As the Supreme Court takes up the same-sex marriage issue, I wanted to re-post an old blog post of mine from Liberty and Power back in September of 2008.  Not only is it perhaps my favorite piece I’ve ever written on SSM, it seems to fit very nicely with the spirit of BHL.  I reprint it below unedited.

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I interrupt the ongoing socialization of US credit markets with a temporary subject change (and not because my subject is necessarily more important).

I spent yesterday morning attending a memorial service for the mother of a colleague here at SLU. One element of the SLU campus is that we have a large (for our size) and vibrant gay and lesbian community within the faculty, of which the colleague in question is a member. Watching her long-time partner grip her hand as they walked in and watching one member of a gay faculty couple with his arm around his long-time partner during the service (not to mention another long-time lesbian couple two rows behind me) got me thinking about the same-sex marriage issue.

We all share a common humanity when it comes to death, especially of those close to us. We turn to the people we’ve built and shared a life with for comfort and consolation in those times. We share that same humanity in times of great joy – at the weddings or births or anniversaries of our friends and family. And we want to share those moments with the person with whom we’ve shared the journey of our lives.

Sitting there watching those three couples and thinking about how they can never fully share those times of sorrow and joy without thinking twice about where they are and who might be watching, and without the full protection of the law if it was their own partner who was being mourned, not to mention whether some of their own families and friends might have rejected the very relationships that sustain them in such times, welled up my political anger and sense of injustice, of both the thin and thick libertarian variety.

Libertarians can disagree in good faith about what the relationship should be between marriage and the state. In the first-best world, many of us agree that marriage should be freed from the state. I certainly do. And in the second-best world we can and do disagree about whether the state should treat same-sex couples equally when it comes to marriage. As a matter of justice and equality under the law (a classical liberal idea that unfortunately gets short shrift in the modern libertarian emphasis on reducing the size and scope of the state), my own view is that libertarians should support measures to legalize same-sex marriage, including judicial ones. That said, there are certainly cogent libertarian arguments in the other direction, weaker though they may be.

As my wife and I celebrate our 20th anniversary this coming Thursday, I simply cannot imagine having to engage in the fancy footwork about our relationship that gays and lesbians do about theirs, nor wondering and worrying about how the law would treat either of us if something happened to the other. These concerns about our common humanity and treating equally the relationships so many of us rely on in times of sorrow and joy should, in my view, be part of a thicker libertarianism that is more than just politically tolerant or neutral about such relationships, but instead is positively supportive of them as part of a larger vision of a world in which individuals are free to create meaning out of the voluntary relationships they construct in their lives.

To be clear: I’m not suggesting any role for the state in this (beyond treating such relationships as equal to heterosexual ones as a second-best solution), nor am I suggesting that it is “unlibertarian” to simply dislike such relationships. What I am saying is that I wish more libertarians would get past thin approaches that treat the marriage issue no differently than the issue of, say, whether municipal power companies are inefficient.

The marriage question is more than an abstract exercise in political philosophy; it goes to the very core of who we are as human beings and what it means to live a life of dignity. How someone committed to individual liberty can be anything less than supportive of the desire of gays and lesbians to be treated equally, both under the law and in the eyes of others, when it comes to how we face the common sorrows and joys of human existence remains a very frustrating puzzle to me.

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  • Cris

    This is why I love the Bleeding Heart Libertarian!

  • martinbrock

    That’s very moving, but I’ve yet to hear an argument for a state licensing and regulating the most private of interpersonal relationships that wasn’t very moving. To some extent, I get why states institutional the relationship between parents of the same children. The children have interests independent of the parents, and the parents have interests in the children independent of their interests in one another.

    The romantic relationship between two adults who are not parents of the same children is fundamentally different. These adults should not be burdened with wills and declarations of power of attorney? They shouldn’t even be burdened by the necessity of explicitly accepting a package of these arrangements crafted by the same voluntary association blessing their union in a sacred ceremony? Benevolent politicians in a central committee should take care of that for them?

    My relationship with a lifelong partner merits less consideration than my relationship with a used car salesman? For the latter, I need a bilateral contract and more than a little reflection, but for the former, I just sign whatever terms the central committeemen set before me and … what? … trust in God?

