By Mike Shipley at Outright Libertarians blog:
The whole “get government out of marriage” thing is a bit overblown. The government in fact does have a role in enforcing private contract. So it will continue to be called into disputes which question whether a particular relationship meets the state definition.
For example, you contract with an insurance company whose partner benefits are linked to the existence of a marriage agreement. Let’s say you and your same-sex male polyamorous lovers are bound by a three-way contractual union. And then let’s say your insurance decides it does not want to split the payout between your two surviving spouses, because Leviticus says wives not husbands.
The court will be asked to determine and set precedent as to whether that contract meets the standard and must be upheld … those precedents will become a new version of the same old reflection of social norms: some relationships will meet the standard, and some won’t, and this is true whether we have a state monopoly on justice or whether we have a polycentric system of NGO providers.
That catchphrase slogan makes good red meat for the libertarian base, but it’s kind of meaningless in practice. We can abolish marriage licenses, but the state – or its equivalent – will never be out of marriage.
Thanks, paulie. š
“But ālegalizationā of same-sex marriage would expand the scope of these laws”
This is simply, flat-out, false. It’s incorrect as a statement of law. None of the rulings striking down SSM bans, have had any impact on the scope or breadth of anti-discrimination laws.
“they could (and would, as they already have been) be used to āmake an exampleā out of anyone who opposes same-sex marriage. Again, I understand thatās not what you are advocating, but thatās what would happen nevertheless. ”
I suppose we shouldn’t ever repeal any law or prohibition then, since that might be used as a precedent to force people to approve of the formerly-illegal activity under this logic.
Andy Craig is still offering the best arguments here. Wish I could go more into detail myself but I am getting snowed under with way too many internet debates.
langa,
I could see an outcome where the courts throw out the “church certificate” part of the bill but leave the affidavit part intact — after which most ministers would probably go ahead and become notaries so that they could conduct church weddings and notarize the affidavits, just like they sign marriage licenses in association with a ceremony now.
That would be a double victory insofar as it not only got the state out of marriage licensing but removed the “clergy privilege” for solemnizing marriages as well. You could go to any notary, and if your notary also happened to be your minister, well, that’s just not very relevant.
Hmm, that Oklahoma article is very interesting, although I doubt the courts would uphold such a bill, even if it did pass. Still, it would be interesting to see what might happen if ideas like that started to become popular with the Right, as a way of “getting back” at the Left.
It would be rather ironic if the stupid “culture war” actually ended up producing a libertarian outcome, for a change. Having said that, I’m not holding my breath.
langa,
I don’t see that we’ve “watered down” our position at all.
We’ve always been for getting government out of marriage altogether
We’ve also always been against allowing government to discriminate against people based on their sexual orientation.
Rolling back the latter may or may not be a way station in the direction of the former, but it isn’t a roadblock to that either.
And there’s some evidence that it is, in fact, a way station toward getting government out of marriage:
http://swtimes.com/legislature/oklahoma-legislature-bill-would-end-marriage-licenses-oklahoma
TK, I’d say it’s more a case of them adopting a watered-down version of the position we’ve been pushing for so long, followed by us watering down our own position to match theirs, so that when it passes, we can claim that it’s a “victory” for us.
“Anytime we find ourselves advocating essentially the same thing as the major parties, itās probably a good sign that we have lost our way on that particular issue.”
Well, except that we’ve been advocating it for 40 years and one of the major parties has been advocating it for about 1/20th as long. Sounds to me like they’re finding their way (even if it’s just to the head of the parade we started) rather than us losing ours.
Your point about the link between marriage recognition and anti-discrimination laws is simply factually incorrect. Some of the cases you linked to, came from states that didnāt even have SSM at the time. Laws that ban discrimination on the basis of sexual orientation stand *completely on their own*, independent of the SSM debate.
But “legalization” of same-sex marriage would expand the scope of these laws, and more importantly, they could (and would, as they already have been) be used to “make an example” out of anyone who opposes same-sex marriage. Again, I understand that’s not what you are advocating, but that’s what would happen nevertheless. In fact, it has already happened.
