The Other Principle of Classical Liberalism
Regarding same-sex marriage.
Modern libertarians focus on the size and scope of the State. Their philosophy grew out of concern over overreaching government in the middle of the twentieth century, and the U.S. government today is many times bigger than it was back then. The modern emphasis on shrinking the State, however, overshadows another important principle of the classical-liberal tradition that modern libertarianism derives from: equality before the law.
Part of the problem today is that an increasing number of libertarians lean toward the anarchist position. When one’s whole political perspective begins with the proposition that anything and everything the State does is evil and/or unnecessary, it’s easy to ignore questions about about how the State — given its existence – should properly conduct its business. These questions involve matters of justice and liberty, and if we libertarians ignore them, we risk not only irrelevance in important conversations but also risk consigning our fellow citizens to continued injustice and denials of liberty.
The legalization of same-sex marriage in New York last week has brought these tensions to the surface. Libertarians seem split over whether to celebrate this action. On one side is a group arguing that the real problem is State involvement in marriage in the first place and that this decision just makes it more involved. Therefore, this group seems to be arguing, we should oppose the action (or at least be indifferent about it) and work to separate marriage and State.
Equality under the Law
On the other side are those like me who — while agreeing that the long-term goal is separation of marriage and State — argue that, given the slim chance of separation happening any time soon, classical-liberal principles require the State to treat all citizens as equal before the law.
For most of human history political leaders acted with near total discretion, distributing benefits and impositions among their subjects however they like. One of the most important accomplishments of the liberal movement was to subject those with political power to rules. Starting with the Magna Carta and up through the democratic revolutions and constitutions of the eighteenth century, liberalism worked to create a society ruled by law not by men. Since the eighteenth century the liberal movement has also worked to ensure that all citizens, by virtue of their being adult humans, have their rights fully respected. The liberalism of the nineteenth century was antislavery, antiracist, and part of the earliest movements for women’s rights. It powerfully combined a commitment to liberty with a commitment to equality to make the case for the liberal order.
The advent of socialism led more and more liberals to abandon the liberty half of the equation in favor of the equality half, wrongly believing that restricting economic liberties in the name of the “positive” liberties promised by socialism would bring about a better world. Modern libertarianism pushed back by picking up the liberty side while often deemphasizing or outright abandoning the equality side. That, in my view, was a mistake.
We cannot avoid making judgments about how governments should act. Our own tradition as libertarians points to how to do this: Government must treat all its citizens equally, and nothing paid for with tax dollars may involve invidious discrimination. It would be wrong on classical-liberal grounds for a government to refuse to pay Social Security to nonwhites even though we think Social Security is an illegitimate use of government power.
Interracial Prohibition
The same is true of same-sex marriage. If government grants certain privileges to those who are married, it must grant them equally to all its citizens who wish to marry. In the same way that prohibitions on interracial marriage were wrong on libertarian grounds, so are the prohibitions on same-sex marriage. There is no credible evidence that legalizing it would harm innocent third parties, and there is no relevant functional difference between same-sex marriages and many of the marriages the State now licenses for heterosexuals. For example, many individuals who simply love each other and wish to make a life-long commitment but who do not wish or are unable to have children are issued marriage licenses.
Finally, it would also be wrong for governments to compel private religious organizations to perform same-sex marriages or to dictate whom private business must serve. The State must not discriminate, but individuals and private organizations should retain their rights of association.
In the case of same-sex marriage, letting the perfect be the enemy of the better would require that we tolerate true injustice. Libertarians should proudly support what the New York State Assembly has done. It is true to the oldest of our principles.
Comment by Jon on 30 June 2011:
“If government grants certain privileges to those who are married, it must grant them equally to all its citizens who wish to marry.”
If govt grants privilege to marriage, it must define marriage.
Many states have followed the US and state constitutions and have done so.
If the state refuses to define marriage, then there can be no limits on the definition.
The next question is why should the state grant any privilege to marriage? The traditional reason was to protect property rights for the wife and children and to promote the second level of government, the family. The first being self-government.
