TGIF: Kim Davis's Stunt

Kim Davis probably performed a pure stunt, not an act of conscience "under God's authority," when she refused, as an elected county clerk, to issue marriage licenses to same-sex couples -- all couples, actually -- in Rowan County, Kentucky. It might have been a stunt intended to benefit Mike Huckabee's quest for the Republican presidential nomination. He certainly made the most of the opportunity.

TGIF: Clarence Thomas's Confused Notion of Freedom

Compared to Supreme Court Justice Antonin Scalia, his colleague Clarence Thomas is well regarded by at least some devotees of liberty. This is not totally unjustified. Thomas has demonstrated a familiarity with the philosophy and history of natural law and natural rights, which he (at times) sees rooted in individual persons. For this reason, in some areas he has opposed expansion of government power; for example in U.S. v. Lopez, he broke long precedent and held that the commerce clause of the Constitution is not a blank check to the government.

Scalia's Anti-Enlightenment Anti-Individualism

Conservatives warn that the so-called liberals on the Supreme Court endanger our liberties. This is certainly true, although not exactly as the conservatives mean it. Now it’s time for them to acknowledge that the court's conservatives do the same.

Case in point: Justice Antonin Scalia’s dissent in Obergefell v. Hodges (PDF), the case that declared state laws forbidding legal recognition of same-sex marriages unconstitutional. Scalia’s opinion is worth examining apart from the particulars of Obergefell. As he points out -- let’s take him at his word -- what he objects to in Justice Anthony Kennedy’s majority opinion has nothing to do with same-sex marriage per se. What concerns him is not the content of the opinion but the activity the majority engaged in to arrive at it.

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.