? 

        • http://twitter.com/MichaelRapp Michael Rappaport

          Joel:

          I really don’t know all (or I am guessing most) of the ways
          that regulation requires people to treat married couples differently than they
          otherwise would choose to do so.  That is part of the problem with our regulatory state – it is hard to know all the regulations.

          I do believe there are many regulations of this sort, as they have often been raised as part of an equality argument for gay marriage.  Rules that require health insurance to be provided to family members, that require visitation privileges in hospitals for family members, rules that require medical leave to allow employess to care for family members, etc.  Some of these rules might merely forbid discrimination between different types of marriages.  (There are a vast number of rules that govern how the government can treat married couples, such as for tax and family law purposes, but these raise different issues.)   

          It would very useful if someone were to analyze this issue more so that we can determine how significant these types of law are.

  • Dave Lynch

    I have not seen a single comment that suggested that there is a difference between the rights of gay and straight people. The only question being debated is the states role in marriage.

    I do not think whether we settle for achieving equality before the law before we eliminate the role of government is particularly important. It is unlikely we are going to achieve the latter any time soon. There is no serious proposal for shrinking government at the moment that would go so far as to move the state out of issuing marriage licenses. I would hope we could atleast grudgingly accept steps towards equal treatment  if we can not get government out of the marriage business.

    Finally I do not consider reducing the states ability to discriminate increasing the power of the state, but actually reducing it, even though it might make the state slightly larger.

    • Anonymous

      You must not have read my comment, Dave.  I wrote it on the assumption that the current licensing regime is applied in a discriminatory manner, and that so long as it exists it should be equally open to everyone.  I said, in almost the same words, that reducing the state’s ability to discriminate is reducing its power.

  • http://www.facebook.com/people/James-Peron/1311942969 James Peron

    As far as my experience, over the decades in the movement, the typical anarcho-type is Rothbardian and usually rather extreme about it. Rarely have I run into Hayekians of this sort.

    The problem I have is that they automatically assume that the libertarian position is the anarchist position. So they assume the case they wish to make and then argue that anything that meet their fundamentalist view of the world is outside libertarian theory.  They consistently apply this theory selectively. When it impacts them directly they say one thing, when it applies to others, they say a different thing. So, their guru made most his career teaching at state funded universities. That they excuse or simply ignore. They use state roads and argue the monopoly status gives them no other choice. But when it comes to the legal rights of marriage, such as the right to NOT be taxed at higher rates, to be able to sponsor a foreign born spouse for citizenship, inheritance rights, etc., there is a legal monopoly called marriage. When gay people want access to the legal monopoly they are derided or dismissed, while libertarians having access to other kinds of legal monopolies are ignored. But if monopoly status excuses libertarians for using the post office, the roads, govt. airports, etc., then why doesn’t the monopoly status of marriage excuse gay couples? I can’t think of a consistent reason for that to be the case.

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  • Mike Farmer

    The libertarian would want government out of the marriage business but would support equal treatment under the law if that is the only victory possible at this time — but for those who draw a line when polygamists claim equal treatment under the law have to admit to a very hypocritical position. If the libertarian is also supporting the claims of polygamists, or any consensual marriage contract, then I see no problem with taking the small victory. There’s something unacceptable about a libertarian taking the position that the polygamist claim is not legitimate but the gay marriage for equal treatment under the law is legit. This is the problem when we loosen up principles too much in favor of pragmatism.

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