Comment by Less Antman on 30 June 2011:
I agree, but even a libertarian focusing only on the liberty side of this issue should recognize that the legal benefits of marriage consist primarily of lower income and estate taxes, easier gift and inheritance, and the removal of government obstacles in matters of migration, adoption, and other areas where there should have been no restriction placed on anyone in the first place. Thus, even someone who rejects the argument based on equality before the law should support same sex marriage recognition on grounds of increased liberty overall.
Still, the goal is not marriage equality but a separation of marriage and state. And education and state. And security and state. And law and state. And …
Comment by Charlie on 30 June 2011:
One question for the long-term remains.
As marriage records are a key source of genalogical and population information, if the government were removed, and no religious ceremony was performed, how would we track marriages?
Would we request the courts to maintain marriage logs?
Have some private company do it?
I personally fail to see what difference it makes if the government is “involved” in marriage or civil unions or not. The cost to the public is minimal, as is the intrusiveness.
While I personally don’t know myself about same-sex marriage, I do agree with the principle of equality before the law, and feel it’s reasonable to exempt a religious order that doesn’t want to perform them from doing so.
Besides, with regard to same-sex or male-female marriage, why not- everyone does have the right to be miserable!
Comment by Jon Ogden on 30 June 2011:
Once again Horowitz comes up with a reason to have the state pass a law where it shouldn’t. Marriage is none of the state’s business, nor is divorce. Any laws in this area should concern themselves with the proper support of any children that are the product of the union – and that law should not need to inquire as to who did what to whom with what before insuring that the kids’ needs are taken care of.
Comment by Steve Horwitz on 30 June 2011:
Actually Jon, I don’t want them to pass a new law. I want them to get rid of a law the prevents one class of people from exercising a long-standing constitutional right. Seems to me that’s highly consistent with libertarianism.
Again, I ask the question: would you have opposed efforts to legalize inter-racial marriage in those states that had laws against it on the grounds that it was the “state passing a law where it shouldn’t?” The removal of a barrier to the exercise of a recognized constitutional right (that has its origins outside the constitution itself) is not government intervention.
Comment by Aeon J. Skoble on 30 June 2011:
“Part of the problem today is that an increasing number of libertarians lean toward the anarchist position.”
That’s not a bug, it’s a feature. If this is actually correct, it’s good news. I think your beef isn’t with anarchists per se, but with those who reject incrementalism; those who let the perfect get in the way of the good. It’s possible to reject minarchism and also take the view you have on issues like this one. Exhibit A right here.
Comment by Sheldon Richman on 30 June 2011:
Regarding the practical implications, let’s remember that, with government so involved in medical care (unjustifiably, of course), recognized marriage brings spousal prerogatives in medical issues regarding such matters as next of kin and visitation. Today the same-sex life-partner of someone, say, in a coma does not have the same prerogatives as a heterosexual spouse in the identical situation. Parents can intervene to block involvement by a gay partner, though they could do no such thing in a heterosexual case. This is no abstract issue. Serious concrete matters involving people’s lives and happiness are involved.
Comment by The Fresh Prince of Darkness on 30 June 2011:
Steve has essentially asserted in the past that it’s of little concern to him whether existing anti-discrimination laws will be brought to bear against those who would refuse to recognize state-sanctioned homosexual marriages:
http://www.coordinationproblem.org/2011/05/the-hayekian-case-for-legalizing-same-sex-marriage.html#comments
What the hell, just a bunch of reactionaries getting what they deserve, right Steve?
Comment by Steve Horwitz on 30 June 2011:
FPoD:
I have no idea where you got that from, but my scan of those comments finds me saying this:
“I am opposed to any laws that treat GLBTs differently. So I’m opposed to “hate crime” type laws. I’m also opposed to any law that would force religious organizations to marry gays and lesbians. This is about the state treating citizens equally.”
Sounds like it IS of concern to me whether such laws are brought to bear in the way you’re talking about. And I repeat that same point above, even more strongly.
It appears that you are “essentially” unable to understand my plain text, or you are somehow interested in “essentially” asserting to those who won’t follow your link that I believe something I do not.
Where’s your evidence for my lack of concern, esp. in the face of evidence to the contrary?
Comment by FreeCapitalism on 30 June 2011:
This article is an example of “extreme apriorism”.
