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The Libertarian Case for Gay Marriage

Gay_Marraige_Peice_by_christinevanLike 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.

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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{ 16 comments… add one }

  • Steve Horwitz June 24, 2009, 7:06 am

    Stephan,

    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.

  • Tony M June 25, 2009, 7:39 am

    Stephan,

    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.

  • Stephan Kinsella June 25, 2009, 9:36 am

    Tony: “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.”

    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.

  • Tony M June 25, 2009, 11:03 am

    Whatever laws the state makes, it uses the words available to it based on the given language – and that language is developed by society, not the state. The state cannot change meanings whenever it feels like it and pretend those changed meanings are the language as given by society.

    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.

  • Jay August 5, 2009, 1:23 pm

    I tend to fall within a more libertarian constitutionalist framework. I used to consider myself an anarchist and still like much of what they say, but the term is counter productive at this point. Where exactly is the fine line between a minarchist like Jefferson and an anarchist like Proudhon anyway? I have respect for both men. I talk more in simple terms of supporting organic governing that is democratic, decentralized, more egalitarian (equality), non authoritarian, and as little hierarchy as possible. I do not spiritually believe a same sex relationship is truly a marriage, though I do believe it can be a loving beautiful relationship. But as far as the state is concerned. I don’t believe the state should be dictating to individuals what is and is not a marriage. I believe the individuals operating within their local communities, families, friends, churches, etc should have that right to classify it as marriage or not. This isn’t so much a “gay rights” view as it is to empower individuals to make decisions about there own lives free of government intrusion. Its a libertarian view. The state should get out of the licensing business and simply recognize the private contractual relationships that people enter into.

  • Adrian September 11, 2009, 11:51 pm

    You say that you think that gay marriage would come to be accepted in a libertarian world and go on to say that this is beside the point. But, it isn’t. That is the entire point. If that is true then everything else you say makes a lot of sense. If you don’t like gay marriage, then, tough, the state controls marriage and it’s not right to exclude gays. If you don’t like it, you shouldn’t have gotten the state involved. But, that’s only true, indeed, only even reasonable to say if gay marriage would be naturally legitimate — if your prediction of the acceptance of gay marriage in an increasingly secular society would really come true.

    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.

    • lol May 14, 2012, 8:07 pm

      “Religion didn’t invent anti-gay sentiment. It simply responded to the will of society. ”

      And what exactly are you basing this on?

      “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.”

      same here

    • lol May 14, 2012, 8:07 pm

      “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.”

      Again, what are you basing this on?

  • BILLBO July 10, 2010, 7:31 am

    YOU ARE SIMPLY NOT THINKING CLEARLY.
    Or, you are so uninformed you have no business even bringing the topic up.
    Which ever the case me be, I suggest you study up before you go on with life much further.
    If you really are a true libertarian, then you have to understand the entire DOCTRINE of gay, is not only a total rebellion against anything sane for any society, NO MATTER WHAT FORM OF GOV or NO GOV exists.
    So you have a clue, or have you bought the lies that AIDS is now a hetero sexual disease? And how did it get there? And just how does this effect libertarian, or any Gov philosophy?
    Gay marriage has NOTHING to do with marriage, and if the libertarian party has elected to drop so much and even debase itself by claiming “sisters” and multiple people marriages are “no big deal” then libertarianism just lost a WHOLE BUNCH OF IT’S SUPPORTERS AND DEFENDERS. How much more spineless, perverted and ignorant could a society get then what you’ve here proposed?
    I think if you really cared about representing libertarianism, you’d first get well rehearsed on ALL of what “homosexuality” costs any society.
    For starters, if you care about late term abortion being murder, then you’re being hypocritical and or not equal in affirming or allowing for anything at all pertaining to homosexuality.

    • lol May 14, 2012, 8:04 pm

      Lol what a retarded post. First of all, AIDS is not a “gay disease” – I am willing to wager that you have absolutely no evidence for your position other than an assumption that correlation implies causation.
      “Homosexuality” doesn’t cost society anything.

  • Tony July 20, 2010, 1:53 pm

    What nonsense is any discussion on “gay marriage” within the context of true libertarianism.
    Libertarianism is nothing but non-agression. It is not conservative moralizing.
    Since marriage as we know it now requires officializing by government, there would be no officializing heterosexual marriages within libertarian societies. The difference in terms of acceptance is completely null and void between hetero- and homosexual marriages.
    Only an agressor would try to interfere in a homosexual couple’s desire to marry, whatever the term “marry” would mean in a stateless, governmentless society. And agressors are criminals.
    There is a difference between individual gay people and their desire to fulfil some sort of ritual to be connected on one side, and the ‘egalitarian’ ideology on the other side which espouses the view that people should be forced to accept homosexuals in their own lives and/or businesses.
    Gay people would have no right to demand any sort of respect or compliance from those who don’t wish to give it. However, the exact same goes for the other way around and gay people, as long as they do not agress against another, would be free to do as they damn please.
    If this upsets the conservative, crypto-collectivist elements within the “libertarian” community to the point where they would leave for their own sexual opression-based commune, then they should be told by all means to leave, since they are completely ignorant of the one true staple of libertarianism (the non-agression axiom) anyway.

    • BILLBO July 21, 2010, 7:04 am

      You missed it.
      the point I was trying to get people to realize is, only if you could jump straight to a total libertarian model of gov, would this work. But, if you were able to do that, because of the FACT that homosexuals are the NUMBER one recipient of all the SOCIAL WELFARE programs, and mainly because of their AIDS, and now several new anal diseases popping up, Then, the new libertarian gov (in order to be such) would have to let them basically die in the streets, along with lots of other people who received the homosexual diseases from “bisexuals.” And all I’m saying is, I am one hundred percent for a perfect libertarian model, unfortunately, because of this, it will never happen. Because even we “conservative, crypto-collectivist” “religious moralists” would not want to let these people just die without helping or comforting them?
      So maybe its you ARROGANT Libertarian STRICTISTS who need to ponder your own moral consciousnesses. Because if libertarianism is going to turn a blind eye to suffering people, NO MATTER WHAT IS MAKING THEM SUFFER, then libertarianism is NOT and NEVER WILL BE, AMERICAN!
      And really man, why don’t you just open that closet door.

  • shora July 22, 2010, 3:43 pm

    “Does gay marriage violate anyone’s rights? No.” – depends on what you call marriage. If it’s some recognition contracts the couple signs with other individuals then no. But if the couple uses the state to violently force other individuals into recognizing their status, then yes, it violates rights.

  • Aristo January 24, 2014, 8:11 pm

    If an illegitimate institution is going to insist on running a system (illegitimately, needless to say), then gay couples have no right to partake in that illegitimate system.

  • Aristo January 24, 2014, 8:12 pm

    Next: the libertarian case for welfare for billionaires…

  • Conservative January 29, 2014, 11:49 am

    Simply put, marriage is an institution recognized by the ability of those married to procreate. Procreation is vital for the welfare of the society. Thus marriage is not simply a contract.

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