    Statutory marriage is a pretext for divorce designed by a committee of lawyers. It’s not about cementing a loving relationship at all. Sacred marriage in some traditions was and still is, but that’s not at all what we’re discussing here.

    • Sean II

      “That’s very moving…”

      And yet you are unmoved.

      • martinbrock

        I don’t decide my politics with appeals to emotion, because my politics is an extremely limited idea of when and how I should aim a gun at your head and threaten to kill you unless you bend to my iron will. All politics, however limited, involves the same idea, and blurring distinctions with appeals to emotion to advance a political agenda is the refuge of a scoundrel.

  • Sean II

    “…there are certainly cogent libertarian arguments in the other direction, weaker though they may be”

    Very gently put. As I call the game, the anti-gay marriage libertarians are either a) conservatives, or b) ideological-purity Trappists who got their asses handed to them in a very one-sided debate. Their position is already a parody of itself, but I won’t let that stop me from trying to improve it:

    Imagine it’s 1946 and the Dodgers are about to sign Jackie Robinson. A pollster goes out to gauge the reaction among various ideological groups. The Northern Democrat says “I’m all for it.” The Eastern Republican says “Okay, I guess. What do I care? I’ll be politically extinct soon enough.” The Southern Democrat says “No way. Baseball should hold to the same rules we follow in churches, army barracks, and schoolhouses. It’s not like those are all suddenly about to change, so why should baseball be different?” The Western Republican says “Refresh my memory, what is baseball? And who are blacks?” The thick libertarian says “Good start, but it doesn’t go far enough. Also, it’s 1946 and I don’t quite exist yet.”

    The thin, hard libertarian says “No, no, NO! I’m not falling for that. Major League Baseball is a government-granted monopoly grown rich from the shabby lucre of trademarking, led by a central planning commissar, sustained by eminent domain takings and blood money stadiums. The last thing I want to do is expand such a monstrous creature of the state! Jackie should stay where is and be proud of working in the privately-funded, spontaneously-ordered Negro Leagues. Besides, in a truly free-market, home runs would hit themselves and incumbent players would be released to pursue other forms of socially useful labor.”

    • martinbrock

      That’s all very amusing, but it doesn’t address a single, substantive objection to states licensing and regulating romantic partnerships. It’s just a catalog of all the usual diversions. First, you simply characterize proponents of a counterpoint as “ideological Trappists” and similarly vacuous, irrelevant caricatures. That’s just a high-brow ad hominem. Then you launch into a tangent on baseball and racism. That’s just conflating apples with oranges. You never get around to the marriage issue at all.

      • j r

        Sorry Martin, Sean is right on. This isn’t about justifying the institution of marriage. This is about dealing with the reality of the institution as it now exists. There is a certain solipsism in your line of argument that implies that the real world ought to comport to your ideological purity as opposed to trying to make your ideas relevant to how people actually live.

        If you really wanted to see us move in the direction of changing the institutional nature of marriage, you should probably support gay marriage as a necessary incremental step towards that end. What you have is a real failure to incorporate game theory into your thinking. Marriage isn’t some institution that was imposed upon us by an external state; rather, it is the result of an iterative process that evolved over the course of human history and the history of common law. The desire to wish it away without any thought to how future iterations of this process will play out and with only the pure power of your deductive reasoning is downright bizarre.

        • martinbrock

          I understand that you agree with Sean, but this is about justifying a new institution of gay marriage, so any justification for the existing institution of marriage seems relevant.

          I am discussing the real world. Gay marriage is the statutory reform that doesn’t exist. Even states that have enacted civil union statutes haven’t fully incorporated gay relationships into statutory “marriage”. Arguments for gay marriage argue that the real word ought to comport to the ideological purity of proponents of gay marriage. Don’t they?

          Real gay couples not entitled to statutory “marriage” have already declared health care proxies to secure hospital visitation rights. In what sense does this advice imply that the real world ought to comport with my ideology? Doesn’t the real world already comport with my ideology in this regard?

