Press Release: Libertarian Party’s Four Decades of Advocacy for Marriage Equality Pays Off with US Supreme Court Decision

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Press Release

For Immediate Release

Friday, June 26, 2015

Libertarian Party’s four decades of advocacy for marriage equality pays off with US Supreme Court decision

In a 5-4 ruling today, the Supreme Court held that the Fourteenth Amendment requires states to license same-sex marriage and recognize those marriages entered into in other states.

Libertarian candidates, including the party’s 1976 presidential nominee Roger MacBride, have been bravely calling for marriage equality since long before it was politically correct. In fact, they’ve been doing so when it was considered downright dangerous.

David Boaz, Vice President of the Cato Institute, noted in a column in the Advocate, “The Libertarian Party endorsed gay rights with its first platform in 1972 — the same year the Democratic nominee for vice president referred to “queers” in a Chicago speech. In 1976 the Libertarian Party issued a pamphlet calling for an end to antigay laws and endorsing full marriage rights.”

“I’m glad to see that the Supreme Court has upheld the equal rights for all Americans that the Libertarian Party has been fighting for for over forty years,” said Nicholas Sarwark, Chair of the Libertarian National Committee.

“We applaud and celebrate this victory, and we will continue to fight for the rights of all Americans to pursue happiness and prosperity in any way they choose,” he said, “as long as they don’t hurt others or take their stuff,”

The Press Release can be found here.

154 thoughts on “Press Release: Libertarian Party’s Four Decades of Advocacy for Marriage Equality Pays Off with US Supreme Court Decision

  1. Bondurant

    I really wish, though, people would stop placing the Supreme Court for granting or stripping away natural rights that the Supreme Court has to right to grant or strip. Until there is no government bounty on human love/relationships, there is no justice.

  2. Robert Capozzi

    Boy, is this one ever a relief! Ls were certainly well ahead of the curve on this one, although I wonder if this is an L victory or not. That Ls were among the first to take the marriage equality position, but I suspect most view this as a “liberal” victory.

    Oddly enough, unlike Roe, I suspect the GOP bosses are relieved by this ruling. No longer will the knuckledraggers require its candidates to resist same-gender marriage.

  3. Matt Cholko

    I agree RC. But, still, Ls certainly had *some* impact on the change in public opinion, even if it wasn’t a lot (or, maybe it was).

    At the end of the day here, the outcome of the decision is that more loving couples will be able to marry, should they wish to do so. Marriage shouldn’t be legally important. But, it is. So, lets just be happy that fewer people are being hurt by government now.

    Now, we continue to push for getting government out of marriage completely, and ending the mass caging of non-violent people, and ending the killing of brown people in far away places……

  4. Robert Capozzi

    mc: I agree RC. But, still, Ls certainly had *some* impact on the change in public opinion, even if it wasn’t a lot (or, maybe it was).

    me: Possibly. I don’t perceive that marriage equality has been a marquee issue with Ls, but maybe it has. On balance, my perception is that marriage equality is maybe issue #30 at best in the LM.

  5. Jill Pyeatt Post author

    I think marriage equality has been in the top 5 of important Libertarian issues, at least in CA. The other two top issues here, I would say, would be respecting the Second Amendment and stopping drug prohibition. I’m wondering what issues might be more important in other states. I admit we are “special” here in California!

  6. Robert Capozzi

    jp, I could imagine that might be true in CA. I wonder how long that was the case. Was it the case since, say, the 80s? Did your Guv candidates always make it a top issue?

  7. Jill Pyeatt Post author

    Robert, I have no idea what was going on in the 80’s. I was starting a business and was a registered Republican, as I had been my whole life until Dubya happened, and I wasn’t very political then. I didn’t become politically interested until I had a child and realized raising him right meant nothing if the world he lived in was crappy.

  8. langa

    This headline is really pure spin. Specifically, the phrase “pays off” is very misleading, since it implies that the Court’s decision was the result of people’s minds being changed by libertarian arguments. In fact, the reason society’s attitude toward gay marriage has changed is simply because most people no longer believe that homosexuality is wrong or sinful. It has nothing whatsoever to do with the libertarian arguments about gay marriage, which have always been focused on freedom of association. The Court’s decision is in no way an endorsement of the libertarian position that government shouldn’t be involved in marriage. In fact, if anything, it constitutes a further rejection of that position.

    Nevertheless, I am happy to see this decision, since it will hopefully put an end to the whole gay marriage issue, and allow libertarians to focus on other issues, where we can hopefully call for actual libertarians solutions that involve, you know, reducing the size and scope of government, rather than waste our time arguing for big government “solutions” to big government problems.

    (Given the frequent mischaracterization of my position on this issue, I feel compelled to note that I do not, in any way, support any sort of government prohibition of gay marriage. On the contrary, I am vehemently opposed to such prohibitions, regardless of whether they occur at the federal, state or local level. So, please, check your straw men at the door.)

  9. Robert Capozzi

    jp, fair enough. Have the LP CA candidates for Guv and Senate been making marriage equality a top 3 issue since 2000?

  10. Robert Capozzi

    Langa, yes, “pays off” feels like a big-time stretch to me, too.

    Pete Townshend plausibly could take a bow for the new revolution, but the LP “winning” on marriage equality? Not so much, I don’t think.

  11. Jill Pyeatt Post author

    In this case, I used the LP headline and just added “Press release”. I really couldn’t think of a better way to word it.

  12. Andy Craig

    I think some are really underestimating how big a role libertarian legal scholars and their arguments did play in getting to today’s decision, and with the broader revival of stronger 14th Amendment protections against state action.

    I know some Libertarians don’t know how to take yes for an answer, but describing the Obergerfell ruling as vindicating a position the LP has taken for its entire history, is 100% accurate. Many state LPs were active in fighting against the marriage bans when they were first passed, and the national party was advocating legal equality since 1971. The platform is *both* anti-licensing *and* anti-government-discrimination, which isn’t really that complicated and isn’t in any way a contradiction.

    If you want the Supreme Court to command the end of marriage licensing altogether, you’re free to file suit to that effect and try to get it to the Court and get them to rule in favor of that proposition. Complaining that they didn’t rule on a question that wasn’t before them, is misunderstanding how the judiciary works. Nobody was *asking* the Court to abolish civil marriage, because that had nothing to do with the issues presented.

    I don’t see Libertarians complaining that we should have condemned the Heller ruling on the grounds that it didn’t totally strike down all gun control laws everywhere in the nation and so therefore the status quo ante was better. I don’t see how this is any different. Think of it like moving from may-issue to shall-issue: not as good as no permit required, but still better than requiring a permit and then denying it to people who want one.

  13. Robert Capozzi

    ac: I think some are really underestimating how big a role libertarian legal scholars and their arguments did play in getting to today’s decision, and with the broader revival of stronger 14th Amendment protections against state action.

    me: Any layman’s sources for your case?

    In my estimation, L economists have had some very minor influence on some outcomes, and L foreign affairs scholars have had none at all that I can see. Perhaps L lawyers are of more influence in that guild, but I’d like to see the case for it.

  14. paulie

    Today is also the 7th anniversary of the Heller decision (2nd Amendment). Maybe we can build it into a freedom to marry/freedom to carry theme, or some other press releases if e.g. state parties do some more?

  15. langa

    Many state LPs were active in fighting against the marriage bans when they were first passed, and the national party was advocating legal equality since 1971.

    And yet, in spite of all those decades of libertarians making libertarian arguments, no real progress was made until the majority of people came to see homosexuality as natural and normal, and that didn’t happen until the mainstream left took up the cause. Libertarian legal scholars can talk about freedom of association and equal protection until they’re blue in the face, but I can guarantee you that if most people still viewed gays as immoral degenerates, there’s no way that the Court would have handed down this ruling.

    Complaining that they didn’t rule on a question that wasn’t before them, is misunderstanding how the judiciary works. Nobody was *asking* the Court to abolish civil marriage, because that had nothing to do with the issues presented.

    Actually, I think I have a pretty good understanding of how the judiciary works, and assuming that you do too, then you are probably aware that the Supreme Court chooses its own docket. If they really felt that this case was out of their jurisdiction, or that it simply asked the wrong question, they could have simply refused to grant a writ of certiorari. The fact that they chose to hear this case clearly demonstrates that they reject the libertarian position that government should not license or regulate marriage, as does the fact that neither the majority opinion nor any of the dissenting opinions mention that argument.

    I don’t see Libertarians complaining that we should have condemned the Heller ruling on the grounds that it didn’t totally strike down all gun control laws everywhere in the nation and so therefore the status quo ante was better.

    There’s one of those straw men I mentioned earlier. I never said “the status quo was better” — on the contrary, I would say this decision represents a marginal improvement over the status quo, although not one worth getting excited about, given that it doesn’t bring us even one inch closer to the ultimate goal of getting government out of marriage altogether. Furthermore, the whole question of whether it’s an improvement over the status quo has nothing to do with the question of whether the ruling was based on libertarian arguments, which it clearly was not. So, this whole comparison to Heller is not only a straw man — it’s a red herring, as well.

