Saturday, August 14, 2010

Why the Evasion on Same-Sex Marriage?

[See update below.]

I'm appalled at the mental gymnastics some libertarians have undertaken to avoid having to acknowledge that the State has no valid grounds for refusing to recognize same-sex marriage. This is truly a disgrace. The reasons they give for not embracing the California ruling (pdf) striking down the ban on same-sex marriage on equal-protection grounds look more like evasions than good-faith objections.

I've come across at least four such evasions:
  1. The State should have nothing to say about marriage, so approval of the ruling implies acceptance of the State's role (and by implication, the State).
  2. Aren't there more pressing issues?
  3. Marriage is about procreation.
  4. Federal courts have no jurisdiction over state matters.
My quick answers:
  1. Of course the State should get out of marriage. But it's in it now, so it should not be permitted to discriminate invidiously. If the State barred gay people from driving on the roads, would demanding that such discrimination cease imply approval of State roads or the State itself? Of course not.
  2. To people denied the normal benefits of marriage -- regarding custody of children, hospital visitation, medical decision-making for an incapacitated partner, next-of-kin matters -- there may be no more pressing issue. Liberty is not an abstraction; it's about living the life you want to live. It's easy for heterosexuals to see this is no big deal. (Jim Crow was similarly no big deal -- to whites.) Besides, the ruling has been made. How does praising it distract from whatever is "more pressing"? We're capable of multitasking.
  3. Marriage has never been exclusively about procreation. If that were so, couples that were infertile, elderly, and uninterested in having children wouldn't have been allowed to get married. Many other values have been at the core of marriage: economic security, love and emotional fulfillment, and more. A good place to start reading about this subject is Steven Horwitz's article on the evolution of family. A related objection to the ruling is that heterosexual intercourse has been the criterion of marriage consummation. So what? Institutions evolve. And besides, even if consummation were somehow essential, the reasonable mutatis mutandis principle is available. This objection is particularly absurd.
  4. When people ignore the existence of the First, Second, and Fourth Amendments, those interested in freedom generally get annoyed. So how can they ignore the existence of the Fourteenth Amendment, which says, in part, "nor shall any State … deny to any person within its jurisdiction the equal protection of the laws"? Like it or not, that amendment exists. So I see no argument against federal jurisdiction. For excellent discussions of this issue, see Roderick Long's writings here and here.
Update 1: In the original post I did not take up the objection that courts shouldn't overrule public referendums or legislatures (which is slightly different from #4) because that constitutes judicial tyranny and a nullification of democracy. I left this out because I hear this from conservatives rather than from libertarians. It seem clear that if government exists, then there is nothing wrong with courts thwarting the public or the legislature when either oversteps the limits we hope are set for government and violates liberty. Need I elaborate?

46 comments:

Skyler said...

The 14th Amendment is looked at here: http://www.connorboyack.com/blog/proposition-8-the-allegedly-unconstitutional-constitutional-amendment

Sheldon Richman said...

This line in the above-linked article -- "While heterosexual marriages are associated with certain government-regulated privileges, these are not rights—as explained previously, the only right is one of free association, which individuals of any sexual preference enjoy." -- misses a huge part of the story. This matter is not essentially about state-granted privileges, as I indicated in my post.

Steven Handel said...

Agreed on all points. There is no reason not to see this overturning of Prop 8 as a small victory for libertarians. To think otherwise is just a crippling thought - it is as if there is no chance of ever making any progress unless the state evaporates overnight.

tmana said...

The legal purposes of marriage have more to do with visitation rights, inheritance rights, parental rights, and taxation than they have to do with sexual behavior. Removing the legal stigma associated with homosexual couples self-affiliating for life should be considered only the first step in removing legal barriers to all consenting adults choosing the number and gender(s) of consenting adults with whom they wish to affiliate for life (or even just for producing one or more children).

Dennis said...

Calling a relationship between two members of the same sex a "marriage" just seems bizarre. It takes the whole idea of marriage, the concept, and adds a dimension that is... weird. Don't like it at all. The word redefining. It's like on Star Trek, when they used to say "To boldly where no MAN has gone before" and changed it to the more PC "To boldly go were no ONE has gone before." Not the same meaning at all. No aliens? Or no "persons," another word that grates. I don't object to the relationship. Don't understand it, but don't object. I just don't like messing with the words. Yes, language is dynamic. But that doesn't mean we should crowbar in new meanings.