          No. If I want to see statutory marriage move in another direction, I should support the move in another direction rather than supporting an expansion of the institution without any reform that I favor. I don’t favor licensing or regulating or publicly registering romantic relationships between adults at all.

          If you want to know how I’d reform historical marriage, we can discuss that, most existing statutory marriages would cease to be statutory marriages under this reform, so I don’t see how more statutory marriages could be progress in this direction. Is this reform idealistic? Of course, it is, but it’s no more idealistic than gay marriage.

          I have no problem with marriage, including gay marriage, not imposed by an external state, but we are specifically discussing statutory reforms here. If we aren’t, then I’m as pro-gay marriage as anyone else, if not more so. Again, customary marriage is precisely what I advocate as an alternative.

          I have no desire wish marriage away. I desire to repeal statutory interference with customary marriage.

          • j r

            I understand that you agree with Sean, but this is about justifying a new institution of gay marriage

            No, it’s not. It’s about adjusting the parameters of the existing institution. And the reality is that no changes will be made to the existing institution until this matter is settled. That is the conversation that we are having right now. If you don’t agree with the expansion, that’s fine. I’m not putting you down for it. I just wish you would stick to the topic at hand or leave this conversation to those who wish to have it.

          • martinbrock

            You’re playing word games here. You’re the one advocating an expanded class of people with statutory privileges through a political reform. You’re the one saying that the law must comport to your ideals though it currently doesn’t.

            I am sticking to the topic, and here’s a point you ignore. No one needs a statutory reform to have the “marriage” that I favor for romantic partnerships. They can have it already, and many, many romantic couples, both gay and straight, do have it already.

      • Sean II

        Martin – this is getting out of hand. I admit I’ve been fucking with you a bit, and I won’t insult your intelligence by pretending to apologize for that. I do it deliberately, because I find your position on this issue to be without excuse…even as I confess that I once said the same thing you are saying now.

        There are people in this world who work very hard to make fun of libertarians, racking their brains for new ways to depict us as cold, ungenerous, fetishists of theory indifferent to flesh and blood. Today I think those people have a good case to bring against you for loss of livelihood. I’ll lend them my testimony, sure enough.

        I wish you’d take a second look at my Jackie Robinson analogy, because it really is intended as an answer to you. And while I hate to murder a joke by the crime of spelling it out…

        The state brings many harms to many people. Some harms are diffuse (like the .00X cents taken from every American taxpayer to pay my wife’s academic stipend). Some harms are concentrated (like a drug war victim shot by a SWAT team).

        As a rule, the diffuse harms do a lot of cumulative damage and, since almost no one is aware of them, they are especially difficult to undo. But the concentrated harms are morally worse because they tend to ruin whole lives, or deprive whole categories of people access to things they want and need…and especially because the general public is fully aware of these harms, and yet lets them continue.

        The state’s intervention in major league baseball is a diffuse harm for most people. The subsidization of legal marriage is a diffuse harm for most people. I can’t legally sell tickets to MLB games, and when I was a bachelor, I couldn’t legally claim this or that tax advantage, etc. Not nothing in terms of libertarian principle, but also not a terribly big deal.

        But for gay people who want the benefit of legal marriage, the harm of denying that to them is not diffuse. It is conspicuously and arbitrarily concentrated.

        I don’t really care why gay people want to marry so much. It could be for the sake of health benefits or tax deductions or acces to courts for family law or for adoption purposes or eligibility to take part in condo associations. It could be they want it just for the symbolic value of saying: “Fuck you, middle America. Fuck you, religious heterosexists. We’re not getting beat up by confused hooligans anymore, we’re not getting raided by vice squads, we’re not going back into the closet.”

        I don’t know why they want it, but there are some things I do know:

        1) The reasons why gay people have historically been denied access to marriage are not good reasons, and have nothing to do with libertarian scruple. We should not be caught using our building blocks to prop up a wall that bigotry built.

        2) Gays can be allowed to legally marry without concentrated harm to anyone, and indeed – since unmarried people are already disadvantaged in various ways – without doing any fresh harm to anyone.