It is unfortunate that the state must define and recognize a valid marriage, true; but the state must do so because the state is the arbiter of legal contracts regarding life (child custody, for example) and property in matters regarding the rupture of a family union or inheritance. But to allow the state to define marriage contrary to natural law which admits sexual union only between a man and a woman and contrary to moral law which dictates families thrive in a committed, monogamous man-woman relationship is to suffer the state’s expanding power.
If the state can permit marriage between two men or two women, why not allow polygamy? Why not Islamic law (one man, four wives)? Why not all kinds of perversions? A priori reasoning in the name of “equality” concludes with the opposite effect of that intended by well meaning libertarians: too much power accruing to the state. By this reasoning, since our society allows (tolerates) abortion, we ought allow euthanasia in the spirt of equality. No! Both are wrong.
Libertarianism has utility only to extent axioms and postulates flow not from the premise that the state is evil or can only do wrong, but from an absolute, immutable moral law, the definition of which should not rest with the state, but with Judeo-Christian tradition, and from which law it can be derived that the state’s footprint on society should be constantly minimized.
Freedom cannot survive without civility nor without morality, just as a society cannot survive without an integral traditional family unit as God intended and commanded of us.
Comment by jz on 30 June 2011:
@free capitalism….moral law does not come from judeo-christian tradition. Unless we live in a theocracy(which we do not). If all parties agree, why not have as many husbands or wives as agreed on. Also, abortion and euthanasia should also be a private decision(regaurdless of your personal beliefs).
Comment by Jon Ogden on 30 June 2011:
Actually, Stephen – I would have opposed the laws that defined marriage whether they set what races could marry, what sexes, what color hair, what religions, or what ceremony was used.
The state, of course, is the final enforcer of contracts and it may be that people who say they are married would wish to sign a state-enforceable contract specifying what the two of them decided their rights and responsibilities were in their relationship, and specifying penalties, if any, for violating the contract. But the choice as to whether to have a contract and if so what is in it should be determined by the two parties involved without the state deciding what can be agreed to and what cannot.
The one semi-exception I would see to this rule would be in the matter of children. Parents should be required to support their children. There is an unspoken contract made by the creation of life that should be enforced by the state.
I wish you would stop writing as if the only choice for a libertarian is between statism-light and anarchy.
Pingback by A Same-Sex Marriage Question for Some Libertarians | Bleeding Heart Libertarians on 30 June 2011:
[...] UPDATE: That article is online now here. [...]
Comment by Roger McKinney on 30 June 2011:
Steve: “If government grants certain privileges to those who are married, it must grant them equally to all its citizens who wish to marry.”
That’s a subtle bait and switch argument. Of course the state should not discriminate against unmarried people. It should not pass any laws that favor married couples. The homosexual community took care of such discrimination with the civil union laws passed over the recent generation. A few issues remained, such as the one mentioned by Sheldon, but that could easily be taken care of in court.
However, none of the above justifies changing the definition of marriage. The homosexual community has little to gain from SSM laws because they got rid of most of the discrimination with civil union legislation.
If the state offered no benefits to married couples that non-married couples could not have then it would not be discriminating against anyone.
So why aren’t homosexuals content with civil unions? Why can’t they just sign contracts before witnesses and call the contract a homosexual civil union? Why must they force the change in the definition of a word that has retained its definition for over 8,000 years? They do so because they want to force opponents of homosexuality to assert that homosexuality is as moral as heterosexuality.
Comment by Eric on 30 June 2011:
“They do so because they want to force opponents of homosexuality to assert that homosexuality is as moral as heterosexuality.”
How is homesexuality or homosexuality an issue of morality? Are you implying that it’s a “choice” or “lifestyle” issue? That you, Roger McKinney, can swing either way, but choose to be straight for moral reasons? If not, then how is being gay or straight of moral significance?
Comment by Eric on 30 June 2011:
Correction- “How is homesexuality or heterosexual an issue of morality?”
Comment by Roger McKinney on 30 June 2011:
Of course, the whole point in the state defining marriage was to discriminate. If the state didn’t discriminate it wouldn’t have any interest in defining marriage.