Show me the libertarians who have actually put out a proposal to do this. I donāt mean just saying it as a talking point or an ideal, where is the actual draft legislation that could be passed tomorrow by a willing legislature, that would do this? You wonāt find it, because it doesnāt exist. Even those who advocate it, havenāt attempted to take on the daunting task of actually fleshing it out into a real-world proposal that could be implemented anytime in the next few decades.
You could make this same argument against many libertarian goals. For example, I’ve never seen a comprehensive plan for completely eliminating government involvement in education. Does that mean libertarians should therefore abandon that goal, and instead focus on some dubious stopgap measure that is, at best, a half-ass solution, like school vouchers?
My basic point is that libertarians should push for radical changes. If people want piecemeal reforms that amount to little more than rearranging the deck chairs on the Titanic, that’s what the D’s and R’s are for. The LP should strive to address the root causes of these problems. We certainly shouldn’t be trumpeting these minor reforms as if they were the realization of our ultimate goals. Anytime we find ourselves advocating essentially the same thing as the major parties, it’s probably a good sign that we have lost our way on that particular issue.
“I have trouble thinking”
So I’ve noticed.
Your point about the link between marriage recognition and anti-discrimination laws is simply factually incorrect. Some of the cases you linked to, came from states that didn’t even have SSM at the time. Laws that ban discrimination on the basis of sexual orientation stand *completely on their own*, independent of the SSM debate. There are states that have or have had both, neither, and one or the other. In fact the inclusion of sexual orientation in anti-discrimination laws predates any state having legal SSM. There are states right now that have no such anti-discrimination laws covering gays, and where SSM bans have been struck down. There are two entirely different laws. Saying libertarians should oppose SSM because antidiscrimination laws is no different than saying libertarians should oppose Loving v. Virginia because of the ’64 Civil Rights Act.
” But it should always be made clear that the real libertarian position is no government involvement in marriage whatsoever, and nothing less will suffice.”
Show me the libertarians who have actually put out a proposal to do this. I don’t mean just saying it as a talking point or an ideal, where is the actual draft legislation that could be passed tomorrow by a willing legislature, that would do this? You won’t find it, because it doesn’t exist. Even those who advocate it, haven’t attempted to take on the daunting task of actually fleshing it out into a real-world proposal that could be implemented anytime in the next few decades.
Somehow the only time it ever gets mentioned by anybody, is as this contrarian addendum to addressing the SSM debate. But other than that, when was the last time you heard anybody actually pushing to get the state out of marriage, family law, child custody, divorce, etc. etc.? To completely rewrite thousands upon thousands of different laws, some of which don’t have an obviously more freedom-friendly answer (spousal testimony privilege, to pick one example)? To change the laws so that marital status is truly irrelevant and unmentioned in anything and everything the government does? It’s certainly a worthwhile endeavor, because it’s true that it would involve getting the state out vast areas of our lives. But even if such a proposal did exist and could be passed anywhere, that still has nothing to do with why libertarians should oppose bans on same-sex marriage and celebrate the defeat of such bans.
Same here, actually.
That was me. But I’m spending way too much time here today and need to go do other things.
Thanks to whoever fixed that. š
Oops. Those last three paragraphs shouldn’t be in bold.
The fact that you have no substantive argument to fall back on other than changing the topic to anti-discrimination laws and baselessly accusing me of supporting them, speaks for itself. I have not ever said that I support those laws, which are an entirely different topic from whether or not the state can turn away a gay couple seeking a civil marriage.
But your support for state-licensed and regulated gay marriage amounts to de facto support for anti-discrimination laws. It’s just like the fracking issue that was recently discussed on another thread. As I pointed out there, in theory, there’s no reason why libertarians should necessarily oppose fracking, since it doesn’t have to involve things like eminent domain and nonconsensual limited liability. However, the fact is that in practice, it does involve those things, and so when libertarians support fracking, they are tacitly expressing support for eminent domain and nonconsensual limited liability, whether they like it or not. Similarly, if you support the state defining marriage as including same-sex couples, then you are tacitly supporting the use of anti-discrimination laws to punish people who disagree. And for the record, no, people also should not be forced to recognize interracial marriages as legitimate, either, which is just another reason why libertarians should be pushing for separation of marriage and state.
…no individual has or will be forced to believe in or accept same-sex marriage just because itās no longer illegal.
