Is There a Libertarian Position on Same-Sex Marriage?
by Laurence M. Vance: Paul
Ryan’s Faith-Based Budget
of abortion and same-sex marriage are not just points of contention
between liberals and conservatives and Democrats and Republicans.
They are also a source of division among libertarians.
Of all the
I have written for LewRockwell.com, the response I received regarding
my recent article "Should
Libertarians Be Conservatives?" is (I am still getting
e-mails) probably in the top ten in terms of the volume of e-mails
received. (Number one, in terms of volume, hate mail, and vile hate
mail, was probably "Thank
You for Your Service?")
I address here
the subject of same-sex marriage.
is permitted in ten countries (Argentina, Belgium, Canada, Iceland,
the Netherlands, Norway, Portugal, Spain, South Africa, & Sweden).
It is recognized in Israel, Mexico, and a few other countries.
I think it
is inevitable that as the twenty-first century progresses, more
countries will permit or recognize same-sex marriages.
In the United
States, same-sex marriage is legal in six states (Connecticut, Iowa,
Massachusetts, New Hampshire, New York, and Vermont) and the District
of Columbia. It was legal for a time in California. Same-sex marriage
laws are pending in Washington and Maryland. New Jersey, Maryland,
and Rhode Island recognize same-sex marriages performed in other
states. The majority of the states have a constitutional provision
or a law restricting marriage to one man and one woman, most recently
North Carolina, where voters on May 8, 2012, approved a constitutional
amendment banning same-sex marriage even though the state already
prohibited same-sex marriage by law.
think that as the twenty-first century progresses, more states will
permit or recognize same-sex marriages.
But is a same-sex
marriage a marriage? And is there a libertarian position on same-sex
first state did not recognize same-sex marriage until 2004, in 1996,
after a 1993 Hawaii Supreme Court case raised concerns about the
possibility of Hawaii legalizing same-sex marriage, Congress passed
(342-67 in the House and 85-14 in the Senate), and President Clinton
signed into law on September 21, 1996, the Defense of Marriage Act
(DOMA). This inserted the federal government in a fundamental way
into the institution of marriage.
defined for federal purposes in section 3 of the Act:
the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies
of the United States, the word "marriage" means only
a legal union between one man and one woman as husband and wife,
and the word "spouse" refers only to a person of the
opposite sex who is a husband or a wife.
The Act, in
section 2, also permitted states to not recognize same-sex
marriages performed in other states:
territory, or possession of the United States, or Indian tribe,
shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession,
or tribe respecting a relationship between persons of the same
sex that is treated as a marriage under the laws of such other
State, territory, possession, or tribe, or a right or claim arising
from such relationship.
of Marriage Act has survived numerous court challenges over the
years, and several cases are still pending.
On March 16,
2011, bills to repeal DOMA were introduced by Democrats in both
the House and Senate. The Respect for Marriage Act was introduced
in the House (H.R.1116)
by Jerrold Nadler. It has 146 cosponsors. It was introduced in the
Senate by Dianne Feinstein (S.598).
It has 32 cosponsors. The Respect for Marriage Act would repeal
section 2 of the Defense of Marriage Act and amend title 1, chapter
1, section 7, of U.S. Code to read:
(a) For the
purposes of any Federal law in which marital status is a factor,
an individual shall be considered married if that individual’s
marriage is valid in the State where the marriage was entered
into or, in the case of a marriage entered into outside any State,
if the marriage is valid in the place where entered into and the
marriage could have been entered into in a State.
(b) In this
section, the term "State" means a State, the District
of Columbia, the Commonwealth of Puerto Rico, or any other territory
or possession of the United States.
But the Respect
for Marriage Act may now be unnecessary, as section 3 of DOMA was
just declared unconstitutional on May 31, 2012, when a three-judge
panel of the U.S. Court of Appeals for the First Circuit unanimously
affirmed the July 8, 2010, ruling of Judge Joseph L. Tauro of the
U.S. District Court in Boston. In the cases of Gill
v. Office of Personnel Management and
v. United States Department of Health and Human Services,
Judge Tauro ruled that section 3 of DOMA violated the Fifth and
Tenth Amendments. The Appeals Court has stayed its ruling in anticipation
of an appeal to the Supreme Court.
It is therefore
entirely possible that the Supreme Court could take up the issue
of federal recognition of same-sex marriage as early as its next
term. And it is even conceivable that the whole of DOMA could be
thrown out, paving the way not only for federal recognition of same-sex
marriage, but also the requirement that all the states do likewise
under the "full faith and credit" clause of Article IV
of the Constitution, although the states that have banned same-sex
marriage would certainly challenge this in court. The latter judgment
would be "worse" than the former, not only because of
its erosion of federalism, but because the federal government recognizing
same-sex marriage is more fiduciary than philosophical, as it is
in the states.
