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Judge Gray-Marriage Equality:The Time Has Come

The Functional Libertarian

April 4, 2013

These thoughts might be controversial to some people, but the issue is timely, and the moment to correct a series of injustices is now. Therefore, it is time for our country, and all of us in it, to recognize and enforce marriage equality.

Before I go further, it must be said that Libertarians believe that neither government nor anyone else has the right to tell other people what they should believe. That issue should be left to the individuals themselves, as guided by their chosen religious teachings, philosophies and core beliefs.

Furthermore, most Libertarians do not believe that the government should be involved in issuing marriage licenses at all. Which adult decides to commit in marriage to which other adult should be a matter for individuals, again with similar guidance as stated above. And further, religious institutions should continue to have the constitutional right to decide who can and cannot receive their blessings.

Here also maybe a little history would provide some perspective on the issue of marriage equality. In our country, most state governments began issuing marriage licenses as a way of enforcing miscegenation laws, which made interracial marriage, cohabitation and sexual relationships a crime. In fact, the term miscegenation was first coined in the United States in 1863. Similar laws were also enforced in Nazi Germany and apartheid South Africa. But after World War II many states began to repeal their miscegenation laws, and those that remained on the books thereafter were declared unconstitutional by the United States Supreme Court in the 1967 case of Loving v. the State of Virginia as a violation of the Equal Protection clause of the 14th Amendment.

Since that time it has been the law of our land that no governments could intrude upon the choice of adults of their heterosexual partners based upon their race. I hope that everyone pondering this issue is in agreement with that result.

As to some of my personal experiences as a trial court judge, when I was on the adoptions calendar I was presented on several occasions with applications for the adoption of a natural mother’s child by her lesbian live-in partner. In each case, after looking at the facts and being mindful that the legal standard was to act in the best interest of the child, I granted the application and personally performed the adoption ceremony. Those were the right decisions.

In reaching those decisions, I understood that society rightfully encourages the commitment by one person to another. What if I had not approved the mother’s application? Do you think that the two women would have then, as some other people might phrase it, “seen the light,” leave their partnership and seek and live in a heterosexual relationship? Not a chance. They would have continued their present live-in relationship, but without the legal commitment of the second partner to the child. That was neither in the child’s best interest, nor in society’s.

So now the question of whether gay and lesbian adults legally will be able to marry each other is before our courts and our country. For many reasons, the answer to that question should be yes.

Fortunately we do not live in a democracy, which is a government in which the majority rules. Instead we live in a democratic republic, where the Constitutional rights of the minority are protected from the dictates of the majority. As you can imagine, after the Civil War and the passage of the 13th Amendment prohibiting slavery there were probably a majority of voters in several states that still would have approved a system of slavery. But even so, the minority rights for racial equality were enforced. Similarly, after the passage of the 14th Amendment, a majority in many states may have felt that women should not possess the same rights as men. But, once again and with time, minority rights for gender equality were enforced as a matter of the equal protection of the law. And now it is similarly time to protect marriage equality.

It is true that some good and thoughtful people are concerned that enforcing marriage equality will take us further down the road to a weakened system of values and morality. But those people must understand that those same arguments were raised previously with racial and gender equality as well. And they should also realize that science – and real life – is persuasive that, just like with one’s race or gender, for most people homosexuality is not a lifestyle choice, but instead is hardwired into their bodies.

Other good and thoughtful people argue that, as a long term matter of public policy, marriage should only be authorized if it is used to further procreate our species. But that argument could also be equally applied to prohibit people somewhere above 50 years of age from becoming legally married, or anyone else who physically cannot reproduce. Instead, prohibitions of marriage should be imposed by governments only for clear cut issues, such as lack of voluntary and knowing consent, incest or marrying a child or your pet cocker spaniel.

So why is depriving rights by governments to gay and lesbian couples such an injustice? Why not instead simply allow them legally to form “civil unions”? Because there are literally thousands of line items in federal, state and local statutes and regulations that confer benefits upon those people who are labeled as “married,” as opposed to those who are not. These include more favorable treatment on income and inheritance taxes, as well as rights to visit and make healthcare decisions for marital partners when they are hospitalized.

