The Electric Commentary

Thursday, December 15, 2005

The libertarian argument against gay marriage, and the reason that it is wrong.

Mike at Cooler Near The Lake gives it a shot, here and here. The gist of his argument is that government has no business in marriage in the first place, and therefore a policy that limits government involvement in marriage is desirable. I think his argument is best captured in this quote:

Sanctioning means that government is expanding. It is expanding in the sense that is has to define a new legal category. This new category will require reinterpretation of a vast number precedent setting interpretations of applicable and associated laws. Considered in this context, one sees that the cost is not inconsequential. Proponents of gay marriage have not provided much sense of the benefits from doing this, other than it will make a small portion of the human population 'feel better'. This is the short-sightedness that I referred to in the previous post.

I can see how this argument could be seductive to some people, however, I believe that Mike is mistaken about an important aspect of government.

I agree that the ideal would be for government to exit the marriage business altogether, however, this is not the situation that we have. At this point, government sanctioned marriage is the norm. Mike states that the default assumption when government sanctioned marriage was that the entire population was heterosexual. This is probably the case, but incumbent in that assumption is the idea that everyone should be able to get married. This is important. When the government asserts power over some activity, either through regulations or subsidies, people have suffered an individual loss of freedom. However, as long as that regulation or subsidy is consistently enforced, and it is enforced in an egalitarian manner, people are surprisingly adept at adapting to the regulation. The Cato institute refers to this as "the strong rule of law" and it is one of their major positive criterion when they evaluate the freedom of nations.

It is, for a libertarian, a second best solution, but it is sometimes necessary. Once the second best solution is in place, the way in which the government asserts even more power is through ambiguity, and the way in which it creates ambiguity is by providing exceptions for interest groups.

Imagine for a moment that you want to buy a tavern. In order to obtain a license for this tavern, there are certain qualifications that you must meet. Everyone is capable of meeting these qualifications if they work hard and obtain financing.

Now imagine that the government decides to add a provision that puts a limit on the number of licenses issued. I would argue that government shouldn't be licensing taverns in the first place. However, failing that, I would be in favor of clear and egalitarian regulations.

In the current situation I think that it is fairly clear that the government is exercising maximum power. When it established its power and then limited the supply, the government became a tyrant. It invited contributions from interest groups to obtain the resource, and it gave itself the power to punish by withholding the resource. If everyone has access to the resource, the government cannot coerce with that resource. When they limit its availability, they turn it into a club.

Both political parties love to claim that their opponents are in the hands of "special interests." It is legal ambiguity that allows this situation to occur.

If government is going to be in the marriage business, it is imperative that they be egalitarian in their administration of the marriage business, and that means allowing all comers to enjoy the benefits that they have created. The situation that currently exists has already put the government in the position of a tyrant. Conservatives are adding to the government's power in exchange for the government's favor, and homosexuals are likely doing whatever they can to gain this favor as well.

What makes this situation worse is the potential for this law to become a part of the Wisconsin Constitution. There are two reasons that this is a terrible thing:

1. It makes marriage rights another political bargaining chip, and

2. It makes the prospect Constitutionalizing certain laws a political bargaining chip.

The former is bad enough, but the latter is terrible. Constitutional amendments are supposed to be infrequent and nearly unanimous. This opens the door for politicians to pursue them simply for short term political gain. I would remind conservatives that if they decide to create this weapon, it can easily be turned on them in the future. Conservatives have been the party that has relied on the Constitution as a shield most often. If they choose to convert it into a sword, they do so at their own peril.

The worst possible government is empowered with the ability to hand out rights to those that it favors. It is a quality shared by every evil tyranny that has ever existed. When you move closer to this model, you are not acting in a libertarian fashion. Marriage may be no business of government, but if government is going to insert itself into this aspect of life, it must not deny its citizens equal protection.

Update: Jay Bullock was kind enough to quote me, and he makes a good case as well, from a left-leaning point of view.


  • Uh first, I will throw out as an aside that I find your view that the government shouldn't be licensing taverns in the first place a bit much.