Of course they will. Did you even read the articles I linked to? Those people are, in fact, being forced to accept same-sex marriage as legitimate, and are being punished for refusing to do so.
In the real world there *are* a lot of laws that hinge on government acceptance of spousal status, and same-sex couples really are harmed when the state excludes them from those provisions.
Yes, just as in the real world there are anti-discrimination laws, and once the state mandates recognition of same-sex marriages, those laws will be used to punish anyone who disagrees.
To summarize:
Q1: Do Libertarians oppose laws banning same-sex marriage? A1: Yes.
Q2: Do Libertarians support repealing marriage licenses, privatizing marriage, etc.? A2: Yes.
I completely agree with both those views. But the first point is really just a subset of the second. It is the second point that is the actual libertarian position, and it is the second point that libertarians should be stressing, instead of talking about “marriage equality” and referring to “one size fits all” government edicts as “libertarian victories” of some sort. If libertarians want to argue that “marriage equality” is a stopgap measure or a marginal improvement over the status quo, I can live with that. But it should always be made clear that the real libertarian position is no government involvement in marriage whatsoever, and nothing less will suffice.
“Tell that to the people who are being prevented from inheriting joint property that was in their spouseās name because they were not legally married, or from making medical decisions or even visiting the hospital, getting custody of children after their spouse dies, etc, etc. How will every individual deciding whose marriage to recognize handle all that?”
Exactly. To pick one example (from one of the plaintiffs in the Wisconsin marriage case): there was a man who had to be put into a medically-induced coma for three weeks. He was predicted, and since has, made a full recovery. He had an unrecognized out-of-state SSM, but also drew up an explicit medical power-of-attorney ahead of time giving his husband full decision-making authority.
This man’s estranged, homophobic father then attempted to go to court and have this PoA nullified, and have himself instated as decision-maker as the next-of-kin. Which he did because he wanted to have life support removed. Again, this is a man who made a fully recovery and is still alive today, several years later. If his marriage had been recognized, his father would not have been able to challenge the PoA, because spouses trump parents under the law. It was quite literally a matter of life and death, and all these fantasy assertions about how private voluntary contracts can do the same thing wasn’t going to stop the state from letting his father kill him. His doctor was so horrified at the prospect, he actually woke him from the coma early so the patient could intervene on his own behalf.
Try telling that couple how they shouldn’t care about some damn piece of paper from the government, and that their liberty isn’t really at stake in the marriage equality debate. Try telling this living, breathing person that he’s misguided to defend his life against the state, when instead he should be arguing for a hypothetical libertarian utopia of polycentric legal systems and no state-recognized marriage. Or that he really just cares about forcing somebody to bake him a cake or sell him a floral arrangement.
“I care about those things, too. I guess the difference between us is that I also care about the rights of other people, like this lady:”
The fact that you have no substantive argument to fall back on other than changing the topic to anti-discrimination laws and baselessly accusing me of supporting them, speaks for itself. I have not ever said that I support those laws, which are an entirely different topic from whether or not the state can turn away a gay couple seeking a civil marriage. And of course, from a *principled* libertarian position, laws banning anti-gay discrimination are no different than laws banning racial, sex, religious, etc. discrimination, so there’s no justification for singling out gays getting married as being the problem. Get back to me when you’re out there campaigning to repeal those laws. In the meantime it’s like saying Loving v. Virginia was wrong because nobody should have to recognize an inter-racial marriage.
“I just donāt want to force my beliefs on those who donāt share them. ”
Which striking down on bans on SSM does… how? That’s right, it doesn’t. At all. You would think libertarians would be able to wrap their mind about the fact that no individual has or will be forced to believe in or accept same-sex marriage just because it’s no longer illegal.
“Of course I oppose laws which ban the recognition of same-sex marriages.”
Good, then again you and Saturn are on the right side of the issue for all that it matters, so what’s the problem?
“But I also oppose laws which mandate the recognition of them.”
Which nobody is advocating and which don’t exist. Show me a law that mandates anybody outside of the government ‘recognize’ any particular marriage (or divorce!), gay or straight, and I’ll oppose it. Still has nothing to do with striking down civil-marriage bans for same-sex couples. There are people out there right now who still don’t “recognize” inter-racial marriage. There are a lot of people who don’t “recognize” inter-faith marriages. So what? What does that have to do with them being turned away at the county courthouse by a government employee acting in the name of the state?