Sheldon Richman said...

There's no crowbar. Language and institutions evolve. Some same-sex couples want a relationship environment that is clearly like what we call marriage. Where's the problem?

dennis said...

There are no good arguments against same sex marriage. Denying members of the LGBT community the same rights as straight people, or designating their unions as second class by refusing to call them marriages is cruel. In twenty years same sex marriage will be legal pretty much everywhere in the United States and that will be a good thing.

Chris George said...

I disagree with #1 and agree with the rest of your points.

To quote myself:

"Marriage is a club. And I think it's a stupid club: if you have undying love for someone, you shouldn't require the sanction of society to confirm its validity. But nevertheless, it's a club and it's a club that is very important to most people. The State is redefining entry into this club. It'd be like if the State "nationalized" the Boy Scouts, charged a tax to become a member, and then gave it special benefits. At first it keeps everything unchanged, but then it decides to let girls in. Now, no matter how dumb the idea of gender separation may be, the change in rules is contrary to the original point of the club in the first place."

The entire institution of marriage is discriminatory. It's a club. The State defining terms of entry is contrary to libertarianism. State enforcement of marriage was defiling in the first place, this is more so. There is only one position that is consistent: GTFO.

Give gays the State benefits (even if likely to the detriment of singles), the word and institution belong to religion and society most of which is still opposed to gay marriage.

Dennis said...

Wow! 50 years ago (to pick an arbitrary "gap" from the present), marriage was natural. Now it's a discriminatory club. Also, give state "benefits." Let's see, what are "benefits?" Ah, that would be "other people's money" confiscated by The State(TM). Euphemistically called "taxes." It's getting more and more bizarre. Yeah, I want my money confiscated so same-sex couples can join The Club(TM). All in the name of "progress."

Dennis said...

Sheldon, I've read yours and Roderick Long's comments and I don't have an answer... yet. I don't object to the same-sex relationships. I can't put my finger on it, but it bothers me, calling it "marriage." Let's continue Chris George's "club analogy." It's like "outsiders" forcing their way into the club and changing the nature, the character of the club, and then saying if the club doesn't go along, they were "impeding progress" or discriminatory. I guess I wonder why the party crashers aren't the fascists?

Sam K said...

Dennis, you're an idoit.

It doesn't matter that you feel "bothered" by the concept of gay marriage. I might feel bothered by the shape of your nose, but I've got no right to cut it off with a machete. This is a question about coercion and justice, not a question of your stupid and arbitrary personal preferences.

You described the legalisation of gay marriage as "outsides forcing themselves into a club". Bullshit. The aggressor in this situation is clearly the state. The state using force to STOP gays from marrying.

Stop the mental gymnastics and realise your position is stupid and unlibertarian.

Sheldon Richman said...

Dennis, the benefits aren't taxpayer-financed. As I said above they regard custody of children, hospital visitation, medical decision-making for an incapacitated partner, next-of-kin matters, and other spousal prerogatives.

You astound me. Okay, let's go with the club thing. My wife and I have a club. No gay person is asking the State to force me to admit him or her into our club. He or she is simply asking for equivalent legal recognition of his or her own club.

So you got a problem with that?

Dennis said...

No, agree with you completely there (regarding your club analogy). I apologize; my mistake about the "benefits." I'd like the state out of the business of relationship-credentialing, but I guess that's not practical (Roderick Long). And I'm against any kind of coercion from the state. What I'm against is calling it "marriage." Words matter. To make a man and a woman "marrying" equivalent to two people of the same sex... it's inaccurate. Because of kids, whether they happen or not. It's not the same thing when couples are the same sex. I agree it can be the same in every other aspect. But the "potential" for kids makes it different when it's a man and a woman. The sperm is not a potential fetus. Or the egg by itself. Only when combined. So that requires a different definition for describing the different relationships. A different word. Just like a man and a woman are different. Am I missing something here, too?

Bruce Majors said...

Very nice.

So Sheldon, are you single?

Sheldon Richman said...

So infertile married couples don't really have a marriage? Two recently married 70-year-olds don't really a marriage? Two married people who don't want children get married don't really have a marriage? But if two gay people form a union and intend to adopt and raise children, why isn't that a marriage?