        3) The subjective happiness felt by people in the gay community when they gain access to this small legal privilege is obvious and massive. It would be hard to imagine a reform that brings such vast benefits at such little cost.

        4) Inside a span of ten years or less, gay marriage is going to win, with us or without us.

        5) Marriage equality today is probably a step on the road to marriage privatization tomorrow. The main force acting to defend legal marriage in its current form is the heterosexist, “one penis + one vagina or else go fuck yourself” lobby. Once they’ve been beaten, the world will be one step close to being ready to hear what Martin Brock has to say on the subject.

        But Martin…if you insist on saying everything now, you get nothing, and you make it harder for the rest of us, too.

        • martinbrock

          See above.

    • matt b

      Damn Sean, you’re killing it here. Rough but well reasoned.

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    There is a more general point here, one which Mill discusses in ‘On Liberty,’ about the stifling effects of intolerant attitudes on liberty. I am inclined to say that libertarians respect the rights of others to be bigots; but a libertarian cannot in good faith be a bigot himself and, perhaps, even has a non-enforceable, ‘imperfect’ duty (qua libertarian) to combat intolerant attitudes.

    • http://independent.academia.edu/DannyFrederick Danny Frederick

      ‘Combat’ should not be taken literally: I am talking about persuasion – intellectual combat.

      • Sean II

        A very libertarian disclaimer.

        In our Thunderdome there will be no chainsaws, maces, war hammers, scimitars, etc. There’ll just be some thought experiments, a chess board, a set for Trivial Pursuit: Genus I, and a couple really difficult Sudoku puzzles.

        • martinbrock

          That doesn’t seem like a libertarian disclaimer to me. If some people want a Thunderdome with chainsaws, maces, war hammers and scimitars, as long they aren’t forcing anyone into it, what’s it to me? Do libertarians also want to ban boxing? Where is the line?

    • martinbrock

      A libertarian can be a bigot as long as he does not seek to impose his bigotry through the state. Other libertarians may try to persuade their bigoted comrade to abandon his bigotry, as long as the bigot is willing to listen, but disliking someone that I like for reasons that I don’t like should not disqualify a person from the libertarian fold. We don’t need to be so exclusive.

    • j r

      I would put it this way. If you are a libertarian and a bigot, you are either a very poor libertarian or a very poor bigot.

      To put it in economic terms, there is a budget constraint that limits the amount that you can consume from those two baskets of ideas.

  • martinbrock

    @Sean II

    I’m not a cold, ungenerous fetishist of theory indifferent to flesh and blood, so if some people caricature me this way, I just ignore them. I’m a fifty-one year old man who likes sucking dicks. You think I’ve never been caricatured as a fetishist before? You think libertarian caricatures are the worst of it? Think again.

    I took more than a second to reply to your Jackie Robinson analogy, and you ignored my reply. Here’s the thing. I believe that Jackie Robinson and professional baseball and the whole world generally was better off after the desegregation of major league baseball, regardless of how it happened, and as you say, the state was already involved in major league baseball.

    I do not believe that gay marriage makes gay people better off than they are now. Gay people are better off than straight people now, precisely because they do not marry. Do political activists believe something else? Yes. Are political activists always right? Hardly. They’re more often wrong.

    Gay couples can already address most of the issues we discuss here, and most of the issues they cannot address, like tax breaks, are issues that they shouldn’t address in my way of thinking. A wealthy gay man gets a huge tax break by supporting a sexual partner who does not work otherwise? Why? Because wealthy straight men get huge tax breaks for hiring prostitutes this way? Because giving this tax break to wealthy straight men and not wealthy gay men is unfair?

    O.K. It’s unfair to the wealthy gay men vis a vis wealthy straight men, but I just don’t have tears to spare for them. Call me cold and ungenerous.

    But what about middle income couples where both spouses work? Do you know what their tax breaks are worth? Often, they’re worth less than nothing. A middle income straight couple choosing to marry can pay more taxes than a comparable, unmarried couple, regardless of sexual orientation. These laws are perrenial political footballs now, so the balance is always changing, but when I first married in the eighties, the joint tax liability of my wife and I rose by a thousand dollars a year.

