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.