A Challenge for Libertarians Against Federal Recognition of Same-Sex Marriage

By On January 3, 2012 · 109 Comments · In Current Events

Let me put my cards on the table:

1. In my ideal world, the state would be out of the marriage business.

2. My ideal world will not be achieved any time soon, if ever.

3. In the world that exists, where the state is involved in marriage, I believe that:

    a. The Constitution requires federal recognition of same-sex marriage through a combination of the long-standing “right to marry” found in cases from Meyer v. Nebraska (1923) forward using substantive due process, the equal protection clause of the 14th Amendment, and the Lawrence v. Texas decision.
    b. Libertarianism requires it too, as we often forget that the classical liberal tradition was built on two pillars: the rights of the individual against the state and equality before the law. The state may not discriminate. If it offers a benefit to some, it must offer it to all who are equally situated.

4. Therefore I think it is perfectly appropriate for libertarians to argue that the US Supreme Court should recognize that the right to marry, a fundamental right it has long recognized, includes same-sex couples and that states cannot abridge that right.

5. I also believe libertarians should continue to argue vigorously for a world where the state is out of the marriage business.

For my libertarian friends who argue that federal recognition from the Supreme Court would mean more state power or overturn federalism, and that we should only insist on a world where the state is out of the marriage business, I pose the following challenge:

Suppose we had a Social Security system in which all residents of the US paid FICA but only white ones received the benefits. Would you argue that the libertarian position is to continue to deny people of color access to Social Security benefits on the grounds that giving the benefits to them would “extend federal power?” Would you continue to insist that the only libertarian position is to argue for the elimination of Social Security even though it continues to benefit only whites?

It seems to me that the principle of equality before the law, which is fundamental to classical liberalism, demands that the state treat all citizens equally and that libertarians ought to be outraged if such a system existed.

Some libertarians might criticize this by saying that marriage is a state issue not a federal one. Guess what? It’s a federal one because the federal government relies on various definitions of marriage to administer particular benefits and because the Supreme Court has weighed in before, overturning several state laws defining marriage (importantly, but not only, including Loving v. Virginia).

And if you don’t buy that, suppose the Social Security system were administered at the state level. Would you say it is consistent with libertarianism for individual states to not give benefits to non-whites? Are you willing to just say “let federalist competition determine which system is preferred?” Do you not think there are any fundamental individual rights or principles of classical liberalism, such as equality before the law, that trump state or local government powers?

So my friends, what, if anything, differentiates the cases? Are you willing to bite hard on the reductio and argue that non-whites should be denied Social Security benefits? If not, then welcome to the case for federal recognition of same-sex marriage. If so, full marks for consistency, but a failing grade for understanding one of the foundational principles of classical liberalism, not to mention revocation of your Bleeding Heart Libertarian merit badge.  And you’d have no grounds for complaint, in my view, when others wonder if you’re a racist.

 

Epilogue: I had previously sketched out a post titled “Libertarianism is Not (Just) Anti-Statism” but the prior posts by Matt, Fernando, and Jacob said much of what I wanted to say.  What I would add is that the “challenge” I pose above is a good example of the argument that libertarianism is more than just “anti-statism.” When you recognize the importance of equality before the law, you can also see the ways in which, in the world in which governments actually exist, the libertarian position might require positive government action to eliminate discrimination in the distribution of government benefits. Ending that discrimination is completely consistent with the core principles of classical liberalism.

Tagged with:
 
  • Joshua Herring

    Your challenge mischaracterizes the current debate by implying that gay marriage activists are equally enthusiastic about polygamy, which they (typically, though there are some exceptions) aren’t – so let me pose a counterchallenge. Suppose the most vocal and dedicated activist groups, the ones most likely to succeed in getting the racist Social Security status quo overturned, were only interested in extending benefits to black people, but were content to leave Asians out of the loop.  Is the libertarian thing to do in this situation to support them since, hey, they’re getting *some* new people into the deal, or do we oppose them on the grounds that deliberately leaving Asians out codifies the racist element.

    Responding that my analogy is unrealistic is, of course, cheating – but if you don’t like my analogy anyway, then just please answer the obvious main point: since there is also no realistic prospect of extending marriage benefits to other sections of the population (polygamists and even people who just want to exercise full property rights with a designated chosen other, even though they don’t consider themselves “married” to that person), how is expanding the discrimination to include another politically fashionable group a solution to the inequality problem inherent in the current setup?

    • http://www.facebook.com/mystupiddog Tim Hulsey

      Your analogy re: polygamy is not unrealistic.  It’s just plain wrong.  Polygamous marriages are structurally different from monogamous ones: In monogamous marriage — whether same-sex or different-sex — questions involving next-of-kin status, power of attorney and inheritance rights are automatically settled in favor of a single spouse.  In plural marriage, these matters are not so easily resolved, and it’s difficult to envision a standard legal procedure that would address these concerns.  There is also a question of the circumstances which might terminate a plural or group marriage: If two women were married and one died some years later, the marriage would officially end with the partner’s death — but if two women and one man were in a group marriage, would the group marriage be dissolved if the man died, or would the two women remain legally married to each other?

      • Joshua Herring

        Since those questions have been addressed in the many cultures and religious traditions that do, in fact, recognize polygamous (and polyandrous, though that is much less common) marriages, I refer you to those traditions.  The question you have to answer is on what basis you deny people in those traditions their traditional marriage arrangements?  Another question you should probably answer is the one relating to the two sisters mentioned in the comment below (commenter: eselpee).  

        For the record, I don’t particularly mind if federal marriage benefits get extended (well, they’d have to be codified first, but whatever) to same-sex couples, I’m just not convinced that this is really an equal rights before the law issue. It’s hard for me to think of something as a fight for equality when the prominent battle patently excludes other people who have similar claims.

        • Anonymous

          I couldn’t agree more Joshua, legalizing same sex marriage doesn’t right a wrong, it simply  increases the winners and adds to the burden of the losers.  I’d also add that singles should be able to have their own marriage and take advantage of federal marriage benefits too.

          Obviously better to have the state out of the marriage business, but I would enjoy watching  heads explode when conservatives tried to reconcile polygamy with immigration law. 

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            “I’d also add that singles should be able to have their own marriage and take advantage of federal marriage benefits too.”

            I can see where being married to your right hand might be attractive to some subset of libertarians but really…

  • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

    Given that a) clergy are typically empowered to act as agents of the state to certify marriages, and b) several religious groups/denominations exist that recognize and perform gay marriages, it’s always seemed to me that a 1st amendment, religious freedom argument could be usefully made. Interestingly, it’s always the religious groups that oppose gay marriage that somehow think they’re rights are being trampled by not being allowed to discriminate against gays that wins the day. Bizarre.

    Per Joshua’s argument, in theory I agree that polyandry should fall into the same category. In reality, very few people are arguing for that right, even for themselves, and the few that are — primarily FLDS — aren’t exactly models of liberal micro-societies. There seems to be quite a bit of doubt regarding the degree such arrangements are truly voluntary and consensual. That said, I think — and I’m a liberal/progressive/whatever, not a libertarian — is that the laws on the books of some states that actually make adult marriage-like group cohabitation illegal are patently ridiculous.

    Perhaps the reality is these kinds of changes, if they are to happen, are just naturally going to happen step by step. A hundred or a thousand years from now, perhaps the argument will be over marriage rights for AI’s and cybernetic beings.

    • http://www.realadultsex.com figleaf

      “In reality, very few people are arguing for that right, even for
      themselves, and the few that are — primarily FLDS — aren’t exactly
      models of liberal micro-societies.”

      Based on the Libertarian principle that the government that governs best governs least, and based on on-the-ground observations in, say, the Four Corners area that FLDS-style “polygamy” is really more about forced contract labor (typically child labor at that!) than anything resembling consensual or even connubial marriage, I think you could still get government out of the business of marriage while keeping it firmly in the criminal-law-enforcement business of policing forced uncompensated labor and debt peonage.

      Any remaining adults with the freedom of unforced consent could then form any manner of civil and/or contractual unions they chose.  (This takes as a given Steve’s assertion that Libertarianism can’t rationally ignore coerced transfers of wealth or labor by non-state entities.)

      figleaf

  • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

    “The state may not discriminate. If it offers a benefit to some, it must offer it to all who are equally situated.”

    Steve, from the perspective of the state, which often incurs great expense for failed pair bonds, couples who have or will have children are not “equally situated” when compared to couples who can’t have children and have no intention of having them.

    My understanding is that state-enforced marriage is currently derived from principles borrowed from both contract and partnership legal theory, where contract law deals primarily with the promises two people are making to each other, but partnership legal theory becomes important when issues about liability for raising children are present.  (This is because partnership law binds both partners “jointly and severally” for the actions of the either partner.)

    As I’ve said before, state-enforced marriage was primarily invented to assist and support child-rearing, and the enforcement of emotional bonds and promises between two people is a kind of secondary or incidental function to support the primary function. 