This word game is ridiculous, even offensive. I'm married (though we were not going to have children). What do I care if my neighbors calls their union a marriage ?

Sheldon Richman said...

Bruce, see my last comment.

Bruce Majors said...

I am gay and am the biological father of an 11 year old so can I get married?

If not, does that mean no-longer fertile heterosexuals cannot re-marry after a first marriage and subsequent divorce where they had kids?

Now that biotechnology seems to be able to produce sperm from other cells, can two lesbians get married since they could in fact have a child that is their genetic union?

My gay male friends who hired a surrogate and had two kids, one from each father (kids who are biologically siblings through their mom) -- can they get married?

When biotechnology makes it possible to denucleate and renucleate and egg (or even just create an egg) out of my sperm or other cells that my (currently non-existent) gay partner can then fertilize with his sperm, to be gestated in a surrogate mom, an artificial womb, or a surgically implanted me, can we get married?

Will theocrats who oppose abortion then want to seize and destroy MY zygotes and embryos since my fetus is not a person but an abomination?

(And Sheldon I was joking above. I fixed you up with your first wife. Remember?)

Dennis said...

"Theocrats who oppose abortion..."

Gosh, Bruce. Can others oppose "abortion?" I'm an agnostic who opposes KILLING - words matter. Came to my conclusion in a philosophy class in college and from watching NOVA's "The Miracle of Life." Nothing religious about it. PURE science. Although I don't worship science either. But if you want to randomly knock off a fetus or "potential fetus," knock yourself out.

Dennis said...

Not intending to be offensive, Sheldon. I assure you, I'm not playing word games. I'm puzzling over the matter. It's not my intention to be offensive. You want to focus on the man and woman "joined" who can't have kids. The exceptions. There are always exceptions. As a professor in one of my classes said one time: "You can never, never, never, almost never, do this." I'm focusing on the "general rule." However, I do respect all your counter arguments. And I do suspect you're much wiser than me. But I have to work the problem out in my own mind, and I haven't yet. Sometimes I throw out things just to see what the counter arguments are. Not to cause ill will.

Bruce Majors said...

Dennis I never said I was an advocate of abortion.

I asked if people who oppose both abortion and homosexuality will want to abort the fetuses homosexuals produce from 2 same sex parents using biotechnology.

Dennis said...

Bruce, I doubt it, but since I'm not in that camp, I can only guess. I certainly would oppose the "killing." I don't oppose homosexuality, I just don't understand it. But then I don't understand a lot of things.

I've been consistent in my arguments that "words matter." Ask Orwell. When I made the Star Trek analogy, I was not being glib. A same-sex couple getting a kid through "prestidigitation" is not a natural process and not the same as that between a man and a women who come together to have a kid. To call it the same is... inaccurate. It's not a natural process for a man and a woman to get a kid otherwise, but like I said, these are usually exceptions. Probably both the state and religion are responsible for creating this mess. I think I read recently that some cleric around 1500 invited the state into the process.

I have no objection to same-sex relationships, I oppose any discrimination of same-sex couples, and I oppose the state in almost all matters.

I would think that words matter to Sheldon, too, as I watched his excellent debate on health care and his discussion of transparency. "Abortion" is a euphemism for "killing." Words matter. Just like euphemisms try to hide the true meanings, obfuscation over transparency tries to hide what's really going on.

Stephan Kinsella said...

Sheldon, as I argue in California Gay Marriage Law Overturned: What Should Libertarians Think?, I think the equal protection/legalistic argument here is very weak. But I support gay marriage, and the result reached here, anyway. One need not pretend the Constitution is libertarian. It's not. Many--most?--of the provisions of the Constitution are ambiguous and have no clear, objective meaning. After all, they are not real law, but for the most part just artificially constructed plans and dictates of a committee of statist bureuacrats and politicians, resulting from compromise etc. So why would the words be expected to have an unambiguous objective interpretation -- or one that is libertarian? I agree largely w/ Hasnas's Myth of the Rule of Law. But I think it is wrong to say those who disagree with the court's obviously makeweight and shoddy reasoning have no good faith objections and are merely being evasive. I would love it if the Constitution were more libertarian, instead of the statist centralizing cover for crime that it is. But since it's not, I am happy if a court just does libertarian justice despite the strictures of the Constitution, as I noted in Higher Law.

dennis said...