Eric: How is homosexuality or heterosexuality an issue of morality? Are you implying that it’s a “choice” or “lifestyle” issue?
Yes, homosexuality is a lifestyle issue. Marriage is a moral issue because almost all cultures have used marriage as a means of distinguishing moral from immoral sex since the dawn of history. No society in history, that I’m aware of, has considered any and all forms of sexual behavior to be moral. For example, few have considered prostitution to be moral sexual behavior. Until the last quarter of the 20th century, marriage has always been about morality.
Comment by Rick DiMare on 30 June 2011:
Jon says: “The one semi-exception I would see to this rule would be in the matter of children. Parents should be required to support their children. There is an unspoken contract made by the creation of life that should be enforced by the state.”
This really is the heart of the matter, but perhaps also a reason gays should be allowed to a state-enforced marry, if, but only after, they commit to adopt children. Someday the Equal Protection Clause of the 14th Amendment might require it, at least in states where gays are allowed to adopt.
But otherwise, private-contract civil unions are sufficient to protect a bond intended for only two adults, in which case the state only becomes necessary if one of the parties alleges breach of contract.
However, in order to apply equal protection properly, some heterosexual marriages, formed with no intention of raising children AND no biological capacity to do so, should also be limited to civil unions.
The central idea is to protect children until they reach the age of majority, and to keep them with the “insurer of first resort” (the original parents) as long as possible, so children won’t prematurely become “charges” of the state, the “insurer of last resort.”
So, perhaps the only place I disagree with Stephen’s article is where he states, “There is no credible evidence that legalizing it [gay marriage] would harm innocent third parties.”
I believe there ARE innocent victims when we don’t properly distinguish between marriage and civil union. It’s just that the victims are silent and incapable of defending themselves.
It’s one thing to form a partnership that asks the state to enforce promises between two people vs. one that promises to raise an innocent under-age third party.
Comment by Roger McKinney on 30 June 2011:
Sheldon: “Today the same-sex life-partner of someone, say, in a coma does not have the same prerogatives as a heterosexual spouse in the identical situation. Parents can intervene to block involvement by a gay partner, though they could do no such thing in a heterosexual case.”
That is a very sad situation for the homosexual partner, but consider the pain and sadness of the parents. Why would the parents refuse to allow the homosexual partner visitation rights? Obviously, they feel very strongly about the morality of sexuality. In such cases the homosexual child often ignores the pain, sadness and guilt he causes the parents. If parents refuse to allow a homosexual partner to visit that means that the homosexuality of their child has caused them a great deal of grief.
Should the state decide who’s pain and suffering is more important? Should the state force the grieving parents to give up their right of association?
I think the state should stay out of such issues.
Comment by Eric on 30 June 2011:
“Yes, homosexuality is a lifestyle issue.”
So answer my question. You choose to be straight yet have the capacity to be just as attracted to a man as a woman? Speaking for myself, I have never had any strong sexual urges towards a man and have nothing against homosexuality suggesting that something innate is in play. Yet, you’re claiming that you could jump into bed with another man and have the same sexual urges as towards a woman but stop yourself because you think it’s immoral?
Comment by Sheldon Richman on 30 June 2011:
“So why aren’t homosexuals content with civil unions?”
Because one member of the gay couple wants to be able to say to the other: “Will you marry me?” Not: “Will you civilly unite with me?”
I see nothing wrong in wanting that.
Comment by Sheldon Richman on 30 June 2011:
“Should the state decide who’s pain and suffering is more important?”
Red herring. The state wouldn’t be deciding. The person in the coma would decide before his misfortune strikes. Why should the parents overrule that just because he is now incapacitated?
Comment by Steve Horwitz on 30 June 2011:
“So why aren’t homosexuals content with civil unions?”
Not that Sheldon’s answer isn’t on target, because it’s perfect.
But you might as well ask why blacks weren’t content riding in the back of the bus. After all, the bus still got to the same place, no?
Comment by Rick DiMare on 30 June 2011:
Can we at least agree that without state-enforced marriage the human male-female bond would be even more unstable than it is already? And that many more children would become “charges” of both state and federal governments?
This argument easily gets derailed if we can’t agree on why the institution of marriage was “invented” in the first place?