    Unintended consequences? Yes, that’s what we call them, and they’re a great reason not to trust politicians with the terms of your relationships.

    There is no substantial harm of denying a gay couple benefits of statutory marriage. That’s the point you’re ignoring. That some political activists say that they’re terribly harmed by the failure of politicians to privilege them is not itself evidence of any harm.

    Access to family courts? Are you kidding? Have you ever been in a family court? A divorce lawyer is the gift we’re giving to gay couples?

    Condo associations decide the rules of condo associations. If a condo association doesn’t want gay couples in the association, gay marriage doesn’t change anything unless the state forbids condo associations from discriminating against gay married couples specifically. If I wanted the state to forbid this discrimination, I’d want the state to forbid discrimination against gay people regardless of a license. Wouldn’t you?

    I do know why gays want marriage. They’ve heard that they’re oppressed because they don’t have it, and they don’t like the idea of being oppressed. Why do I say so? Because gay couples can address 90% of the alleged oppression with joint property ownership, wills, proxy declarations and other legal instruments already available to them, and they don’t. Most gay couples don’t form civil unions in states with civil union statutes either, for the same reasons that many straight couples don’t marry, because the benefits of marriage are vastly overstated, and the disadvantages often outweigh the benefits for one or both partners.

    1) The reasons why gay people have historically been thrown in jail for being gay are not good reasons, but by all means, let’s all register our sexual preference at the local courthouse.

    Bigotry did not build a wall forbidding gays to marry. Historical marriage is largely about procreation, and gay couples don’t procreate. Siblings can’t marry either for similar reasons. Nuns can’t marry, and it’s not simply because God hates cunnilingus. Nuns marry the church, i.e. they’re expected to devote their maternal energies to a religious purpose like aiding the poor, and they can only do so if they aren’t devoting maternal energies to being mothers.

    Gay marriage has become an issue largely because straight marriage no longer reflects this historical pattern. Straight marriage is now about privileges for licensed romantic relationships regardless of children, and gay couples feel excluded from the privileged class, but I don’t want to expand privileged classes. I want to shrink them, because I’m still very much an egalitarian. I was an egalitarian before I was a libertarian, and I was pro-gay rights before I was a libertarian. The whole “left/right” thing seems stupid to me now, but my own history is much more radically left than right, regardless of caricatures.

    2) Statutory gay marriage harms gays. It harms gays who don’t understand that statutory marriage is a pretext for divorce, a trap set for the romantically blind by a committee of lawyers. It harms gays who don’t want to marry but must subsidize gays who do want to marry, and the “unconcentrated harm” argument is not persuasive. If half of gays marry, the other half pays the subsidy, so the weight on the subsidizing is equivalent to the weight lifted from the subsidized. Sure, if very few gays marry, the subsidy is not so heavy, but if few gays marry, what’s the point? Not receiving the subsidy is not a terrible burden in fact.

    3) We give tax breaks and other privileges to already wealthy people because their subjective happiness will increase? Really?

    The benefits of gay marriage are vast? Because some gay political activists told you so? What are these vast benefits? Lower health insurance premiums? My employer already offers joint health insurance benefits to domestic partners including gay partners, and even if it didn’t, gay people are more than numerous enough to form their own insurance pool. Google “gay insurance”.

    4) They’re going to win anyway, so we might as well climb on the train? That goes for Obamacare and nationalization of the banking system too? What state program is a libertarian not supposed to support these days?

    The gay community was a natural constituency for libertarians when I was younger, when libertarians advocated “free love” (as in love not regulated by the state). Gay relationships were a model of spontaneous order then. They couldn’t be regulated by the state, because they were still technically criminal. Something similar will happen to the marijuana business when pot is more widely decriminalized. An ironically very free market will become a heavily regulated market.

    But the gay community, at least the political activists, are no longer a natural, libertarian constituency, unless you think Rachel Maddow is a model libertarian. Gay political activists identify with big state “liberalism”, not with libertarians. Among the exceptions, you’ll find Justin Raimondo, but he also opposes gay marriage, and Rachel Maddow presumably hates him now that Obama is bombing the wedding parties rather than Dubya.

