The Libertarian Case for Gay Marriage

Like everyone, my political and ethical views have evolved over time. From a somewhat racialist milieu in rural Louisiana, I consciously rejected racism when I was in my young teens. From a devout Catholic youth I became a secularist and freethinker at a fairly young age. From libertarian-conservative hawkish Reaganism at 18 I quickly became a die-hard libertarian minarchist, then an anarchist. My initial conservative and Randian pro-American exuberance has given way to a much more critical view of America’s baleful effect on world history and my rosy view of its founding has been replaced with skepticism, disdain, scorn, and regret. On abortion, initially militantly pro-choice in the Randian fashion, over the years my aversion to it has grown deeper and deeper to where I see at least late-stage abortion to be tantamount to murder (though I still don’t favor its being outlawed by states). On affirmative action, my conservative and libertarian overboard “meritism” has given way to a more contrarian view. My initial attraction to natural rights and natural law type arguments slowly shifted to a more realistic and focused transcendental type approach. On intellectual property, despite my initial–but hesitant and troubled–assumption that it was legitimate, after struggling to find a better way to defend it than arguments such as Rand’s and those of utilitarians, I finally rejected it after realizing it is indeed incompatible with property rights. And though I initially praised centralist libertarian ideas such as the Lochner-type caselaw praised by some libertarians I later came to develop a radical skepticism of the wisdom and legitimacy of trusting a central state to monitor state actions. For one more example, despite initially accepting the Hayekian knowledge arguments, I became more skeptical of their coherence in the wake of the Austrian “dehomogenization” debate.*

And so it is with gay marriage. My views evolved from mild ambivalence and recommendation of civil unions (see Gay Marriage, Feb. 2004; “The” Libertarian View on Gay Marriage, June 2006) to an increasingly pro-gay marriage position (Second Thoughts on Gay Marriage, Nov. 2006). And it’s become even clearer to me now; I’m no longer reluctant. [Update: see my post California Gay Marriage Law Overturned: What Should Libertarians Think?]

Why am I for gay marriage? First, I’ve never been even slightly homophobic, despite the assumptions of prejudiced “enlightened” liberals (after all, I am from the South!). So that didn’t play into the gay marriage issue for me. I was initially somewhat opposed to gay marriage, but not for the standard reasons about it “damaging” the “institution of marriage” and all that malarkey, but because I feared (a) it would instantly grant more positive rights to gay couples, and (b) it was the thin end of the wedge and would be used to argue next for anti-discrimination law being applied to gays, which I of course did and do oppose. I still agree with these concerns, but they are not dispositive.

The basic case for gay marriage is this: in a private order the state would not be involved. Contracts would be enforced by the private legal system, including contracts incidental to consensual regimes such as marriage. Marriage would be a private status recognized socially, with contractual and related legal effects: co-ownership defaults, joint liability presumptions, guardianship assumptions, medical decision and visitation rights, alimony or related default considerations upon termination, and the like. Initially religions and societal custom would regard only heterosexual unions as marriage, but eventually, with secularization of society, gay couples would start being more open, and referring to their partners as spouses, and have “wedding ceremonies.” At first mainstream society would be reluctant to accept homosexual unions in the concept or term “marriage,” but I suspect that politeness, manners, increasing exposure to and familiarity with open homosexuals (co-workers, family members), and increasing cosmopolitanness and secularization of society would result in an initially grudging including, finally more complete inclusion, perhaps always with a bit of an asterisk among some quarters. Or maybe not, but I think so. In any case the contractual regimes associated with any type of consensual union would be recognized and enforced legally, whether between hetero couples, homosexual couples, spinster sisters, frat buddies, group unions, whatever. The hetero couples, and perhaps one-man-many-wife groupings, would be referred to as marriages, the members as husband and wife. Perhaps the partners in a homosexual union would be referred to as married and spouses; perhaps not. I think so, eventually, but it’s irrelevant. There would be no legal battle; capitalist acts among consenting adults would be given legal effect, no matter what the accessory union is named.