    So, in other words, I don’t believe the state should continue to extend a full array of marriage economic benefits, even to heterosexual couples, until the marriage becomes responsible for minor children. (If minor children had legal and political clout comparable to that of the AARP, I think they’d agree, and we probably wouldn’t even be debating the issue.)  

  • Aeon Skoble

    Exactly right, Steve.

  • Kevin Vallier

    Steve, how will you build in religious liberty considerations? I’d take it as crucial to the legitimacy of any state decision to legalize gay marriage that substantial religious exemptions be applied to these cases. There is little in any of the dominant religious traditions in the United States to justify racial discrimination but many thousands of sincere persons of faith in the United States would like to dissociate themselves from institutions that recognize as permissible actions that they believe God requires them to oppose. One libertarian worry about legalizing gay marriage is that given the anti-discrimination legal apparatus in the U.S. today that legalizing gay marriage will very likely contribute to the curtailment of religious liberty. In that case, religious libertarians will have reason to vigorously oppose legalization and on First Amendment grounds.

    • http://twitter.com/sammimcclain Sammi McClain

      Could you expand on how legalizing gay marriage would infringe on your religious liberty?

  • Aeon Skoble

    Kevin, I’m not following you.  Any religion that doesn’t approve of ssm can continue to disallow them.  Steve was surely referring only to the civil rite, the legal marriage.  It doesn’t violate the religious liberty rights of Bob if Carol and Sue get married at City Hall by a JP. 

    • Anonymous

      However, if you’re an Observant employer and you try to give your employees varying medical benefits for their husbands and wives, on the basis of the gender of their spouse, that’s generally considered illegal.

      I would assume that this is like the old CRA ’64 arguments, and the libertarian line is that if someone doesn’t want to offer someone a public accommodation on their private property, or make a contract with someone, on the basis of any old reason, no matter how morally abhorrent, antisocial, and averse, that’s their right and the state shouldn’t be “fixing” this problem with anti-discrimination laws.

  • shorwitz

    Kevin,

    I agree that the state should not be able to force, for example, churches to marry same-sex couples.  I would ideally like to see that made clear as part of a SC decision or however SSM came about.  Whether it would stick is a good question.  And whether, given the way anti-discrimination law now works  it would even be possible, is a good question too.  At some point, the world of the second or third best might force us to weigh the injustice of excluding same-sex couples from marriage versus the injustices that might result from the enforcement of anti-discrimination laws.

    The analogy seems to me to be the Civil Rights Acts which both ended a great deal of government sponsored discrimination but also attenuated important rights to property and association.  Given the politics of the day, there was no way to separate them and I think that the gains outweighed the losses, but it was definitely a second-best solution as might legalizing SSM in the context of current anti-discrimination laws.

    • Kevin Vallier

      Steve, the difference between the Civil Rights Act and SSM is between racism and conscience. In the 1960s there was no very serious intellectual effort to demonstrate that racial discrimination was part of Christian doctrine. Christianity, the dominant religion in the United States (and the primary source of advocates against SSM), is tailor-made for racial egalitarianism. But the New Testament explicit confirms the Old Testament’s condemnation of homosexual sex and homosexual sexual relationships. Consequently, for orthodox Christians to be forced to comply with legalized SSM (in hiring practices, use of churches, etc.) invokes issues of conscience in ways that racial issues do not. Christian opposition to SSM is not concerned with mere freedom of association but with rights of free exercise of conscience enshrined in three hundred years of American law (predating the Constitution even). So I don’t think the analogy will work. 

      In my view, libertarians, even of the BHL variety, face severe challenges ranking these two nonideal options: legalized SSM with insufficient religious exemptions and illegal SSM. Any ranking of options will involve lots of pragmatic considerations coupled with complex legal and moral deontological concerns. I’m not sure what a libertarian should say, to be honest. I do think that libertarians should rank SSM with extensive religious exemptions over all other options other than privatized marriage, but again, with political circumstances as they are, religious exemptions will likely not satisfy even reasonable Christian groups who desire to dissociate themselves from what they regard as an immoral practice.

      In my mind, SSM is most analogous with controversies over religious instruction and practice in public schools. Libertarians nigh universally reject expansive public schooling, but what are they to say about religious instruction in lieu of school choice? Again, I don’t know. No matter what happens, someone is coerced in a way that libertarians should regard as clearly unjustified. 

      My inclination is to say that libertarianism is “incomplete” with respect to ranking these nonideal options. That is, it simply lacks the conceptual resources to solve some problems (that’s ok – most political theories have this feature). Libertarians might have to fall back on their comprehensive moral and religious doctrines to provide them with the moral resources necessary to determine what they ought to do. Theologically orthodox Christian libertarians will rank banned SSM over legalized SSM with insufficient exemptions and secular libertarians will rank the options in reverse. I’m not sure that libertarianism(s) per se make clear recommendations on the matter.

      • Aeon Skoble

        Kevin, no one is “forced to comply” with anything under Steve’s proposal.  The Catholic Church, e.g., disallows divorce, but it hardly violates the religious liberty of Catholics that the state allows divorce.  Catholics aren’t “forced to comply” with state divorce laws in any objectionable way; this is no different.

        • Kevin Vallier

          Given the non-ideal spirit of Steve’s post, we have to consider the fact that legalizing SSM will likely include impositions on others vis anti-discrimination law, something Steve even acknowledges, no?

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            Well sure, but people who would discriminate against SSM are by definition bigots and it’s hard to take seriously their right to be “bad people”. You can’t make a state omelet without breaking eggs but as long as they’re bad eggs we shouldn’t obsess about it. I mean c’mon, we gotta have that omelet, right?

          • Aeon Skoble

            I don’t see how.  We’re not allowed to ask interviewees about their marital status, so I would never know whether they were married in the first place, let alone to whom.  Anyway, how is this different from interracial marriage?  As Steve said, ideally, the state would not be in the marriage-sanctioning business, but as long as it is, it’s a serious liberty violation to disallow that status for interracial couples.  That some religions may find this anathema is (a) irrelevant to whether there’s a liberty issue here and (b) not constitutive of a violation of their religious liberty, as they’re still free to not recognize the spiritual validity of those marriages.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            Isn’t it a serious liberty violation to prevent private individuals and businesses from discriminating against interracial couples, gay couples, or married people in general? And isn’t that the point of not allowing employers to ask if people are married?

      • http://profiles.google.com/entelechy77 Kurt Horner

        In the 1960s there was no very serious intellectual effort to demonstrate that racial discrimination was part of Christian doctrine.
        So, if someone had made such a serious argument then Jim Crow would have been OK? I don’t think you mean to imply that the state of theological debate among Christians is an ideal metric for determining whether something is moral. At least, I hope not.

        Also, who cares if Christianity opposes homosexuality (or anything else for that matter)? Last I checked, this is a secular society — and the justification for any public policy needs to be explainable in terms accessible to ALL citizens.

        Now, it is true that an employer will be prevented from openly discriminating against a gay married employee. While this is technically an infringement, the infringement “Christian radicals no longer get to be assholes to gays” pales by comparison to the current infringement where “gay people are limited in how they can participate in civil society.”

        Why does this comparison obviously make SSM superior to no change in present law? Because the same considerations of equity and fairness that cause one to embrace libertarianism also cry out for fair treatment of gays. Being an anti-gay libertarian requires a contradictory worldview where a belief in fairness leads one to a non-aggression principle that is then used to attack fairness.

  • http://www.facebook.com/people/Christopher-Tozzo/1019933906 Christopher Tozzo

    Two replies to earlier comments:

    1. Churches have no rights – only individuals have rights. “Religious liberty” is nothing more than “applied individual rights.” Therefore, to insist that “religious liberty” must trump equal treatment under law is still to insist  that some individuals have more rights than others, which is not in any way defensible as a libertarian position.

    2. Regarding polygamy: Stripping away the sentimental muck, marriage qua legal status is a declaration that one person is elevated above all others in terms of claims and obligations, as a matter of law. When you can explain how one can simultaneously elevate two or more people “above all others” as a matter of law, then — and only then — have you exposed libertarian support for SSM as hypocritical. But not until then.

    • http://www.facebook.com/billardkarr Bill Karr

      “1. Churches have no rights – only individuals have rights.”

      But individuals have the right to association. You could easily use this same argument to say “couples have no rights” and therefore have no right to marry.

    • http://www.facebook.com/billardkarr Bill Karr

      Nobody should be forced to pay for things they don’t support. I support state-legalization of same-sex marriage, but at the same time, this violates religious liberty in that religious people who wish not to sanction same-sex marriages are being forced to pay the cost. What you’re arguing is that same-sex couples’ right to association should trump the right of religious people to not support the things they wish not to support.

      This is the problem with legal institutions being funded by taxation. Everybody’s right of association is violated and we must choose whose is more important.