Comment by Rick DiMare on 30 June 2011:
Can we at least agree that without state-enforced marriage the human male-female bond would be even more unstable than it is already? And that many more children would become “charges” of both state and federal governments?
This argument easily gets derailed if we can’t agree on why the institution of marriage was “invented” in the first place.
Comment by The Fresh Prince of Darkness on 30 June 2011:
“And yes, even if expanding marriage rights to same-sex couples means spending a few more tax dollars I would favor it. ”
Ring a bell, Steve?
Comment by Roger McKinney on 30 June 2011:
Eric: “you’re claiming that you could jump into bed with another man and have the same sexual urges as towards a woman but stop yourself because you think it’s immoral?”
It’s more complicated than that. The best theory that I know of for the cause of homosexuality is that young guys are recruited by older ones. Just after puberty the sexual orientation of a young man is highly susceptible to a variety of influences. One psychologist attributes the need to rape women to such influences at a young age. If a boy stays in the homosexual lifestyle for very long his sexual preferences become harder to change.
I had a good friend who left a homosexual lifestyle after about a decade. He married and had ten children. After 20 years of marriage he said he still was attracted to men on occasion, but he never acted on the impulse because he loved his wife and kids.
Sheldon: “Because one member of the gay couple wants to be able to say to the other: “Will you marry me?”
But that allows a tiny minority of people to change the definition of marriage and force the majority to abandon one held for millennia. If homosexuals don’t like the definition of marriage that humanity has held for millennia, why not choose another term for their union?
Steve: “The state wouldn’t be deciding.”
Yes, if the state determines the definition of marriage then the state would be deciding.
Steve: “The person in the coma would decide before his misfortune strikes. Why should the parents overrule that just because he is now incapacitated?”
SSM would make that the case only if the state is allowed to decide the definition of marriage. What would be the case if the comatose person were not a minor and the state had no role in determining marriage? A court would have to decide the matter if the parents and partner could not agree. On what basis would the court decide? If the comatose person and the partner had a contract, the court could decide for the partner in the contract. But without a contract, I would guess the court would decide in favor of the relatives. In other words, the partner needs a contract, not to change the definition of marriage.
Rick: “But you might as well ask why blacks weren’t content riding in the back of the bus.”
Believe it or not, no one has ever considered being black to be immoral or a lifestyle choice. Many black people are angered by attempts to equate homosexuality with civil rights.
Comment by Roger McKinney on 30 June 2011:
The situation Sheldon describes could easily be changed without destroying the concept of marriage. It could be handled like living wills. Before the need arises, homosexual couples could sign a contract that sets out the rights given to the either partner by the contracting partners.
Homosexuals already have everything they claim they want in the way of rights. So why change the traditional definition of marriage?
Comment by Steve Horwitz on 30 June 2011:
““And yes, even if expanding marriage rights to same-sex couples means spending a few more tax dollars I would favor it. ”
Ring a bell, Steve?”
Yup, and it has nothing to do with your comment about anti-discrimination law, but thanks for playing.
Comment by Maximize Liberty on 30 June 2011:
Professor:
Your argument feels naive to me. It take the rule that you are proposing to be this:
“Government must treat all its citizens equally, and nothing paid for with tax dollars may involve invidious discrimination. [] If government grants certain privileges to those who are married, it must grant them equally to all its citizens who wish to marry.”
This rule would require you to favor allowing brother and sister to marry. I’ll assume that you would not favor allowing such a marriage, but you might surprise me.
Assuming you don’t favor allowing such a marriage, I’d note that the logic underlying your rule does not help you out. You said:
“In the same way that prohibitions on interracial marriage were wrong on libertarian grounds, so are the prohibitions on same-sex marriage. There is no credible evidence that legalizing it would harm innocent third parties, and there is no relevant functional difference between same-sex marriages and many of the marriages the State now licenses for heterosexuals. For example, many individuals who simply love each other and wish to make a life-long commitment but who do not wish or are unable to have children are issued marriage licenses.”
All of that would be true of the incestuous marriage.
Now, you probably say, but there are differences! Indeed, there are. But they are not part of your rule, nor of the underlying logic of your rule.
