Otherwise, it all goes in the other direction. “You don’t like the fact that most women don’t have the upper body strength to become fire fighters, tough, you shouldn’t have gotten the state involved, now we have to use relevant, objective criteria to determine who’s part of the public fire fighting service. If you don’t like it you should have started your own private service where you can discriminate all you want to.” (Of course, that’s not how it actually works, but you get the point.) I think that is really hinges on just what would happen if it was left to its own fate in the private sector.

And, you have it completely wrong. Religion didn’t invent anti-gay sentiment. It simply responded to the will of society. It took the government and a great deal of pressure from special interests to both open society to looser sexual mores, in general, and to make it more open to specifically homosexual lifestyles, in particular. If marriage was left to the private sector, like it, indeed, should be, I think that gays would be right back into the closet, frankly. No one would throw them in jail for sodomy or anything like that, but it would be totally shunned socially, I think. And, that is because the real reason it is shunned has nothing to do with whether or not there is an afterlife or a god. All of that could quite easily be gay and anti-heterosexual. But, it historically was not that way because of some other reason that is completely independent of any of the metaphysics of religion because that metaphysics really has very little to do with sex at all.

When the state establishes a law of contracts, it basically says that the contract provisions will mean what the language (given not by the state but by society under a collection of conventions) says they mean. The state cannot then come along and unilaterally decide that X term now is to mean something much broader than it used to and that start enforcing the existing contracts with that new meaning the state decided on unilaterally. This would be to undermine any possible meaning to contract law.

As long as contract law is governed by the state, the state must restrain itself to allowing the language to continue to mean what the conventions of society provide. If the state wants to change the law to allow more people than traditionally-defined married people to have state-granted benefits that married people have, it must change the law by extending the law to larger or additional defined groups, not by pretending to arbitrate language itself. And the state cannot mandate that such other groups are to start receiving non-state benefits (as under contracts from third parties), for this would mean the state can re-write contracts any way it wishes. That would be no different than the state assigning my house to the shopping mall consortium.

“It’s statism for the state to use the word “marriage” in the caption to a state positive law statute, as opposed to some other word? Nonsense.”

It is statism for the state to use CHANGE the meaning of the word ‘marriage’ in the caption to a positive law statute that prescribes the meaning of ‘marriage’ as applied to beyond benefits granted by the state itself. If the state wishes to make a law that says “for the purposes of those benefits granted strictly by the state itself, the word ‘marriage’ shall include gay couples,” that would be one thing. But if the state says that for all purposes, including contracts between third parties, the word ‘marriage’ shall include gay couples, that is a vast state taking.

More reasonable than what? Sure, the libertarian goal is not only to get the state out of marriage to but to abolish it. But how does this address the concerns of people living now? Gays who live together reasonably want to have their choices given legal effect. The state monopolizes this, and for a variety of reasons insists on giving full effect only to relationships it deigns to label “marriage.” So be it. Then the state should permit anyone to get this protection if they want it. It has no right to deny this to them. It has no right to refuse to give legal effect to such choices, or to make it more difficult or expensive for some.

If the state were to announce it was getting out of the marriage biz altogether and would simply give effect to whatever contractual regimes consenting individuals enter into, whatever the associated relationship is labeled, that would be fine too.

“Why should the state care whether A marries B or not?”

It shouldn’t; but it regulates this. Meanwhile people are being harmed. They are just trying to live their lives.

“If the reason is that “marriage” confers recognition by the state as to certain benefits and privileges, then essentially you are saying that a nearly unilateral decision by A and B to get married carries with it a result that A & B now become recipients of benefits from other parties (not just the state, and thereby all the taxpayers of the state, but also many other entities).”

That is the fault of the state and the vast majority of voters–including conservative opponents of “gay marriage.” The state cannot attach a second unlibertarian policy to a first one to justify the first one.

“In what other area does my unilateral decision give me a right to recieve your assets?”

If a black American has a child, now that child by virtue of being black has certain legally-enforceable positive rights against others, such as employers. That doesn’t mean a black person has no right to have children; it means that the state should stop granting this privilege. Same here.