      For the record, I support state-level same-sex marriage legalization.

      • http://www.facebook.com/billardkarr Bill Karr

        Sorry for the redundancy.

      • http://www.facebook.com/nskinsella Stephan Kinsella

        “Nobody should be forced to pay for things they don’t support.” Nobody should be forced to pay for things they do support, either. I.e, nobody should be forced.

        • http://www.facebook.com/billardkarr Bill Karr

          I agree. I never argued anything to the contrary. What does this add to this discussion?

  • Joshua Herring

    Follow-up to Rod’s comment.

    I’m not sure that the fact that people asking for polygamist/polyandrist rights are marginal groups is relevant to the equality question.  To illustrate, change “Asians” to “Native Americans” (or even “Hmong”)  in my hypothetical, and I think we’d all conclude that a Social Security policy which left out such a group, however small they were as a percentage of the population, would still be unacceptably racist.

    But my point was more to demonstrate that Steve’s analogy was a mischaracterization of the positions of libertarians who are not as enthusiastic about federal recognition of homosexual marriages as he is.

    Since he doesn’t seem keen to address my complaint in that form, here is another.  Assuming that most people here oppose a military draft, suppose that it’s 1968 and we have one, and a bill goes before Congress that seeks to eliminate black people from the draft on the basis of past discrimination.  Does commitment to full equality before the law demand that we oppose this bill, or is it an incremental gain for draft opponents to eliminate a racial minority from the draft? Again, the point is that in cases where opposition to bad policy and commitment to equality before the law are in tension, one must justify one’s preference for equality.

    If Steve is OK with removing a racial minority from the hypothetical draft, am I allowed to call him racist?  Also, if he declines to push for including women in the hypothetically existing draft, is he sexist?  

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      I agree that the size or marginality of the group being discriminated against is irrelevant. I just don’t think that it’s a terribly relevant argument. The question of WHO you can marry seems to me to be a categorically distinct question from HOW MANY people you an marry. The first analogizes to the miscegenation laws prohibiting different races from inter-marrying. Prohibiting poly-androus marriages doesn’t.  Or, more accurately, it only analogizes along certain dimensions, e.g. religious freedom.

      You might be better able to argue that it’s inconsistent to support federal recognition of gay marriage while supporting (or tolerating) laws restricting the age of partners or biologically incestuous pairings. But even then I think you’re on shaky grounds. In the first case (age) you have serious issues of consent and ability to freely enter into binding contracts. In the second, at least in theory, you’re preventing likely harm to potential offspring from inheriting double-recessive traits. (Although gay incest would seem to be free from that problem.)

      As to getting the state out of the marriage business… I think it would be useful to distinguish between marriage as a religious/cultural rite and civil unions as legal arrangements. But it seems very useful to me to have a ready-made, out-of-the-box, bundle of legal agreements/arrangements/rights that we currently assign to marriage partners. Not saying that individuals couldn’t modify that bundle but some already do that with pre-nuptual agreements so I don’t see that angle of it crying out for reform.

      • Joshua Herring

        There may well be a categorial distinction between the questions of WHO and HOW MANY one can marry, but they are of equal importance to libertarians, I should think.  The point in both cases is that the government has given a subset of the population property rights that others do not have.  Increasing the size of the subset covered doesn’t address the equality issue – which is why Steve’s analogy is misleading.  Or, if the issue is one of cultural/religious chauvinism rather than property rights, then the fact that polygamist marriages have a long tradition in many cultures, whereas gay marriages are marginal, if examples exist at all, means that we do not solve the cultural chauvinism problem by excluding polygamist marriage.  In Steve’s analogy world, it is doubtful that opponents of racist Social Security benefits would be content to secure benefits for one additional race only, leaving all others out of the loop.  And yet in our world, proponents of gay marriage are content to do exactly that.  Steve’s analogy has been proposed by many, many others, and in all cases the purpose is to obscure the debate by pretending that it is about equality when in fact it is about extending privilege.  The principled libertarian position is to push for private contract marriages to replace state-recognized ones.  I see no reason to deviate from that, certainly not because someone resorts to the leftist trick of implying that anyone who disagrees with him is a crypto-racist.

        I agree that it is useful to have a ready-made, out-of-the-box bundle of legal agreements, but then, we do.  On a transition to a fully private marriage system, I doubt it would be too difficult for law firms to draw up contracts that resemble the current arrangements – of course extending them to homosexual couples.  Including polygamist arrangements might be a bit more of a challenge, but not too much, I think.

        • shorwitz

          I’ve thought about the draft analogy and I think the way to distinguish that case from my hypothetical is as follows, but I’m not totally certain it works. 

          The draft involves the state actively coercing people.  To argue that the state should (also) coerce (to be more realistic) women into a military draft is to argue for equality before the law in a way that ALSO tramples on the other libertarian principle – the right of the individual to not be coerced.  Legalizing SSM extends a state-provided benefit to a group equally situated (consistent with equality before the law) but does so without any additional coercion (everyone already pays the tax) and thereby violating the other key principle.   (Kevin V’s point about anti-discrimination laws noted.)

          In other words, legalizing SSM meets the requirements of one of the two principles without compromising the other.  Drafting women meets the equality principle but only by more strongly violating the rights principle.  Thus legalizing SSM seems much more obviously libertarian than does extending the draft to women.

          • Joshua Herring

            Agreed, that distinguishes the two cases.  

            Any thoughts on the other?  What if the proposal was to extend Social Security benefits to blacks only, but not to Asians.  This is meant to analogize extending marriage benefits to gays, but not to everyone else who could reasonably use them.  This is the reason I am not enthusiastic about federal recognition of same-sex marriage.  ”Not enthusiastic” means that I don’t mind if they get extended to gays, but I’m not explicitly in favor of the cause until it’s really about equal rights for everyone.  Just as, I imagine, an Asian in your counterfactual world could only be so happy about seeing Social Security benefits expanded to include blacks.  You know, it might be a sign that they were eventually coming to Asians too, but it still seems unfair, etc.  And of course it’s especially galling if blacks in general are not inclined to fight for Asian SS benefits, and even more so if some black leaders have made it expressly clear that they do NOT favor extending SS benefits to Asians (as several gay rights leaders have said about extending marriage benefits beyond same-sex and heterosexual couples).  

            I think you need to answer this before you sympathize when people call us bigots (“And you’d have no grounds for complaint, in my view, when others wonder if you’re a racist”).  This counterfactual is no more implausible than your own, after all, and it more accurately represents the issue.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            Isn’t it simply wrong for the state to recognize any different rights or  privileges whatsoever for married and single individuals? That being the case, who gets to be recognized in one set or the other is quite beside the point from a libertarian point of view.

          • shorwitz

            Reply forthcoming in a new post Joshua.  It’s a really nice point.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “… but I’m not explicitly in favor of the cause until it’s really about equal rights for everyone.”

            Well it obviously can never be about equal rights for married and single individuals, can it?

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “In other words, legalizing SSM meets the requirements of one of the two principles without compromising the other. ”

            If state recognized SSM doesn’t confer benefits at the expense of others, why is it sought?

            http://web.archive.org/web/20071117144856/http://www.no-treason.com/archives/2003/11/24/marriage-the-institutional-man-and-the-sovereign-individual/

            “The Sovereign Individual argues instead, that one must simply evict the
            state from one’s own marriage. Your marriage is not properly a matter
            of public debate so don’t treat it as one. Take and keep private what
            ought to be private. And all of your life is your private affair.”

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

    An alternative is to push for recognition of voluntary contracts that allow the rights currently afforded to married people. Then leave the term married out of it. If anyone can find a “church” that will “marry” them, then they can call it anything they want, but it is a contract from the point of view of the federal government.
    Note: I believe some of the automatic rights are antiquated and need to be adjusted.

  • Anonymous

    Well said,  Steve.  While the position that basically defaults to constitutional constraints is often the easier answer for many, it’s also a cop-out in that it removes any obligation to have an opinion or position on philosophical grounds outside of government machinery. 

    Indeed, in many ways, a truly classical liberal argument about government is not purely “federalist”…and actually doesn’t need to be federalist at all. The question of federalism vs. totally centralized is secondary to the fundamental questions. That question is a political arrangement which is subordinate to the social arrangement which transcends it all. 

    Obviously, a federal government that is libertarian/classical liberal merely by federalism doesn’t say much about what individual states can do.  A truly classical liberal government…regardless of its design….would ensure classical liberal basis for all laws at all levels. 

  • Andrew Cohen

    Bravo.

  • Michael J. Green

    Hmm, but this completely ignores the argument that all adults are still granted the right to marry a person of the opposite sex. You take for granted that marriage is an association between two persons and not between one man and one woman. To an opponent, a more apt analogy might be, “Social Security is a program designed to provide benefits to the elderly. Does equality of the law require making SS payments to the young as well as the old?” Or is this argument obviously wrong, for a reason I haven’t yet heard?