What you should be arguing is that sexual preference is irrelevant to the reasons that the state recognizes people as married. The problem there is that those reasons are (historically, at least) linked to child-bearing and child-rearing. But that link is what lets you reject incestuous marriage.
I would also note that none of your rule or its logic would apply to prevent group or multiple marriage. Again, I think that is because you have failed to make the right argument, which would try to show that the particular prohibition is not related to the underlying reason for state recognition of marriage.
Max
Comment by Costard on 30 June 2011:
Since the law does not distinguish between homosexuals and heterosexuals, how can it discriminate between them? Every man is accorded the same right: to marry a woman. The actual inequality under the law is that a woman can marry a man, while I, a man, cannot. By all means, open up marriage on this account, or better yet, remove this religious institution from the legal sphere altogether.
But to argue that marriage is unequal because only some men are satisfied by it, is to fall to the worst sort of logic. Wealth, property and happiness are similarly unsatisfying to those who lack them. Libertarians are wary for a reason; history shows us that Equality’s butcher shop is good for more than just meat.
No pun intended.
Comment by Null Void on 30 June 2011:
Looking over some of these responses, I must ask; where did all these conservatives come from? I thought this is a libertarian publication. Don’t you guys have the National Review, Human Events, or (A fine publication, by the way) The American Conservative? Why argue against gay marriage, when being either for it or for the removal of government definition of marriage is what libertarians would favor?
As for the whole idea of polygamy, bigamy, multiple wives or husbands, even incest, I fail to see what is wrong with that. As long as it is between two consenting adults, why the heck not? As a libertarian, I favor maximum freedom; neither the state, whether by naked force or hiding behind ‘tradition’, has any right to limit it. When I hear words like ‘tradition’, I know I am talking to a conservative, not a libertarian.
Comment by Eric on 30 June 2011:
“The best theory that I know of for the cause of homosexuality is that young guys are recruited by older ones.”
Can you point me to any “recruitment” studies
?
I found this on Wiki so I’m dubious of your theory:
“There are no empirical studies or peer-reviewed research that support theories attributing same-sex sexual orientation to family dysfunction or trauma (Bell et al., 1981; Bene, 1965; Freund & Blanchard, 1983; Freund & Pinkava, 1961; Hooker, 1969; McCord et al., 1962; D. K. Peters & Cantrell, 1991; Siegelman, 1974, 1981; Townes et al., 1976).”
“Just after puberty the sexual orientation of a young man is highly susceptible to a variety of influences.”
Really? You had equal urges towards both sexes at that point? Speaking for myself, I was interested in girls for as long as I can remember and never contemplated kissing or being sexually intimate with a male. Regardless, I’m sure sexual attraction is not always innate but I still don’t see the moral implications if two people love each other. Finally, in contrast to race and gender, religion is a choice and equal protection applies.
Comment by Eric on 30 June 2011:
-Incest results in inbreeding (higher rates of congenital birth defects) so can be regulated via police power.
-Polygmany should be legal, however, if it can be demonstrated that polygamous relationships are mostly harmful to children, a case can be made for banning it.
-To anticipate another argument, animals lack the capacity to consent.
-All of these cases are distinguishable from gay marriage.
Comment by Joe Schmoe on 30 June 2011:
Remember, kids; don’t bring up same sex-marriage in a group of libertarians. Most of them can’t get over their Conservative/Religious sides.
Here’s an example:
“This rule would require you to favor allowing brother and sister to marry. I’ll assume that you would not favor allowing such a marriage, but you might surprise me.”
My opinion, Horwitz’s opinion, or the opinions of anyone else are completely irrelevant. The engagement is a consenting union between two adults and so is none of your business. If you take issue with the word ‘marriage’, go jump in a lake. People will do things and say things you don’t agree with in a civil society; I see no reason or need to pull out a gun and start pointing it at people who do so, unless they’re doing the same thing to you.
I do take issue with the law. I will not fight to support a change to the law for same sex marriage, I’d offer the idea of removing the concept of marriage entirely from the states purview. I’m not going to choose between a false dichotomy of state discrimination or no state discrimination. Expanding the role and scope of the state with the intent of shrinking it some time in the future never works out well.