But would a
same-sex marriage then be a marriage? And is there a libertarian
position on same-sex marriage?
I said in my
aforementioned article "Should Libertarians Be Conservatives?"
that I agreed with the statement of conservative Jay Richards that
"just as government may not redefine our rights as individuals,
it has no authority to redefine marriage." It has been said
that everyone is entitled to his own opinion, but not his own facts.
This is why I also said, and here reiterate, that "marriage
has always been and will forever be the union of a man and a woman"
and that "anything else is just cohabitation, fornication,
civil union, voluntary contract, or domestic partnership, whether
it is called a marriage or not." Marriage predates the nation-state,
the community, society, states and counties, cities and towns, governmental
bodies of any kind, and even the church. If words and 6,000 years
of human history mean anything, then there can be no denying the
fact that marriage means only marriage in the traditional sense.
at all levels getting out of the marriage business – like they should
– still wouldn’t make a same-sex marriage a marriage.
libertarianism – the philosophy that says that violence is proper
only in the defense of person or property and that people have the
fundamental right to do anything that’s peaceful without interference
from government or society.
The 2012 Libertarian
Party Platform doesn’t
expressly mention same-sex marriage, but reads in section 1.3, "Personal
preference, gender, or gender identity should have no impact on
the government's treatment of individuals, such as in current
marriage, child custody, adoption, immigration or military service
laws. Government does not have the authority to define, license
or restrict personal relationships. Consenting adults should be
free to choose their own sexual practices and personal relationships.
Libertarian Party presidential nominee, Gary Johnson, is a strong
supporter of same-sex marriage. In a recent interview
with Robert Wenzel, Johnson said he would be the only candidate
(aside from Romney and Obama) committed to marriage equality as
a constitutionally guaranteed right.
But what really
prompted me to delve into this subject is an e-mail I received from
a libertarian who was not happy with what I said about abortion
and marriage in my article "Should Libertarians Be Conservatives?":
I say it’s
the not the government’s job to say who gets married – it’s their
job to passively record it when it happens, just like these other
things. And I’m not just talking about gay marriage – if a Mormon
or Moslem man wants to marry three gals, that’s their business.
If thirteen Wiccan lesbians living in a commune all want to marry
each other, the only thing the clerk should say is "sign
here, sign here, initial here....Next!" That’s the real libertarian
position on marriage; although if the government just got out
of the marriage business altogether as you advocate, it would
also, I suppose, be acceptable.
But is that
the libertarian position on same-sex marriage?
I believe that
libertarians are unnecessarily divided over the issue of same-sex
marriage. Based on what I said above about marriage, it is my contention
that there is no more a libertarian position on same-sex marriage
than there is on chocolate, toothpaste, or whether the sky is blue.
should certainly have the right to form any kind of legal arrangement
they choose whereby medical and financial decisions by one party
on behalf of another could be made. But this right has nothing to
do with them being a same-sex couple. It is only because any couple
– gay, lesbian, straight, bisexual, transgendered, or undecided
– or any group of people should have the right to form any kind
of legal arrangement they choose. If they want to call their arrangement
a marriage, have a ceremony, and go on a honeymoon – fine. They
have the freedom to do so just like they have the freedom to replace
their Chevy emblems with Ford emblems and call their Camaro a Mustang.
They just shouldn’t expect or demand everyone else to violate nature,
language, tradition, and history and do likewise.
And if the
federal government should recognize same-sex marriages, domestic
partnerships, civil unions, consensual contracts, or voluntary agreements
of homosexual couples for tax, Social Security, and other purposes,
then it should likewise recognize similar legal arrangements of
heterosexual couples, whether male/male, female/female, or male/female.
If a libertarian
wants to redefine marriage – or call black white, up down, or right
left – then he is perfectly free to do so, but he shouldn’t term
his personal preference or individual decision a libertarian position.
of same-sex relationships – whether wonderful, wholesome, unnatural,
or disgusting – has nothing to do with the issue.
as individuals may support or oppose the "marriage" or
legal arrangements of same-sex couples – just like they may support
or oppose the health benefits of Vitamin C or the use of child safety
locks – but that doesn’t mean there is a libertarian position on
M. Vance [send him mail]
writes from central Florida. He is the author of Christianity
and War and Other Essays Against the Warfare State, The
Revolution that Wasn't, and Rethinking
the Good War. His latest book is The
Quatercentenary of the King James Bible. Visit his
© 2012 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.
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