    I mean, I’m all for same-sex marriage and have no moral issues with the federal government recognizing it instead of getting out of the way, but this argument looks like question begging.

    • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

      ” Does equality of the law require making SS payments to the young as well as the old?”

      That’s an excellent example of why the concept of equailty under the law is incoherent once you assume an unjust framework as a given.

      There is no just way to distribute coercively collected funds.

    • http://profiles.google.com/entelechy77 Kurt Horner

      I actually think that’s a fair comparison. The welfare state should help those who are poor, not those who are merely old. If you’re old and still have significant income, getting SS is just as unreasonable as corporate welfare. 

  • Anonymous

    Rod (“The question of WHO you can marry seems to me to be a categorically distinct question from HOW MANY people you an marry.”)

    Why is either distinctions relevant?

    I think that states need to support “civil unions” for people who wish to form partnerships that provide for the raising of minors, joint ownership of property, access and medical decision making in emergencies, providing contingencies for dissolution, etc. – and totally get out of the marriage business. 

    Kevin (“Steve, how will you build in religious liberty considerations?”)

    People could still marry and spend many thousands on the ceremony and honeymoon if they so choose; get married in the eyes of God or whatever. But the government need not be involve in these wedding rituals.

    When Vermont passed the first civil union law, an elderly woman wrote a letter to the editor (Times Argus) that she wanted to form a civil union with her sister (civil union was restricted to same sex unrelated partners).  Neither had ever married, had lived together their entire lives, and they wanted legal protection of joint assets and to be able to make end of life decisions for each other if necessary – but was denied. 

    What if there were three or four adult siblings or even friends who wanted to set up a domestic partnership? What if several people wanted to have a domestic partnership and have S.E.X. together? Why would any of  us be involved in their decisions? We don’t put restrictions on how many people can enter into a partnership for a corporation or small business partnerships. 

    The reason we want restrictions on a domestic partnership is the fear from our puritan legacy about promiscuity.  Isn’t this just the same authoritarianism that “moral majority” and “tea party” style political groups  (trying to pass as religious organizations) want to heap upon us?

    I don’t understand why self-declared libertarians would hedge around this issue of individual liberty for consenting adults (i.e. not the nonconsentual child FLDS issue) when they are generally so dogmatic about other aspects of their beliefs.

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      “Why is either distinctions relevant?”

      Just that there is a liberal/libertarian argument in favor of not prohibiting gay marriage. There is also a liberal/libertarian argument in favor of not prohibiting polyamorous marriage. But to link the two, such that support of one position is seen as hypocritical if one doesn’t support the other seems weak to me. Poly marriage raises a whole host of new complicating issues, whereas mono gay marriages can just be “snapped” into place alongside hetero marriage with virtually no modification of existing social and legal structures. Change a few words here and there in the laws and on legal forms and you’re done. (I.e., get rid of “husband” and “wife” in favor of “spouse” or “partner”.)

      “I think that states need to
      support “civil unions” for people who wish to form partnerships that
      provide for the raising of minors, joint ownership of property, access
      and medical decision making in emergencies, providing contingencies for
      dissolution, etc. – and totally get out of the marriage business.  ”

      I agree. And I believe there is strong support among liberals/progressives for just that sort of change. Entirely too much emphasis has been placed by folks on both side of this issue over a word. The major change that needs to take place is to do a search-and-replace on the law books to change the terminology.

      I think we agree much more than we differ here. Peace.

  • Pingback: The Equal-Protection Scam and Same-Sex Marriage « Politics & Prosperity

  • Pingback: You know, playing the bigot in your play actually DOESN’T sound like that much fun for me, but thanks for asking – The Only Winning Move

  • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

    “Libertarianism requires it too, as we often forget that the classical
    liberal tradition was built on two pillars: the rights of the individual
    against the state and equality before the law. The state may not discriminate. If it offers a benefit to some, it must offer it to all who are equally situated.”

    You are absolutely wrong on this point because state marriage obviously exists to create inequality before the law – inequality between married and single people. Without this there is no point at all to state recognition of marriage.

    It would have increased equality before the law in pre-Civil war America to allow whites to be legally held as slaves, but would that actually be a libertarian improvement?

    I’m happily married but I declined to seek state certification for my marriage.  How can your morally advocate that gay marriages (or any other)  be granted a different status from mine under the law? How is that treating us equally under the law?

  • http://www.facebook.com/nskinsella Stephan Kinsella

    My libertarian argument for gay marriage is at California Gay Marriage Law Overturned: What Should Libertarians Think? http://www.libertarianstandard.com/2010/08/04/californias-anti-gay-marriage-prop-8-overturned/

    • http://www.facebook.com/nskinsella Stephan Kinsella

      The basic agument I think is simple: the state has monopolized enforcement of contracts and related things (visitation rights, death issues, custody of kids, alimony/palimony, joint ownership). The state has no right to monopolize the field and then deny the protection they give instead of what the free market would, to some people. If the state’s own stupid rules require two people to be “called” “married” by some definition, in order to avail themsleve of enforcement of the contractual and related legal aspects of the relational regime, then the state has to count them as “married”. An easy way out would be for the state to create a second civil union category, or to get out of the business of enforcing all this altogether.

      • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

        “The state has no right to monopolize the field and then deny the
        protection they give instead of what the free market would, to some
        people.”

        How can the state recognize marriage and not deny such protections to the unmarried? State marriage can have no function other than to treat individuals unequally under the law.

        • http://www.facebook.com/nskinsella Stephan Kinsella

          “Recognize marriage” is just a way of referring to the fact that the state’s legal system gives effect legally to the contractual and property aspects of a relationship. If A and B form a consensual union, that has certain desired contractual and other legal effects (such as each can speak for the other in medical cases, inherit from the other, co-own property, and so on). It is irrelevant what descriptive term the couple, or the state, uses to describe the relationship. The point is the state’s legal system should not add injury (of refusing to enforce this civil regime) to injury (of monopolizing the legal system in the first place).

          And yes,  I would say this argument could be extended to non-sexual couples (like spinster sisters living together) or polygamous groupings, but at present the big group being denied legal rights are gay couples.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            ” If A and B form a consensual union, that has certain desired
            contractual and other legal effects (such as each can speak for the
            other in medical cases, inherit from the other, co-own property, and so
            on).”

            Actually as things stand the effects you list are arbitrarily decided by the state, not by any agreement between the individuals. When you marry do you contract to have your spouse inherit your property by default? No,  because the state can change those terms twenty minutes before you die, regardless of what you imagine you agreed to. The state neither knows nor cares what you and your spouse intended to agree to. So expanding legal marriage does not have the benefit you claim.

            “And yes,  I would say this argument could be extended to non-sexual
            couples (like spinster sisters living together) or polygamous groupings,
            but at present the big group being denied legal rights are gay couples.
            ”

            Don’t legally single people comprise a much larger group of individuals, unjustly discriminated against through existing legal marriage?

          • http://www.facebook.com/nskinsella Stephan Kinsella

            “” If A and B form a consensual union, that has certain desired
            contractual and other legal effects (such as each can speak for the
            other in medical cases, inherit from the other, co-own property, and so
            on).”

            Actually
            as things stand the effects you list are arbitrarily decided by the
            state, not by any agreement between the individuals. When you marry do
            you contract to have your spouse inherit your property by default?”

            I see nothing wrong with the idea of default presumptions in the law. It’s just an aspect of communication and language. If a guy goes on a date w/ a girl and the context indicates he has her permission to kiss him, then he does, unless she changes the presumption by some communication. If it’s understood in a given area that your neighbors have permission to walk on your sidewalk and knock on your door for an innocuous favor or something, then unless you change that presumption, you are communicating your tacit permission. Same with implicit or tacit or customary aspects of the legal consequences of some relationships. The nature of the life-long commitment and union that is marriage is usually understood to mean that both parties do wish certain legal effects to follow between them. A can decide to take B off life support, visit B in the hospital. A and B have some presumed joint ownership of the salaries either of them earns. and so on. If htis presumption arises, and surely it has, then unless you specifiy otherwise, your lack of objection or lack of changing the terms in context means you are communicating assent to the generally understood background or default or gap-filler terms.

            ” No, 
            because the state can change those terms twenty minutes before you die,
            regardless of what you imagine you agreed to. The state neither knows
            nor cares what you and your spouse intended to agree to. So expanding
            legal marriage does not have the benefit you claim.”

            If the state is going to enforce contracts and related civil law, it must have default rules, as this is essential for any legal system. And arguably it has an obligation not to have capricious or arbitrary ones.

            “Don’t
            legally single people comprise a much larger group of individuals,
            unjustly discriminated against through existing legal marriage?”