    Second, can we really just be honest about the whole gay marriage thing and say that what this is really about is that gays want societal acceptance and validation. Seeking to foist it on people through government sanctioning, or to prevent it by government prohibition seems to me like two sides trying to claim absolute victory in something that is a very large cultural and societal shift. Not just the gay marriage thing, but the rapid push to accept homosexuality in society. Values issues such as this take time for many people to change. Resistance even extreme resistance is almost inevitable. I truly beleive that part of the reason for the conflict here is that the rapid progression has encouraged gay rights activism to aggressively push for changes well before everyone was ready to accept them, much less sanction them as a society.

    I am not trying to make the argument that people should have to wait for inherent rights, but I find many attempts to make speech and things so "non-heteronormative" that just seem ridiculously PC to me or worse, overstepping on other people's rights, that I can easily understand how people who are far more conservative and change adverse than I am are resistant to the whole thing. Sometimes if you push hard and fast, people just push back as a way of protecting their views and you wind up with even more crystalized views.

    Looking at the government's role in marriage, it seems that all government did in the first place was structure itself to co-exist and recognize something inherent in society. As you stated, gay marriage wasn't even contemplated. I also contend that government recognition of marriage did not result in a loss of anybody's freedom, but rather that it gave people the right to enter a specific kind of interpersonal contract. Specific rights not typically afforded individuals came with this contract. People were certainly free to negotiate other rights or enter a different contract if they wished. Now there is a societal argument over whether to expand this right beyond its orginal parameters. It certainly is being used as a political bargaining chip, but is this unlike anything else? That is how politics works. If that is what is important to constituents, then that is arguably something politicians should be paying attention to.

    My point, yes it does seem inappropriate to put it in the Constitution, but really if the political forces at work presently can get it through, then it won't be that hard to change it later once society changes its mind.

    By Anonymous Scott H, at 11:19 PM  

  • The best argument I've read on this topic came from Michael Kinsley.

    By Blogger MDS, at 9:05 AM  

  • I'm very much in favor of ending government sanctioned marriage, actually. I like that Kinsley column.

    Scott, why should the gov be licensing taverns?

    By Blogger PaulNoonan, at 9:14 AM  

  • "Marriage may be no business of government, but if government is going to insert itself into this aspect of life, it must not deny its citizens equal protection."

    Paul nailed it.

    By Anonymous Anonymous, at 10:48 AM  

  • Is equal protection being denied, or is equitable protection being denied? There is a difference.

    A hetero man or woman cannot not marry somebody of the same sex either. The obvious answer is that they wouldn't want to. Well, all people are usually not allowed to walk around naked, but really only nudists are the ones denied equitable protection, because they are the only ones who want to do otherwise. Same with laws against theft, rich people don't want or have as much reason to steal, and different tax rates for capital gains v. income (not this is necessarily bad, but I would not call it equitable to tax a millionare at 15% for a sale of stock and tax a teacher at a total rate of something like 25% for a year's wages. The equal part is that capital gains are treated the same, and it is disregarded that only a certain type of person will have capital gains of much consequence.) Same with prostitution, the people with a harder time getting laid are the ones who suffer.

    I am not comparing any of the above examples with the right to marry and be "accepted." I hope that homosexual relationships are recognized for the caring, stable, productive and beneficial relationships that they are, and I hope that people wake up and start giving our fellow citizens, neighbors, friends, soldiers the respect they so obviously deserve.

    The problem as I see it is that everyone as a society decides what a society approves of and gives special preferences to. Veterans get special preferences for goverment jobs and ex-cons can't vote or be barbers. It is not fair, that much is obvious. But what is the alternative? As far as I can tell, it is one group telling the other (in this case the majority) that they are simply wrong and foolish (which they are) and that the smaller group knows better and so that is how we are going to do things. There is a name for that, and it ain't democracy. (Yes the court should protect minorities in a democray like in the Romer and Lawrence decisions, but here again unfortunately can only do so with respect to constitutional guaranties.)

    By Anonymous Anonymous, at 1:29 PM  

  • I said equal, I meant equal.

    But what is the alternative?

    Don't have government imposed special preferences.

    By Blogger PaulNoonan, at 1:45 PM  

  • I know you meant equal, I think you're wrong.

    "Don't have the government imposed special preferences"

    That is not an alternative, it is a pipe dream. Gay marriage will be democratically appoved way before this happens.