    5) Gay marriage is anything but a step toward marriage privatization. It expands the constituency for statutory marriage rather than shrinking it. It also divorces children from marriage even further, because the newly marrieds are even more child-free. If we were discussing a reform of marriage focused on parents of the same children, including adoptive gay parents, you’d have my support, but that issue’s not even on the table. It’s vastly more important, but it’s not even on the radar screen.

    • Sean II

      So to sum up:

      1) Gays don’t really want to marry, they just suffer from false consciousness.
      2) Besides, gay people can already have 90% of what marriage is.
      3) Gay marriage is a wormhole of logic on the Road to Serfdom.
      4) Condo associations are not a valid example of statism.
      5) The fact that gay leftists are leftists has nothing to do with the poor quality of the political choices available to them.

      I gotta hand it to you, Martin. You’ve got me cold on item 4). As for the rest of your points, you go ahead and keep those.

      To return the favor, I’ll give you an ace you can keep:

      A) Libertarians ought not to be against things that make many people happy, and hurt no one very much. The only substantial harm of gay marriage is that it upsets people who wish to control the sex lives of others. That is one kind of harm to which libertarians may and indeed must remain indifferent.

      • martinbrock

        You get to sum up for you, not for me. Putting your words in my mouth is only a denial reflex whereby you avoid processing my words.

        1) Many gays really want to marry, just as many people really want socialist governments … until they get one.
        2) Gay people can have 90% of the marriage they want if they’ll take 0.01% of their lifelong partnership to discuss and then formalize the arrangement with their partner. The marriage they’ll get from the central committee is another matter.
        3) Gay marriage is a wormhole of logic on the Road to Serfdom. That’s not a bad summary. I’ll take it.
        4) Condo associations are the antithesis of statism. I don’t want to force free associations to like me. The world is full of people who like me without force. I don’t need or want to secure my place in the world by force.
        5) Now that their choices are no longer criminal, gay leftists and rightists have many wonderful choices available to them. They don’t need to plead for favors from the people who only a decade ago were still jailing them simply for being who they are.

        I’m not against things that make many people happy and hurt no one. Again (and again and again), I fully endorse every marriage that Troy Perry has ever performed since 1969. It’s not these ceremonies or the vows of the partners or the lives they pledged to live and did live that I oppose. It’s the monopolistic institution crafted by a committee of politicians, many of whom openly despise gay people enough to lock them in cages and hardly any of whom are gay.

    • j r

      Martin, I think you have some very valid objections to gay marriage, but they strike me better suited as admonition to gays and to other progressive minded folks that extending the marriage franchise to gays won’t be all that it’s cracked up to be.

      I imagine that back around the time that the civil rights movement was gathering steam, you wouldn’t have to look to hard to find a black person, likely around your age, offering similar warnings about integration. A person like that might have looked at HBCUs, at black business districts in segregated cities, at Negro League ball clubs and argued that developing those institutions would be a much better idea than trying to force your way into white institutions. There was merit in that argument and much truth in some of the attendant predictions, but it’s still not a compelling argument for Jim Crow, or even for a more equal version of separate but equal. Likewise, you may very well be right about the future of gays under state-sanctioned marriage, but I still find it lacking as an argument in the debate happening right now.

      Fact is, lots of gay folks want this. And your belief that they would be better off without it strikes me as oddly paternalistic for a libertarian argument.

      • martinbrock

        Though I thought of Martin Luther King as my namesake when I was younger, I was more a follower of Malcolm X as I aged. People warning about ill effects of forced integration were right. Jim Crow was forced segregation. Forced integration is not the solution to forced segregation.

        The analogy between gays excluded from marriage, an institution historically intertwined with procreation, and blacks excluded from all manner of public services based on race, is actually very weak.

        So if I want gay people themselves to craft the terms of gay relationships within gay communities like the MCC, rather than adopting terms crafted by overwhelmingly straight, central committees of statesmen, I’m paternalistic? O.K. I hadn’t though of “paternalism” in quite that way before, but we all get to use words as we choose.

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