            Not sure how, eactly, other than maybe by tax effects, but then that is a separate problem. It is impossible to make the tax system fair or neutral. All we can hope for is lowering rates. But my argument was not based on any discrimination argument. I don’t care if the state calls it “civil unions” and hetero unions “marriage.” Waht do I care what label the state uses in the caption to its statutes? The point is more like this one. Suppose the state jails you for smoking dope. Now you are in its prison. It has kidnapped you. It should release you but so long as it doesn’t, it has an obligation to feed you. Same here. The state monopolizes the enforcement of the legal effects of various relationships. It has an obligation to reduce the harm done to people by not taking away their choice to have a private legal system, and then refusing to provide the service it is claiming to monopolize. IT is not about discrimination. It has nothing to do with that or with hetero marriage. Suppose everyone was gay, and all the heteroes died out. Now we have a state that refuses to enforce the marriages of gays. That is wrong, not b/c it is discrimination but b/c it is adding injury to injry.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            What is the contract people make when they legally marry? What are the terms of the contract? What is it that the parties are agreeing to?

          • http://www.facebook.com/nskinsella Stephan Kinsella

            I don’t see why this is relevant, but … the basic things gays are asking for that they are now denied. The things you have to expressly try to contract for (expensively) if you want to simulate the regime. In a given jurisdiction it would be things like: presumed co-ownership of property acquired, including income earned by either spouse, medical power of attorney, visitation rights, and so on.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “I don’t see why this is relevant…”

            It’s relevant because you say the state must provide contract enforcement in areas it monopolizing. I’m disputing that legal marriage as it exists is in fact a contract.

            “The things you have to expressly try to contract for (expensively) if you want to simulate the regime.”

            That doesn’t sound right. Simulate the regime? The regime imposes all sorts of rules that are morally unjustified. I thought you were talking about simulating services that would be available in a free market, no?

            “In a given jurisdiction…”

            Hold on. When you legally marry in the US which jurisdiction’s rules are you agreeing to?

            ” presumed co-ownership of property acquired, including income earned by either spouse,”

            So when you legally marry you agree to these things? Where are those terms specified? They are specified in the law, which also specifies that those terms can be modified without your knowledge or consent – by multiple jurisdictions, and you may well not know which jurisdiction applies until push comes to shove.

            I deny that this is a contract, there is no real knowledge of the terms and you can’t can’t consent to terms you can’t know.

            “medical power of attorney, visitation rights”

            Now I think you’ve drifted into territory where you’re talking about enforcing contractual rights you likely couldn’t get in a free market. In a free society if I’m in a accident and wind up in a random hospital, how is any agreement I have with my spouse binding on the hospital?

          • http://www.facebook.com/nskinsella Stephan Kinsella

            I’m tiring of this. but a bit more.

            “I’m disputing that legal marriage
            as it exists is in fact a contract.”

            Marriage is a committed relationship. But it gives rise to certain legal effects. This is what is known in the civil law as “matrimonial regimes.”

            “”The things you have to expressly try to contract for (expensively) if you want to simulate the regime.”

            That
            doesn’t sound right. Simulate the regime?”

            Yes. The matrimonial regime is the set of legal rights that arise as the consequence of the two people having a certain relationship. The state denies enforcement of this to people is says do not meet the criteria, so they can sometimes try to simulate it by wills, medical powers of attorney, and the like, but they are expensive, not as reliable etc.

            ” The regime imposes all sorts
            of rules that are morally unjustified. I thought you were talking about
            simulating services that would be available in a free market, no?”

            not services, but legally enforceable interpersonal (contract, property, agency) relations.

            “Hold on. When you legally marry in the US which jurisdiction’s rules are you agreeing to?”

            I’m not here to give legal advice. And I’m not a family law expert. Nor does one need to be to have an opinion on statism and its interrelationship with gay marriage.

            “” presumed co-ownership of property acquired, including income earned by either spouse,”

            So
            when you legally marry you agree to these things?”

            Maybe, maybe not.

            “Where are those terms
            specified?”

            Not everything has to be, or can be, “specified.” It is a layman’s and positivist mistake to equate contracts with some formal, written document. The contract is just evidence of what the agreement is. It can never be 100% specific, so gap-fillers are unavoidable.

            “”medical power of attorney, visitation rights”

            Now
            I think you’ve drifted into territory where you’re talking about
            enforcing contractual rights you likely couldn’t get in a free market.
            In a free society if I’m in a accident and wind up in a random hospital,
            how is any agreement I have with my spouse binding on the hospital?
            ”

            It is not. But I think what happened to the lesbian in the story, is because of the state’s monopolization of matrimonial regime definition and enforcement. It is a consequence of it; it is damage. Absent the state’s omnipresence, there is no reason to think a hospoital would deny a customary vistiation right to a gay partner who could prove her status.

            If they did, I agree: they have that right. But in such a society then you would seek out the more tolerant/progressive institutions, etc. The would dominate just for the same reason racism would tend to be minimized, because it is costly.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “I’m not here to give legal advice. And I’m not a family law expert. Nor
            does one need to be to have an opinion on statism and its
            interrelationship with gay marriage.”

            The point isn’t about gay marriage, it’s about your supposed marriage contract.  The point is that when you legally marry you really have no way of knowing what jurisdiction you marriage may be litigated in. And the jurisdiction defines the terms of your “contract” so you can’t know the terms.

            “Not everything has to be, or can be, “specified.” It is a layman’s and
            positivist mistake to equate contracts with some formal, written
            document. The contract is just evidence of what the agreement is. It can
            never be 100% specific, so gap-fillers are unavoidable.”

            I don’t hold that a contract is a piece of paper, it’s an agreement – a meeting of  minds. I’m saying there really is no meeting of the minds in legal marriage as it is. and you’re not making a case that there is.

            Faced with a divorce proceeding people tend to realize they had no idea what they were getting into when they got legally married. Because there’s no way to know – it’s mostly gaps filled with government crap.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “If they did, I agree: they have that right. But in such a society then
            you would seek out the more tolerant/progressive institutions, etc. The
            would dominate just for the same reason racism would tend to be
            minimized, because it is costly.”

            So with regard to hospital visitation, what legal rights do you advocate extending to gay marrieds?

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “Suppose the state jails you for smoking dope. Now you are in its prison.
            It has kidnapped you. It should release you but so long as it doesn’t,
            it has an obligation to feed you.”

            At whose expense? The state can’t have a moral obligation to tax others to feed me can it?

  • Steve Reed

    Why aren’t you calling for the abolition of the 50 state governments, then? If the national legislature (or its bureaucratic creations) can override those of the states whenever it pleases, or the result is pleasing, what is the point of divided sovereignty? Get rid of the states, legislate everything from Washington (as is done for the whole of England from Westminster), and be done with it.

    The prerogatives of the states were seen as important, essential to the constitutional schema, partly to help keep a tyranny in one area from infesting another. As a check on untrammeled national power, in other words. It’s also easier to overturn a local tyranny — such as a bar to same-sex marriage — in one state than across all of them.

    If you want infinite “incorporation,” whether the constitutional law or history justifies it or not, then be honest about it. Call for ending the state governments. One legislative leash for the whole country and all people and issues within it. We’re over halfway there already.

  • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

    Once you accept injustice as a given, equality before the law is an incoherent concept.

    Suppose someone says: “In my ideal world, the state would not impose coercive taxes. But given that we do have coercive taxes, equality under the law requires that individuals pay equally.”

    Which of the following would constitute equality under the law with respect to taxes?

    A. Everyone pays an equal head tax.

    B. Everyone pays an equal poll tax.

    C. Everyone pays an equal sales tax.

    D. Everyone pays an equal income tax.

    E. Everyone pays an equally progressive income tax.

    F. Everyone pays an equal weight tax.

    The question is incoherent because taxation is unjust in principle and there is no just way of distributing injustice.

    Steve is right to advocate that the state stay out of the marriage business because it is unjust for the state to make such legal distinctions between individuals.

    But libertarians cannot reasonably accept that injustice as a given and then imagine that the injustice can be distributed more fairly by tweaking the system – there is no just way of distributing injustice.

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      It’s not all about money, John. Expand your horizons and go find some gay couples and ask them why ssm is so important. Yeah, it would be nice if they could file their taxes jointly and get survivor benefits from SSA or military pensions.  But there’s a lot more to it than that.

      A couple months ago my wife of 27 years had major surgery for cancer. In preparation we soberly discussed some of the worst “what-if’s”. For example, what if she didn’t wake up from the surgery? That sort of thing. And the day of the procedure I was by her side through the prep, waited anxiously through the five-hour ordeal, and was there by her side again as soon as the hospital staff would let me see her in recovery.

      If she were a he, and we could not be legally married — as is the case in most states — it would have been pointless for us to have that pre-surgical conversation. That’s because I would have had no more legal status to make those kind of decisions than the next-door neighbor. Her sister could have banished me from visiting her in prep or recovery. This isn’t just hypothetical; it really happens, especially when the family isn’t too hip on the whole gay thing to start with.