The Dennis commenting with the link to his name is not me. Perhaps I should throw my last name onto these posts.

Stephan Kinsella said...

"It seem clear that if government exists, then there is nothing wrong with courts thwarting the public or the legislature when either oversteps the limits we hope are set for government and violates liberty."

This sounds okay for a typical "government" but this kind of language obscures the federal nature of the US. The federal government is not the same as the state governments. For example, the reasoning you use here would seem more controversial if you said:

"It seem clear that if the American and Peruvian governments exist, then there is nothing wrong with American courts thwarting the Peruvian public or the Peruvian legislature when either Peruvian agency oversteps the limits we hope are set for Peru's government and violates liberty."

Sheldon Richman said...

I agree with Roderick Long (see links in the post): the federal system is largely a sham. States are little more than administrative districts of a unified government. That ship left port years ago.

MarkZ said...

Dennis, there's too much ambiguity in language for words to be as important as you make them out to be. I don't see why the state's definition of "marriage" has to match the church's, or yours. It seems a little silly to curtail people's rights for the sake of preserving the defibition of a word. Prioritize, man.

John Howard said...

When biotechnology makes it possible to denucleate and renucleate and egg (or even just create an egg) out of my sperm or other cells that my (currently non-existent) gay partner can then fertilize with his sperm, to be gestated in a surrogate mom, an artificial womb, or a surgically implanted me, can we get married?

As long as this is allowed, then yes, you should get married. But it shouldn't be allowed!! This is precisely what marriage of two people of the same sex licenses and approves of: conceiving children together, shared biological offspring from combining the couple's genes. But it would be really bad public policy and completely unethical to allow a lab to try to create a person that way, there is way too large a risk of birth defects, and it would cost too much, use too much energy, require giant government agencies and programs to fund, and it's totally unnecessary. Plus it might never be possible even if we did invest billions of dollars into it and created thousands of experimental embryos and fetuses, it is cruel and foolish to give people the right to do it.

Marriage must continue to express society's approval of the couple conceiving children together. All marriages should always be allowed to use their own genes, no marriage should ever be prohibited from creating offspring using their own genes. Same-sex couples should be prohibited from creating offspring using their own genes, like siblings are.

Civil Unions could be defined as "marriage minus conception rights" to give all the other rights of marriage without stripping the right to conceive from everyone else's marriage.

Anonymous said...

This whole discussion highlights the insidiousness of the state that Rothbard talked about - once they intervene, then eventually another intervention is required to "fix" the first one, then another, etc. Using the "club" example, there is nothing coercive with the Boy Scouts only admitting boys as private actors. But if the State nationalized it, then it becomes discriminatory and would have to admit women. The problem isn't the discrimination, it's the state involvement in the first place.

Sorry Sheldon, #1 really is a valid answer. If the State shouldn't be involved then that's that. Debating what the State should do if it is involved just sidelines the real issue. E.g., Emma Goldman didn't support suffrage because she realized nobody should be voting for bureaucrats, men or not. Do you disagree with that approach?

In a free society there will be a variety of different views on what a "marriage" is and what it isn't, from man-woman only to man-woman-woman to any-any-any. I'm fine with that; are you?

Thomas D said...

My home is a rented apartment. The State discriminates by allowing some others with homes to take part in an annual "mortgage deduction" while not allowing me to do so.

May I start calling my rent a mortgage? The situations are similar, after all: I'm a human exchanging part of my income for a home, just as a human known as a "mortage holder" does.

So why can't my exchange be called a "mortgage" and thus qualify for the State's benefits? Language, after all, evolves.

Of course the State should get out of the taxation business. But it's in it now, so it should not be permitted to discriminate invidiously.

I know this isn't some watertight argument, because I suspect you agree that a tax deduction for home ownership is arbitrary and discriminatory. But I'd hope you also see that it's just as arbitrary to declare that a word's meaning shall be force-fitted to accommodate whatever particular reality you've decided it should accommodate.

My rent isn't a "mortgage," and a homosexual relationship isn't a "marriage," no matter how equally those various scenarios should or shouldn't be treated by the State.

MarkZ said...