    But since we’re on the subject, I actually remember a lot of libertarians criticizing Heller for not going far enough, and even being, on balance, harmful to gun rights. I could give a bunch of links, but then, my comment would get trapped in the spam filter, so here’s one, by the always insightful Will Grigg:

    https://www.lewrockwell.com/2008/06/william-norman-grigg/the-heller-misdirection/

  16. paulie

    Interesting argument here: http://www.dontcomply.com/supreme-court-on-gay-rights-just-reinforced-the-constitutional-carry-debate/

    BTW, langa, there’s a way around the stupid setting that doesn’t let you post more than one link per comment: make them separate comments. Also, you could just post a comment with multiple links, and wait for me or one of the other editors to approve it. Or even join the team yourself. Or write the Redlichs and ask them to relax the comment link setting.

  17. Thomas L. Knapp

    “And yet, in spite of all those decades of libertarians making libertarian arguments, no real progress was made until the majority of people came to see homosexuality as natural and normal, and that didn’t happen until the mainstream left took up the cause.”

    You seem to have it exactly backward.

    Lots of people still think that homosexuality is unnatural or abnormal. What’s changed is that they’ve grown tired of being the position of trying to control activities that neither pick their pockets nor break their legs.

    I know people who 20 years ago could never have stomached gay marriage, and who to this day, for religious reasons, disapprove of homosexuality. What changed is that they got tired of the huge effort involved in trying to run other people’s lives.

  18. Steven R Linnabary

    “And yet, in spite of all those decades of libertarians making libertarian arguments, no real progress was made until the majority of people came to see homosexuality as natural and normal, and that didn’t happen until the mainstream left took up the cause.”

    WTF do you want? democrat and republican judges came around to a libertarian position, if that isn’t a victory, what is?

    Most, if not all LP positions are mainstream positions. Even if people haven’t thought through the implications.

    When democrats and republicans finally come around, we should applaud regardless of who tries to claim credit.

    PEACE

  19. langa

    I know people who 20 years ago could never have stomached gay marriage, and who to this day, for religious reasons, disapprove of homosexuality. What changed is that they got tired of the huge effort involved in trying to run other people’s lives.

    I know a lot of people who are the exact opposite. They used to be vehemently opposed to gay marriage, but now, thanks to the decreased stigma associated with homosexuality, they now personally know people who are openly gay. They see that these people are in normal, loving relationships. Therefore, they no longer view them as perverts, and it seems unfair to them that those relationships are prohibited. Ask them about polygamy, on the other hand, and they have no problem telling you how sick and twisted that is, and how it should never be allowed.

  20. langa

    WTF do you want? democrat and republican judges came around to a libertarian position, if that isn’t a victory, what is?

    No, they didn’t. As I said above, the libertarian position on marriage is simple: Get government out of it. Period. No ifs, no ands, and no buts.

    The position embraced by the Court is a marginal improvement over the status quo, but it gets us no closer to that ultimate goal of separation of marriage and state.

  21. Andy Craig

    @Robert Capozzi

    I would argue that libertarians have had more success in the legal field than probably any other except academic economics, which has a much more indirect effect on actual government policy, and that we have definitely had more success in the courts than with either the legislative arena or executive offices.

    There are a lot of names, and I’m hardly an expert. But broadly speaking I would point to the circle of libertarian legal scholars, active constitutional lawyers, etc. around a set of lowercase-l libertarian institutions- Cato, Volokh Conspiracy, the libertarian wing of the Federalist Society, public interests firms like Pacific Legal Foundation and Institute for Justice, think tanks like Independent Institute, certain universities like George Mason, and a relatively large libertarian minority among legal academics. I think it’s even true that libertarians in legal scholarship have come to surpass conservatives in size and influence (though not, of course, among judges appointed by Rs and Ds).

    That isn’t the LP per se (mostly because strategic litigation just isn’t really the LP’s bailiwick), but there are generally the same overlaps and personal histories with the LP among libertarian lawyers and legal efforts, as there are in every other part of the lowercase-l movement. That combined with the LP’s history of advocacy in the area that is our field- electoral politics- and I think it’s fair for both libertarians and Libertarians to take some credit.

    The article isn’t about gay marriage in particular, but this piece from Damon Root offers a good overview of the broad history I’m talking about. In layman’s terms, it’s libertarians who are pushing with increasing success: 1) freedom of contract and judicial protection for economic/property rights 2) reviving and applying the 14th amendment against state action, and advancing interpretive theories about it which have a very libertarian result 3) defending the idea that the judiciary should not defer to majorities or the democratic process when individual liberties or constitutional guarantees are implicated.

    That’s the broad intellectual background that ties this case, Heller & McDonald, the Kelo backlash, the Obamacare cases, the recent raisins case, Citizens United, and many other high-profile Supreme Court rulings in recent years (both victories and near-misses). I think a decent case can be made that- even though he is far from any kind of ideologically consistent libertarian, and accurately rejects the label- Anthony Kennedy and his sympathy for libertarian arguments have done more to deliver actual libertarian changes in government policy than any other single office-holder in recent decades in the United States.

    http://reason.com/archives/2010/06/08/conservatives-v-libertarians

  22. Andy Craig

    The “status quo” here isn’t just yesterday, it’s the day before Stonewall and the four-decade battle to strike down, repeal, and abolish government laws and hostility against gay people. The victory on marriage bans is substantive and worth celebrating in its own right, but that history is why the case is symbolic of more than *just* the question of sex discrimination in civil marriage laws. That whole story, is a libertarian victory and one of progress in a libertarian direction.

    We are, after all, less than 12 years out from getting rid of the last laws that criminalized homosexuality (another Kennedy-authored decision). Some of the laws struck down today (including in WI) had criminal penalties attached, for things like getting married out-of-state or even purporting to have a private non-official marriage ceremony (as in MI). Go back not much further- within living memory- and you have things like the de facto state murder of Alan Turing, Eisenhower condoning a witch-hunt against gays in federal employment, and very serious and very seriously enforced laws against homosexuality.

    We would have never got to today’s ruling, without the dramatic and dramatically rapid shift in public opinion. And yes, part of that is that people don’t virulently hate and loathe gay people like they used to (which nothing about libertarianism per se compels), because of the cultural process of more and more people coming out of the closet, more people knowing openly gay friends and relatives, etc. In no way does that negate that it’s a libertarian victory. Of course government laws aggressing against innocent people, are often (indeed almost always) motivated by popular majority hatred and animus against the target group. When those laws are successfully changed, it’s almost always because that culture of hatred and animus changed first and government was just playing catch-up. That’s how these things go, and it doesn’t negate the role played by libertarian thought and arguments in the shift.

  23. Robert Hansen

    “The position embraced by the Court is a marginal improvement over the status quo,”

    No it’s not. We just saw the door open today for a large expansion of the state. More government marriage licenses, more government benefits, more gimmes, more freebies. Remember, for years, gay-marriage advocates’ main argument was that there were hundreds (or was it a thousand?) of government “benefits” they were being deprived of.

    I may be gay but I’ll never crawl to the state to have a relationship licensed like it was a dog.

  24. Andy Craig

    I really encourage people being so dismissive of the effect of the decision, to go and read about the actual plaintiffs in these cases and the sort of things they had at stake. To describe it as being about “gimmes” or “freebies” is a gross distortion.

    https://www.youtube.com/watch?v=jQqxz3hE02c

  25. Andy Craig

    And nobody who has ever had a diver’s license, passport, business permit, incorporation, building permit, professional license, concealed carry permit, registered ownership of a motor vehicle, a property deed and mortgage filed at the county courthouse, or who has a civil marriage themselves, is in any position to snark about how demeaning and hypocritical and awful it is for gay and lesbian couples to deal with the reality, that the state won’t let people have a marriage contract with legal effect without a license. It’s victim-blaming and missing the point.

    “Sure, the law says left-handed people with red hair can’t get a driver’s license and so can’t legally drive, but why worry about that when we shouldn’t have driver’s licenses at all? Why do you want to expand licensing of drivers?!”

    “Sure, the law says nonviolent drug offenders can’t own a gun, but we shouldn’t have to ask the state for permission to own a gun in the first place! Why do you want to expand state permission for gun ownership?!”

    “Sure, the law says Catholics can’t own real estate, but you shouldn’t have to register your property with the state to begin with. Why do you want to expand state registration of real estate?!”

  26. Thomas L. Knapp

    “The position embraced by the Court is a marginal improvement over the status quo, but it gets us no closer to that ultimate goal of separation of marriage and state.”

    Actually, it does. Because of the lower court decisions and the ability to predict that this SCOTUS ruling would be what it is, at least two states (Oklahoma and Alabama) are already considering bills to substantially separate marriage and state by ending licensing.

    The state’s game is privilege arbitrage. It oppresses one group (homosexuals) in a way that curries the favor of another group (the religious right); it takes a “profit” on both transactions in the form of increased power. Reducing the state’s discretion to engage in such privilege arbitrages leads to Oklahoma/Alabama type results: “If we can’t enhance our own power by oppressing Group A and catering to Group B, why bother?”

  27. Robert Hansen

    Of course they’re going to find a couple with a sob story to put in front of the cameras. That’s the way. Every adopt-a-kid commercial found some kid with big sad eyes. That’s why every “first couple to get married” today in front of the cameras were all really old, or of an ethnic minority group. It’s good television.

    The vast majority of gay couples, though, simply wanted a government license for all those benefits they were going to be able to get from you and me – the taxpayers. And for the LP to pile on like this is a good thing is embarrassing, because the vast majority of the gays on the left want no part of us (see previous story about gay pride in Washington). We’re wasting our time pandering, to no effect whatsoever.