      That’s just one example. There’s inheritance issues, child-custody and visitation rights, etc. You could be with someone for decades, yet in the eyes of the law you’re just another stranger, instead of the closest next-of-kin that my wife and I are to each other now.

      • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

        “If she were a he, and we could not be legally married — as is the case
        in most states — it would have been pointless for us to have that
        pre-surgical conversation. That’s because I would have had no more legal
        status to make those kind of decisions than the next-door neighbor. Her
        sister could have banished me from visiting her in prep or recovery.
        This isn’t just hypothetical; it really happens, especially when the
        family isn’t too hip on the whole gay thing to start with.

        That’s just one example. There’s inheritance issues, child-custody and
        visitation rights, etc. You could be with someone for decades, yet in
        the eyes of the law you’re just another stranger, instead of the closest
        next-of-kin that my wife and I are to each other now. ”

        I’m married, but without legal certification. So since I don’t submit my marriage to state certification I face much the same legal situation as a gay in your example, so I don’t need to go ask anyone about this. You’re describing a state benefits package extended to people who are willing to jump through a legal hoop for it. What is the moral justification for offering such a bundle of benefits and privileges to those who legally marry? Why should you be extended the legal privileges you describe when I’m not?

        • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

          For a start, because along with those benefits and privileges come obligations and responsibilities. It’s a package deal.

          We came together and formed a family; the basic unit of civilization.

          You’re just shacking up.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            NOW THAT’S FUNNY!

            So you hold that state approval/sanction/licensing is actually *required* for marriage in principle?

            Is that the libertarian position?

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            I have no idea if it’s the libertarian position and I don’t much care because I’m not a libertarian.

            But it does seem that there is a genuine need for some kind of societal/community recognition of the relationship. That could be by the state, the church, or just “everybody knows”. The more complex and, especially, the larger and more anonymous the society, the more formalized the recognition needs to be.

            Frankly, I find your vehement position on this bizarre. This is an example of the state actually SIMPLIFYING your life. But if you’d rather pay a lawyer a few hundred bucks to draw up a bunch of documents that may or may not fill the bill, be my guest.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “This is an example of the state actually SIMPLIFYING your life.”

            Really? Have you ever been through a legal divorce? I gather that participants typically don’t find it simplifying. You can’t even know with any reliability what your one-size-fits all marriage means legally until you’re standing in front of a judge.  Are you sure you even know what jurisdiction that judge will be in?

            “But if you’d rather pay a lawyer a few hundred bucks to draw up a bunch
            of documents that may or may not fill the bill, be my guest.”

            Why would I need to do that? I just chose someone who I trust with my life and who trusts me with hers.

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            “Why would I need to do that? I just chose someone who I trust with my life and who trusts me with hers.”

            But as it stands nobody else knows that. I’m glad that you have someone you can trust with your life — as I have — but the difference is that your sweetie can’t DO anything with that trust. Not when other people get involved, which WILL happen.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “But as it stands nobody else knows that.”

            You don’t know it? How would a piece of paper improve your knowledge?

    • http://profiles.google.com/entelechy77 Kurt Horner

      This argument makes no sense. Consider two robbers:

      Robber A takes his victim’s wallet and runs away.
      Robber B takes the wallet and kills the victim so that there are no witnesses.

      Obviously, both A and B are committing an injustice, but B is clearly committing a worse one. Given a choice between type A robbery and type B robbery, we should prefer type A. Yes, we should truly prefer no robbery at all, but that doesn’t mean we can’t ALSO have an order of preference among types of robbery.

      Similarly, even if one accepts that all taxation is theft — we can definitely decide if one system of taxation is better or worse than another. And, yes, we can also distinguish between the relative justness of marriage laws.

  • Pingback: Responses to Two Objections to My Challenge | Bleeding Heart Libertarians

  • http://pulse.yahoo.com/_YUHJNKMZRGRVRTZZGGR4VCBGN4 Steve

    There is already equal treatment before the law.  Gays & straights are all allowed to marry.  According to the definition of the word  “marry” that has been in common use for my entire lifetime.  It’s just not likely that gays will choose to get married under that definition.  Their choice.

    What you’re arguing for is thought control.  You want the state to force me to change the definition I use for the word marry.  If you want to use the word “marry” to mean “same sex union”, go ahead.  I won’t stop you and I won’t ask the state to stop you.  If enough people follow suit, it’ll become common use and my understanding will become archaic.  For now, when I say “marry”, I mean a union of a man and a woman.  I’m not particularly interested in how the state chooses to define it.  And I will resist being coerced into changing the definition that I use.

    • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

      “There is already equal treatment before the law.”

      Not between married people and single people. The legal distinction exists to discriminate.

      • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

        It’s the difference between parties that agree to enter into a contract and those that don’t. I’m not sure how that counts as discrimination.

        • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

          Well for instance legal marriage can put you in a different tax category. That’s not an arrangement you and your spouse can contract between yourselves, you don’t individually have authority over tax brackets. So the state is not simply recognizing recognizing your supposed contract, it discriminates in assigning different bundles of benefits and privileges to married and unmarried individuals.

          And legal marriage is really a faux contract: You don’t agree to any particular terms, the state gets to change the supposed terms at any time without your consent. Do you have a legal right to visit your spouse in the hospital? Well that may be the rule today but the rule can change without your approval.

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            Regarding taxes: It should be noted that some elderly couples have found that marriage actually increases their tax burden and decreases their SS benefits. So it can go either way.

            But the real point is that YOU’RE NOT FAMILY. If your Significant Other were in the hospital and a life and death decision needed to be made the hospital would search for a family member to make that decision. Are the parents alive? No? What about children? No? Siblings? You wouldn’t just be at the end of that line; you wouldn’t be in the line at all. I, Rod Engelsman, would literally have as much standing to make that decision as you because we’re both just “unrelated adults” who happen to be standing around. The hospital folks aren’t being dicks in that situation; they’re just covering their asses. They don’t want to be sued somewhere down the line.

            The role of the state in all this is really just to be the certifying authority. In times past and in other societies that certifying authority could be something else like a clergy or even the consensus of the neighbors. Why does it matter so much to you specifically WHO that authority is? No one’s telling you you have to get married.  But if you want to be able to prove, particularly to people that don’t personally know you, that you’re family, you need something more than just your say-so. It’s like having a bill of sale or title to a car to prove that this car is indeed, your car.

            In the absence of some sort of proof it’s unclear to me what you’re expecting of civil society and why you think you should be entitled to it. On what basis?

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “But the real point is that YOU’RE NOT FAMILY. If your Significant Other
            were in the hospital and a life and death decision needed to be made the
            hospital would search for a family member to make that decision. Are
            the parents alive? No? What about children? No? Siblings?”

            What is it that defines us as not family? The state? The hospital?

            If the state says you have seven fingers, how many fingers do you have? Personally, I find have ten fingers regardless of what the state says.

          • http://www.facebook.com/nskinsella Stephan Kinsella

            See this horrifying case — Gay woman fights over hospital visitation rights in Miami court
            reports a heartbreaking, tragic story: “As her partner of 17 years
            slipped into a coma, Janice Langbehn pleaded with staff to let her into
            the woman’s hospital room. Despite legal proof of guardianship and
            “power of attorney,” Langbehn and the couple’s three adopted children
            were not recognized as family and denied access until eight hours later
            – just as the last rites were performed.”

            http://www.lewrockwell.com/blog/lewrw/archives/25350.html

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            The original article is missing, so I looked up the case on wikipedia. Who actually prevented her from visiting her partner, the hospital or the state? In the case of a private hospital I don’t favor the state dictating visitation rights, do you? Of course in the sort of mixed economy we live in all property rights are compromised.

          • http://www.facebook.com/nskinsella Stephan Kinsella

            I don’t know if it was private or not. Even if it was, my assumption is that this is an artificat of the state’s intervention in the market. I have no reason to think that hospitals would just follow state distinctions.

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            “What is it that defines us as not family? The state? The hospital?”

            Your unwillingness to take on the responsibilities of family in a binding, legally enforceable, way.

            “If
            the state says you have seven fingers, how many fingers do you have?
            Personally, I find have ten fingers regardless of what the state says.”

            You’ve got it backwards. You’re claiming to have eleven fingers when, in fact, you only have ten. And then you demand that everyone acknowledge your extra, phantom, finger.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            No, you’re confusing a note from the state with a finger. 

            I claim and have ten fingers. I don’t give a wet slap if everyone acknowledges it.

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            It was your analogy.

            And, yes, you do give a wet slap if others acknowledge it, because it has real-world consequences, and not just reflexively in dealing with the state you hate.

            Example: When I started my current job I had to provide proof that the wife and kids I was proposing to have covered under the company health plan were, indeed, my wife and children. The required proof? A marriage certificate from the State of Missouri and birth certificates from Kansas and Virginia for our children.