    By Anonymous Anonymous, at 2:05 PM  

  • Approving gay marriage would be equal, not equitable, treatment under the law. The word "Equitable" is pretty vapid. It means whatvever you think it should mean. Like the word "Fair."

    By Blogger PaulNoonan, at 2:08 PM  

  • Okay, taverns is another issue entirely that I don't really see as that relevant to gay marriage. We can start another post on it. My current posting is long enough.

    As for Kinsley, and gov't in marriage, in his 2nd to last paragraph, he brought up something that I thought of, but left out because I already wrote a lot.
    Marriage functions as what lawyers call a "bright line," which saves the trouble of trying to measure a lot of amorphous factors. You're either married or you're not.
    So your solution now is to require people to replace the well understood concept of marriage with a bunch of separate contracts involving children, finances, spousal job benefits and so on? Deregulation and requiring separate agreements would have great transaction costs for society and disadvantage those with a less sophisticated legal understanding of everything. And the reason for imposing these costs? Because at one point historically people couldn’t agree on whether to extend these rights to gay couples. Whether you call it marriage or not, government will continue to be involved in these transactions because the rights underlying marriage serve purposes in society, several of which relate to the rearing of children, probably to encourage and facilitate the rearing of children in a family unit. The benefits for allowing people to have a family structure based on a single bread-winner who can allocate his or her insurance and financial resources to the other adult are going to continue to be needed. Allowing people to contract on their own is not the answer because marriage involves employer and insurance company recognition of these rights. Must every person getting hired at an employer negotiate over coverage for those with whom he has entered into child rearing covenant 1345(D) or shared financial benefits covenant 1621(G). People are still going to resist the eligibility of gay couples for these rights. John Kerry’s idea was to simply call them civil unions and not marriages, thus preserving the underlying rights. People still resisted this.

    My point: abolishing marriage on the government level is problematic and will not solve the underlying controversy involving resistance to recognition of homosexual lifestyles. If it will not solve the problem, why endure the costs? Depriving everyone of the recognition of useful rights simply because there is a debate over adding a relatively small subset to the large number who are already eligible for those rights does not seem to be a practical or wise solution.

    By Anonymous Scott H, at 2:51 PM  

  • Why should the married have more benefits than the single?

    By Blogger PaulNoonan, at 2:56 PM  

  • If anyone other than Paul wants to read about my reaction on his taverns, otherwise ignore this post.
    First, I haven't really thought about it tavern licensing, so if you want to refute me on the details of the need, that is beyond the scope of the argument. My basic view is that taverns, like anything else carry an inherent risk or cost to the rest of society. If the local government decided that these costs are such that licensing is a more effective way of protecting society from these risks, then that is fine. Restaurants are licensed and can lose this license if they repeatedly prepare unsafe food. Taverns can push numerous costs of their venture onto society (and their neighbors) and thus can cause harm if not run in accordance with minimal standards. Removal of the right to have such a business seems rather practical and appropriate compared to attempting to punish each of the offending practices individually with fines or imprisonment.

    By Anonymous Scott H, at 2:57 PM  

  • I'm against retaurant licensing too. Who would eat at a restaurant that makes you ill?

    Why does government need to handle this problem.

    By Blogger PaulNoonan, at 3:07 PM  

  • ?

    By Blogger PaulNoonan, at 3:07 PM  

  • C'mon Paul, why should any contracted party have rights that a party choosing not to contract has? Being married versus single is a choice on whether to enter into the "marriage contract" with another person to avail yourself of these rights. You don't need marriage rights if you don't have anyone you desire to share these rights with.
    I guess this would deprive singles of the opportunity where such arrangments would be forbidden as incestuous.
    Why these rights should exist can be another argument, some of which is alluded to in my previous post. Originally women had difficulty supporting themselves financially and often needed financial support. Even today, with access to the workforce for women, the government has sufficient grounds for facilitating an arrangment in which one parent provides financial support and the other provides child care. Sure many people both work despite being married and many couples never have children, but marriage does encompass more than this example.