  28. Andy Craig

    The OK bill would do no such thing. All it would do is empower a list of state-approved religions to conduct state-sanctioned marriages (Jews and Christians yes, Mormons and Hindus no), with the exact same legal effect as existing civil marriage, and then a separate-but-equal-style process for those outside of state-approved religions. It’s such a poorly-drafted 1st Amendment train wreck, that it’s just an empty threat and GOP state legislators grandstanding.

    I haven’t read the AL bill, but I suspect it’s much the same parlor trick. Slightly tweaking the paperwork process and ending nominal state involvement in the wedding ceremony, at best, and then crowing about how they’re getting the state out of marriage. That they would still be substantively complying with the court’s decision and not really changing anything else about marriage laws, is lost in the spin and attempt to look like they’re doing something.

    It would be nice if any state actually did have that reaction, of passing a more libertarian marriage regime, or even getting rid of the licensing step so you only file one form instead of two, even if they did it out of spite and for the wrong reasons. But I don’t see it realistically happening, and I’ve yet to see even a draft bill write-up that would actually do it, because such a bill would be at least hundreds of pages long and involve not-insignificant investment of time and research and decision-making about thousands of different provisions on the books.

    I really wish somebody would put in that effort to draft that bill, so that state legislators who were of that mind could introduce it. But it hasn’t happened yet, and there isn’t a real push to do so from conservative Republicans.

  29. Thomas L. Knapp

    “The vast majority of gay couples, though, simply wanted a government license for all those benefits they were going to be able to get from you and me — the taxpayers.”

    And what “benefits” would those be?

    Every time the subject of tax reform comes up, first bellyache on the list is the “marriage penalty.”

    Dependent children are deductible whether you’re married or not.

    Social Security? Homosexuals pay exactly the same taxes as heterosexuals (and in fact probably more, as most studies seem to indicate that homosexuals on average earn more money). Why SHOULD the survivor benefit be different for married homosexual couples (whose marriages weren’t “licensed” because an apartheid system was set up to deny them recognition) than for married heterosexual couples?

    Automatic inheritance, power of attorney, hospital visitation provisions, etc. don’t cost the taxpayer a dime. In fact, they save taxpayer money spent on probate and litigation infrastructure.

    The attempt to paint ending marriage apartheid as a play for “benefits” is pure horseshit.

  30. Thomas L. Knapp

    Andy,

    The Oklahoma bill did have some problems vis a vis privileging religious organizations as the certifying authorities for marriage affidavits.

    The Alabama bill simply relegates marriage to contract. If you want to use your marriage status vis a vis state court systems, etc., you file the contract with your county recorder of deeds.

  31. Andy Craig

    Would the Alabama bill eliminate the state definition of the terms and implications of that contract? Community property, divorce adjudication rules, spousal testimony privilege, next-of-kin rules, etc. That’s what I’m talking about that I haven’t seen yet in a legislative proposal. Even with prenuptial agreements, marriage laws limit the range of what those can do pretty heavily.

    If all it does is retain civil marriage as it exists, but changes it so that you only file one form instead of first having to file another form so you can get permission to file the second form, then I’d call that a pretty hollow and marginal change. Not bad so far as symbolic victory, and perhaps paperwork reduction, but the actual substantive impact would be nil.

    Do you have a link to the actual bill? I’d love it if really does relegate marriage to a purely contractual matter, but I’m very skeptical that that’s what it would do. All I’ve really seen from Republican “get the govt out of marriage” bills so far, is getting the government out of the wedding ceremony business (or attempting to), not so much getting the state out of marriage, i.e. everything that happens after the wedding.

  32. Thomas L. Knapp

    Andy,

    I don’t have a link handy — I did have one to the summary section, but haven’t read the whole bill, just that summary and external descriptions.

    My understanding is that the Alabama bill would leave certain things in place (“family court” control of child custody matters being the big one) while leaving others to contract provisions (divorce minus child custody, community property, etc., contract language if present would be adhered to and could even be internally pre-set to non-court arbitration; absent contract provision, adjudication would default to current norms per prior state law).

    But the key thing about the bill is that it’s OPTIONAL. It recognizes that you can “be married” without bothering to even notify the state and with or without any religious or civil ceremony. But the notification, in the form of depositing a copy of the contract with the county recorder, would be required IF you wanted automatically available resort to state enforcement/adjudication mechanisms and boilerplate provisions.

    I doubt that this law would turn Alabama into a libertarian marriage utopia overnight. My key point is not so much how great the bill is, but that the fight to end marriage apartheid does have state government considering “getting out of the marriage licensing business” in this way or that. That’s not something they would have considered otherwise.

  33. Andy Craig

    Fair enough.

    From your description, I’d vote for that bill. But I think it’s important to be clear about what it does, and what it doesn’t do. Opt-in/opt-out provisions are definitely a good way to move in the right direction, while still being practicable and politically viable with it.

    But building the push for these bills on resentment against today’s decision, is a very short-sighted strategy, given that such resentment isn’t going to provide the support necessary outside of a handful of deep-red states, and even there probably only for the next year or two. So I’m dubious about this leading to a long-term movement in many states, to reduce or reform government marriage laws in a more libertarian direction. In a few years “we have to get the government out of marriage so the state doesn’t have to sanction gay marriages” isn’t going to get you anything, just like the effort to respond to desegregation by privatizing public schools, didn’t lead to getting the government out of education and fizzled out along with public opposition to desegregation.

  34. William Saturn

    From a democratic standpoint, Obergefell v. Hodges creates a troubling precedent.

    I agree completely with Scalia’s dissent:

    “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy”

    “[T]o allow the policy question of same-sex marriage to be considered and resolved by a
    select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

    “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

    Do Libertarians really desire a benevolent oligarchy to decide what rights we possess as citizens and what rights we do not?

    Would you applaud the Court if it used its “reasoned judgment” to make fundamental the so-called “right to not be offended?” What about the “right to free health care?” Or the “right to income equality?”

    This case clarifies that the fundamental right to marry means a fundamental right to government marriage benefits such as: “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.” (quoting the majority)

    Because these are now clearly defined fundamental rights, I doubt the Court would ever uphold an implementation of the actual libertarian position that removes government from marriage entirely. This would now violate fundamental rights under the 14th Amendment.

  35. William Saturn

    Loving reversed criminal prosecutions for inter-racial marriage. Same sex marriage was never criminalized under the facts in Obergefell. Loving makes no reference to any fundamental right to government marriage benefits as Obergefell does.

    In Roberts’ dissent, he explains that after the Loving decision, a same-sex couple applied for a marriage license in Minnesota and was denied. Ultimately, the Court dismissed an appeal from the Minnesota Supreme Court. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed 409 U.S. 810 (1972).

  36. langa

    In response to TK’s comments about the proposed Alabama bill, AC said:

    From your description, I’d vote for that bill. But I think it’s important to be clear about what it does, and what it doesn’t do. Opt-in/opt-out provisions are definitely a good way to move in the right direction, while still being practicable and politically viable with it.

    But building the push for these bills on resentment against today’s decision, is a very short-sighted strategy, given that such resentment isn’t going to provide the support necessary outside of a handful of deep-red states, and even there probably only for the next year or two. So I’m dubious about this leading to a long-term movement in many states, to reduce or reform government marriage laws in a more libertarian direction. In a few years “we have to get the government out of marriage so the state doesn’t have to sanction gay marriages” isn’t going to get you anything, just like the effort to respond to desegregation by privatizing public schools, didn’t lead to getting the government out of education and fizzled out along with public opposition to desegregation.

    I agree with all that. While I find these bills interesting, they seem to be more of a symbolic protest, as opposed to the first step toward ending state marriage licensing and regulation.

  37. independent voter

    Is there a copy online of the 1976 LP pamphlet mentioned in this press release? I’d be curious whether it referred to marriage as a “right” and if it cited the 14th Amendment at all.

  38. Robert Capozzi

    IV, click through to the Boaz column in the Advocate. There’s a link to the pamphlet there. I see no mention of 14A. It mentions “legal rights and privileges.”

  39. Thomas L. Knapp

    “[T]o allow the policy question of same-sex marriage to be considered and resolved by a
    select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

    True.

    If America wanted marriage apartheid, it should have got it the democratic, constitutional way.

    That would have involved 2/3 of both Houses of Congress approving, and 3/4 of the state legislatures ratifying, constitutional amendments to repeal the full faith and credit clause, the 1st Amendment, the 9th Amendment and the 14th Amendment.

    Until that happened, which it didn’t, marriage apartheid was unconstitutional and undemocratic.

  40. Andy Craig

    “Same sex marriage was never criminalized under the facts in Obergefell.”

    False. The Wisconsin law struck down yesterday, attached criminal penalties of nine months for getting a same-sex marriage in another state, which is what I did.

    That is *exactly* what the Lovings were prosecuted for.

    http://www.jsonline.com/news/wisconsin/29412299.html

  41. Andy Craig

    via Nicholas Sarwark:

    I have read a lot of complaints on the Libertarian Party Facebook page (and responded to some of them) about how yesterday’s decision violated the 10th Amendment and “states rights.”

    Our party does not stand for “states rights.” Our party stands for individual rights.

    Can you show me a state that was denied the right to love and parent a child? Can you show me a state that was denied the right to have its marriage recognized in day-to-day life? Can you show me a state that was told that it can’t be listed on the death certificate for its loving spouse after he passed away?

    If you show me a state that has suffered those violations of its rights, I might have some sympathy or concern. Those are the rights that states denied to people until they were recognized yesterday by the Supreme Court.