In summary, gays and lesbians generally are just as human and just as committed to their partners as anyone else. Therefore, just like for the matters of race and gender equality before them, it is time for their rights under the laws for marriage equality to be enforced. In fact, I will go so far as to say that soon, just like with racial and gender equality, we will all look back and wonder why we had not all stood up for marriage equality long before now.

James P. Gray is a retired judge of the Superior Court in Orange County, California, the author of “A Voter’s Handbook: Effective Solutions to America’s Problems” (The Forum Press, 2010), and the 2012 Libertarian candidate for Vice President, along with Governor Gary Johnson for President. Judge Gray can be contacted at

About Post Author

Jill Pyeatt

Jill Pyeatt is a small-business owner and jewelry designer from Southern California. She currently serves on the Judicial Committee of the Libertarian Party of CA. She can be found on Facebook and Twitter.


  1. NewFederalist NewFederalist April 6, 2013

    I suspect inter species marriage will be a vey MOOving experience for some people and very BAAd for others. But hey, to each his/her own. The true libertarian position.

  2. Thomas Thomas April 6, 2013

    NewFed @5

    “Inter species marriage is the next ‘big thing’.”

    That could be a good thing. If Grundmann was allowed to marry a human being, he might evolve into one.

  3. paulie paulie April 6, 2013

    Consenting adults should be the standard. Polyamory OK, although not remotely politically viable so I would not make it a priority any time soon. Interspecies does not meet the standard; arousal is not tantamount to informed consent, as sexual arousal frequently occurs in rape victims.

  4. NewFederalist NewFederalist April 5, 2013

    “Inter species marriage is the next “big thing”.”

    “On which planet?”

    The same could have been said about same sex marriage in the 1950’s.

  5. Erik Viker Erik Viker April 5, 2013

    Serial monogamy is the norm in modern U.S. society.

  6. Jill AKA Minnie Pyeatt Jill AKA Minnie Pyeatt April 5, 2013

    I saw a newsmagazine on polyamorous people a while ago and decided that lifestyle made a lot of sense for a lot of people. Most Libertarians I know wouldn’t restrict the amount of people in a marriage. If all adults are consenting, it’s no one else’s business.

    In fact, although I’m fascinated by polygamous marriages in the sense that I can’t imagine why any woman would want to be part of one, my only concern is that they can’t afford all the children in the house, and need to feed them with food stamps. It the family wants to produce a bunch of kids, they need to be able to fee and clothe them.

    I’m actually not convinced that humans were meant to be monogamous. One mate at a time maybe, but I don’t know about one mate for ever and ever.

  7. Erik Viker Erik Viker April 5, 2013

    js @7, are you confusing bisexual people with polyamorous people? Bisexuals can and do have exclusive pair relationships. And sexual orientation is not race, so bigotry against gays or bisexuals is not racism.

    Maybe you were making a funny.

  8. just saying just saying April 5, 2013

    Why should there only be two people in a marriage? This article is racist against bisexuals.

  9. Sam Kress Sam Kress April 5, 2013

    On which planet?

  10. NewFederalist NewFederalist April 5, 2013

    Inter species marriage is the next “big thing”.

  11. Sam Kress Sam Kress April 4, 2013

    Actually, that sentence was great! At least I thought so…

  12. Jill Pyeatt Jill Pyeatt Post author | April 4, 2013

    Judge Gray’s articles are mild and non-offensive, but there’s usually one sentence or paragraph that makes me cringe. In this case, we could have done without the sentence about the cocker spaniel.

  13. Jill Pyeatt Jill Pyeatt Post author | April 4, 2013

    I do believe that’s the plan, Krzysztof.

  14. Krzysztof Lesiak Krzysztof Lesiak April 4, 2013

    Judge should run for an office in California in 2014. He’s articulate, intelligent and knows his issues well.

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