            As it stands you would not be able to get health coverage for your alleged wife and alleged family if you worked for my employer. You could piss and moan and cry all you want about not needing a “note” from the gubmint saying she was your wife and your kids were your kids but it wouldn’t make any difference. They’ve had issues in the past with people claiming mere girlfriends  or boyfriends as spouses and with thousands of employees and thousands of job seekers they simply don’t have time to deal with nutbars. Like you.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “And, yes, you do give a wet slap if others acknowledge it,…”

            No see, you said I was *demanding everyone* acknowledge it which was false. I don’t demand that anyone acknowledge it and I don’t care a whit what most think.

            ” You could piss and moan and cry all you want about not needing a “note”
            from the gubmint saying she was your wife and your kids were your kids
            but it wouldn’t make any difference.”

            I promise I won’t moan or cry. I know very well there can be a practical downside to not having government papers. The downside of having the state as a third partner in your marriage seems not to have occurred to you yet.

  • Anonymous

    Although I agree that the state should make same sex marriages available the rule of law, and your argument above is not an adequate basis on which to argue for it. 

    The rule of law is a purely formal concept and specifies very little by way of what positive actions must be taken by the state; it says more about the form of law then it does about the content. It is incompatible with the government deciding to give benefits to whites and then denying those same benefits to blacks, it is not incompatible with a prohibition on gay marriage. 

    To say that whites are entitled to benefits and blacks not is to deny one group of persons a legal entitlement that another group is entitled to on an arbitrary basis which is incompatible with the rule of law as it fails to treat people equally; that is it does not treat relevantly like cases alike. 

    The same is not the case with a ban on gay marriage under which every individual has exactly the same rights and all relevantly like cases are treated alike. Gay men and women are as entitled to get married as are straight men and women and they are entitled in the exact same way. That is to say gay men have every right to marry women, and gay women have every right to marry men, likewise with straights. Of course gay men and women are not allowed to marry people of the same sex, but neither are straight men and women, the legal rights of all are exactly the same. 

    Since the rule of law only requires that all like cases are treated alike and hence that the same legal entitlements are made available to all regardless of their colour, sex and sexual orientation, but has nothing to say about which rights are to be made available (which must be argued on separate grounds) an argument from the rule of law cannot lead to the conclusion that gay marriage should be made available. This is because the allowing gay marriage would amount to the creation of a new right (the right to marry a person of the same sex) and all the rule of law has to say on such an issue is that if this right is granted it should be granted to all i.e. men, women, blacks, whites, homosexuals and heterosexuals should all be legally permitted to marry someone of the same sex if anyone else is. 

    The correct ground on which to argue for gay marriage is that if two people want to enter into a legal relationship with each other, which harms nobody else then no one has any business preventing them from doing so!

    • http://www.facebook.com/people/Adam-Wargacki/28203937 Adam Wargacki

      Women are allowed to marry men.  Men are not allowed to marry men.  The same legal entitlements are not made available to all regardless of sex. 

      • Anonymous

        That’s true, although the situation could equally well be specified by saying that all people (regardless of sex) have the exact same right, that is a right to marry a person of the opposite sex, and all people are deprived of the exact same right namely a right to marry someone of the same sex as themselves. Under this description of the right in question everyone has the same legal entitlement regardless of sex.

        Either way, under any description, Steve’s argument is wrong because the law does not discriminate against homosexuals in the sense he suggests (i.e. a sense incompatible with the rule of law) and there is no analogy to discrimination in giving benefits to whites and not blacks. 

        That’s not to say that his conclusion is wrong though, just that he needs a better argument for it. 

  • Anonymous

    Screw the ‘right to marry’. We don’t even need that. Forbidding SSM is sexual discrimination, and I have no idea why everyone seems to wander off that point to talk about something else. Everyone always talks about it from the perspective of ‘what person you can marry’, but when you realize the actual question is ‘which person can marry this specific person’, it’s clearly discrimination based on gender.

    If someone is male, we decided barring all males from marrying them, and yet allow females. That’s such blatant and obvious sexual discrimination that it’s hard to imagine it in any other context. And, no, the fact that we do the inverse and bar females from marrying them if they’re female doesn’t fix it.

    What that means is that we’ve created one group of people that males can marry, and one group of people that females can marry. You know, like if we created one school that whites can attend, and one school that blacks can.

    We already decided that didn’t work, we’re not going to rehash why here. And it even more obviously doesn’t work in these circumstances…separate schools could have been ‘equal’ in theory, even though they weren’t in practice. But clearly potential marriage partners are not equal with random other people!

    Assuming we haven’t all forgotten that the Equal Protection of the 14th amendment has been held to bar discrimination based on gender unless it ‘furthers an important government interest in a way that is substantially related to that interest’, same sex marriage isn’t really open for debate unless someone can come up with one of those.

    Note, incidentally, that this direction neatly sidesteps both polygamy questions, and allows other restrictions on marriage such as incest. (And, incidentally, is on what grounds, except swapping race for sex, that Loving vs. Virginia should have been decided, not some right to marry. Whether or not that exists I don’t know, but I don’t see the point of it.)

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      I like this. And since we all know the actual motivations of opponents to SSM are grounded in religion, it should be noted that several faiths and denominations of faiths recognize SSM and perform the relevant ceremonies for such. So couldn’t a case be made on 1st amendment, freedom of religion grounds as well?

      • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

        “And since we all know the actual motivations of opponents to SSM are grounded in religion..”

        I’m an atheist who opposes state recognition of SSM.

        • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

          You’re an exception. But that’s only because you oppose STATE recognition of any marriage. I trust you don’t have a particular beef against gay folks.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            There are plenty of libertarians including theists who oppose it on the same grounds, that government should stay out of marriage.

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            In the national debate the libertarian perspective is a decidedly minority opinion.

            In the newspapers and on TV the debate is between progressives who argue on equal-rights or anti-discrimination grounds vs. traditionalists who argue almost monolithically on religious grounds.

            On those occasions when a progressive voices the opinion that the state should get out of the “marriage” business it’s always to argue in favor of some kind of non-discriminatory civil union, with “marriage” being left to churches.

            This discussion thread is literally the first time I’ve heard your argument put forth. It’s… unique. And I disagree with it.

          • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

            “On those occasions when a progressive voices the opinion that the state
            should get out of the “marriage” business it’s always to argue in favor
            of some kind of non-discriminatory civil union, with “marriage” being
            left to churches.”

            Are you unaware that some churches favor marrying gays? If marriage were left to the churches gay marriages would be performed. In fact I’m reasonably confident gay marriages have already been performed in church by clergy anyway.

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            Yes. I’ve already made the claim that this could be argued on 1st amendment, freedom of religion, grounds.

  • Anonymous

    “And you’d have no grounds for complaint, in my view, when others wonder if you’re a racist.” 

    I am not sure if it’s a step forward or backward if presently existing marriage is extended to gay couples short of having the state kicked out of that business, but I am quite sure that one has a right to complaint at your method which borders on intimidation or intellectual terrorism.

  • http://noodleincidents.wordpress.com/ Lizzaroni

    I’m late to the party, but I don’t find this especially hard.

    Traditionally, marriage (and most family law) has largely been left to the states. I think this is proper primarily because states also dictate the majority of property and testamentary rights. Since marriage dictates the rights that flow from a its particular legal relationship, it makes sense for states to have control over who may marry whom so that all of these rights and obligations remain in harmony.

    However, DOMA changed this landscape by providing a federal definition of marriage for federal purposes, thus laying the foundation for serious meddling by the federal government in an area traditionally left to the states.

    I would add to this mix that libertarianism creates a presumption of validity for voluntary transactions and relationships involving consenting adults. It infringes on no rights of others, and as far as tax and fraud concerns go, these are concerns that are not restricted to same-sex couples, and thus they should not be framed as part of the gay marriage issue.

    So, no, I don’t think that there is an /absolute/ presumption that libertarians should be in favor of federal recognition of same-sex marriage. At the very least, they should argue vociferously for such recognition under state law and deference to that law for federal purposes, as it has been in the past. I think this is especially true when you consider that state governments have accomplished the legalization of gay marriage piecemeal when the federal government has actively lobbied against it. It’s when libertarians support the traditional definition at a federal level that this blog’s argument is absolutely triggered; if you favor any definition at a federal level, the foundations of libertarianism dictate an inclusionary definition for all consenting adult pairs.

    As far as the Constitution is concerned – and most state constitutions – better to argue that homosexuality is an immutable characteristic that triggers intermediate or strict scrutiny, otherwise the Equal Protection claims fall flat no matter what.

    • Anonymous

      It’s when libertarians support the traditional definition at a federal
      level that this blog’s argument is absolutely triggered; if you favor
      any definition at a federal level, the foundations of libertarianism
      dictate an inclusionary definition for all consenting adult pairs.