But. The state is involved. Even now I think the state should not be involved in marriage, even if it insists on monopolizing the legal system. Ideally, the state should get out of the marriage business and enforce whatever contractual arrangements are ancillary to voluntary unions, whatever the members, whatever society, calls these various unions.

But for now, the state monopolizes the laws and regulations governing co-ownership, child-guardianship and custody issues, medical and death-related decisions and visitation, and the like. And it insists on pigeon-holing the relationships that it will give full contractual effect to in the “marriage” category (which means only that the state uses the word “marriage” in the caption of the statutes giving effect to the consensual arrangements of individuals). So be it. If the state is going to monopolize the legal and court system, if it is going to insist on labeling as “marriage” any relationship whose contractual incidents it will deign to recognize legally, then of course it has no right to deny this to gay couples who wish to have the civil aspects of their relationship legally recognized.

Yes, it’s true, this will probably end up with gays getting included in anti-discrimination laws. So what. Abolish the anti-discrimination laws, then.

As for Christian fundamentalists who are so worked up about this: who cares what word the state uses in the caption of the statute giving legal effect to private parties’ contracts? If you are opposed to this, stop supporting the state and positive law. (And if you hate evolution being taught in public schools–stop sending your kids there; stop supporting taxation, democracy, the state, and public schools.)

As for the complain that gay marriage will “harm marriage”–first, nonsense. How is any person’s marriage harmed by the choice of word used in the caption of artificial law made by a criminal state? Second, even if it does harm the “institution” of marriage, this is the result of the state monopolizing this area, or of its failure to fully enforce the contractual regimes of non-standard voluntary relationships since they don’t fit the traditional definition of marriage–that’s no excuse!

As for “purist” libertarians who say we should not extend the reach of the state in this way: well, the state should not have roads either. But would we not oppose a law banning gays from the roads? We would not hide behind, “Well, it’s not nice that the state prohibits gays from using the roads, but the solution is not to let gays use the roads–it’s to abolish the public roads!” No.

Does gay marriage violate anyone’s rights? No. It is not an act of aggression. Does it violate gays’ rights to be prevented because of the state’s monopolization of the legal system from having their relationships given legal effect? Yes. [N.B.: This whole mess, and other considerations (see State Monopolization of Marriage Eviscerates Private Contract) should also highlight for homosexuals why they should also oppose the state and its involvement in this whole area.]

In sum: the state should get out of marriage. If it remains in existence and monopolizes the legal system, it should enforce any contractual aspects of regimes entered into by consenting adults. What they call it is irrelevant. Ideally it would be unlabeled and private society would figure out naming conventions. But the state should not be allowed to hamper the rights of non-standard couples just because it insists on decreeing what is and what is not “marriage.” If the state insists on regulating unions and giving it the label “marriage,” then gays ought to be able to legally protect their relationships and associated regimes. The state infringes their rights to do this if it monopolizes the field then denies them entrance.

Not only should libertarians support gay marriage, but of course they should.

***

For other posts on gay marriage, see Re Gay Marriage, Feb. 2004; Subsidiarity and San Francisco, Feb. 2004; Gay Marriage Amendment, Feb. 2004; Happy Marriage, Nov. 2005; State Monopolization of Marriage Eviscerates Private Contract, Feb. 2009.

*The links embedded in the first paragraph are, in order of appearance: How I Became A Libertarian; When Did the Trouble Start?; Supreme Confusion, Or, A Libertarian Defense of Affirmative Action; New Rationalist Directions in Libertarian Rights Theory; NSK rights theory articles; my IP articles; Libertarian Centralists; Objectivists and Federalism; Bolick on Judicial Activism; Legislation and the Discovery of Law in a Free Society; Knowledge, Calculation, Conflict, and Law.

Update: see McElroy and Peron on Gay Marriage.

Update 2: See Interracial couple denied marriage license in La.: This is what morons get who trust the state to officially decree marriage. Gay marriage advocates should want the state OUT of the marriage-licensing business, not to be included in it.

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