“It makes more sense on libertarian priciples to say that the state rights and privileges which traditionally have been conferred on people by reason of their being married should be unhinged from their marital status altogether. Take, for example, inheritance. If I don’t make a will, my wife gets the bulk of my estate, all of it if I have no kids. Take away the state’s recognition of marriage, and if I have no will, nobody has an immediate right to my estate. If I want my wife to get it, I better make out a will that says that. Thus the responsibility is on the individual to provide for his intended result. What could be more logical to libertarian standards?”

There is no reason to make life expensive and difficult. There are certain reasonable default presumptions that do and should apply. People in a committed relationship can be presumed to have appointed the other person as agent for them in case of incapacitation, to have hospital visitation rights, and so on. Or, they should be able to easily specify this without having to hire lawyers to draft 17 different documents. So long as the state is in charge and highly regulates this, if it treats gays as second-class relationships then you will get cases like this: State Monopolization of Marriage Eviscerates Private Contract.

“The basic fact of the matter is that marriage means something specific, and has meant that for at least 4,000 years. Language is a custom, developed organically by society over many, many generations.”

This has nothing to do with whether the state ought to be able to make life more difficult for non-standard unions.

“It is inappropriate for the government to take upon itself to choose a new meaning for a word and concept that is already made determinate by society. This is rank statism of the worst sort.”

It’s statism for the state to use the word “marriage” in the caption to a state positive law statute, as opposed to some other word? Nonsense.

Isn’t it more reasonable to suggest that the state simply get out of the marriage business altogether? It seems to me that this is the most completely libertarian answer to the problem.

Why should the state care whether A marries B or not? If the reason is that “marriage” confers recognition by the state as to certain benefits and privileges, then essentially you are saying that a nearly unilateral decision by A and B to get married carries with it a result that A & B now become recipients of benefits from other parties (not just the state, and thereby all the taxpayers of the state, but also many other entities). In what other area does my unilateral decision give me a right to recieve your assets?

It makes more sense on libertarian priciples to say that the state rights and privileges which traditionally have been conferred on people by reason of their being married should be unhinged from their marital status altogether. Take, for example, inheritance. If I don’t make a will, my wife gets the bulk of my estate, all of it if I have no kids. Take away the state’s recognition of marriage, and if I have no will, nobody has an immediate right to my estate. If I want my wife to get it, I better make out a will that says that. Thus the responsibility is on the individual to provide for his intended result. What could be more logical to libertarian standards?

This is not, in fact, the approach that I view as ideal, because I don’t think that the libertarian take on this point is quite the true ideal. But I think that this is the most logical choice for libertarians.

The basic fact of the matter is that marriage means something specific, and has meant that for at least 4,000 years. Language is a custom, developed organically by society over many, many generations. It is inappropriate for the government to take upon itself to choose a new meaning for a word and concept that is already made determinate by society. This is rank statism of the worst sort.

If the state thinks that gay couples should receive the same benefits it has decided ought to be applied to married individuals, then it should establish a new term *#$%, and then say that all of the privileges that formerly applied only to married people now are to apply to married people and to *#$% people. But, of course, this would only bear meaning for rights and benefits provided by the state itself, not by individual parties. Thus if a company has a contract with employees that says it gives health benefits to married spouses, the change in state law would not have no impact on *#$% spouses. There is no place for the state to impose its view that *#$% couples should get the same treatment as married couples outside of state benefits and privileges – the state is not the arbiter of the whole of society and everything in it. It is not appropriate for the state to redefine the entire meaning of millions of contracts away from the determinate meaning already recognized for them by the whole of society.

I think I’m going to say something I believe I’ve never said before: I think you’ve got it exactly right here. My in-progress book on libertarianism and the family will have a chapter on this topic and this is more or less the argument I’m making. I would just add that too often libertarians forget about the idea of “equality before the law,” which is part of our classical liberal heritage as well. IF the state is going to do particular things, it must treat all of its citizens equally. The gay marriage debate is just that.