“Again, it should be up to each individual whether to recognize gay marriages (or straight marriages, or any marriages, for that matter). Itās called freedom of association. Itās really not a tough concept to understand.”
And it’s really not a tough concept to understand that the getting the state out of banning and nullifying certain voluntary contracts is defending freedom of association.
Freedom of association, individual rights, marriage like everything else is a matter for individual opinions -it’s all great, I don’t disagree with any of that. It also doesn’t do anything to address the actual topic at hand, which is state bans on same-sex marriage that impose real, direct, demonstrable harms on real people who have to interact with a state that, contra libertarian hypotheticals, does exist and isn’t an individual.
It’s one big is/ought fallacy. Because we think the state shouldn’t be involved at all, some libertarians seem to determine to answer the real-world political question as if that were actually the case. But of course it’s not. In the real world there *are* a lot of laws that hinge on government acceptance of spousal status, and same-sex couples really are harmed when the state excludes them from those provisions.
To summarize:
Q1: Do Libertarians oppose laws banning same-sex marriage? A1: Yes.
Q2: Do Libertarians support repealing marriage licenses, privatizing marriage, etc.? A2: Yes.
How hard is that?
Tell that to the people who are being prevented from inheriting joint property that was in their spouse’s name because they were not legally married, or from making medical decisions or even visiting the hospital, getting custody of children after their spouse dies, etc, etc. How will every individual deciding whose marriage to recognize handle all that?
The Libertarian Party was advocating an end to government discrimination in marriage and other laws since our founding in 1971, before Democrats and Republicans were even onboard with decriminalizing homosexuality. More importantly, it was in fact (and still is) libertarian legal thinkers and organizations have taken up the cause, only later joined by left-liberals. It never would have been a legal issue in the first place without libertarians pushing the argument for decades when it was seen as an impossible pipe dream.
And yet, despite all those decades of libertarian arguments, it was not until the mainstream Left got behind the issue that anything actually happened, and again, only because most people now believe there is nothing morally wrong with homosexuality. Even though many libertarians (including myself) agree with that sentiment, it has nothing to do with the traditional libertarian argument of freedom of association, which was why I brought up the polygamy example, which you conveniently sidestepped. Are you really claiming that there is now widespread support for gay marriage even among those people who think homosexuality is immoral? If the libertarian position had been accepted, that would be the case, but it’s not.
This is like saying marijuana legalization isnāt a libertarian victory, because most people still donāt support legalizing meth and heroin.
I’m glad you brought this up, as it reinforces my point. The trend toward marijuana legalization isn’t a libertarian victory, assuming that by “libertarian victory” you mean a victory achieved by the use of libertarian arguments. There is still virtually no support for the basic libertarian view that individuals should be free to ingest whatever they want, which is why LSD, cocaine, speed, heroin, and so forth haven’t come close to being legalized in any state. The reason marijuana legalization is becoming more popular is because most people no longer believe it is any more dangerous than, say, alcohol. That has nothing to do with libertarianism.
Should libertarians oppose lowering the crack cocaine sentences on the ground that equality doesnāt matter? Here we have a clear-cut case of where enforcing legal egalitarianism would mean freeing people from unjust prison sentences, and Iām supposed to see that as an argument against libertarians using the equal protection clause?
You totally missed the point of the Drug War example, which is that libertarians shouldn’t support equality for the sake of equality. We should only support equality when it results in more freedom. I also notice you totally ignored the example of public smoking laws, which is really a perfect analogy to the gay marriage debate. Libertarian advocates of “marriage equality” continually try to promote a false dichotomy, by acting as if the only choices are to either prohibit anyone from recognizing gay marriages as legitimate, or else forcing everyone to recognize gay marriages as legitimate. This is analogous to saying that either no private businesses should be allowed to permit smoking, or else they should all be required to permit smoking. In both cases, the actual libertarian position is that the decision should be left up to each individual. There’s nothing libertarian about “one size fits all” government edicts.
I donāt care whether or not you or your church recognizes my marriage as valid.
