Tag Archives: gay marriage

The gay marriage debate is still missing something

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.

Libertarian Response to “Gay marriage isn’t a right”

Jonthan Zhou posted his final column of the year for the Chronicle.  He claims that he is a conservative or libertarian, but I hold that he is far from it.  This is my response to his article, sent to the Chronicle.

Mr. Zhao seeks to refute gay marriage on the basis of natural and legal rights, an intangible “morality”, an economic externality argument and finally a discussion of the separation of constitutional powers.  As a libertarian and presumed believer in Federalism, it seems shocking that Mr. Zhao somehow overlooks that separation of powers might exist for the very purpose of preventing enforcement of unjust laws. Secondly, he utilizes a UT-Austin study that found lower quality of life indicators for children raised in gay households. Assuming it is true, he ignores that utility is also lost every day by gay and lesbian couples legally unable to enjoy the full benefits of marriage, both economic and personal. Why a libertarian or conservative should argue that an interventionist tax system is the proper way to confront the economics of personal relationships is again mystifying.  Mr. Zhao’s “morality” that government should enforce is somehow completely independent of the natural rights he refers to earlier.  The concept that a government has the ability to enforce a morality beyond the natural rights of individuals is the very antithesis of libertarian thought.  His argument that there is no legal right to gay marriage is predicated on the abandonment of a natural rights morality. If this were not bad enough, Mr. Zhao starts his column by denying that there is any support of marriage amongst natural rights. But if marriage as an institution is a societal concept, defined by the many, why does a libertarian defend a government sanction of it?  If instead, marriage is a personal contract, then all have a vital libertarian right to it. The right of individuals to create contracts is inviolate.  The fact that Mr. Zhao argues against so fundamental a right indicates he is not the defender of liberty and small government he claims to be. As a libertarian myself, I would emphatically disagree that Mr. Zhao holds the same beliefs I do.