Lew Rockwell on Gay Marriage

[BulletWounD]

"The" Libertarian View on Gay Marriage

Posted by Stephan Kinsella at June 6, 2006 12:07 PM
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.

***

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.

Lew Rockwell's Blog

Agree or disagree? Why?

 

[DarkWizard12]

The gays have everything they want already. Every state either supports or recognizes the legitmacy of "civil unions", even WITH all the resolutions that passed in the 29 other states. The only thing the homosexuals have is the name "marriage" itself, and they already have something else called "civil unions". If they want society to actually recognize the label of "marriage" that they want so bad, why don't they just wait for society to naturally change through the generations rather than forcing down everyone's throat with all these laws and judges?

 

[rathi]

From a libertarian perspective, why should heterosexual couples use the government to validate their marriage? The position most fitting would be to remove the government entirely from the word "marriage". Everyone gets civil unions, and marriage is simply a social event. The government has no business in validating anyones marriage, gay or straight.

 

[nskinsella]

FYI, see my more recent posts State Monopolization of Marriage Eviscerates Private Contract and Second Thoughts on Gay Marriage.

 

[jallman]

The gays have everything they want already.

No, they don't. They want equal rights and equal protection. When "teh gays" have that, then they will have everything they want and deserve.

Every state either supports or recognizes the legitmacy of "civil unions", even WITH all the resolutions that passed in the 29 other states.

No, you are wrong here.

The only thing the homosexuals have is the name "marriage" itself,

And the hundreds of protections that come along with a marriage...

and they already have something else called "civil unions".

Separate but equal...yeah I'm gonna have to go ahead and file that one under "history shows it doesn't work".

If they want society to actually recognize the label of "marriage" that they want so bad, why don't they just wait for society to naturally change through the generations rather than forcing down everyone's throat with all these laws and judges?

In other words, "Sit down, STFU, you'll get rights when we say you can have rights".

Yeah I am gonna have to go ahead and file that one under "not gonna happen".

And when was the last time a gay forced anything down your throat? Wait...I don't think I wanna know the answer to that.

 

[BulletWounD]

FYI, see my more recent posts State Monopolization of Marriage Eviscerates Private Contract and Second Thoughts on Gay Marriage.

Getting jaded, Lew?

 

[BulletWounD]

Separate but equal...yeah I'm gonna have to go ahead and file that one under "history shows it doesn't work".

The idea behind Lew's original article is that marriage should not be recognized by the state, whether it's homosexual or heterosexual. Rather, the state would recognize both gay marriages and straight marriages as civil unions.

In other words, the state should stay out of the marriage business altogether.

 

[jallman]

The idea behind Lew's original article is that marriage should not be recognized by the state, whether it's homosexual or heterosexual. Rather, the state would recognize both gay marriages and straight marriages as civil unions.

In other words, the state should stay out of the marriage business altogether.

And I am perfectly ok with that idea.

 

[Blasbeat]

Tl;dr

From a conservative point of view, I think that homosexuals have the right to be treated as humans. They have more than enough, imho.

The common arguement is 'They love each other.' Well, if a wolverine and a man are in love, then should they be able to marry? If a 30 year old woman is in love with her 4 year old son, should they be able to marry? If a man loved a woman that got killed, should he be allowed to marry her, post-mortem? The sin of Sodom is a sin for a reason. Charlemagne referred to it as that 'indescribable sin,' or something of the sort. Now, to take the idea of religion out of this argument. Which way is productive? What type of union makes that screamin' red thingy?

That's a heterosexual union. I'm all for separation of church and state, to touch on that. But, this nation was still birthed on the constitution, written by Christians, Jews, and Deists. It's not a breathing document. It's based off of Christian law, and if Muslims and Hindus and Norse Pagans want to be here, then more power to them! I wouldn't go into India and expect to be considered any better than them. We are reaching a point at which a christian can not freely be a christian at every given time; but a Muslim can.

Now, to wrap that back around to the homosexuality argument.

If we are a Christian based nation, then why are we going against what built us up?

 

[BulletWounD]

Tl;dr

From a conservative point of view, I think that homosexuals have the right to be treated as humans. They have more than enough, imho.

The common arguement is 'They love each other.' Well, if a wolverine and a man are in love, then should they be able to marry? If a 30 year old woman is in love with her 4 year old son, should they be able to marry? If a man loved a woman that got killed, should he be allowed to marry her, post-mortem? The sin of Sodom is a sin for a reason. Charlemagne referred to it as that 'indescribable sin,' or something of the sort. Now, to take the idea of religion out of this argument. Which way is productive? What type of union makes that screamin' red thingy?

That's a heterosexual union. I'm all for separation of church and state, to touch on that. But, this nation was still birthed on the constitution, written by Christians, Jews, and Deists. It's not a breathing document. It's based off of Christian law, and if Muslims and Hindus and Norse Pagans want to be here, then more power to them! I wouldn't go into India and expect to be considered any better than them. We are reaching a point at which a christian can not freely be a christian at every given time; but a Muslim can.

Now, to wrap that back around to the homosexuality argument.

If we are a Christian based nation, then why are we going against what built us up?

This is what happens when you don't read the article. The argument isn't that the government should allow homosexual marriage, but rather that the government should not be in the business of defining marriage. In the eyes of the state, the union between man and wife or man and man should only be viewed as a contractual arrangement. In other words, get rid of state sanctioned marriage altogether. Obviously, a wolverine, which is not considered a legal person, cannot enter into a contract though the man could say they were "married" all he wants despite what others may think. Obviously, a dead person cannot enter a contract and a four-year-old is too young in the eyes of the state to give informed consent.

 

[Blasbeat]

Wow. True that. I'm just off today.

I see some truth in that, I don't understand why we need marriage licenses...