In this case, I foresee the polygamy crowd jumping in on the bandwagon and demanding equality; it’s not going to ‘stop’ with same-sex marriage. Then comes the associated logistical problems, like figuring out how all that affects the existing legal system and code; I don’t think companies are prepared to handle multiple spouses (say, for coverage under an employers insurance plan) and are going to fight it and the resulting legal decisions.
No, I don’t see much good from these kinds of laws when the option to remove it from the purview of the state entirely exists, even though spouse-to-spouse contracts are not always fair alternatives when it comes to getting third parties to agree. Grassroots movements can promote this kind of stuff and change public perception to the point where government decree doesn’t matter.
Comment by Tom Blanton on 30 June 2011:
Part of the problem today is that an increasing number of libertarians lean toward the anarchist position.
I’d say that part of the problem today and yesterday is that an increasing number of libertarians lean away from the anarchist position.
Expanding the role and scope of the state with the intent of shrinking it some time in the future never works out well.
Yep.
Why can’t gay folks just live in sin like everyone else?
But seriously gay folks, marriage is like driving – you don’t really need a license to do it. There’s even a way that the state will support a gay union against 3rd parties – legal documents.
Let a hospital try to ignore someone who has a medical power of attorney for a patient. They’d be asking for a lawsuit.
Owning property and holding accounts jointly with the right of survivorship, wills, powers of attorney, living wills, etc. can accomplish much that “legal” marriage can accomplish. Plus, you don’t have to worry about being pulled over and busted for being married without a license.
Comment by Sheldon Richman on 1 July 2011:
Max, if the prohibition is against “invidious discrimination” by the government, your incest concern might already be covered.
Comment by Roger McKinney on 1 July 2011:
Eric, a large part of the problem with this debate is that there are very few studies on homosexuality. People are afraid to do studies that don’t promote a genetic basis for homosexuality because radical homosexuals and their media supporters can destroy your career.
I have read all of the studies that have come out and read their critics. It’s pretty clear that there is no evidence for a genetic or natural basis for homosexuality. I did not write that homosexuality happens because of family dysfunction or trauma. But the fact that there are no studies about it doesn’t mean it doesn’t happen. That’s an argument from silence and a fallacy. All it means is that researchers are afraid to go against radical homosexuals.
In the vacuum of sound research, we have nothing to do but use experience and logic to determine the causes of homosexuality. The psychiatrist from whom I got the recruiting thesis spent decades in counseling young people, many of whom were homosexuals. And he spent decades in research on the effects of pornography.
Comment by Rick DiMare on 1 July 2011:
The state has a duty that free and independent people don’t have (and probably can’t conceive of having), which is to welcome all children that fall out of dysfunctional or failed pair-bonds.
Because heterosexual unions create children both voluntarily and involuntarily, and also don’t inform the state as to how many children they will have, the heterosexual union creates unique risks for the state that homosexual unions do not. It’s because of these unique risks that governments should distinguish between marriage and civil union.
Otherwise, if we don’t make this distinction, and states continue to extend benefits to lower risk pair-bonds, the state will likely become over-burdened and a push to limit family size will probably emerge.
Comment by Eric on 1 July 2011:
Roger- so you’re saying that we’re blank slate at at puberty regarding attraction and there are no innate evolutionary sexual drives in play? I find this hard to believe since we are animals afterall.
Even if this were true, I still don’t see how moral evaluation enters the picture unless it’s stemming from some religious base.
Comment by Beth on 1 July 2011:
“-Incest results in inbreeding (higher rates of congenital birth defects) so can be regulated via police power.”
True, but only to a point. The bad effects of incest are not seen right away, in fact, they are not guaranteed. It takes time. One who favors incest (I do not) could argue that they can be allowed to do it for one or two generations without any medical problems starting. Thus, the police theoretically could not be involved right away making incest fair game.
Comment by The Fresh Prince of Darkness on 1 July 2011:
Hey Steve, I see Sheldon Richman has your back. Real mystery there. And you expected people over at coordinationproblem to believe your BS about there being no leftist bias in academia because your fellow faculty members never objected to your free market positions? Sadly, tools like Boettke and Ransom probably did.