This is a complete straw man. First, I have made no religious arguments whatsoever. In fact, even though I believe in God, I’m not really a religious person. With the exception of a couple of funerals, I haven’t even stepped foot inside a church in over ten years. Second, my own personal belief is pro-gay marriage. For example, my cousin recently got married to her longtime girlfriend, and I couldn’t be happier for them. I just don’t want to force my beliefs on those who don’t share them. You would think “libertarians” would understand that position.
I care whether or not my legal rights are upheld and enforced by the government in my dealings with them. I care that my medical-decision-making, and property inheritance, and all the other bundle of rights and responsibilities in my marriage contract, arenāt nullified by the government because they donāt like gay people.
I care about those things, too. I guess the difference between us is that I also care about the rights of other people, like this lady: http://religion.blogs.cnn.com/2013/06/28/conservatives-brace-for-themarriage-revolution/ — or this one: http://hotair.com/archives/2013/08/23/lawyer-for-new-mexico-photographer-forcing-her-to-work-at-a-gay-wedding-violates-her-right-of-free-expression/
There is absolutely nothing principled or libertarian, about supporting or failing to oppose laws which ban same-sex marriage (or that ban a similar contract or union, as many of the state const. provisions on the topic also do).
Another straw man argument that relies on a false dichotomy. Those seem to be your specialty! Of course I oppose laws which ban the recognition of same-sex marriages. But I also oppose laws which mandate the recognition of them. Again, it should be up to each individual whether to recognize gay marriages (or straight marriages, or any marriages, for that matter). It’s called freedom of association. It’s really not a tough concept to understand.
No, that was addressed. Just take it point by point from the top.
What specific points do you think he makes that are so groundbreaking? I note that he failed to answer why he believes government-sponsored marriage should be limited to two people and why government should be involved in such a personal (and morally based) decision.
Yes, so how do you address the specific points Andy Craig made in the comments above?
A state marriage license should not be regarded as a sought after prize. Nobody should want one or get one. A marriage license is not needed for contract enforcement, even if one believes that coercive government is necessary for contract enforcement ( which I do not).
The only reason that this is an issue is because government has become way too involved in people’s lives.
I do not have a problem with making the stupid licenses available to gays as an interim solution to the problem, and so we can all move on and focus on more important issues (note: gays getting state marriages licenses is not going to do a damn thing to stop the police state), but it is not the real solution, because the real solution is to abolish state marriage licensing.
They should be a press release š
Amazing arguments, Andy!! Complete home run!!
Bingo. And a legal contract for property, inheritance, medical decisions, etc, etc, etc.
The quote that accidentally disappeared from the start of that post, was this one from Saturn:
“In a free society, people should be able to enter into as many contractual arrangements as they desire with whomever they desire. The State has no role in this other than to hear civil suits for breach of contract.”
“<>”
Good, then you support striking down the laws that ban same-sex married couples from doing exactly that. Because that’s exactly what is at stake. Here’s the actual state constitutional provision from where I live that was struck down, which is similar to its other counterparts:
“Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”
How a Libertarian can weasel-word their way out of opposing that, by talking about freedom of contract and voluntary arrangements, is beyond me.
The only relevant question here is: should a law like that one above be struck down or repealed? Should Libertarians support striking down or repealing such a law? The answer is an obvious, unqualified, no-ifs-ands-or-buts “Yes, Libertarians oppose that law and support getting rid of it.”
“the decision to marry is a moral (or religious) choice”
I don’t see it as either. To me it’s a societal tradition. I don’t think it’s immoral either to cohabitate or to stay single & fuck around, I just choose to enter into the societal tradition of marriage, though I would personally prefer an open marriage.
Certainly the state has no business deciding what constitutes a marriage and what does not, but failing ending state marriage entirely, which I see as unlikely, the next best option is to end state discrimination.
I believe it is a moral choice that people individually decide to enter into, akin to going to Church or celebrating religious holidays. Completely severing the State from that choice resolves any Equal Protection claims. The Libertarian focus should not be on expanding coverage but severing it. Should the Court decide States must recognize same-sex marriages due to Equal Protection, then Libertarians should continue to advocate for severing marriage from the State.