 

[jallman]

Tl;dr

From a conservative point of view, I think that homosexuals have the right to be treated as humans. They have more than enough, imho.

Except true equality.

The common arguement is 'They love each other.' Well, if a wolverine and a man are in love, then should they be able to marry?

No; a wolverine is an animal and unable to consent to enter into a contract such as marriage.

If a 30 year old woman is in love with her 4 year old son, should they be able to marry?

No; a 4 year old is a child and unable to consent to marriage.

If a man loved a woman that got killed, should he be allowed to marry her, post-mortem?

No; a corpse is not a person and is unable to consent.

The sin of Sodom is a sin for a reason.

Well, yes. I will not argue that gathering in a mob to rape visitors of your city is a sin by any standard.

Charlemagne referred to it as that 'indescribable sin,' or something of the sort.

Good thing a dark age monarch does not have an opportunity to rewrite our Constitution.

Now, to take the idea of religion out of this argument. Which way is productive? What type of union makes that screamin' red thingy?

Yes, yes we know. Most of us on this forum took biology.

That's a heterosexual union. I'm all for separation of church and state, to touch on that. But, this nation was still birthed on the constitution, written by Christians, Jews, and Deists.

Making a disclaimer prior to disproving that disclaimer is not going to fool anyone.

It's not a breathing document.

Really? Because it's only been amended how many times since the original Bill of Rights? And amended by a system built into the document just for the purpose of making living breathing additions to it?

It's based off of Christian law,

There's only one law in Christianity that I am aware of: do unto others and all that. Surely you aren't confusing Old Testament law with Christian law are you?

All that aside though...you are all for separation of Church and State so "Christian law" really shouldn't be an issue for you, now should it?

and if Muslims and Hindus and Norse Pagans want to be here, then more power to them!

Well that's very gracious of you...

I wouldn't go into India and expect to be considered any better than them.

Wait...who is trying to be better than anyone else here? What are you gonna name your straw man when you're done building him here?

We are reaching a point at which a christian can not freely be a christian at every given time; but a Muslim can.

Well now that's a blatant lie.

Now, to wrap that back around to the homosexuality argument.

Yes, I was wondering if we were actually going to address that at some point...

If we are a Christian based nation,

That has a separation of Church and State...

then why are we going against what built us up?

We're not. No one is making an argument against hard work, capitalism, and living by the motto "Don't tread on me". Which of those are you going against by telling homosexuals they have no right to equal enjoyment of privileges and benefits offered to heterosexual couples who marry out of love?

 

[talloulou]

Tl;dr

From a conservative point of view, I think that homosexuals have the right to be treated as humans. They have more than enough, imho.

The common arguement is 'They love each other.' Well, if a wolverine and a man are in love, then should they be able to marry? If a 30 year old woman is in love with her 4 year old son, should they be able to marry? If a man loved a woman that got killed, should he be allowed to marry her, post-mortem? The sin of Sodom is a sin for a reason. Charlemagne referred to it as that 'indescribable sin,' or something of the sort. Now, to take the idea of religion out of this argument. Which way is productive? What type of union makes that screamin' red thingy?

That's a heterosexual union. I'm all for separation of church and state, to touch on that. But, this nation was still birthed on the constitution, written by Christians, Jews, and Deists. It's not a breathing document. It's based off of Christian law, and if Muslims and Hindus and Norse Pagans want to be here, then more power to them! I wouldn't go into India and expect to be considered any better than them. We are reaching a point at which a christian can not freely be a christian at every given time; but a Muslim can.

Now, to wrap that back around to the homosexuality argument.

If we are a Christian based nation, then why are we going against what built us up?

The gays have enough is your stance and then to defend this position you haul out wolverines? :rofl

 

[Ethereal]

I don't think there's much of an argument either way. The government should not establish a preferred classes of people who retain special access to government funds in the first place, so the fact that gays are being discriminated against by an inherently discriminatory policy holds no legal relevance whatsoever.

Marriage is between an unrelated man and woman of consenting age. That is the definition of marriage. It is discriminatory against ALL couples that do not fall under this definition. It is discriminatory against a man and a tree, it is discriminatory against a dog and a woman, it is discriminatory against two minors of any sex (exceptions notwithstanding), it is discriminatory against immediate relatives, and, yes, it is discriminatory against two men or two women. A gay couple is no more entitled to a marriage than I am to a minority housing grant.

So, under the current law, there is no reason, legal or otherwise, to alter the definition of marriage unless it is voted upon. What gay couples should be arguing and arguing singularly is that the government should abolish the legal institution of marriage altogether. It makes no sense to claim entitlement to a government institution that has no business existing in the first place.

 

[rathi]

The gays have enough is your stance and then to defend this position you haul out wolverines?

Its actually legal to marry a wolverine. It was taken to court and decided by a judge who had to weigh the balance between the meaning of consent, historical precedent, and sanity versus the fact that he might piss of a wolverine sitting 10 feet from the bench. That wolverine was later the inspiration for code pink...

 

[talloulou]

Its actually legal to marry a wolverine. It was taken to court and decided by a judge who had to weigh the balance between the meaning of consent, historical precedent, and sanity versus the fact that he might piss of a wolverine sitting 10 feet from the bench. That wolverine was later the inspiration for code pink...

OK I've had some wine tonight but still.....huh????

 

[rathi]

OK I've had some wine tonight but still.....huh????

I take it you have never met a wolverine before? They are some of the most vicious and nasty creatures to walk the earth. A 27 pound wolverine will fight a 500 bear without hesitation and sometimes the bear even loses.

As for code pink, I was thinking of the pink pistols, but typed code pink out of habbit. The pink pistols is a militant gay organization into firearms.

Now that I've managed to completely kill my own joke I'll go wander off in shame. :3oops: