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Sunday, June 28, 2015

Do We Have a Right to Marry?

Do we have a right to marry? It depends on what we mean by marry. If we mean making a contract with another consenting adult setting up a arrangement we'd want to call marriage, then the answer is yes.

But if we mean participation in the specific government-fostered institution characterized by marriage licenses, then the answer must be no.

Here's why: if the government-fostered institution were abolished tomorrow, as libertarians favor, no one's rights or freedom would be violated. (Justice Clarence Thomas seems to recognize this in his dissenting opinion.)

We have the inherent right to make contracts but we have no right to anything provided by the state, an inherently coercive organization. That's why the best argument for legal recognition of same-sex marriage is an equal-protection argument, not a liberty argument. It's not so much that we have a right to equal protection; it's that equal protection limits the discretion of government officials -- and that tends to be a good thing. The exception to this equality-but-not-liberty principle would be in those states that both forbid same-sex marriage and refuse to recognize private marriage contracts -- which seems to be all the states affected by the Obergefell ruling. As Ilya Somin writes:
In most states that banned same-sex marriage before today, a same-sex couple could not sign an enforceable marriage contract, even if its content was limited to purely private marital obligations between the two parties.
Thus such couples were not only denied equal protection; they were also denied liberty.


N. Joseph Potts said...

I wonder whether and how the state should get involved in enforcing marriage contracts? Selectively as to terms, I should think.

Another issue: HOW MANY (suitably qualified) people might one be married to at one time? Calling these things "domestic arrangements" becomes more-accurate for viewing marriage as essentially a contract.

Anonymous said...

I suppose your reasoning would apply to drivers licenses, state mandated motor vehicle insurance, hunting licences and other state requirements.

Sheldon Richman said...

Yes. Just ask yourself if those things would exist in the anarchistic state of nature.