    Yes, the states lost some rights. The states lost the right to discriminate against some people because of who they love. And those people gained rights that the states had previously denied.

    There are old parties that seem to be in love with the 10th Amendment because it protects “states rights.” I much prefer the 9th and the 14th Amendments, because those are the ones that protect individual rights against “states rights.”

    All of your freedoms.

    All of the time.

    https://www.facebook.com/sarwark4chair/posts/665515496915141

  42. Thomas L. Knapp

    The “states rights” argument fails in pretty much every way.

    First, there are numerous provisions in the Constitution that protect the right to marriage for all — the full faith and credit clause (if you get married in Massachusetts, you’re still married if you move to Texas), the 1st Amendment’s rights of free religion and association, the 9th Amendment’s reservation of unenumerated rights to the states or the people (the case of marriage is clearly the latter — states don’t get married), and the 14th Amendment’s equal protection clause. The 10th Amendment only applies to rights and/or government powers that AREN’T assigned elsewhere in the Constitution.

    Second, licensing of marriage was never a legitimate state power in the first place. States began USURPING that power, and thereby violating the rights of the people, in the 1830s by instituting marriage licensing for the purpose of outlawing interracial marriage; prior to that, you got married by taking up co-habitation and announcing that you were married, perhaps with some religious rites and church records, perhaps not. Just because the states got away with their power grabs for 180 years before being stopped, that doesn’t make those power grabs legitimate.

  43. Jill Pyeatt Post author

    I’m surprised at how many Libertarians are really upset about this. I had no idea marriage equality wasn’t a goal for most of us, if we couldn’t get the government out of the whole institutiion of marriage.

    Things will settle down, I think, when all the horrible things predictd to happen when gays are allowed to marry, don’t happen.

  44. Robert Capozzi

    ac: I would argue that libertarians have had more success in the legal field than probably any other except academic economics, which has a much more indirect effect on actual government policy, and that we have definitely had more success in the courts than with either the legislative arena or executive offices.

    me: Thanks for the REASON link. My take is that the practice of jurisprudence involves many, many technical theories about how laws are to be reviewed, applied, and sometimes reversed. I’m not sure that all L lawyers are necessarily judicial activists, although I see why that movement has been growing.

    Restraint has its advantages and disadvantages, too.

    Personally, I’m for pretty much any methodology which enhances liberty. I don’t see the practice of jurisprudence as being a very effective way to enhance liberty, though it certainly can undo tyranny in isolated ways. Plugging holes in the dyke is worthwhile, but I’m more interested in broader movement that turn the tide in substantial ways.

    That would mean changing the laws themselves, not just how they are interpreted and implemented on the margin.

  45. Andy Craig

    By their nature, the courts at worst can only fail to stop something the other two branches were already doing. So just structurally, the judiciary is a lot more likely to produce a liberty-friendly result than either the legislature or executive, even when not good enough.

  46. William Saturn

    “False. The Wisconsin law struck down yesterday, attached criminal penalties of nine months for getting a same-sex marriage in another state, which is what I did.”

    That is an incredibly disingenuous statement you are making. The Wisconsin statute you mention did not single out same sex marriage as criminal. It was aimed at preventing people younger than the state’s minimum age requirement from getting married elsewhere. There was no prosecution of same sex couples under the law. In Loving, the Virginia statute explicitly outlawed inter-racial marriage and the Lovings were arrested for it. Obergefell makes no mention of criminal prosecution for same sex marriage because there has not been any such prosecution.

  47. independent voter

    @capo – Thanks for the tip. Looks like they called for repeal and rewriting of marriage laws but don’t say anything about doing so through the courts or if so, what exactly the Constitutional justification would be for that. Interesting that the actual 1976 LP platform didn’t mention marriage at all in its plank on sexual issues.

    @Pyeatt — I don’t think the displeasure among so many pro-liberty people is with same-sex marriage per se — it’s with the “ruling.” Many, if not most, pro-liberty people want an honest government that operates on reasonably consistent, coherent principles and definitions. That’s the “goal. The kind of nonsense and bullshit (or “jiggerey pokery”) spewed by the likes of Anthony Kennedy (or @knapp upthread) doesn’t really cut it with intellectually honest people. Ends-before-means fanaticism and brazen lying are more Communist values than liberty values. That’s the disconnect.

  48. Andy Craig

    @William Saturn

    The state of Wisconsin and its attorney general argued before the court that the law did exactly what I described, that it could be used to prosecute same-sex couples, and that it should be upheld also and the matter left to prosecutorial discretion. The law didn’t speak of underage marriages, it wasn’t limited to underage marries- it applied to all marriages that would have been prohibited in-state.

    You made a categorical statement that no criminal penalties were at stake in the laws struck down by the court. That is false, and I provided two counter-examples. There are also others, in the several states that made it a crime for county clerks to issue SSM licenses, prosecutions for which *have* been threatened.

    I never said the state was actively prosecuting people, or that we seriously feared prosecution. But prosecutions for sodomy were not exactly common circa 2003, either, until two guys in Texas found themselves having to fight to the Supreme Court because they were prosecuted for it. The plaintiff in Roe v. Wade was never prosecuted for seeking or having an abortion- she sued over the failure to obtain assurances that she wouldn’t be. Something being criminalized, even it’s not actively enforced, is a substantial and justiciable harm in and of itself.

  49. William Saturn

    I said very plainly that criminal prosecution was not at issue “under the facts in Obergefell.” That is completely true because criminal prosecution was not mentioned at all in the case. Loving overturned a conviction. Obergefell did not.

    You’re making semantic arguments without any relevance to my argument. The relevant issue here is substantive due process and the Supreme Court’s use of it to expand the scope of government. Loving did not use the availability of government marriage benefits as a rationale to declare marriage as a fundamental right. Under Obergefell, the fundamental right attaches to the benefits. If the court used only equal protection to strike the statutes in question there would not be an impediment to the favored libertarian result, which is the removal of government from marriage entirely. Because access to government marriage benefits is now a fundamental right, any deprivation of those benefits for either same sex or opposite sex couples will be deemed unconstitutional.

    “[W]hile the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities . . . includ[ing]: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence;
    hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation
    rules . . . Valid marriage under state law is also a significant status for over a thousand provisions of federal law.” (emphasis added)

    Use of the term “in general” implies there are some fundamental rights/benefits that a State is not free to vary. If a state decides to remove all marriage rights/benefits to remove state government from validating marriage, those denied such rights/benefits of government marriage will sue. The Court will then have to clarify which rights/benefits of government marriage are fundamental.

    If you believe it is proper for the Supreme Court to use its so-called “reasoned judgment” to invent fundamental rights that you favor, you must logically believe it is proper for the Court to use its “reasoned judgment” to invent fundamental rights you might not favor. Will there soon be a fundamental right to free health care? To income equality? To not be offended? It certainly seems plausible under the Obergefell precedent.

  50. Andy Craig

    You’re missing the distinction made between the two analyses.

    You could abolish civil marriage, licensing, special legal status, etc. Those things are only covered by equal protection. But you can’t abolish the contractual nature of the relationship- inheritance, medical rights, sharing of custody, etc.. In other words the state couldn’t really “abolish marriage,” even insofar as it having enforceable legal significance for property and personal rights.That’s the part covered by substantive due process, e.g. “fundamental right”

    As usual, Kennedy chose poetry over precision, but if pressed that’s the justification that would be offered for holding that marriage is a substantive due process fundamental right.

    Which of course, floats dangerously close to the libertarian heresy that there is a generalized right of contract, implicit in freedom of association and also explicitly in the Contracts Clause, that is protected by the Constitution. What you see as some dangerous positive-rights precedent, is in fact a liberty-friendly negative rights precedent. (see: Robert’s dissent throwing a fit over how this is like reviving Lochner)

    re: criminal penalties, you can argue technicalities about the legal process all you want. There were multiple criminal laws on the books in several states before Obergefell, and now nobody can be prosecuted under those because they were among the laws ruled unconstitutional. QED.

  51. William Saturn

    Where in the case does the Court distinguish between what is covered under substantive due process and what is covered by equal protection?

    Before this decision, most of the contractual rights you claim this case concerns could be achieved by other means such as legal adoption. Rights/benefits granted by the states & federal government is the difference.

  52. Andy Craig

    “Before this decision, most of the contractual rights you claim this case concerns could be achieved by other means…”

    With all due respect, anybody who says this hasn’t got a clue what they’re talking about. It flat out isn’t true, and if it were most of the plaintiffs wouldn’t have had standing.

  53. William Saturn

    I suggest you look up and research marriage substitutes. I don’t see how this affects standing at all. The parties were interested in government rights/benefits and official recognition deprived.

  54. Andy Craig

    One of the Wisconsin plaintiffs had a medical power of attorney. His father tried to over-ride it and have him killed while he was in a brief coma. That wouldn’t have been possible if they’d been married. Try telling him he was only asking for government benefits he had no real right to.

    That’s the case with just about any other contractual workaround you could name, including wills and PoAs. If it’s not outright banned outside of a civil marriage (and many are), then it comes with a bunch of caveats and asterisks giving both the state and the state’s designated next-of-kin the right to challenge it and over-ride it. Shared custody was outright banned by many states- and no, legal adoption was not a workaround. Even where it wasn’t banned (and many states did), it isn’t equivalent.

