“The” Libertarian View on Gay Marriage

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Compared to conservatives and liberals, libertarians tend to have more uniform views on a wide array of issues. This is probably because the libertarian view is more coherent and principled–and more correct–than the more ad hoc and ever evolving views of mainstreamers. There are issues where debate remains–anarchy v. minarchy; abortion; vouchers; immigration–but there is large agreement on a host of key political matters.

Another issue that there seems to breed wide disagreement among libertarians is the issue of gay marriage. This seems like a strange matter to have strong disagreement over. I think the first question is, is there a libertarian view on gay marriage, any more than there is a libertarian view on whether capes are good or Beethoven is evil?It seems to me the only truly libertarian view of gay marriage is some kind of idealized standard–that is, what would be the legal status of gay marriage in a minarchy or anarchy. Arguably, in both, there would be no state sanction of marriage at all. Hetero couples would still “marry” and be regarded as such, but it would be a customary, traditional, or religiously-related union, with civil (e.g. contractual, testamentary, and mandatary) effects. In societies and cultures where homosexuality is not seriously scorned and penalized and is somewhat openly practiced by a minority of the populace, some gay couples would no doubt come to be regarded as “partners” as they are today; and perhaps some would try to call themselves “married” and use some kind of ceremony; whether this type of “marriage” would ever be regarded as “fully legitimate” by society at large, who knows.

In any event, the libertarian can say that “the” libertarian view is that the state should get out of the way and out of the business of decreeing marital status, but it that all he can say?

It seems to me that if we want to opine on the libertarianness of certain gay marriage policies or proposals in today’s semi-state-run world, we need to keep in mind a few more or less clear-cut libertarian principles.

First, if the state is going to be in the business of enforcing and recognizing contracts, estate successions, medical power of attorney, and the like, then if a number of individuals–whether it be, as I’ve noted previously, two gays, two siblings, or a rock band–want to form some kind of civil or contractual union giving them certain succession rights, agency powers, and property/contract power/co-ownership rights, then this contractual regime ought to be recognized and enforced. Those conservatives who believe that even civil unions should be outlawed are just unlibertarian. There is no warrant for the state not recognizing the contractual aspects of any civil union.

Second, it also seems obvious that there is a mixture of motives among advocates of gay marriage. I think two of the primary motivations are (a) to use the power of the state to try to “officially authorize” the “normalcy” and “legitimacy” of homosexuality and homosexual unions, in turn to try to force society at large to see it as normal and acceptable; (b) to take part in various illegitimate welfare rights married couples have access to, like social security; and (c) to legally legitimize homosexuality and gay unions so as to remove one remaining obstacle to including homosexuality as a “protected minority class” who must have affirmative action and anti-discrimination law protection.

All these goals are unlibertarian and illegitimate, in my view. One significant danger, I believe, of the state recognizing gay marriage is the last concern. So long as the state officially is able to discriminate against gays by not letting them be married, it’s difficult for gay advocates to argue that they should be included in anti-discrimination and affirmative action law coverage. After all, sodomy is still illegal in some states, which makes it difficult to argue there is a constitutional right to engage in it or to not be discriminated against because of it.

One other goal for gay marriage is to permit gay couples to easily and efficiently have the contractual aspects of their relationship respected and enforced: so that if one person is sick or incapacitated the other has medical visitation and decision-rights; inheritance rights; property co-ownership rights, and the like. This is about the only goal of the pro-gay marriage types that I think is supportable by libertarians. But for this, we don’t need gay marriage, but only civil unions. My view is that we ought to have civil unions legally recognized, so as to solve the only real, legitimate grip gays have, and to leave the rest exposed as the naked political power grab that they are.

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In deciding what particular laws or legislation to support or condemn on libertarian grounds, however, we must also take into account various federalism-related issues. I would personally support a state law (or state constitutional amendment, perhaps) that enforced and recognized civil unions. (I would not favor the state’s using the word “marriage” to describe this union, since it adds nothing to the benefits gays are really (libertarianly) entitled to, and threatens to carry out the unlibertarian goals (1)-(3) noted above.)

However, I would not support a federal law recognizing civil unions (except for and to the extent there are federal law aspects to it), or forcing states to do so, for federalist reasons. I would oppose such a law. I would oppose even more strongly a federal law outlawing (at the state level) gay marriage or civil unions. The only federal law I can imagine supporting in this regard would be a law that limits federal judges from interfering with states in this regard.

12:07 pm on June 6, 2006