Steven Rodriguez at Outright Libertarians blog:
There seems to be a lot of confusion among libertarians on how to handle the issue of marriage equality from a uniquely libertarian standpoint. Some suggest that the struggle to remove government from our personal lives requires more than equal marriage rights for same sex couples – I agree with them. Others adopt the all-or-nothing approach of opposing marriage equality now in favor of abolishing state marriage altogether – I disagree with these people.
Fortunately, the Libertarian Party’s platform makes its position clear:
Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.
Let’s cut to the chase: The messages in italics are NOT in conflict with one another; it is true that government has no business in marriage to begin with, but the reality is that government IS involved currently, issuing benefits that are still denied for the sole reason of choosing to marry a person of the same sex. Rather than solely focusing on our long-term goal of removing government from marriage, Libertarians should applaud the striking of gay marriage bans as a step toward that goal. Sate-endorsed discrimination is government overreach at its worst. Ensuring marriage equality would deregulate that overreach.
Does the push for marriage equality make the idea of abolishing state marriage meaningless? Absolutely not. My hope is that The United States will return to a common law marriage system in which individuals would not be required to “ask permission” via license in order to establish a new legal next of kin. However, this must be done tactfully.
Recently, Rep. Todd Russ (R) of Oklahoma received much praise from libertarians after he introduced a bill with the intent of getting county court clerks out of the duty to officiate marriage ceremonies. He admits this was a response to a federal court striking down Oklahoma’s ban on same-sex marriage and the fear that the Supreme Court would uphold that ruling later this summer. The problem with his solution is that it would not allow same-sex marriage recognition given Oklahoma’s state constitutional amendment banning such unions.
Libertarians who want the “state out of marriage” come in a number of flavors, some genuinely want to liberate all types of families from the clutches of the state, but quite a few more are just masking their discomfort with equality in that rhetoric. We should not confuse the reactionary tactics of those who fear equality under the law with those that strive for progressive libertarian solutions.
So next time a self-proclaimed libertarian refuses to accept the incremental approach of supporting marriage equality before abolishing state marriage altogether, remember this…
Sounds pretty ridiculous.
“(other than the named exemptions *Mormons* and Quakers)” rather. Muslims would not be on the state-approved list at all.
The bill if passed doesn’t have a snowball’s chance in hell of surviving a 1st Amendment challenge. It’s so blatant I almost wonder if it was included as a poison-pill, because otherwise the get-rid-of-licensing route, whereby any (straight-only) couple could simply file a “declaration of common-law marriage” would be a modest (but more symbolic than substantive) improvement.
Also, the idea that state employees (not involved in the officiating or ceremony) need to be protected from filing paperwork from a gay couple, is pretty dubious. That’s all this bill would change, and indeed only by changing the name and timing of the paperwork. “Won’t somebody think of the county clerks, having to actually touch a SSM license in the course of the job they’re getting paid to do, is basically like forcing them to trample on the cross!” Please. Get back to me when you craft a special law to save government officials from having to touch paperwork related to interfaith or interracial marriages, or when the county clerk gets to object to filling a mortgage lien or power-of-attorney from Muslims and atheists.
The Oklahoma bill creates a list of state-approved religions that can officiate civil marriages while requiring everybody else to either go to a willing judge or use a different no-ceremony process. Christians (“preachers of the Gospel”), Jews, Mormons, Quakers, and Baha’i are on the approved list of officiants, Muslims and Buddhists and atheists and Christian denominations that don’t have clergy (other than the named exemptions Muslims and Quakers) aren’t. If this were to be passed, it will be a matter of hours before you have somebody filing suit pointing out that “Pastor Bob can officiate marriages with legal effect because he’s a state-approved Christian, but Oklahoma won’t let me do the same because I’m a Zoroastrian.”
The OK bill is getting a very misleading public spin, and that’s what getting libertarian support. A more skeptical look at the text of what he’s proposing, reveals something unworthy of libertarian support I think. The bill isn’t really getting government out of marriage, so much as it is deputizing certain state-approved religions and their clergy to exercise that power when it comes to the licensing/officiating step.
And even if that part were removed and it was “file a declaration of common-law marriage” for everybody, that would be an improvement (assuming other states, that generally don’t recognize CLMs, accept them as valid OK civil marriages), but you’re still only really talking about making it a one-step process (have the couple register the marriage after ceremony) instead of a two-step process (have the couple get a license before the ceremony and then the officiant or couple registers the marriage after ceremony) The state will still define the details of what legal impacts a marriage has, the rules and adjudication for divorce and family law disputes, keep the official documentary record of the marriage existing, etc.
I’m not sure why there’s an objection to Mr Russ’ bill in Oklahoma. The Constitutional ban will most likely be struck down in the court (as have similar bans), and the bill provides a good framework for same-sex unions while protecting the religious rights of groups such as Catholics, Jews, & Muslims. Under that proposed law, a gay couple would have to go to a judge or a “gay-friendly” denomination (such as the Unitarians) to get married and a certificate. I’m not seeing anything bad with this law and I think it is actually a good model for the rest of the country.