To the three posters in front of me: if you ject the state's definition of "marriage", and you reject the state's involvement in the issue, then why does it matter? Frankly, I don't care if the state defines me as a penguin, as long as they don't persecute me for it. I get the sense that Sheldon doesn't care much about the definition part -- just the extension of equal rights to gays.

Sheldon Richman said...

Thomas D, you fail to see that cultural institutions change. Marriage has been changing for ages. If you think modern marriage would be recognized as marriage 500 years ago, you are wrong. There are no grounds for the government to interfere with homosexual couples that wish each partner to have the spousal prerogatives that hetero partners have. (I list some in the post.) We are not talking about subsidies from the taxpayers.

I'm all for renters (and anyone else) being able to lower their taxes, but rent is not interest and the law says mortgage interest (not house payments) is deductible. When the word "interest" evolves into the word "rent" we can discuss the matter further.

Anon (I like that), I still want an answer to my question: If gays or blacks were barred from government roads, would you be satisfied with the answer: Government shouldn't operate roads so discrimination is not a libertarian's concern? If so, you obviously are not a black or gay person who has to get somewhere.

Dennis said...

Re Mark Z.'s comment above...

If words had random meanings, communication would be interesting.

I'm not talking about the state's definition of marriage or the church's. I was talking "tradition."

Calling same-sex unions "marriage" seems "unnatural." So I resist....

Yes, words are ambiguous, words evolve. But why should I allow YOU to REDEFINE the word? Who appointed you "word god?" "You" meaning "you" in general, not Mark Z. :)

Sheldon Richman said...

Dennis, call it whatever you want. That's not the issue. The issue is whether the State should deny spousal prerogatives (not subsidies) to gay couples. That is the only question here.

Dennis said...

Sheldon, no, the State should NOT deny spousal prerogatives to gay couples. Agree with you 100% here.

John Howard said...

There are no grounds for the government to interfere with homosexual couples that wish each partner to have the spousal prerogatives that hetero partners have.

Except for the spousal prerogative to conceive offspring together, and to feel society's approval for conceiving offspring together. Same-sex couples should be prohibited from conceiving offspring together, society should not approve of them creating offspring, even in concept, because in concept, it requires genetic engineering and isn't safe.

We are not talking about subsidies from the taxpayers.

No, it would take subsidies from the taxpayers to develop and regulate same-sex procreation and it would surely wind up being subisidized as well. At first it might be only be rich couples paying for it out of pocket, but it'd quickly have to be made affordable and available to all same-sex couples.

MarkZ said...

John, I assume your opinion will change when technology advances to the point where it becomes safe?

John Howard said...

No MarkZ, even in theory I'm opposed, because it'd use energy and cost billions of dollars and would injure our natural reproductive rights. And besides, "when it becomes safe" is nothing but a hypothetical question because it will always be unsafe and unethical, it can't be tested on animals (which is unethical also) and the human children can't be considered healthy until they and their own children have lived full healthy lives.

It is unsafe now and should be banned now and it will always be unsafe. Plus it's expensive and unnecessary and bad public policy to leave it legal and a future possibility. It is cruel to make people think it might be possible for them someday. So many benefits would come from prohibiting it permanently and affirming that marriage protects conception rights, such as the compromise to make Civil Unions recognized and uniform in every state.

dennis said...

Oh boy.

Sheldon Richman said...

John, conception is just one of the things marriage is about, and in many marriages, it is no issue at all. So conception is no reason for the State to deny marriage status to same-sex couples.

Jeez, we really need to keep debating this? So much for the libertarian instincts of the American people.

John Howard said...

It doesn't seem like you understood my point, Sheldon. I'm saying that people should not be allowed to conceive with someone of the same sex, because it requires genetic engineering to overcome the problems of both people having the same genetic imprinting. There is no right to try to procreate with someone of the same sex, it violates the rights of the person being created to be created and wastes energy and resources and would wind up costing the public billions of dollars if it were allowed.

John Howard said...

Or perhaps you're thinking that even if we prohibited same-sex conception we could still have equal marriage, but that gets back to my original point, that the most fundamental spousal prerogative is to conceive offspring together, and I'm saying that same-sex couples shouldn't have that prerogative, they should be prohibited from conceiving together.

Everyone should have a right to procreate, but only with someone of the other sex, who they can marry and who they should marry.

dennis said...