I don’t think I married for moral reasons. I’d been “married” (in Biblical terms) to more men than I choose to share here, and frankly never found one I wanted to be monogamous with until I met Alan. We didn’t marry until I was 53, and I’d already borne and mostly raised a child. I don’t think morality had anything to do with getting married. I married mainly because I met someone I wanted to be monogamous with, and it just seemed the right thing to do. The business part of the contract also had to do something with my decision to marry, but that also wan’t my main reason.
I also don’t think people need religion to be moral. A certain person who visits IPR with initials of DG claims to be religious, but his harsh treatment and judgement of others is quite immoral, IMO.
You haven’t addressed Andy Craig’s arguments as to why that answer is inadequate, other than an unsupported historical assertion.
Whether it is religion or moral code is just a matter of words. Regardless, the decision to marry is a moral (or religious) choice that the State should not involve itself in. I follow the Ron Paul position:
https://www.youtube.com/watch?v=vH0kHoWdK3M
Moral code doesn’t necessarily mean religion. And it goes deeper than that:
https://www.google.com/search?client=ubuntu&channel=fs&q=cooperative+instinct&ie=utf-8&oe=utf-8
I think that’s where the moral code seeps in.
Mutual assured destruction. No fruits of labor from either side to take.
It’s much easier to just kill your neighbors and take the fruits of their labor as your own.
Of course statists will claim it was the state. But YMMV. Really, the coopertive instinct is just as biologically hardwired into us as the competitive one is.
Commerce. War is bad for trade, prosperity, raising your kids and passing anything worth anything to them, getting your crops to the point where they will feed you through the year, etc.
I’m not an anthropologist so I may be wrong, but religion is much more than a Church. Marriage is unquestionably a moral decision hearkening back to a personal moral code, which could be defined as religion.
I have trouble thinking of what else could have brought morals to society other than a kind of religious moral code. Cavemen could exist in clans but what stops them from fighting their neighboring clans for resources?
“Fundamentally, religion brought about social order.”
Highy disputable.
Fundamentally, religion brought about social order. Marriage is a product (or maybe a precursor) of that. I am not arguing that anyone is trying to mimic this. It’s just the way society established itself. I am not saying people have to marry in a church. They can marry wherever they desire. The point is that this is a religious decision whether people realize it or not. If you don’t want to “lecture others on what their marriage ‘is’ or should be” then why limit marriage to two people? In a free society, people should be able to enter into as many contractual arrangements as they desire with whomever they desire. The State has no role in this other than to hear civil suits for breach of contract.
The institution of marriage, from what I read, predated both the state’s and religion’s involvement in it. There are many practical legal aspects to marriage which would still exist even in a hypothetical polycetric legal order, and it seems absolutely absurd to argue againt marriage equality in the here and now because we pine for a polycentric legal order in some nebulous future. Andy Craig is doing a great job drawing the correct parallels here.
“Fundamentally, it is also a religious rite.”
Says who, you? The idea that non-religious people only get married to mimic religion is absurd. The Catholic Church, and many others, seems to do just fine maintaining its own definition of marriage separate from the government. Just ask any divorced Catholic how that works. Plus there’s the often-ignored fact that there are plenty of religions and religious people that are perfectly fine with and endorse same-sex marriages. Why should the Catholic or Baptist position trump the Universalist or Episcopalian position, even setting aside atheists (which you can’t really do)?
“Marriage is not like owning a business. I understand that there are protections for businesses, but businesses make profit. Marriage is solely personal.”
Marriage is many different things to many different people. I don’t presume to lecture others on what their marriage “is” or should be.
But when it comes down to the legal and political question it’s simply a matter of two persons designated each other to share a bundle of personal and property rights. Which a perfectly valid, voluntary contract just like any other which libertarians would support the freedom to engage in.
If somebody attaches greater meaning to the *relationship* behind that (and I certainly hope they do), then that’s what should have nothing to do with the state. And last time I checked, it doesn’t. The state doesn’t care if you love each other, it doesn’t care if you get married in a church, and they have no legitimate reason to inquire into and judge the combination of genitals involved.
Marriage is not like owning a business. I understand that there are protections for businesses, but businesses make profit. Marriage is solely personal. Fundamentally, it is also a religious rite. Whether it is practiced by atheists does not diminish this fact. They are simply following a standard of society built on a religious foundation.