    By Anonymous Scott H, at 3:12 PM  

  • Why would anyone take medicine that will not make them better and instead has long term side effects? Someone who lacks the requisite knowledge of the effect. Ensuring that restaurants can be generally assumed to meet a minimal level of safety provides a general societal service. People from out of town don't have to buy Consumer Reports for restaurants or ask everyone in town or go through exhaustive information gathering just to choose a restaurant. The cost of the number of people getting sick at such a restaurant before the reputation sufficiently spreads to cost them business is just one societal cost. The societal cost from: decreased restaurant business from uncertainty, information gathering, and people getting sick is more efficiently addressed through a government program to ensure minimal safety. Or perhaps just because people value not dying of food poisoning enough to pay for the extra regulation through taxes and increased prices at restaurants. Basically, why does government every regulate anything? Is that your question? I would think you would know that by now. Should we explore the costs and benefits of regulating each industry?

    By Anonymous Scott H, at 3:22 PM  

  • "If the local government decided that these costs are such that licensing is a more effective way of protecting society from these risks, then that is fine."

    no, that's not fine. it's only part of the requirement. if a local government decides that it's going to license black people to have children is a more effective way of keeping society safe, it's not "fine" for them to implement.

    government deciding something is only part of the equation, it also has to not infringe upon individual rights as set out in the constitution.

    i think it's definitely debatable where many forms of licensing, including car, gun, and various forms of zoning fall along the safety/individual rights tradeoff spectrum.

    By Blogger ahren, at 3:23 PM  

  • also, paul, your original post is very well-written and sums up my position almost exactly. thanks for saving me the trouble.

    By Blogger ahren, at 3:24 PM  

  • Thanks Ahren.

    By Blogger PaulNoonan, at 3:32 PM  

  • Scott, you act as if it is simple to go out there and set up a restaurant. Do you think that an entrepreneur will risk his hard earned capital, hard work, etc., just to poison people?

    The current licensing procedure doesn't deter unsanitary conditions one iota. It creates a market for bribes, and allows for neighborhood monopolies, like in my old Hyde Park neighborhood. The only thing that keeps restaurants from poisoning us is the fact that if they do so, they will almost certainly never recover, like the Sizzler on Hwy 100 in Wauwatosa, WI. Even if they do, they will cost the ownership big bucks in the process. Government heavyhandedness in this area is futile.

    As for more complicated products like drugs, it is very likely that the FDA has killed more people than it has saved by interfering. This is becuase its licensing is politicized and heavy-handed. Even if a drg is dangerous, people who want it should be allowed to take it. But instead of posting a sign or taking out an ad in the paper, or withholding FDA apporval and leaving it at that, it bans the product. it extorts the manufacturer by doing so.

    Back to marriage.

    Singles are frequently taxed at a higher rate than married folks. This is evil, no?

    By Blogger PaulNoonan, at 3:38 PM  

  • "Okay, taverns is another issue entirely that I don't really see as that relevant to gay marriage."

    Ahren, sorry if you forgot that remark, but I my restaurant posts should be understood to be separate posts from the gay marriage issue which involves different underlying rights than restaurant licensing. My posts are long enough without me having to elaborate on every applicable principle because people may presume there is no difference between regulating voluntary commercial activity and regulating fundamental human rights of individuals belonging to a nonvoluntary class.

    By Anonymous Scott H, at 3:40 PM  

  • i didn't confuse the two. i'm saying that considerations for regulating "voluntary commercial activity" and "fundamental human rights" are ultimately the same.

    you have to weigh the perceived benefit of the regulation against the cost of the infringement.

    in the same way that it's not "ok" to simply regulate an individual's right to reproduce, it's not simply "ok" to restrict the actions of a class of people (in this case, people who desire to open taverns) without consideration for the fact that you are limiting their right to act freely.

    By Blogger ahren, at 3:59 PM  

  • But "equal" isn't a vapid term, is it?

    By Anonymous Anonymous, at 4:01 PM  

  • No, "equal" means that everyone is treated the same. "Equitable" means that we treat everyone with some ridiculous standard that sounds nice on paper but is a disaster in practice.

    Equal is an objective term. Equitable is subjective.

    By Blogger PaulNoonan, at 4:04 PM  

  • Paul, you are discussing the manner in which the regulation is carried out, I am simply asserting some justified need for regulation. If certain procedures are heavy-handed that is an implementation problem. If you are asserting that everyday consumers are sufficiently educated about complex pharmalogical effects to self regulate, or even to understand the importance of FDA approval, then I think you are wrong.

