This is something I wrote on my old blog almost four years ago:
August 6, 2010
Yesterday, a federal district judge deemed Proposition 8 in California unconstitutional. Social conservative groups were outraged and gay rights groups were jubilant. In the case, Perry v Schwarzenegger, Judge Vaughn Walker found that Proposition 8 violated the Due Process Clause and Equal Protection Clause of the 5th and 14th Amendments. What the Judge found essentially, is that there is a Federally protected right to marriage, that this right is fundamental and inalienable, and that therefore, no government, State or Federal, can abridge a right to marriage. Does this make sense to libertarians? I think so. Everyone should have a right to marry whomever they choose, and governments should not have the power to stop consenting adults doing whatever they want as long as they don’t hurt others.
Opponents of gay marriage maintain that marriage is a traditional institution and a societal concept exclusively between a man and a woman. Gay marriage proponents say that people should have the freedom to do whatever they want, and that gays shouldn’t be second-class citizens with a different set of rights. However, I think both miss a very important point: why do we have to register with the state to get married? Doesn’t this strike anyone else as weird or creepy? In 1984, citizens were married through the state as well. Obviously, I don’t think we live in a 1984-type state, but the point remains. Everyone seems to take it for granted that marriages should be registered with the government, but that makes no sense to me.
As Marc Eisner at Pileus states, “the government shouldn’t marry anyone” [emphasis added]. Because marriages certainly have some repercussions as far as property rights and such, I believe we could still have civil unions registered with the state for the purposes of tax returns and bank accounts. But I do think social conservatives have a small point in that marriage is traditionally a religious institution. Therefore, I think we should separate it from the state completely.
Of course, this is very much a minority position, and most people continue to want state intervention into marriage, which will continue to cause problems and conflicts as people of different beliefs try to enforce their ideas of marriage on each other.
We’ve made great strides in the years since then, but again, after this most recent Virginia District Court ruling, I’m left saying the exact same thing as four years ago, as conservatives are once again horrified at the court’s ruling. It is really weird to have to ask the state permission to get married. It should make all conservatives extremely uncomfortable, and much more uncomfortable than any step towards legalizing same-sex marriage. But in the meantime, since we’re stuck having the government mediate marriage, I hope we can keep making it easier for everyone to live their lives how they want. This is great news from Virginia, and inevitably more and more states are changing their stances on this issue.