Geez Andy, if you weren’t already married I’d ask you to marry me. š
Yes, you’re absolutely right, and you make the case far more eloquently than I ever could.
“I donāt care whether or not you or your church recognizes my marriage as valid. I care whether or not my legal rights are upheld and enforced by the government in my dealings with them. I care that my medical-decision-making, and property inheritance, and all the other bundle of rights and responsibilities in my marriage contract, arenāt nullified by the government because they donāt like gay people. ”
Some either don’t get that these discriminatory marriage laws hurt real people, or they don’t care. Either way is pretty sad IMO.
“I hate to break it to you, but the trend toward legalizing gay marriage has little, if anything, to do with the widespread acceptance of any principled libertarian arguments.”
I encourage you to look into the actual history of the matter, the legal arguments regarding the 14th Amendment and who was articulating and advocating them. The Libertarian Party was advocating an end to government discrimination in marriage and other laws since our founding in 1971, before Democrats and Republicans were even onboard with decriminalizing homosexuality. More importantly, it was in fact (and still is) libertarian legal thinkers and organizations have taken up the cause, only later joined by left-liberals. It never would have been a legal issue in the first place without libertarians pushing the argument for decades when it was seen as an impossible pipe dream.
“if it was actually a case of them accepting the libertarian position, then there would also be an increase in support for, say, legalizing polygamy. Yet I have seen no evidence of such an increase. Have you?”
Polygamy in the context of civil marriage would require a complete rewrite of how civil marriage works. There is a much clearer and straightforward case for striking down the government refusing SS couples civil-marriage-as-it-exists, than there is for courts to totally rewrite the statute books to allow for multiple partners in the same marriage. ‘But what about polygamy?’ is a question that has been thoroughly answered, and in any event since when is one restriction on freedom a justification for another? This is like saying marijuana legalization isn’t a libertarian victory, because most people still don’t support legalizing meth and heroin.
“So, should libertarians therefore support making the penalties for powder cocaine more severe, to bring them into line with the penalties for crack?”
No but we should, and do, support the opposite. Which seems perfectly obvious to me. Should libertarians oppose lowering the crack cocaine sentences on the ground that equality doesn’t matter? Here we have a clear-cut case of where enforcing legal egalitarianism would mean freeing people from unjust prison sentences, and I’m supposed to see that as an argument against libertarians using the equal protection clause?
“Similarly, the choice of whether or not to recognize any particular marriage (gay, straight, polygamous, etc.) should also be left up to the individual.”
It already is, and nothing about civil marriage equality changes that. The government is not an individual though, and it still exists, despite your unwillingness to address that fact with your supposed solution. I don’t care whether or not you or your church recognizes my marriage as valid. I care whether or not my legal rights are upheld and enforced by the government in my dealings with them. I care that my medical-decision-making, and property inheritance, and all the other bundle of rights and responsibilities in my marriage contract, aren’t nullified by the government because they don’t like gay people.
Opposing marriage equality because it’s “anti-freedom” is like opposing shall-issue concealed carry permits because it’s not as good as constitutional carry.
This basic idea seems to be that marriage is entirely a government construct that we should oppose the expansion of, instead of what it really is: a pre-existing voluntary, perfectly legitimate contract that the government has unjustly restricted, licensed, and regulated. If Bob the red-head gets turned down for a business license, the libertarian answer isn’t “well you don’t need a business license anyway!”. Because we live in the real world, where somebody being denied a government license to do something they’d otherwise be free to, is a real harm and a real infringement on liberty.
There is absolutely nothing principled or libertarian, about supporting or failing to oppose laws which ban same-sex marriage (or that ban a similar contract or union, as many of the state const. provisions on the topic also do).
Atheists get married, so no it’s not a religious issue.
I always thought marriage was a sacrament (or a rite, depending upon denomination) but religious in any context. If the separation of church and state is to have any meaning then the state must find another word.
Articles like this remind me of the same sort of mental gymnastics and tortured logic employed by Hans Hoppe in his constant quest to concoct “libertarian” arguments against immigration. In both cases, the correct libertarian position seems quite clear, but people refuse to accept it.