    And then there’s the harm from having to run around and pay lawyers to draft 18 dozen different contracts, with all the uncertainty as to if they’ll be upheld or not, instead of filing the one standard iron-clad form with optional pre-nup. I know it would make your desired narrative a lot neater and simpler if it was really the case that only unjust gov’t benefits were at stake, but it wasn’t.

    Obergefell himself was fighting for nothing more than to be named as the surviving spouse on the death certificate- which last I checked, no state allows you to get from a private voluntary provider or specify via contract. You’re welcome to try to print one out on your inkjet from Saturnalian Death Certificates, Inc., and see how many insurance companies or cemeteries or funeral homes (or courts ruling on the disposition of the estate) will accept that.

  55. Jill Pyeatt Post author

    William said: “The parties were interested in government rights/benefits and official recognition deprived.”

    Even if this were the case, what’s wrong with this? Gays pay taxes. Why should they not be offered the same opportunities as everyone else?

  56. William Saturn

    i never said it was simple or cheap to arrange a marriage substitute. But it certainly was possible to work around some of the problems associated with same-sex marriage prohibitions. Nevertheless, there is no right to be free of legal fees in drafting a contract unless the Court decides that that too is a fundamental right based on its “reasoned judgment.” Clearly, it would seem, that that is entirely an issue of equal protection, which should have also been the only basis for striking the prohibitions on marriage recognition and granting of rights/benefits.

    Rather, the Court’s use of substantive due process attaches certain rights/benefits to the fundamental right of marriage that states cannot alter. If Mississippi or Alabama limits the available government benefits/rights to all married couples or decides to sever the government from granting marriage licenses regardless of orientation, this will still violate substantive due process under Obergefell as written. Therefore, under Obergefell, the libertarian position would be unconstitutional if implemented.

  57. Andy Craig

    The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them
    its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

    […]

    Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388
    U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.

    A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v.
    Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567.

    A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is
    less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

    Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.

    ###

    That’s Kennedy’s due process analysis from the decision. The only one that speaks of government benefits, is the fourth point, and even though it speaks approvingly of that legislative decision, it isn’t mandating. Note that the rest of that paragraph is basically the same equal protection argument couched in fundamental right terms.

    All of those others, would be “negative” liberty rights that any Libertarian would recognize and agree with.

  58. William Saturn

    Curiously, what you excluded from the above excerpt is the following, which argues that society owes some kind of duty to support those in a marriage:

    “[J]ust as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities.” (emphasis added)

    What does “in general” mean above? It seems to imply there are some benefits/rights the State is not free to vary because they make up the essence of the marriage itself. Any exclusion of these benefits/rights will be unconstitutional. Therefore, Mississippi and Alabama’s attempts to remove government from marriage entirely will be unconstitutional because it deprives couples of these essential benefits/rights.

  59. Robert Capozzi

    pf, would you add that incest matter as a plank to the platform? Why or why not?

  60. paulie

    Separate plank? No. I’d cover it under a general right for consenting adults to have sex, cohabit and/or marry as they wish.

  61. Joseph Buchman

    NewFederalist @ June 29, 2015 at 9:07 am wrote:

    “Will this decision have any affect on polygamy?”

    I was in a two-day training this weekend with about 50 polygamists (and 50 others) near Salt Lake City. I had no idea who was who unless they shared about it. Everyone looked normal (except for me perhaps!) —

    It has had, from what I can tell, a HUGE effect on polygamists, and the greater LDS community here too, I think.

    From what some of them shared, they feel they should be equally recognized/no longer shamed, more part of the mainstream as a result of this decision. Surely this will affect the reasoning of future court cases on the nature of adult contracts and government’s proper role (if any).

    For full disclosure, when I ran for Congress in 2008 I was endorsed by several polygamist groups here in Utah. It seems to me they are much more open and public about their beliefs/practices now (a gradual process over the past 7 years, perhaps an impact of HBO’s BIG LOVE as well), but this decision has had a significant impact, at least from what I can tell.

  62. William Saturn

    If there were a party to run with the issue of polygamy rights it should be the Prohibition Party. Many LDS and Muslim people practice polygamy. Those two faiths also share an opposition to drinking alcohol. The Prohibition Party is their natural home but neither the Party nor the practitioners of either faith realize this.

  63. NewFederalist

    Thanks for your comment, Joe. That is what I thought might be an unintended consequence of the USSC ruling.

  64. Thomas L. Knapp

    Just because Muslims’ and Mormons’ faiths require them to not drink alcohol, that does not mean they will favor forcibly stopping everyone else from drinking alcohol. There’s a difference between abstention and prohibition.

  65. Robert Capozzi

    pf, thanks for clarifying. If the LP’s prez nominee is asked about legalizing incest, what would you advise him or her to respond?

  66. paulie

    That it’s a yet another good example of a problem society can and does largely solve without the force of government, except in cases where it involves force or coercion, which are the only ones where government should intervene.

    How often has that question been asked of presidential candidates?

  67. Robert Capozzi

    That specific question, probably hasn’t been. I seem to recall Ed Clark was asked about extremist positions in the platform in 1980, though I don’t recall which one. He deflected it, saying something like that’s not what I am campaigning for.

    Since most L candidates position themselves on the fringes, to the extent they get media coverage, it’s mostly for color, an oddity, a sideshow act. The interviewer doesn’t need to ask about the hyper-extreme stuff, since Ls are more than happy to volunteer many colorful extreme positions without prodding.

    As this thread illustrates, the L mind does tend to want to consider things like polygamy and incest in a political question.

    So my advice would be to counter that question by saying something like:

    Your question makes light of a very, very important progress that was made in 2015, and frankly I find it offensive. I would strongly suggest that marriage equality is almost as great an achievement as the abolition of slavery, and my campaign celebrates this enormous step forward. My campaign is NOT about theory; it’s about making serious, achievable steps toward increasing human liberty in the here and now.

  68. paulie

    I like my answer better.

    I mean honestly, how many people here would marry their very close relatives if it was legal? Anyone?

    Celebrating victories is great, but I like to look forward. Or, we could live life in the rear view mirror…

  69. paulie

    There’s something to be said for being ahead of your time…

    Bruce P. Majors: Lots of people were against gay marriage. Back in 2012 Obama and Osama were still homophones.

  70. Robert Capozzi

    pf, yes, there CAN BE something to be said for being ahead of your time, esp. on a single issue. The funny thing is: I suspect that same-gender marriage is viewed as a victory for Obama, liberals, and the GLBT community.

    Is the general public saying, Gee, that LP “won” this issue? They were SO ahead of their time! Thank God for those forward-thinking Ls!

    I don’t think so.

    That liberal pols were on the other side just a few years ago is quickly forgotten.

    Being out in front is not necessarily leadership, especially if you are SO out in front that few/no one sees you!

    A day may come in 50 years where something that Vermin Supreme said in 2008 that comes to fruition. Will the history books in 100 years credit Vermin Supreme?

    I don’t think so.

  71. Thomas L. Knapp

    —–
    Is the general public saying, Gee, that LP “won” this issue? They were SO ahead of their time! Thank God for those forward-thinking Ls!

    I don’t think so.
    —–

    67,600 Google News indexed stories in the last 30 days including the terms “libertarian” and “marriage” think differently.

  72. George Phillies

    Dear Tom,

    Stop trying to confuse Capozzi with references to reality. It just won’t work. And good work on the google search showing that we got the word “Libertarian” out there on an issue.

    There is the minor difficulty that we are losing personal liberty issues by winning on them. Fortunately there are plenty left to go.

    George

  73. Robert Capozzi

    compared with About 9,190,000 results (0.45 seconds) including the terms “liberal” and “marriage.” That’s less than 1%.

  74. Jill Pyeatt Post author

    Capozzi said: “Since most L candidates position themselves on the fringes, to the extent they get media coverage, it’s mostly for color, an oddity, a sideshow act.”

    It’s troublesome to me that you think so little of the candidates. The Augustus character seems to be a bit odd, but I can’t think of anything “fringe” any of them have said so far. Even Miss Joy has stuck with major issues so far.

  75. Jill Pyeatt Post author

    I see there’s already an ad for Chris Christie here on IPR. If there’s any group of bizarre characters in the presidential race so far, it’s undoubtedly the Republican candidates!

  76. William Saturn

    Tom said: “Just because Muslims’ and Mormons’ faiths require them to not drink alcohol, that does not mean they will favor forcibly stopping everyone else from drinking alcohol.”

    If that’s true why then do a large number of Muslim majority nations ban alcohol?

  77. William Saturn

    Tom,

    Many Mormons and Muslims do want to restrict alcohol and the only party arguing for that is the Prohibition Party. Is it a coincidence that Muslim majority nations ban alcohol? Is it a coincidence Utah has some of the most restrictive alcohol regulations in the nation?

  78. Thomas L. Knapp

    William,

    No, it’s not coincidence. But neither does a desire to restrict consumption of alcohol necessarily follow from a religious conviction against consumption of alcohol.

    The majority of Muslims and Mormons are authoritarians — just as are the majority of adherents to every other religion, and to agnosticism and atheism.

    While it’s no coincidence that Mormon and Muslim authoritarians would be authoritarian in favor of the religious beliefs they themselves follow, it is clearly the authoritarianism, not the religious beliefs, which is responsible for the political position.

  79. Thomas L. Knapp

    William,

    For several reasons. Here are two:

    1) Yes, most Mormons and Muslims are authoritarians. And they have numerous authoritarian parties to choose from. Chances are they will select one which actually has a prospect of winning elections and being able to implement their authoriarian desires.