      I think it’s slightly more than that. The foundations of libertarianism
      dictate an inclusionary definition for all consenting adult pairs as long as there is a federal definition. You can’t just say ‘I don’t like that thing existing at all, so I have no requirement to protest the injustice happening inside it’.

      You know what? I don’t like the various wars we’re involved in, but that, oddly, doesn’t stop me from getting upset and trying to propose a solution for the sheer amount of sexual assaults the female service members suffer under it. (A solution besides ‘Stop all the wars right now’.)

      I would add to this mix that libertarianism creates a presumption of
      validity for voluntary transactions and relationships involving
      consenting adults. It infringes on no rights of others, and as far as
      tax and fraud concerns go, these are concerns that are not restricted to
      same-sex couples, and thus they should not be framed as part of the gay
      marriage issue.

      Yes. While I am not a libertarian, like you are slightly baffled at the number of libertarians who seem to want to get rid of marriage. I have trouble imagining even the most strict libertarian taking issue with the government saying ‘We’re going to keep a list of pairs of names where people can assign a default level of authorization for controlling each other in the event of emergency and death. Sign up if you want.’. Although they might have issues with only allowing ‘pairs’ of names and demand groups.

      Sure, if I was a libertarian, I might say ‘don’t give those groups special rights from the government’, but libertarians are getting into near anarchy if they have a problem with the government keeping a voluntary list of names that people can sign up to be on.

      I rather suspect that ‘get the government out of the marriage business’ is just a way to sound very clever and avoid libertarians taking an stand on the gay marriage issue. It’s not even ‘the perfect being the enemy of the good’. It’s ‘using the imaginary perfect as a shield to keep from making a statement of the good’.

      As far as the Constitution is concerned – and most state constitutions -
      better to argue that homosexuality is an immutable characteristic that
      triggers intermediate or strict scrutiny, otherwise the Equal Protection
      claims fall flat no matter what. The state /can/ discriminate. It just
      has to meet certain requirements of ends and means depending on which
      class of people they are discriminating against.

      The thing is, the state isn’t discriminating against homosexual people in marriage. There is no marriage test for who is gay and who is not. No one says that gay people cannot participate.

      The test when you get married is ‘You wish to marry a woman? We only allow that if you are a man.’, which makes it sex-based discrimination, which, as I’m sure we’re all aware, is already (supposed to be) subject to intermediate scrutiny.

      No one needs to try to figure out how to get homosexuality in there. In fact, homosexuality won’t even work. As Bachmann pointed out in her clever, yet very stupid, retort, gay people can, in fact, get married. The problem is no man, gay or straight, can get married to a man. While women, gay or straight, are free to marry that same man. Sex-based discrimination.

      Now, it’s entirely possible that sexual orientation based discrimination should also require intermediate or strict scrutiny. If the state tries to ban gay people from, for example, teaching school, maybe they should have to prove that they have some reason to do that. But laws against same-sex marriages are, as implied in the name ‘same-sex marriage’, discriminating based on sex, not sexual orientation.

    • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

      “I don’t know how governments can stay out of marriage. It’s a legal
      relationship. It has consequences for a plethora of other rights
      governments protect. You render the primary purpose of getting married
      moot when you take the state out of the equation.”

      Precisely. It makes as much sense as getting the government out of the business of registering property titles. Sure, you can imagine some non-governmental agency to do these things, but ultimately when disputes arise, these things have to be decided by some third-party arbiter. And whether you call that arbiter “government” or something else is immaterial; it will effectively *be* the government because it will be doing what governments do.

      Libertarians tend to be one-trick ponies. In their view every problem in society or the economy is caused by “government” and so the solution to everything is the same, “Get the dad-burned gubmint out of it!”

  • Pingback: Do Not Conflate Recognition with Justice: A Reply to Horwitz | Libérale et libertaire

  • http://pudge.net/ pudge

    As a libertarian, I will reject any attempt to expand the definition of marriage on the basis of equal protection unless that expansion is truly equal.

    So yes, if incest/sibling marriage is still excluded, I won’t support the attempt.

    Many pro-suffrage women opposed the Fifteenth Amendment for similar reasons, so I am in good company.

    I think sibling marriage is pretty damned gross, but I don’t believe in backing “equality” that isn’t equal.  I won’t accept it.  It sets a bad precedent.  Equal means equal.

  • paulbenedict

    Dear Steve,
     
    I enjoyed your discussion of Says Law and its misrepresentation by Keynes. Liked your appearance on Napolitano’s old show. You’re giving that college in the Arctic wilderness a good name.
     
    Still, SSM is not economics. Is it possible you are confusing the rights of (pertaining to) marriage with marriage itself? California Civil Unions demonstrate that the rights of marriage can be granted without demanding that the people lie about what a marriage is.
     
    Is it wise to allow  governments, in the name of social justice, to demand people lie about the nature of a marriage contract? Isn’t a marriage contract based on a common bond and experience that, biologically, same sex couples can never experience? Allowing governments to say that this is NOT a marriage denies the “right to marry” to every citizen.
     
    Paul

  • Pingback: Gender Rights | Bleeding Heart Libertarians

  • R.L. Styne

    I thought welfare was bad for people. I guess not. More welfare, says the libertarian!

    wow

  • http://www.facebook.com/billardkarr Bill Karr

    It is easy to encourage the use of the 14th Amendment by the Federal government for libertarian causes in theory, but I’d be careful thinking that it will go well in practice. I think there’s a good deal of evidence that the 14th has been used far more frequently as a weapon against liberty and Federalism than it has as a weapon for liberty. I don’t think encouraging further Federal intervention into marriage is a good idea, even if it could go well for us initially.

    See more here: http://www.lewrockwell.com/orig/healy1.html (inb4: “EW, LewRockwell.com?? RACIST!” But the article was originally written by Gene Healy in Liberty Magazine, not Lew Rockwell’s website, so you should read it.)

    In any case, I actually am still a proponent of state-level same-sex marriage legalization as a middle step, I’m just not a supporter of Federal enforcement of this. On the Loving v. Virginia case, I think it’s a bit different than today. The Lovings were both put in prison for a year and given felonies for going to D.C. to get a D.C. marriage license and coming back to Virginia. That’s a lot worse than the State of Virginia just not giving them a marriage license.

    I’m willing to be a Federal intervention apologist when people are being enslaved, beaten up by police, given longer sentences than whites for the same crimes, etc. but I don’t think it’s necessary for them to override states on this issue and force states to give out same-sex marriage licenses. Repealing DOMA almost fully gets left-libertarians what they want without overriding 40+ states by making them hand out same-sex marriage licenses. This was from a blog I recently read:

    “Advocating top-down anti-federalist intervention doesn’t limit government. The real target should be the Defense of Marriage Act. According to this law no State has to recognize a same-sex marriage from another state. Article IV, Section of the U.S. Constitution, the Full Faith and Credit Clause states:

    “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

    If you have a driver’s license in the Commonwealth of Massachusetts, that license is recognized in any other state you drive through. With DOMA, your marriage license, a public record, isn’t given the same respect as your driver’s license. If you were charged with a crime in a state that does not recognize your marriage you could be forced to testify against your spouse. Repealing this law would allow a same-sex couple legal recognition in all 50 states even if most would not allow them to marry.”

    See here: http://libertywithoutapologies.com/2013/03/27/fingers-crossed-for-states-rights/

    I’ll also respond directly to a couple other things.

    “So my friends, what, if anything, differentiates the cases? Are you willing to bite hard on thereductio and argue that non-whites should be denied Social Security benefits?”

    I don’t understand why left-libertarians don’t seem to get this: opposing Federal intervention is not the same as arguing FOR discrimination. Means vs. ends. The Federal intervention for the civil rights movement of the ’60s led to a lot more than just equal treatment under the law. It lead to the construction of the modern welfare state, the Federalization of education, and a bunch of other bad things for the liberty movement.

    So, that’s basically my stance. SCOTUS should repeal DOMA, they should send Prop. 8 back to a lower court (where it will be struck down). Continue the fight to legalize state-by-state. Allow the Federal government to stop discriminating without forcing 40+ states to give out same-sex marriage licenses. It’s a semi-decentralize approach and doesn’t give the Feds any new excuses to get any more into the marriage issue than it already has.

  • It’s genius!

    Reductio ad Horwitzum: Instantly divert a discussion on any topic into an absurd hypothetical where your opponent must either agree with you or allow a white person to oppress a black person somehow.

  • luckywife

    Libertarians who believe #4 ought to reading Robert Bork’s The Tempting of America. I find it appalling that a serious Libertarian would approve of the Supreme Court, make that 5 members of the Supreme Court, would decide for all 50 states a matter that has been the prerogative of the states to determine. He who lives by Supreme Court decisions, sooner or later dies by Supreme Court decisions,

  • luckywife