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:
- 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).
- Aren't there more pressing issues?
- Marriage is about procreation.
- Federal courts have no jurisdiction over state matters.
- 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.
- 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.
- 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.
- 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.