Pingback by Moral High Ground for Libertarians | Smith, Hayek live on! on 1 July 2011:
[...] Horwitz in The Other Principle of Classical Liberalism argues that “classical-liberal principles require the State to treat all citizens as equal [...]
Comment by jorod on 2 July 2011:
Laws of society reflect the desirable values of a society. And laws reinforce those values. Pandering to peoples’ delusions is not something we should introduce into law.
Comment by Jude on 3 July 2011:
Thank you for this post. I’m a straight person who advocates for same sex marriage. My husband and I are friends with many gay couples. They are in long term monogamous relationships, amazing people who work hard, are giving and compassionate. It is absolutely not true that being gay is a choice, nor is it immoral. They want the same legal rights and benefits as anyone else. I am so tired of people saying hurtful things that come from a place of ignorance. Please. Take a moment to think of all people as human. If you don’t know someone who is gay, take some time to get to know someone. It’s pretty easy to do in this day and age of the Internet. We have far bigger worries as a nation than degrading others based on myths.
Pingback by We Should Be Free Because We Are Equal | The Freeman | Ideas On Liberty on 7 July 2011:
[...] week’s column, “The Other Principle of Classical Liberalism,” generated some interesting comments, as did similar arguments I made at Bleeding Heart [...]
Comment by Uncensored Rev. on 7 July 2011:
Professor Horwitz, I’m studying 18th and 19th century liberalism and its influence of Black American thought (or vice versa). What are a few of the best books you might recommend in this regard?
Pingback by We Should Be Free Because We Are Equal | For Freedom's Sake on 8 July 2011:
[...] week’s column, “The Other Principle of Classical Liberalism,” generated some interesting comments, as did similar arguments I made at Bleeding Heart [...]
Pingback by We Should Be Free Because We Are Equal You can’t be one without the other. | on 21 July 2011:
[...] week’s column, “The Other Principle of Classical Liberalism,” generated some interesting comments, as did similar arguments I made at Bleeding Heart [...]
Pingback by Teachers: Spoiled Rotten? on 5 November 2011:
[...] things worse, I switched to a pure free market position. As I said: just one premise away. [1] The Other Principle of Classical Liberalism | The Freeman | Ideas On Liberty Reply With Quote + Reply to [...]
Comment by John T. Kennedy on 24 November 2011:
“Our own tradition as libertarians points to how to do this: Government must treat all its citizens equally, and nothing paid for with tax dollars may involve invidious discrimination. ”
Therefore government must not discriminate between married and unmarried individuals. Right?
Legalizing gay marriage is not a step in that direction, quite the contrary. Your plan is to simply tinker with who ends up on the short end of the state discrimination stick, reward groups which lobby effectively.
Comment by John T. Kennedy on 24 November 2011:
@ Eric
“Incest results in inbreeding (higher rates of congenital birth defects) so can be regulated via police power”
Not between relatives of the same sex. And even if inbreeding justified police intervention, it’s a distinct issue from marriage. Rape can be policed and it can happen between married partners but it is a distinct issue.
Pingback by A Challenge for Libertarians Against Federal Recognition of Same-Sex Marriage | Bleeding Heart Libertarians on 3 January 2012:
[...] liberal tradition was built on two pillars: the rights of the individual against the state and equality before the law. The state may not discriminate. If it offers a benefit to some, it must offer it to all who are [...]
Comment by Nico on 1 February 2012:
I wholeheartedly agree. Actually, I have always held this position.
“[L]etting the perfect be the enemy of the better would require that we tolerate true injustice.”
Pingback by Opposition to Gay Marriage: It’s Easy When Others Bear The Cost « Diminished Utility on 5 February 2012:
[...] For why gay marriage is consistent with classical liberalism’s principle of equality under law: http://www.thefreemanonline.org/headline/the-other-principle-of-classical-liberalism/ [...]
Comment by bmiddm on 7 February 2012:
cND1Cc pygwgxhflldc, [url=http://zuudrchmxhbl.com/]zuudrchmxhbl[/url], [link=http://wtjmdtoogtdr.com/]wtjmdtoogtdr[/link], http://whkhjxguhrsk.com/