…the principled libertarian argument that the victory of marriage equality has been built on.
I hate to break it to you, but the trend toward legalizing gay marriage has little, if anything, to do with the widespread acceptance of any principled libertarian arguments. Rather, the reason so many more people now support gay marriage than they did, say, 15 or 20 years ago, is simply because far fewer people now view homosexuality as morally wrong. If it was actually a case of them accepting the libertarian position, then there would also be an increase in support for, say, legalizing polygamy. Yet I have seen no evidence of such an increase. Have you?
Equal protection is its own important restriction on government…You donāt get libertarianism without a fundamental legal egalitarianism…
While it is true that libertarians should fight for everyone to be equally free, it does not follow that we should fight for everyone to be equally unfree, or that libertarians should automatically oppose discriminatory policies, without regard to the alternative. For example, the Drug War is generally held to be racist, in part because of the fact that blacks are arrested for drugs more often than are whites, as well as the fact that the penalties for powder cocaine (generally used by whites) aren’t nearly as harsh as those for equal amounts of crack cocaine (generally used by blacks). So, should libertarians therefore support making the penalties for powder cocaine more severe, to bring them into line with the penalties for crack? Should we push for more white people to be arrested for drug offenses, in order to make the Drug War less racist?
Clearly, the LP (and the libertarian movement in general) should not be concerned with opposing inequality or discrimination per se, but rather, only when doing so will result in more freedom, rather than less. In fact, I will take it one step further and say that we should not support policies that make some people more free, but do so at the expense of making others less free. For example, we should obviously oppose laws that prohibit smoking in private establishments, such as restaurants and bars, but that certainly doesn’t mean that we should support a law that would force all restaurants and bars to permit smoking. Rather, the choice of whether or not to allow smoking should be left up to each individual business. Similarly, the choice of whether or not to recognize any particular marriage (gay, straight, polygamous, etc.) should also be left up to the individual. It’s called freedom of association, and it’s the real principled libertarian position.
That would be a fairly complex contract, since marriage is currently an issue in literally thousands of separate laws.
Abolish marriage licensure and marriage (some of them, at least) would simply become contracts.
The state doesn’t necessarily have to be the entity that adjudicates those contracts.
Exactly!
Yes, but are your guns full auto, and do you use them to protect your opium fields in the name of Allah?
Like all jokes…YMMV. Not everyone has heard it as much as we have, or at all, and personally I still like it, but I can understand why some people may be tired of it.
I try to explain this to people, but too many get up in arms and think I’m conceding something to the lefties instead of making the principled libertarian argument that the victory of marriage equality has been built on.
Equal protection is its own important restriction on government, a provision that favors individual rights, and it’s one of the foundations of any libertarian theory of rights (even the anarchist ones!). You don’t get libertarianism without a fundamental legal egalitarianism, as explained (among many other places) in the Declaration of Independence.
I point out that no libertarian would support a law banning red-heads or left-handed people from having a business license, just because we don’t think business licenses should exist in the first place. We don’t oppose desegregation of public schools on the grounds that government should be out of the business of running schools. We certainly wouldn’t oppose Loving v. Virginia by pleading “state’s rights” (or at least no libertarian movement I’m interested in being part of would do those things).
It always boils down to some iteration of “well some people don’t like you using the word marriage that way.” to which I respond- so what? What if I proclaim my religion has a definition of “power of attorney”- do I then get to ban you from using that phrase in your legal documents? I disagree with your use of the word “mortgage” therefore you can’t register yours at the county courthouse? It’s complete nonsense.
If you don’t support section one of the 14th Amendment, then you have no place to lecture others about constitutionalism and legally protected rights. That’s what it boils down to. It’s the most sweepingly libertarian provision in the Constitution, to the point where an attempt to constitutionalize libertarianism would be hard-pressed to come up with better wording. Rejecting it out of contrarian instinct or misguided pseudo-federalism is self-defeating and unjustified.
Also, for the record this joke about “gay married couples defending their drugs with guns they bought with bitcoin” and its iterations stopped being funny about the fiftieth time I heard it. It has been beaten to death, just like the who’d build the roads jokes. I wouldn’t use it, and I actually am a legalization-advocating gun-owning gay-married bitcoin-using Libertarian.