    Restaurant licensing is not quite so heavy handed. You pay a small, almost nominal fee in most cases and then you are subjected to occasional food and health inspections. Minimal costs. Now sure, in neighborhoods like Tosa such regulations are largely unecessary. Restaurants in high traffic areas with a customer base who will go home to far away locations after travelling will necessarily take longer to build a sufficiently bad reputation. Especially because travelers who eat meals at numerous restaurants, and even normal people are often not sure of the source of their sickness the first time it happens. Many restaurants are not that expensive to open. Many restauranteers would not plan on poisoning people, but are not financially incentivized to take safety precautions.

    Basically, neither of us really knows what the exact weighing of costs and benefits versus underlying rights are so it is rather silly for us to speculate using anecdotal evidence and examples about what the underlying cost-benefit ratio of government regulation is in various scenarios or industries. We are also not well disposed to discuss how corrupted the process has become. I think we would both agree that in many instances today government regulation is overly burdensome, but that in other cases it is warranted, at least to some extent. We differ in the basic presumption that you think it is unwarranted in general in many instances and I am more willing to accept the possibility that it is warranted. Frankly, the costs of intervention are only problematic when they truly stifle trade and economic growth and that does not seem to be a huge problem in our society. Restaurants are profitable and the expense of the food is inexpensive if they choose.

    By Anonymous Scott H, at 4:15 PM  

  • I think you are agreeing with me and don't realize it. You want to treat everyone the same, but not everyone is the same. This results in things like marriage laws only for heterosexuals.

    By Anonymous Anonymous, at 4:35 PM  

  • I simply wish to allow everyone to have equal opportunity. The result is as few laws as possible to allow individuals to follow their own desires.

    By Blogger PaulNoonan, at 4:48 PM  

  • Scott, I know that regulations and heavy-handedness are inseperable. And I'm pretty sure that the FDA's burdensome regulations have killed millions, while saving thousands.

    I've got to cruise, so have a good weekend everyone.

    By Blogger PaulNoonan, at 4:52 PM  

  • Excellent post, Paul. You've captured most of my own feelings on this issue in the original post. My problems with this legislation is a) changing the state constitution to remove, rather than grant rights, and b)it calls for barring any legal contract between gays that is even resembling marriage, whether is is called marriage or a civil union or anything else.

    By Blogger Sanna, at 11:40 AM  

  • Hmmm... Paul & I seem to have sidetracked into something completely different now, which is not suprising considering we aren't very different on the main point of the orginal post. Sorry for quibbling. Well, at least we'll have something to talk about when I see you over break.

    By Anonymous Scott H, at 1:14 PM  

  • "So your solution now is to require people to replace the well understood concept of marriage with a bunch of separate contracts involving children, finances, spousal job benefits and so on? Deregulation and requiring separate agreements would have great transaction costs for society and disadvantage those with a less sophisticated legal understanding of everything."

    I totally agree with this. But isn't that what you are asking homosexuals to do now? Contract everything regarding their families privately? It's the legally unsophisticated gay people who get left out of these private structurings. They are out there still, just with no protections. And they often have children in your society too. Every argument about marriage benefitting society fits these families too.

    "Being married versus single is a choice on whether to enter into the 'marriage contract' with another person to avail yourself of these rights."

    Again, what choice is a homosexual given to be married or single? Some states allow civil arrangements or private structurings, and some are working to even deny recognition of these with state constitutional amendments. Just like DOMA, these are unconstitional, I strongly believe, according to the Fed. Constitution, equal protection and all. But the more we politicize the top court, the less likely we are to honor the Constitution and basic rights since the judges will be cowards with an eye on public opinion polls.

    There is a Supreme Ct. case, about heterosexual prison marriage or forced sterilization, that has language regarding marriage being a basic "right" that is beneficial to people and society. It doesn't say homosexual or hetereosexual marraige. Just that it's a basic right for citizens.

    I agree it would be a pain to make everyone structure their affairs privately. So enforce the laws equally and don't discriminate on the gender of either person wishing to get married. One day, the top court will see this.

    One of your best posts, Paul. Just revisiting your comments now.