    2) While most Mormons and Muslims are authoritarian as regards the production and consumption of alcohol, that’s not the only thing they’re authoritarian about, and there are almost certainly other things that are more important to them than that.

    I like hamburgers, but hamburgers are not the only thing I like (I like other things too) and McDonald’s is not the only place that makes hamburgers or even necessarily the closest one to my house. So it’s fallacious to assume that just because I like hamburgers, McDonald’s is “my natural restaurant.”

  80. William Saturn

    That is why I am proposing the Prohibition Party adopt a plank endorsing polygamy and to actively recruit Mormons and Muslims. Then there will be at least two items on which some of the more traditional elements in those religions can support that they cannot find in any other party. I think the Prohibition Party can expand if it follows this strategy.

  81. Thomas L. Knapp

    On the one hand, I have no idea why you would want the Prohibition Party to expand.

    On the other hand, I’m all for authoritarian parties taking your advice.

  82. Robert Capozzi

    jp: It’s troublesome to me that you think so little of the candidates.

    me: It’s not so much that I “think so little of the candidates,” for I admire anyone who will speak and share their truth. It’s more that Randian/Rothbardianism has been ineffective in rolling back the State. It hasn’t worked for over 4 decades. It is DID work, I’d be for it as an approach.

    Having recovered from that thought system myself, I get why it’s attractive for some, but given its extremism, I suspect it will continue to be a political asterisk. That’s a shame, since this country and world could use a healthy dose of liberty.

    jp: I see there’s already an ad for Chris Christie here on IPR. If there’s any group of bizarre characters in the presidential race so far, it’s undoubtedly the Republican candidates!

    me: “Bizarre” is obviously subjective. Thus far, roughly half the voters don’t find them to be bizarre, as most of them have been elected and some re-elected.

  83. Nicholas Sarwark

    if I saw a recovering alcoholic in my neighborhood bar every day pestering the patrons about the perils of drink, I’d be mighty skeptical of his recovery.

  84. Robert Capozzi

    Yes, Counselor, that’s why it’s “recover-ing,” not “recovered.”

    We never fully recover from dysfunction.

  85. langa

    I would strongly suggest that marriage equality is almost as great an achievement as the abolition of slavery…

    Boy, for someone who places so much emphasis on appearing “reasonable” and “respectable” and so forth, that is an incredibly insensitive and, dare I say, “fringy” remark.

    I mean, seriously? You are honestly saying that being denied an official government seal of approval for a voluntary relationship is “almost” as bad as being treated as a subhuman piece of property from cradle to grave? Seriously???

    I’m a very difficult person to offend, and even I find that a bit offensive. If I were a descendant of slaves, I’m sure I would find it extremely offensive.

    Talk about politically tone deaf!

  86. William Saturn

    In his dissent Roberts explains that the Dred Scott decision was actually the first time the Court used this concept of “substantive due process” to strike a statute. The Missouri Compromise could not deprive slave owners of their property rights just because they moved from a slave state to a free state. This is another example of how “substantive due process” can be used to actually restrict rights.

  87. Robert Capozzi

    L: I mean, seriously? You are honestly saying that being denied an official government seal of approval for a voluntary relationship is “almost” as bad as being treated as a subhuman piece of property from cradle to grave? Seriously???

    me: Yes, anyone can be subjugated or enslaved. When it’s sanctioned by government, it’s institutionalized and therefore much worse.

    Prohibiting same-gender marriage is to make subhuman.

    But, yes, slavery is much worse.

  88. langa

    Yes, anyone can be subjugated or enslaved. When it’s sanctioned by government, it’s institutionalized and therefore much worse.

    I’m not sure what the point of this remark is. Slavery was sanctioned by the government. It was even written into the Constitution.

    Prohibiting same-gender marriage is to make subhuman.

    This is a glaring example of the kind of over-the-top rhetorical posturing that you so frequently chastise other libertarians for using. Laws prohibiting gay marriage are obviously violations of the NAP, and thus anti-libertarian. But so are literally thousands of other laws. In fact, all of us (straight and gay alike) are subject to massive violations of our freedom on a daily basis. But we still have it far better, and are far freer, than even the most “fortunate” slaves ever were.

    But, yes, slavery is much worse.

    So, to be clear, are you admitting that your previous advice to a hypothetical LP candidate was ridiculous, and it would likely produce a far more severe (and far more justified) backlash than any hypothetical statements about bestiality or machine guns on the subway?

  89. William Lloyd Mr Garrison

    Four decades?! That’s awesome! You guys must have hundreds of people elected to office, all across the nation! Wait, let me check this out on-line and get the Straight Dope. Oooooh. Oh, OK.

    That’s not a good point to be bragging about. In political science classes, that’s called advocacy-sturbation. I hope that didn’t sound too callous.

    …Like your hand.

    Capozzi is correct. Here’s a “mainstream” secular Democrat sounding small-L libertarian on gay marriage. …But at least the Ls are agreeing with the decision, unlike those “cruzing” off a cliff toward political irrelevance.

  90. Robert Capozzi

    L: I’m not sure what the point of this remark is. Slavery was sanctioned by the government. It was even written into the Constitution.

    me: Right. Even after abolition, there is still slavery. There are slaves now. IMO, it was worse when slavery was legal and there were millions enslaved.

    Until recently, same-gender couples could not say they were legally married, and were denied social powers that opposite-gender couples could enjoy. Same-gender couples sex acts were illegal in many places. They held pariah status in our culture.

    That is now changing.

    L: This is a glaring example of the kind of over-the-top rhetorical posturing that you so frequently chastise other libertarians for using. Laws prohibiting gay marriage are obviously violations of the NAP, and thus anti-libertarian. But so are literally thousands of other laws. In fact, all of us (straight and gay alike) are subject to massive violations of our freedom on a daily basis. But we still have it far better, and are far freer, than even the most “fortunate” slaves ever were.

    me: Right. You may not see the difference, but when a group is singled out for what they are, that is worse in my mind than laws that hurt everyone.

    L: So, to be clear, are you admitting that your previous advice to a hypothetical LP candidate was ridiculous, and it would likely produce a far more severe (and far more justified) backlash than any hypothetical statements about bestiality or machine guns on the subway?

    me: No, I’m just trying to point out how NAPsolutism is an unworkable political approach. Instead, it’s a construct with many holes in it.

    I asked PF the question as he was advocating legalizing incest, near as I could tell.

    Do Ls REALLY want this scene from CHINATOWN to come forward into the social psyche? https://www.youtube.com/watch?v=wnrdetFAo1o

    Be honest. It’s OK by me if that’s what you want, but recognize that taking such a position puts Ls in the stratosphere.\

  91. Thomas L. Knapp

    I don’t recall using the words “stratospheric,” but circa 1996 I was saying that it was stupid for the LP to put its “legalize marijuana” foot forward because that was a conversation that nobody was ready to have yet or would be ready to have yet for decades. Steve Kubby proved me wrong the following year, causing me to re-assess just how forward we should be.

    I don’t recall anyone using the words “stratospheric,” but in 2004 when I urged the Missouri LP to strongly oppose an amendment to Missouri’s constitution banning same-sex marriage and providing for 10 days in jail and a $500 fine for any clergy solemnizing such marriages, I was told that that was just too far out and that it would be decades before same-sex marriage became something we could endorse without appearing fringe.

    Is there ANY issue that you think the LP should be more than a week or so ahead of the electorate on?

  92. Robert Capozzi

    TK, I’d say on issues it’s wise to consider issues that are recognizable in the Public Square today and have a chance for enactment in, say, 5 years.

    Anything past that is theory, not politics. Advocating theory in a political context is inappropriate.

    Single-issue organizations can and should extent their time horizons.

    All just my opinion, of course. You may think that Ls were pivotal in legalizing weed and same-gender marriage, but I see no credible evidence for that. (See data above.) Some Ls may well have been involved in the single-issue organizations that have spearheaded those efforts, and I applaud them for doing so.

  93. Thomas L. Knapp

    “it’s wise to consider issues that are recognizable in the Public Square today and have a chance for enactment in, say, 5 years.

    Anything past that is theory, not politics.”

    I’m trying to think of a single major policy change that ever took five years or less to enact after being put forward as a political party’s goal.

    The closest one that I can think of is the abolition of chattel slavery. That only took nine years after the GOP’s first presidential ticket. But they didn’t expect it to take only nine years. The Democrats handed them a civil war to settle the issue much more quickly.

  94. Thomas L. Knapp

    “Four decades?! That’s awesome! You guys must have hundreds of people elected to office, all across the nation! Wait, let me check this out on-line and get the Straight Dope. Oooooh. Oh, OK.”

    Your straight dope isn’t very straight. The LP has, indeed, had hundreds (possibly thousands) of its members elected to office all over the nation over the last 45 years. Currently 151 in office.

  95. Robert Capozzi

    tk: I’m trying to think of a single major policy change that ever took five years or less to enact after being put forward as a political party’s goal.

    me: Allow me to clarify. Some/most issues take more than 5 years, yes. When explicitly embracing an issue, I propose the “this COULD happen in 5 years,” standard. It might take longer. The issue is widely known about by, say, a third of the population. It may be a minority position, but it’s not a fringe position.

    Marriage equality is a good example. It started in MA in 04, and it built momentum and was accelerated by the Supremes.

    Of course, many Ls are unenthusiastic about this development, I’d say mostly for theoretical reasons. I don’t see government getting out of marriage in 5 years.

  96. Jill Pyeatt Post author

    RC, if I remember correctly, you said within the past month that marriage equality was probably # 30 in importance to Libertarians. I had the feeling you agree with that. After the last week’s complete freak-out by many, unfortunately including some Libertarians, do you still think that issue was only about # 30 in importance to Libertarians?

    I’ll find your comment if I have to later today, but I don’t have time this morning.

  97. Robert Capozzi

    JP, yes, 30 sounds about right. Obviously the Supremes have made it the issue of the day for many Ls and in the Public Square generally.

    Of course, now that it’s pretty settled, I’d say it falls as a priority both among Ls and the general public. This question of county clerks refusing to grant licenses feels like minor aftershocks.

  98. Andy Craig

    @William Saturn

    “What does “in general” mean above? It seems to imply there are some benefits/rights the State is not free to vary because they make up the essence of the marriage itself.”

    The rest of the excerpt explains exactly that- and yes, there are some rights to marry that the state is not free to try to abolish, because they’re essential elements of freedom of contract, association, etc. Some things, like the spousal testimony privilege, or respecting wills and custody arrangements, are clear limits on the state’s coercive power. In short, the state could stop licensing and regulating marriage, but they couldn’t stop people contracting a marital union and calling it “marriage.”

    Your assertion that Alabama couldn’t stop *licensing* marriages is inaccurate. If Alabama wanted to adopt common-law or private-contractual marriage they could, though that’s not what they’re even proposing to do. These proposals to tinker slightly with the paperwork process vary from acceptable marginal improvement to ridiculous nonsense, depending on which bill you’re talking about, but they all amount to grandstanding and none of them are really “getting the state out of marriage,” nor would they reduce by one iota any of the rights/benefits of a status quo civil marriage.

  99. William Saturn

    “there are some rights to marry that the state is not free to try to abolish, because they’re essential elements of freedom of contract,”

    The list provided is one of rights/benefits from the government itself. It has nothing to do with freedom of contract. In a perfectly libertarian society, the government is only necessary to enforce contracts. It would not have to bestow tax privileges and other benefits on the parties to a contract.

    I am not referring to any specific bill. I used Alabama and Mississippi as example states since Alabama was previously mentioned (I’m not sure why I chose Mississippi). A perfect libertarian bill would completely remove the State from approving marriages and giving special rights/benefits to those married couples.

    I guess we agree that under Obergefell, a State cannot deprive married couples of certain rights/benefits from the government itself as fundamental rights. The difference is in whether this is a good thing. I don’t see it as a good thing because I believe it opens the door to other “rights” that force a duty upon others and actually expands government involvement in families.

    I would support the decision if it was based only on equal protection and applied rational scrutiny to overturn the discrimination on marriage benefits as was precedent for matters of sexual orientation. Marriage alone may be a fundamental right but I don’t believe that was disturbed by the lack of state recognition of same-sex marriages (criminalization would be a different matter as was already discussed). Before Obergefell, same-sex couples in states that did not recognize same-sex marriages, were still free to marry in other states and return home as married couples. The difference was in the rights/benefits of marriages, and that should not be a fundamental right.

  100. Thomas L. Knapp

    “Marriage alone may be a fundamental right but I don’t believe that was disturbed by the lack of state recognition of same-sex marriages (criminalization would be a different matter as was already discussed).”

    In at least some states, it was in fact criminalized. As I’ve mentioned before, in Missouri, clergy who performed an unapproved religious rite (“solemnizing an unlicensed marriage”) were punishable by fines and jail time.

  101. paulie

    It’s a voluntary ceremony. What right would state governments have to intervene and tell people they can’t hold a ceremony which they call a wedding?

  102. William Saturn

    I’m not arguing in favor of the supposed Missouri statute. Tom just mentioned the statute and I doubt the Court has ever held that there is a right to solemnize marriages inherent in the Constitution. Even if there is, it makes no difference because that is completely immaterial to this discussion, which is about the fundamental right to marry as a couple.

  103. Thomas L. Knapp

    “I doubt the Court has ever held that there is a right to solemnize marriages inherent in the Constitution”

    See Amendment 1, vis a vis prohibiting the free exercise of religion.

  104. paulie

    I agree with Tom’s interpretation. What any religion considers to be a marriage under that religion’s beliefs or who they marry (hold marriage ceremonies for) in the eyes of their religion is none of the government’s business and is exactly what that clause means.

  105. William Saturn

    That’s fine. But it’s meaningless unless there’s case law to back it up. On its face, the Free Exercise Clause does not say what Tom says it says. It says:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

  106. paulie

    A minister performing a marriage ceremony is the free exercise thereof. Subsequent interpretation of the 14th amendment clearly establishes that this applies to the states as well as congress. The law Tom refers to is a prohibition on the free exercise of religion, in this case as far as performing religious marriage ceremonies.

  107. Andy Craig

    There is no real case law directly on the point of wedding ceremonies, because it’s so clearly and obviously established by the text of the 1st Amendment itself that the government has never really tried to interfere with it. You might as well say there aren’t really term limits on the President because there’s no case law against a President who tried to break it.

    But if you really think the government could abolish marriage contracts and wedding ceremonies under the 1st Amendment, it’s not surprising that you see things like “the right to personal choice regarding marriage is inherent in the concept of individual autonomy” as a somehow being a bad thing.

    As for case law on the general proposition that the government can’t command the behavior of clergy performing their religious functions, or churches in their choice of employees, there is plenty of that:

    https://en.wikipedia.org/wiki/Ministerial_exception

  108. langa

    Some things, like the spousal testimony privilege, or respecting wills and custody arrangements, are clear limits on the state’s coercive power.

    It doesn’t really negate the point you were trying to make, but I think the correct libertarian position is that, spouse or not, no one can legitimately be forced to testify against their will.

  109. William Saturn

    “it’s so clearly and obviously established by the text of the 1st Amendment itself that the government has never really tried to interfere with it.”

    So then what is Tom’s Missouri Statute doing?

    In actuality, unless a State has passed a Religious Freedom Restoration Act, States may restrict religious practices through neutral laws of general applicability. Because of the government entanglement with marriage it figures that States will want to regulate who can perform marriage ceremonies (without regard for the religion) in which one designates who gets the rights/benefits of the State as a result.

  110. paulie

    The law in question had nothing to do with who gets rights or benefits from the state, it had to do with who performs religious ceremonies with whom. A clear violation of freedom of religion, free speech, and freedom of association.

  111. William Saturn

    “no one can legitimately be forced to testify against their will.”

    But under spousal privilege, in certain circumstances, one may prevent another from testifying if they wish.

  112. Andy Craig

    Correct. The actual pros and cons of that are fairly nuanced with a lot of arguments on both sides as to its historical origins (the con being it’s a relic of the wife’s legal rights being subsumed to the husband), but as it stands it’s a recognized due process right and recognized in some form in all 50 states. And I think the basic argument that things you say to your spouse in private should be privileged in at least the same way as what is said in a confessional or to a doctor or lawyer. if not moreso, is something most people would agree with.

    All those details aside, the upshot of having it from a no-coercion standpoint, is less coercion.

  113. William Saturn

    “The law in question had nothing to do with who gets rights or benefits from the state, it had to do with who performs religious ceremonies with whom. A clear violation of freedom of religion, free speech, and freedom of association.”

    I’d really like to see the text of the law before commenting any further because I very much doubt it does (or did) as Tom describes. That surely would be a direct interference with religious liberty. However, I stand by my statement that there is no inherent right to perform marriages (as recognized by the State) because such a law limiting who or in what circumstances one may perform can be generally applied neutrally to all religions and non-religions.

  114. Andy Craig

    “But under spousal privilege, in certain circumstances, one may prevent another from testifying if they wish.”

    Yes, when the question before the court is whether or not to send you to prison.

  115. Robert Capozzi

    L, yes, polygamy could become an issue. I’d say it’s not likely to become one in the next 5 years, though.

    It’s on the fringe. Next.

  116. Thomas L. Knapp

    “I’d really like to see the text of the law before commenting any further because I very much doubt it does (or did) as Tom describes. That surely would be a direct interference with religious liberty. However, I stand by my statement that there is no inherent right to perform marriages (as recognized by the State)”

    But that’s just it: This is a criminal penalty for performing marriages NOT recognized by the state. It is a prohibition on holding a religious ceremony of which the state does not approve, even though said ceremony is clearly ONLY a religious ceremony vis a vis the state, since it would create nothing of legal effect.

    The law is Revised Statutes of Missouri 451.115:

    “Every person who shall solemnize any marriage, having knowledge of any fact which renders such marriage unlawful or criminal in either of the parties under any law of this state, or, having knowledge or reasonable cause to believe that either of the parties shall be under the age of legal consent, or is prohibited by section 451.020 from entering into such marriage, or where to his knowledge, any other legal impediment exists to such marriage, and every person not authorized by law to solemnize marriages who shall falsely represent that he is so authorized, and who, by any pretended marriage ceremony which he may perform, shall deceive any innocent person or persons into the belief that they have been legally married, shall, on conviction, be adjudged guilty of a class C misdemeanor.”

    Here’s the “or is prohibited by section 451.020” part:

    “1. It is the public policy of this state to recognize marriage only between a man and a woman.

    “2. Any purported marriage not between a man and a woman is invalid.

    “3. No recorder shall issue a marriage license, except to a man and a woman.

    “4. A marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted.”

  117. Jill Pyeatt Post author

    I agree with Thomas that polygamy will become an issue to be discussed and litigated sooner rather than later. I admit to being fascinated that women would willingly agree to such a lifestyle, but the reality is that many women do. One recognized problem with polygamy in some of the FLDS groups is, because they’re not married according to the law, many children are fed through food stamps (or whatever they’re called now) because it’s easier for “single parents” to qualify for them.

    I can’t really think of reasons why polygamy shouldn’t be legal.

  118. NewFederalist

    “I can’t really think of reasons why polygamy shouldn’t be legal.” – Jill Pyeatt

    Nor can I as long as all parties to the arrangement are old enough to understand what they are getting into and the association is free and voluntary. I would hope that it would not be simply assumed that only men can have multiple spouses.

  119. Thomas L. Knapp

    Jill,

    Polygamy is a variety of lifestyles. You’re thinking of one (polygyny) in particular. That one doesn’t seem to make a lot of sense these days outside the context of specific religious beliefs (it used to make some economic sense in patriarchal agricultural societies). But there are many other forms of polygamy.

  120. Andy Craig

    Applying civil marriage as it exists to plural marriages would be a lot more complicated than simply reading existing laws in a gender neutral manner (which is usually done by default, e.g. try arguing Hillary can’t be President because of masculine pronouns in the Article II). Civil polygamy would have to involve a legislature substantially rewriting the laws, beyond what the court could do on its own, and it would be pretty easy for a court that wanted to demur to find justifications for doing so.

    If A is married to B and B is married to C, are and A and C married? What if A and C disagree on some medical decision for comatose B? I’m not saying these things couldn’t be worked out, but I don’t think it will come in the form of licensed plural civil marriages. If we’re talking Heinlein-style linear or group of other exotic possible family structures, or even just traditional religious polygamy, then there isn’t any way to do that other than abolish one-size-fits-all civil marriage altogether and go 100% private-contract. Which I don’t see any court as willing to mandate anytime soon, even if it would be desirable from a libertarian perspective. .

  121. Andy Craig

    It would, and that would would be great, but will it? Maybe, but I’m skeptical the political will is going to be there, even for a judicial remedy. Maybe if polygamists start organizing and advocating for it, like gays and lesbians did, but that effort is still in its embryonic stages, and doesn’t enjoy widespread support even within that community.

    One thing that has changed, is now the issue can be more openly discussed without the implication that it’s just an insincere slippery-slope argument against SSM like conservatives like to make. Steve Chapman has a pretty good article on Reason about that. Still, basically the only people talking about is as a possible positive are a minority of actual polygamists, and libertarians, which is far from a winning majority coalition.

    But then again, that was once true of gay marriage too. So who knows? I do think there is greater public acceptance of a general live-and-let-live attitude to intimate and familial relationships, and that bodes well for libertarian progress in that direction. However, I don’t see any court ordering the issuance of civil marriage licenses for multiple spouses based on Obergefell & Windsor.

    http://reason.com/blog/2015/07/02/steve-chapman-considers-whether-argument

  122. langa

    One thing that has changed, is now the issue can be more openly discussed without the implication that it’s just an insincere slippery-slope argument against SSM like conservatives like to make. Steve Chapman has a pretty good article on Reason about that. Still, basically the only people talking about is as a possible positive are a minority of actual polygamists, and libertarians, which is far from a winning majority coalition.

    That may be changing. The Politico article I linked above is strongly in favor of legalization. The author makes it clear that he is a progressive (rather than a libertarian), and if he is a polygamist himself, he makes no mention of it in the article.

    It’s actually a very good article that answers most of the frequent arguments against it and points out the hypocrisy of being for SSM, but against plural marriage. Well worth reading.

    I found this part particularly interesting:

    In recent years, a progressive and enlightened movement has worked to insist that consent is the measure of all things in sexual and romantic practice: as long as all involved in any particular sexual or romantic relationship are consenting adults, everything is permissible; if any individual does not give free and informed consent, no sexual or romantic engagement can be condoned.

    It’s a shame that progressives like this guy are unwilling to apply that simple standard to all issues, rather than merely “sexual and romantic” ones.

  123. Thomas L. Knapp

    Andy,

    You write:

    “It would, and that would would be great, but will it [break licensing in favor of contract]? Maybe, but I’m skeptical the political will is going to be there, even for a judicial remedy.”

    Here’s my prediction:

    The “judicial remedy” will be a fairly obvious and reasonable judicial decision to accept a civil case relating to a contract and decide that case.

    If I wanted to 1) get polygamy legally recognized and 2) make the whole licensing idea look stupid and archaic such that even non-polygamous marriages would abandon it, I would do something like the following:

    1) Choose my spouses (or is the plural of spouse “spice” as some of my poly friends say?);

    2) Get a good lawyer to draw up a very detailed contract creating a privately held corporation held in equal shares by all spouses, myself included.

    That contract, in non-legalese, would include provisions like this:

    – The original partners each hold one voting share.

    – New partners can be added with unanimous consent of all existing partners. When a new partner is added, a new share is created, in which the new partner becomes fully vested (with voting rights and departure distribution rights — see below) after a set period of time.

    – Offspring of partners (conceived and born during their partnership) receive one non-voting share in the partnership, which is liquidated at the age of majority with a departure distribution.

    – Certain property of the corporation (domicile, personal-use-vehicles, etc.) is excluded from departure distribution, but “family savings” are set up as a permanent fund with a contribution plan decided on by the voting partners, and a partner’s departure distribution, if the partner is vested, consists of an equal share of that savings on departure.

    – Any partner can depart at any time; if vested, the partner gets his or her share of the “family savings.” If not, he or she doesn’t.

    – A partner can be forced to leave by a unanimous vote of all other partners. If vested, the partner gets his or her share of the “family savings.” If not, he or she doesn’t.

    – Some kind of carefully thought out setup for mutual medical powers of attorney, etc.

    And so on and so forth.

    Sooner or later, a case would arise in which a relationship structured like this would end up in court — a partner who didn’t get the departure distribution he thought he was entitled to, perhaps. SOMETHING.

    And then a judge would have to decide whether to adjudicate the case based on the terms of the contract/corporate rules, or declare the contract/corporate rules invalid.

    If the contract/corporate rules were well-constructed, I don’t think a judge would think twice about applying them. And that would be the ball-game.

    An even better scenario would be a child custody case in which all of the partners and former partners held themselves out as, and agreed that all the others were, the “parents.” A family court judge would be constrained to rule in the child’s best interests … and that would require the judge to recognize the situation and context, thus de facto ratifying the validity of the arrangement.

  124. Andy Craig

    @TLK

    That’s a good idea, and where I think you’d run up into judicial/statutory invalidation of your contract is as regards 1) child custody (you can’t really contract child custody) 2) You can’t designate multiple persons for a medical PoA, and doing so wouldn’t be terribly wise even if you could 3) there would have to be satisfactory exist clauses, or else the contract would be invalidated on those grounds.

    I grok what you’re getting at, though. Very Moon is a Harsh Mistress. And there’s no reason couples couldn’t do much the same, ideally. Check the options you want off a list of common choices, LegalZoom prints out your marriage agreement for $49.99 or whatever, go find a notary, and then you at most file a copy with the state just as a record-keeping matter. Let the ceremony be ceremony, the rest is just paperwork.

    But right now, a lot of those more substantive and personal rights can’t be handled through private contract. Penn Jillette gives a good talk about this- he and his wife didn’t want a civil marriage. But they went and talked to several lawyers- with plenty of money to do so- and none of them could 100% guarantee any private contract would be iron-clad as to surviving spouse child custody or medical decision-making, as a civil marriage is. Both the state and the state’s designated next-of-kin would be able to intervene and challenge their wishes.

    @William Saturn

    I guarantee you’ll hear the birthers making that argument if/when Hillary wins. 😉

    Whether or not he/his/him in Article II was understood as being neuter at the time is kind of a moot point (probably not, if anybody even thought about it, which isn’t likely). And later provisions that we knew were intended to be inclusive of women, do tend to avoid him/his/her. But you’re right on the modern grammatical explanation. The point being, interpreting facially gendered language in a law (particularly older laws) as being neuter is common and trivial and rarely given a moment’s notice. It doesn’t require substantive changes, in the way that changing out “two” for “two or more” does.

  125. Robert Capozzi

    tk: You’re off by about five years.

    me: Polygamy is nothing new. It may well be older than the movement for legalizing same-gender marriage.

    Yes, it will pop up a bit more in the news in the wake of marriage equality. Popping up in the news is not the same as it becoming a ripe issue, however, where it will be legalized in the next 5 years or so.

    In theory, I have no problem with polygamy, just as I don’t have a problem with marriage equality for couples. I don’t see polygamy as a strong political issue at this time.

  126. Caryn Ann Harlos

    I for one think the LP should hop on poly and hop on it hard. I am quite disappointed that it hasn’t. And me, being me, see it as a lack of enthusiasm for its initial goals of getting the state out of marriage now that the politically advantageous (and correct I believe) position has been achieved. But I still see expediency over ideology. And this is re-enforced by some semi-libertarian outlets saying “meh, perhaps a little state marriage is not such a bad thing.” There was a crack, and I wish libertarians would push that anti-thesis hard and fast. The LP is missing the chance to be the vanguard on this issue… but of course many Libertarians today are more concerned with “not saying anything scary to soccer moms in Peoria.” (paraphrase L. Neil Smith)

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