John, only existent entities can have rights, so it's impossible to violate the rights of a being by employing any means to bring it about. As for resources better used elsewhere, so long as those resources are privately channeled, it is no one's business toward what other ends those funds could be directed. Harumph!!

John Howard said...

People can be deprived of their rights at the moment of their conception, especially if their conception is intentional and involves paying money in order to own the conceived person, and involves legal contracts and terms to which they are not and cannot be a party. It's a form of slavery, it violates their due process rights.

Note that the crime would be performing an action which could reasonably possibly lead to an adult person, not merely setting up the experiment, though that would be shut down and not allowed to actually do it. The crime wouldn't be committed until the moment when conception occurs which could possibly be developed into an adult. That's how all the proposed cloning laws work.

Charles Johnson (Rad Geek) said...

John Howard: Except for the spousal prerogative to conceive offspring together, and to feel society's approval for conceiving offspring together.

Heterosexual couples can procreate as much as they want -- that's their business -- but they have no "prerogative" to "feel society's approval for conceiving offspring together." My approval (or disapproval) of their choice to have children is my own damn business.


John Howard: No MarkZ, even in theory I'm opposed, because it'd use energy and cost billions of dollars and would injure our natural reproductive rights.

I have no idea what you think "our natural reproductive rights" are, but I'm pretty sure your natural reproductive rights don't include the "right" to constrain other people's reproduction.

In any case, what in the world has this got to do with whether or not same-sex couples ought to have their marriages recognized for, e.g., tax or immigration or next-of-kin purposes? None of those has anything in particular to do with the prospects of having children.

John Howard said...

Charles, marriage should continue to express society's approval of the couple creating offspring together. That approval is one of the essential elements of marriage that I want my marriage to have, like my parents marriage did and their parents and all marriages have had. There has never been a marriage that was prohibited from conceiving together, or even one where the state withheld approval of them conceiving. And no one should feel it's all right to openly disapprove or put pressure on a married couple to not have children, such an expression should be considered very wrong and coercive of the rights of the couple. That's why the public/state approval is important, to counter the pressures that eugenicists want to subject people to.

Allowing same-sex procreation would mean allowing all forms of genetic engineering and that would threaten our natural reproductive rights, ie, the right to use our own unmodified genes. Even sperm donation threatens that.

Civil Unions should be defined as "marriage minus conception rights" in order for same-sex couples to have access to the other rights and benefits of marriage, without equating their right to procreate to a man and a woman.

Charles Johnson (Rad Geek) said...

John Howard: marriage should continue to express society's approval of the couple creating offspring together. That approval is one of the essential elements of marriage that I want my marriage to have, like my parents marriage did and their parents and all marriages have had

I honestly do not give a damn about what you want your marriage to have from "society." The approval of "society" just is a set of attitudes, feelings, and decisions by a lot of people other than yourself -- people like Sheldon, me, et al. But my feelings, attitudes and decisions are not your private property; they are my own. I have no idea what you imagine gives you the right to legislate my "approval" of your private bedroom arrangements. That's my own damned business, not yours.

John Howard: There has never been a marriage that was prohibited from conceiving together, or even one where the state withheld approval of them conceiving

This is counterhistorical rubbish. Just take a quick review of the history of the era of Eugenics and forced sterilization; or a quick look at population control policies being inflicted right now in China, among other places.

Of course, I think that these government policies are intolerable acts of tyranny: government has no business using violence to force people not to have children, and no right to do what they did or what they are doing, to married couples or to anybody else. But to pretend that governments just haven't ever prohibited married couples from having children is sheer fantasy.

John Howard: And no one should feel it's all right to openly disapprove or put pressure on a married couple to not have children, such an expression should be considered very wrong

Maybe nobody should feel that way, but what people ought to do and what they have a right to do are two separate questions. (There are lots of things you have a right to do, but shouldn't.) What I'd like to know is what you think gives you the right to use the force of government to prohibit or mandate what people can feel, or to coercively influence what they can or cannot express.

John Howard: Allowing same-sex procreation would mean allowing all forms of genetic engineering and that would threaten our natural reproductive rights, ie, the right to use our own unmodified genes.

This is completely insane. You have every right to use your own genes however you see fit, whether modified or unmodified. Nobody is suggesting that you be forced to modify them. What I am suggesting is that you don't have a right to use other people's genes as you see fit; their genes are not your property.