    By Anonymous Anonymous, at 4:11 PM  

  • This is why we need very limited federal gov and more states rights.
    The federal gov has more important issues like securing already spelled out liberties. Ex. Privacy.
    Special rights for any group only serves to divide and create more problems. The raw deals of socialism.
    If gays want to live together they don't need gov. approval. If they're denied a job for being gay, because employer doesn't believe in it, then gays need to find a job where they don't mind or do condone gay behavior.
    Now if a gay gets bashed or killed, then the offender needs to be punished for his crime just as any other violent crime.
    Regardless of the label "gay" or "straight", Gov. can serve justice equallly for all by judging individuals not races or groups.
    Individualism or socialism, take your pick.
    Responsibility for yourself or Gov., taking responsibility for you with half-ass efforts at best.

    We have a choice every time we vote, however most think the two main liberal socialist parties in America are they only choices.

    We have definately reaped what we have sown.
    Why do we complain when we vote for the same every election yr?

    By Anonymous Anonymous, at 9:50 AM  

  • I don't think that Americans would be happy about being stripped of all government marriage licensing rights for the sake of a small minority. I am opposed to the idea of a federal constitutional ban of gay marriage. I am also strongly opposed to the idea of a federal mandate (probably brought on by the Supreme Ct) that forces states to guarantee the full rights of marriage to gays on the premise that any two people of consenting age who are in love should be married. People choose not to see it, but gays re not the only such couples who are denied the right to marriage. As far as I know, it is not legal in any state for brothers ad sisters or any immediate family members to be married, regardless of their age and/ or "love." Also, in many states cousins are not even allowed to marry. Many Americans would consider such marriages an abomination, but keep in mind that many still consider same sex marriages an abomination. I am not advocating the rights of incestuous couples, just pointing out that the legality of not prohibiting any type of marriage opens the door for other types of couples besides gays. It should be up to the states to regulate this, just as they currently do. I liked the analogy of the nudists. As a society, we consider public nudity to be inappropriate, so as a result the small minority of nudists is discriminated against. Just the same, there should always be regulations on marriage concurrent with what the society deems appropriate. Leaving the issue up to the states leaves the possibility of gay marriage open to individual states while still restricting other couples. A Supreme Court decision would open the door to all couples.

    By Blogger SRV988, at 4:48 PM  

  • I support you, Paul. It is frankly shameful that the same people who consistently say that they are libertarian yet conveniently choose to forget the Bill of Rights are logically out of touch with libertarian thought:

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

    That's numero uno. Key in the sentence is "respecting," i.e., favoring, either in word or deed, tax or law. Thus, if a federal courthouse wants to have the 10 Commandments up on the wall, fine; but Congress cannot mandate that all federal courthouses carry the 10 Commandments on the wall.

    As for "marriage," an argument from tradition is patently absurd. Slavery is a common European and American tradition. Drowning unwanted infant girls is a common Chinese tradition. Taxation is a (regrettable) American tradition. Libertarians don't make arguments based on what people may or may not have done for whatever unspoken reasons in the past.

    Arguments about "society" are collectivist, simply put. Saying that 'if everyone agrees to it, it ought to be law' is tantamount to communism, where the "will of the people" becomes the tyranny of the public good, the greater good, the bully pulpit of majority rule. Most Americans thought black people didn't need to vote, have equal education, trains, buses, or restaurants here in the South, so they made Jim Crow laws. Is anybody here going to defend their actions as legally viable within their distinct cultures? No, of course not! Such racism, sexism, and heterosexism tyrannies are collectivist, communist, and antithetical to liberty and free enterprise as we all know it.

    "Or Prohibiting The Free Exercise Thereof"... the dramatic second half of the first statement of the bill of rights is telling. Yes, one can indeed practice voodoo on their own property, with their own followers, and not infringing on the rights of others outside or within their community. Their practice of Voodoo similarly has NO IMPACT on your Christianity, or your Buddhism, or your Judaism. It simply does not follow that because person A does activity 1, that person B's activity 2 is affected. Gay marriage does NOT impinge on the rights of straight married people, but restricting marriage to ONLY straight people DOES impinge on the rights of gay people. Regardless of your sexual orientation, free and equal opportunity under the law is not a negotiable position. Either you are free to practice said activity, or you aren't. So long as you are not prohibiting others' free and equal opportunities, you do not have a logical leg to stand on.

    By Blogger MD, at 12:33 AM  

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